Grand Committee Report of 19 January 2005

Official Report of the Grand Committee on the

  Inquiries Bill [H.L.]
  (Second Day )
  The Committee met at half past three of the clock.
  [The Deputy Chairman of Committees (Lord Brougham and Vaux) in the Chair.]
  The Deputy Chairman of Committees (Lord Brougham and Vaux): I welcome noble Lords to the second day of the Inquiries Bill. The same proceedings as applied yesterday will apply today. We do not expect a Division in the Chamber and so noble Lords know what to do.
  Clause 10 [Assessors]:
  Lord Howe of Aberavon Lord Howe of Aberavon moved Amendment No. 20:
  Page 4, line 13, at end insert "after consultation with the chairman">
  The noble and learned Lord said: I propose to deal briefly with this trio of amendments. Amendment No. 20 stands on its own and is in line with others that have been proposed by my noble friend Lord Kingsland. It requires—sensibly, I believe—the Minister to consult the chairman on a point of this kind because the chairman is already in situ and underway, so to speak. It would at least be courteous for the Minister to consult if he suddenly intended to parachute an assessor into the proceedings. I notice the Minister nodding her head and I assume that I am on rather good ground, which is a good basis on which to start. I shall now see if I can coax her on to the next patch of ground.
  Amendments Nos. 21 and 22 stand together. Amendment No. 22 in the name of the noble Lord, Lord Goodhart, is a whole-hog amendment. It is relatively unusual for the noble Lord to be as intemperate as that. My own amendment, Amendment No. 21, is directed to the same objective.
  In deciding whether or not to appoint an assessor, the Bill as drafted appears to require the Minister to have regard in particular to the cost. The amendment in the name of myself and my noble friend Lord Kingsland seeks to balance those two things: it balances the need to avoid unreasonable cost and the need to ensure that the panel has available the necessary expertise. In our submission, that is the right way to approach the matter. The Bill should certainly not include the words "in particular" in the rather overriding form in which it stands at present—that is,
  "having regard in particular to the cost".
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  I shall listen to the noble Lord, Lord Goodhart, urging the Minister to go still further in the direction of expediency rather than cost, and I beg to move.
  The Deputy Chairman of Committees: As Amendments Nos. 21 and 22 are grouped with this amendment, if Amendment No. 21 is agreed to, I cannot call Amendment No. 22.
  Lord Goodhart: Yesterday on a couple of occasions the noble Lord, Lord Kingsland, was kind enough to say that he considered my draft of an amendment to be better than his. Today, I shall return the compliment and say that I think that the amendment in the names of the noble and learned Lord, Lord Howe of Aberavon, and the noble Lord, Lord Kingsland, is a better version than mine. I think it is right because it achieves a balance.
  It seems to me that both these factors—the need for necessary expertise and the avoidance of unreasonable cost—should be taken into account, but I think that it is wrong to have the cost as the sole, or at least the primary, factor here, as it is in the Government's version of subsection (4) of this clause. Therefore, I am happy to support Amendment No. 21 and I wait with interest to hear what the Minister says.
  Lord Laming: I want to speak strongly in favour of Amendment No. 20 moved by the noble and learned Lord, Lord Howe. I think I said yesterday that the relationship between the chair of an inquiry and the assessors is very important. Its success depends on close teamwork and a mutual confidence in each other, and I believe that imposing an assessor on a chairman is wholly unacceptable and undesirable.
  I am familiar with a situation where an assessor was appointed before the chair. Such situations potentially create a huge difficulty. It is very important that the chairman is seen to be the person who is conducting the inquiry, not the Minister. Therefore, the chairman should be seen to have been involved, and to have been consulted on possible assessors.
  On Amendment No. 21, it is reasonable to avoid incurring unreasonable cost. I can think of a situation where someone might consider bringing a specialist from a distant country for a variety of reasons. That needs to be considered with great care. Cost is a factor that ought to be considered in these circumstances. Therefore, I support Amendments Nos. 20 and 21.
  Lord Howe of Aberavon: I shall comment, as a matter of courtesy, on the observations of the noble Lord, Lord Goodhart, and thank him for his tribute to the draftsmanship of the Clerks, who are here now. We shall try to work along those lines for the rest of the proceedings.
  I take this opportunity to remind the Committee of paragraph 2.9 of the advice of the Council on Tribunals; I drew colleagues' attention to it yesterday. Suffice it to say that the objectives of effectiveness and

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  fairness should not, as a matter of principle, be sacrificed to the interests of speed and economy. We believe that justifies Amendment No. 21 to the hilt.
  The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): I shall start by telling the noble Lord, Lord Goodhart, that I discovered this morning that yesterday was an important day in the noble Lord's calendar. Had I known then, I would have wished him many happy returns of the day yesterday. I do so today, and I am delighted that he chose to spend such a wonderful day with us here and that he still had time to celebrate at the end of our deliberations.
  Noble Lords: Hear, hear!
  Baroness Ashton of Upholland: I shall deal first with Amendment No. 20. In the appointment of assessors, we were looking to the requirement in Clause 7 to ensure that there is the relevant expertise to undertake the inquiry. An important way of doing that is by the appointment of assessors. As noble Lords will know, once an inquiry is under way, the chairman can also appoint assessors.
  I have heard what noble Lords have said and I have had the benefit of a conversation with the noble Lord, Lord Laming, about the experiences to which he alluded in his comments. While I would expect that the amendment would happen in all circumstances, the noble Lord was able to point out circumstances where it might not have happened. I shall take this matter away and give it further consideration. I am very happy to look at what we might do on that.
  I am sorry that the noble Lord, Lord Goodhart, has moved away from his amendment to Amendment No. 21. None the less, I shall make a couple of observations about that amendment. We are concerned that the Bill makes sure that inquiries reach their conclusions in a reasonable time and at a reasonable cost, notwithstanding what the noble and learned Lord, Lord Howe, has said about the Council on Tribunal's evidence, which is very important. I accept that. In Clause 16, there is a requirement on the chairman to have regard to costs in all decisions. I am interested to look at whether there is an issue about having the further provision in Clause 10(4) and whether it set this up in a slightly different way. Although the noble Lord, Lord Goodhart, is not moving his amendment, I want to look again at whether the provision is needed in that form.
  In relation to Amendment No. 21, like noble Lords, we recognise that it is important that people who are appointed as assessors have the expertise to enable the inquiry to fulfil the terms of reference. The effect of the suggested Clause 10(4)(a) would be to place an implicit obligation on the chairman to ensure that the inquiry has the necessary expertise. We have placed that obligation on the Minister in Clause 7(1)(a). I am currently not convinced that it is appropriate to
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  change that because we think that is where the obligation should lie, recognising the role of the chairman once the inquiry has started.
  So I am not at this point inclined to change. I shall review what the noble and learned Lord, Lord Howe, and others have said. But, in a straight choice between Amendments Nos. 21 and 22, the direction of the noble Lord, Lord Goodhart, makes me want to think again. I would be keen to keep that requirement on the Minister in terms of Amendment No. 21.
  On the basis of what I have said about all three amendments, I hope that the noble Lord will feel able to withdraw the amendment.
  Lord King of Bridgwater: My reading of this does not fit with what the Minister has just said. The provision does not place the obligation just on the Minister because, once the inquiry has started, it places it also on the chairman. It is a most extraordinary provision that the chairman suddenly, after day two of the inquiry, can decide whether to appoint assessors. Is it not sensible to address the issue in the amendment so that the chairman also has these obligations to consider?
  Baroness Ashton of Upholland: The noble Lord, Lord King, is absolutely right, but we have made sure that within the conduct of inquiries the chairman is also enabled to appoint assessors. The real question is, where do we want to put the overall responsibility for ensuring the expertise is available? We have put it with the Minister. I have already indicated that I shall in any event look again at the matter to ensure that that is absolutely clear. I note what the noble Lord said and I thank him for it. What I am trying to say to the Committee is that, overall, I think the responsibility should rest where we have put it while recognising, as the noble Lord said, that, when the inquiry is under way, the chairman has that ability.
  Lord King of Bridgwater: I do not want to pursue the point, but I appreciate very much what the Minister said. But who will take the responsibility? Does the Minister have responsibility if the chairman has decided after day three of the inquiry that he is going to appoint assessors, which, as I understand it, he can do without any reference to the Minister?
  Baroness Ashton of Upholland: We are saying that in setting up an inquiry the critical buck-stopping part of this provision is with the Minister. If necessary, the chairman has the right and power to appoint assessors or further assessors. I do not think that we are in terribly different places on this. I will take away what the noble Lord has said and confirm with him that that is the position.
  Lord Goodhart: The Minister made reference to Clause 7. It applies only to the appointment of a member of the inquiry panel and seems to me to have no application to the appointment by the Minister of an assessor under Clause 10. It certainly has no relevance to the appointment of an assessor by the chairman.

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  I take the point that a reference to cost may not be necessary because of the general provisions in Clause 16(3) regarding action by a chairman. Having said that, it seems to me that there is some point in indicating in Clause 10 what are the criteria that a chairman must have in mind when deciding whether to appoint an assessor.
  Lord Howe of Aberavon: It is clear that the Minister is now contemplating the whole issue with an open mind. That is an acceptable position to arrive at. I have one thought to add, which is in no way original. However much one may seek to determine the behaviour of a chairman in decisions of this kind, in the last resort the daily conduct of an inquiry is massively under the control of the chairman. One has to take account of that. There must be a limit to the degree that one tries to specify these things. Against that background, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 21 and 22 not moved.]
  Clause 10 agreed to.
  Clause 11 [Duration of appointment of members of inquiry panel]:
  Lord Kingsland Lord Kingsland: moved Amendment No. 23:
  Page 5, line 11, leave out "consult" and insert "secure the agreement of"
  The noble Lord said: As the title of the clause suggests, it deals with a situation where a member of an inquiry panel may cease to be so. Some such circumstances are quite straightforward. For example, under Clause 11(2), if a member resigns, clearly, that will be that and the Minister, in consultation with the chairman, will move to make a new appointment. Equally, under subsection (3)(a),
  "The Minister may at any time by notice to terminate the appointment of a member … on the ground that, by reason of physical or mental illness … the member is unable to carry out the duties of a member of the inquiry panel".
  But if a Minister were embarrassed by some of the things that an inquiry were saying, he might be tempted, if he were that sort of Minister, to use subsection (3)(a) to remove a member of the panel for illegitimate reasons, because it goes on to state:
  "by reason of physical or mental illness or for any other reason".
  "Any other reason" does not appear to be qualified in any way
  3.45 p.m.
  Equally, under the other paragraphs under Clause 11(3), we find that a Minister could, if he were so inclined, under the canopy of those other grounds, seek to remove a member of the panel for illegitimate reasons. In subsection (3)(b), the ground is that,
  "the member has failed to comply with any duty imposed on him by this Act".
  Clearly, there is a great deal of scope for a difference of view on whether there was a failure to comply with any duty.
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  In subsection (3)(c), the grounds are that a member has either,
  "a direct interest in the matters to which the inquiry relates, or … a close association with an interested party".
  We discussed the definition of those terms yesterday and the Minister kindly agreed to go away to think about whether they need further qualification or whether she needs to give a more detailed explanation about their contents. But as they stand, once again, I submit that they give the Minister too much scope.
  Equally, paragraph (d) refers to a member being,
  "guilty of any misconduct that makes him unsuited to membership of the inquiry panel".
  Yet again, a stark difference of view may arise between the Minister and the chairman of the panel as to whether the clause bites in any set of circumstances.
  All that is leading up to say that, in our submission, Clause 11(6) does not go far enough to check the discretion of the Minister. Subsection (6) requires the Minister only to consult the chairman in exercising his powers under the earlier subsections of Clause 11. We believe that the Minister must not only consult the chairman but secure the chairman's agreement before exercising his powers under the clause.
  It is not unimaginable that the following may arise. The Minister may decide under subsection (3) to remove a member of the panel. He is obliged to consult the chairman before he does so. The chairman strongly disagrees with the Minister's judgment. Nevertheless, having consulted the chairman, the Minister has completed his obligations to the chairman and may go on to dismiss the member. That could well put the chairman in an impossible position, especially if other members of the panel know that the chairman and the Minister were at loggerheads.
  I should be most grateful if the Minister would react to that. I do not ask her to give the Committee a clear "Yes" or "No" today; it is probably an issue worth reflecting on and returning to on Report. However, we certainly believe that there is a substantial issue here. I beg to move.
  Viscount Bledisloe: I strongly support the amendment. It seems that an obligation to secure the chairman's agreement must appear in the Bill. In fact, it will not make much difference because, in the circumstances that the noble Lord illustrated—the Minister saying "I am going to remove him" and the chairman disagreeing—the chairman could almost certainly say, "I am going, too". So the Minister would not be able to remove the member without the chairman's agreement unless he was prepared to disband the inquiry and start again. Although it perhaps does not make much difference in reality, it seems all wrong that people should feel that they could be removed at the whim of the Minister if they seem to be taking a view not favourable to the government interest in the inquiry.
  While I am on my feet, I shall raise a point that does not arise directly from the amendment, and which I could have perhaps raised in a clause stand-part debate. Under subsection (5), why, if the Minister

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  becomes aware during an inquiry that a member's direct interest or association that he originally thought irrelevant is vital and puts the member in a position of obvious conflict, should he then not say, "I am terribly sorry; I did not think it mattered at the time. But now I realise that party x is arguing x, y and z, it is obvious that you should no longer be here. Although I knew of it at the time, I did not fully appreciate its significance. Now, I am afraid, with the chairman's agreement, you must go"? I have not given the noble Baroness notice of that question, so I shall more than fully understand if she says, in the time-honoured formula, "I will write to you".
  Lord Laming: The noble Lord, Lord Kingsland, has very fairly invited the Minister to reflect on this amendment. I support that. In doing so, I invite the Minister to consider the matter with some care, because the setting up of any inquiry under this Act of Parliament will happen in a very public way and will be reported on, I hope, widely. The removal of an assessor once the inquiry has been established would be a very significant step; it would almost certainly attract publicity and therefore the requirement to make clear the reasons for doing so. The noble Lord, Lord Kingsland, has already referred to many of the reasons because they are on the face of the Bill.
  In this matter, I veer towards protecting the chairman, because he has a very difficult job. In those difficult and perhaps most unusual circumstances, the chairman must hold together the integrity of the inquiry. It may well be to the chairman's advantage that the ultimate decision is made by the Minister, who will then have to justify that decision. I urge some caution in the matter.
  Baroness Ashton of Upholland: I am very grateful to all Members of the Committee. It is interesting to reflect that the theme that emerged yesterday, and which is a theme of the whole Bill, is the issue of public confidence. As we deliberate on some of the amendments, we are in a sense searching for the route to the best public confidence. Yesterday the noble Lord, Lord Kingsland, rightly pointed out that the critical elements for him and for other noble Lords are the relationships between Parliament and the inquiry and that of the chairman and the Minister. We are now exploring those issues, which from my point of view is most helpful as we seek to make the Bill as good as it possibly can be.
  The circumstances in which the Minister might have to use these powers are very unlikely. Indeed, I would suggest to noble Lords that they would be extremely rare. If such circumstances developed and if they felt that it was the correct course, panel members would resign. We have looked to provide here what might be called the "failsafe position" where, in certain circumstances that we have tried to express as well as we can, it would be the responsibility of the Minister to remove a panel member.
  The noble Lord, Lord Kingsland, was keen to understand what is meant by "misconduct". We have tried to embrace within that term, which I think is
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  reasonably well understood, possible actions that would bring the panel into disrepute, thereby damaging public confidence in the inquiry. Although I am sure that it would never happen, someone might commit a criminal offence not related to the inquiry, but public confidence would be undermined in the individual concerned.
  The noble Lord pointed out the words "any other reason" in subsection (3)(a). That subparagraph refers to "physical or mental illness". I can consider whether the words are necessary. The noble Lord knows that such phrases are used to capture circumstances as effectively as possible. We are not trying to suggest anything other than reasons of physical or mental illness. However, I undertake to review the wording and I thank the noble Lord for raising it.
  As I have said, this is about public confidence. I shall not need to write to the noble Viscount, Lord Bledisloe. As I read it, the purpose of the subsection is to make the position of panel members very clear. Before the panel is put together it is the Minister's responsibility to consider the professional work and other connections of panel members. We debated some of those issues yesterday. But having said that someone should be a member of the panel, it is important to give certainty to that.
  We know that inquiries often deal with difficult and sometimes emotional issues where people may feel that the terms of reference, the panel or even the inquiry itself is not conducted properly. Pressure may be brought to bear as a result of the particular connections that may have been established by a panel member. As we discussed yesterday, that may be appropriate in certain circumstances. We want the panel members to have certainty and we believe that these provisions achieve that.
  I accept, too, the points made by the noble Viscount about the role of the chairman. If the chairman was consulted and did not agree, he could resign, he could go public, or he could make his views known in many ways. That could also be challenged by judicial review. Options are available if a Minister decided to remove a panel member.
  However, I have two concerns about accepting the amendment, and I ask the noble Lord to reflect on them. The first was put very well by the noble Lord, Lord Laming. He said that the chairman's role is to get on and finish the inquiry, thus doing what he was asked to do. In a sense he should not be put in the position of having to take responsibility for the decision which could, after all, attract considerable media attention or parliamentary scrutiny. We believe that it is the responsibility of the Minister to carry the can for any changes in the inquiry panel. This is about consultation, but we must make it very clear where the buck stops, thus allowing the chairman to get on with his job.
  Secondly, the Minister is responsible for ensuring that public money is used effectively. He is responsible because he is accountable to Parliament. Again, these are very unlikely circumstances, but for the purposes of legislation, such issues must be covered.

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  For those two reasons, and of the two I think that the former is the critical one, we have drafted these provisions in this way. I hope that the noble Lord will reflect on that and feel able to withdraw his amendment.
  4 p.m
  Lord Kingsland: I am grateful to the noble Baroness for her very full response to my amendment. In particular, I am glad that she will reflect further on the matter before Report.
  It seems that the right way to look at Clause 11 is in the context of Clauses 12 and 13. Clause 11 gives the Minister the right to dismiss a single member of the inquiry panel. Clause 12 gives the Minister the power to suspend the inquiry—a more draconian step. Clause 13 gives the Minister the power to terminate the deliberations of the inquiry prematurely. There is a succeeding degree of drama, if you like, in the approaches that the Minister could take.
  If, under Clause 11(6), the Minister puts it to the chairman that a panel member ought to go and the chairman disagrees but the Minister nevertheless goes ahead with the dismissal, we are then in any case in a crisis, as the noble Viscount, Lord Bledisloe, said. It would be very difficult to disguise from the public that the chairman was very unhappy with the Minister's decision. In those circumstances I suspect that the Minister would, in any case, have to go ahead and either suspend the inquiry or bring it prematurely to an end.
  Clause 11 must be seen in the context of Clauses 12 and 13. I ask the noble Baroness, when she reflects on Clause 11 during the fortnight break between now and Report, to look at it in that context.
  Baroness Ashton of Upholland: I am grateful to the noble Lord. On the basis that we shall all reflect between now and Report, if the noble Lord looks at the power to suspend an inquiry in Clause 12(1) he will see that the Minister can suspend only in very limited and specific circumstances. They would not be the circumstances that the noble Lord outlined. In addition, there are specific issues on the end of the inquiry, which I am sure we shall debate also. The Committee should take on board that the Minister could not suspend the inquiry on that basis.
  Lord Kingsland: I shall look at the matter. Irrespective of that, the power to bring the inquiry to an end, under Clause 13, is of the utmost generality. Clause 13(l)(b) says simply,
  "on any earlier date specified in a notice given to the chairman by the Minister"
  Baroness Ashton of Upholland: I do not want to move ahead to amendments that my noble friend will deal with.
  Lord Kingsland: It is entirely my fault because I raised the issue of Clauses 12 and 13, so I am the one who ought rightly to be accused of jumping ahead. In view of the circumstances, I am most grateful to the
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  noble Baroness and other Members of the Committee who have spoken to the amendment and I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 11 agreed to.
  Clause 12 [Power to suspend inquiry]:
  Lord Goodhart Lord Goodhart moved Amendment No. 24:
  Page 5, line 27, at end insert—

  "(1A) The Minister shall lay a notice under subsection (1) before both Houses of Parliament, together with a statement of reason for the suspension of an inquiry.

  (1B) The suspension of an inquiry under subsection (1) shall be for no longer than six months.

  (1C) The Minister may by order renew the provisions under subsection (1) for such a period or periods as appears to him to be necessary, but for no longer than six months at a time."

  The noble Lord said: Once again, we return to an issue that we debated yesterday: the information to be given to Parliament, and the desirability that Parliament should remain linked into statutory inquiries of this kind by being given appropriate information. Where an inquiry is suspended—I accept that there are only limited grounds for suspending—Parliament should be told of the suspension and the reason for it.
  I also think that no suspension should be for longer than six months at a time without being renewed. The present arrangements permit an inquiry to be suspended and to remain in limbo for a period of time that ends only when the Minister decides to give notice to restart. This is potentially a way of ending inconvenient inquiries without the odium of formally terminating them.
  Amendment No. 25 has a similar objective, but a different mechanism. If, for some reason, the Government were prepared to accept that amendment but not Amendment No. 24, we would regard it as an acceptable alternative. I beg to move.
  Lord Kingsland: Once again, my judgment about my own amendment has been tempered by reading the amendment of the noble Lord, Lord Goodhart. I think that, in the circumstances, I sought to go too far in asking the Minister to seek the consent of the chairman to suspend the inquiry. Nevertheless, I think that it is appropriate that the Minister ought to consult the chairman before seeking to suspend the inquiry. On Report, I shall redraft the amendment to reflect that milder obligation.
  In other respects, I entirely support the approach of the noble Lord, Lord Goodhart, as reflected in subparagraph (b) of our amendment.
  Lord Evans of Temple Guiting: Perhaps I may start by making a general point. The amendments that we have been talking about, and the amendments that I shall be dealing with, are about the relationship between Parliament, the Minister, the chairman and the members of the inquiry. As my noble friend has already said on a number of occasions, these are interesting issues that she would wish to take away and

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  think about. I should be grateful if noble Lords would keep that in mind as I speak to the three groups of amendments that I shall be dealing with.
  There is some concern about the possibility that the powers in Clause 12 to suspend an inquiry could be abused. As my noble friend has explained, Clause 12 allows a Minister to suspend an inquiry only when it is necessary to allow for the completion of other related investigation or the determination of any civil or criminal proceedings. The power is very limited and very important. It could not be used to suspend an inquiry because, for example, the Minister did not like what the inquiry was finding. We must remember that any improper or unreasonable decision to suspend an inquiry could be challenged in the courts through judicial review.
  However, in the spirit of co-operation and the anxiety to get things as right as possible, we are happy to give some further consideration to whether parliamentary scrutiny of the suspension of an inquiry should be strengthened in the Bill. However, I should, at this stage, point out that this amendment does not take account of the fact that inquiries can be set up by devolved administrations. If any provision like this were to be included, we would need to have a parallel requirement for them.
  We are also not sure about the need for renewal every six months, given that criminal or civil proceedings or investigations could very well last longer than that. It would be entirely possible for Ministers to be asked parliamentary Questions seeking clarification about the likely date for restarting the inquiry, although, of course, it would be essential to ensure that that did not breach the sub judice rule. However, as I have said before, and as my noble friend has said, we will give these clauses some more thought.
  The noble Lord, Lord Kingsland, raised his amendment, which also requires the consent of the chairman to suspend an inquiry. As he has said that he is happy for us to take this away and consider it further, that is precisely what we shall do. I hope that, given these assurances, the amendment will be withdrawn.
  Lord King of Bridgwater: The Minister kindly said that he would look at the issue again. While I accept his statement that Clause 12(l)(b) is fairly specific, Clause 12(l)(a) is not. It talks about,
  "the completion of any other investigation relating to any of the matters".
  The noble Lord went on to say that a decision that was not taken with sufficient care or on sufficient grounds could be subject to judicial review. If he is looking at the matter again, the decision would need to be on a matter of significance otherwise that is a complete let-out. When one sees the word "any" in a Bill, one starts to wonder just how wide that provision is—and this could not be much wider.
  Lord Goodhart: I am grateful to the Minister for giving the matter at least a limited degree of sympathy. I hope that the Government will feel able to come back
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  with amendments to the Bill, at least dealing with the question of keeping Parliament informed and in the loop. Therefore, for the time being I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 25 not moved.]
  Clause 12 agreed to.
  Clause 13 [End of inquiry]:
  Lord Kingsland Lord Kingsland moved Amendment No. 26:
  Page 6, line 5, at end insert "after consulting with, and securing the agreement of, the chairman"
  The noble Lord said: I drew the Committee's attention to this amendment in our discussions on Amendment No. 23. Unlike the debate on the previous amendment tabled, by the noble Lord, Lord Goodhart, I should be very reluctant to resile from the wording of Amendment No. 26 because Clause 13(l)(b) is extremely widely drawn. It states:
  "For the purposes of this Act an inquiry comes to an end— … (b) on any earlier date specified in a notice given to the chairman by the Minister".
  There appears to be no constraint whatever on the discretion of the Minister to bring an inquiry to a premature end for any reason whatever. If that is so, it is wholly appropriate for the Bill to require the Minister to have the approval of the chairman before such a step is taken. I beg to move.
  Viscount Bledisloe: I am somewhat saddened to hear the noble Lord, Lord Kingsland, say that he would not resile from the wording at all. I hoped that yesterday I had persuaded him that where there was an obligation to secure the agreement, an obligation to consult as well was superfluous. Subject to that rather tiresome point, I wholeheartedly support his amendment.
  I find it very surprising that Clause 11 sets out in detail the specific circumstances in which a Minister may terminate an appointment. Clause 12 sets out very specifically, as the noble Lord has just pointed out, the circumstances in which the Minister may suspend an inquiry. But he is then given an absolute blanket power to terminate an inquiry at any stage without any indication of what grounds are required before he takes that course. Is he allowed to take it because the result does not seem to him to be likely to be very polite to the Government and because an election is pending? Is he to be allowed to take it because the Minister in question has changed and he thinks that his predecessor should not have set up the inquiry?
  There is absolutely no limit. If the Minister does not have to obtain the consent of the chairman, he can terminate at whim. As I understand it, he does not even have to specify in his notice his reasons for doing so. It seems to me to be the most draconian power, which should be limited by much more strictly limited grounds. However, if the provision is to remain as it is, it must at least contain the need for the sanction of the chairman.
  4.15 p.m.
  Lord Borrie: I share to some extent the queries that have been put by the noble Lord, Lord Kingsland, and the noble Viscount, Lord Bledisloe. When previously puzzled by a provision in a Bill, I had thought that one should look in the Explanatory Notes. I have looked at the explanatory note on Clause 13, and I fully understand the first part of it. It states:
  "there might be situations before the submission of the report in which it is no longer necessary or possible for the inquiry to continue".
  That sounds reasonable enough. Then it gives what I suppose is an example which I do not understand. It states:
  "New evidence may emerge that obviates the need to hold an inquiry or demonstrates that the inquiry has the wrong focus, for example, if it emerged during an inquiry that the event being investigated was an act of sabotage rather than failings of a particular system".
  It then runs on. But it has lost me there. I wonder whether the Minister can help on what that means.
  Lord Goodhart: I think that the noble Lord, Lord Kingsland, has raised an important point here. It is one which I believe the Government should look at very carefully. The complete absence of any explanation of the grounds on which an inquiry could be terminated on the face of the Bill means, among other things, that it would be impossible in practice to get judicial review of a decision by the Minister to terminate the inquiry. I think that there is a point here that needs serious consideration. While I perhaps would be less rooted to the actual formula of the words of this amendment than the noble Lord, Lord Kingsland, it seems to me that the principle behind it is absolutely correct.
  Lord Laming: Such powerful arguments have been advanced in support of this amendment—or amendment of the amendment—that anything that I would add would be of marginal value. But for what value it is, I support the thrust of this amendment.
  Lord Evans of Temple Guiting: In the face of such overwhelming opposition what can I do but surrender? The purpose of the clause is to deal with situations where an inquiry is no longer needed. In constructing this clause, we have clearly not done what we intended to do. I think we will have to think harder to capture all the possible grounds for ending an inquiry and return with a revised clause. Obviously any decision that was wrong could be judicially reviewed if it was unreasonable and improper, but the Government's intention in the clause was nothing more sinister than to end an inquiry if it was no longer needed. Some very important points have been raised, which suggests that the clause needs further thought and some adjustment. That is what we will do between now and Report.
  Lord Kingsland: I am most grateful to the Minister for his generous response to the observations that your Lordships have made on the amendment to this clause. I respectfully suggest to him that his reaction is
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  absolutely right. I, with other Members of the Committee, look forward to seeing the Government's own amendment on Report.
  In my submission, the observations of the noble Lord, Lord Goodhart, were particularly pertinent. As matters stand, this provision is unreviewable by the courts. If the Government are to escape the logic of my own amendment, they will have to table amendments that very substantially cut down the scope of Clause 13(l)(b). I think that that is probably the best approach. But the Minister may well say that it is impertinent of me to make such a suggestion.
  Lord Evans of Temple Guiting: I am not.
  Lord Kingsland: I am not seeking to constrain his discretion in any way to come up with a better solution; but I would have thought that that was the appropriate course. Meanwhile, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Goodhart Lord Goodhart moved Amendment No. 27:
  Page 6, line 7, at end insert—
  "( ) The Minister shall lay the terms of the notice before each House of Parliament, together with a statement of reason for terminating the inquiry."
  The noble Lord said: I can be very brief indeed on this. We have effectively already had the debate on this amendment during the debates on the last two groups of amendments. Once again, it seems appropriate that Parliament should be kept informed, and it is even more important that it be informed of the termination of an inquiry than of the suspension of an inquiry. In those circumstances, I hope that the Government will feel able to give full reconsideration to this point before we come back on Report. I beg to move.
  Lord Smith of Clifton: As we are discussing Clause 27, perhaps I may use the opportunity to raise a point with the Minister. It is not clear why in this clause Northern Ireland is apparently being treated differently from Scotland and Wales. It will not be open to devolved ministries in Northern Ireland to inquire into matters that occurred prior to devolution without the permission of the Secretary of State while no similar restriction seems to apply to the other jurisdictions.
  I have made a mistake. We are discussing Amendment No. 27.
  Lord Evans of Temple Guiting: My noble friend will deal with that point later.
  We find this a very interesting amendment and agree fully with the sentiment behind it. Obviously, any reasons for ending an inquiry must be publicly explained. I am sure that that will happen in practice, but we will have a look to see whether there is a need to strengthen the Bill. As with Amendment No. 25, I think, I hope to make the same point about devolved administrations. If we are to look at including provision along the lines proposed by the noble Lords, there would have to be an equivalent process for devolved and other cross-border inquiries and the

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  relevant Parliaments or Assemblies. Given that assurance, I hope that the amendment will be withdrawn.
  Lord Goodhart: I welcome the Minister's assurances and beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 13 agreed to.
  Clause 14 [Power to convert other inquiry into inquiry under this Act]:
  On Question, Whether Clause 14 shall stand part of the Bill?
  Lord Kingsland: This debate is on Clauses 14 and 15 stand part. These two clauses deal with the circumstances in which the Minister may prematurely bring to an end an existing inquiry, together with all its associated procedures, and convert that inquiry into an inquiry under the new Act.
  Two things are necessary to achieve that objective. First, the person who called for the original inquiry to be held has to consent. I suspect that, in most cases, that will be another Minister. Plainly, if the other Minister is a Minister in the same government or a former Minister who is a member of the party that forms the government at the time this decision is taken, there should not be any difficulty about obtaining consent. I see the noble Baroness looking at me quizzically. She may be thinking that one or two of her colleagues may not be so easy to convince. As I understand it, however, that is the situation. So, the first thing that is required is the consent of the individual who set up the existing inquiry.
  Secondly, under Clause 14(2)(a), the power to undertake this exercise can be used only if,
  "particular events have caused, or are capable of causing, public concern".
  Now, there are three sets of circumstances that come immediately to mind as the basis for taking such a step. The first is expense. Suppose, for example, that there is an existing inquiry under the 1921 Act, with the full panoply of High Court procedures, that has gone on for several years. That might be a motive for the Government, once the Bill is enacted, to decide prematurely to terminate a 1921 Act procedure and convert it to this much more flexible framework.
  Secondly, the membership of the inquiry panel may for some reason or other dissatisfy the Minister. Reading Clause 15(3), I note that, if the step is taken before the conversion is formally made, the Minister can,
  "in a notice given no later then the date of conversion, terminate the appointment of an original member on any ground mentioned in section 11 (3)".
  We have already discussed Section 11(3) and I do not need to repeat my submissions about that. So the second motive for a Minister taking that step may be dissatisfaction with the composition of the panel.
  The third motive might be a view that the procedures under the Bill are much more flexible that those of the existing inquiry and that it is therefore in
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  the public interest that the change be made. In any event, I should be most grateful if the noble Baroness could deal with Clause 14(2)(a), in particular, because it is crucial to understanding what the Government intend.
  In principle, our constitution is slow to act retrospectively. Instinctively, we do not like retrospection in governmental decision-making. In effect, these clauses involve retrospective decision- making. Someone has a right under an Act to have the benefit of a public inquiry to investigate a set of circumstances. That public inquiry is set up and under way, then along comes the Inquiries Bill. When it becomes an Act, the Minister can say, "We think that the circumstances in which the original inquiry was set up were misconceived, so we will wind the tape back and start it again". I should be most grateful if the Minister would respond to that question as well. I beg to move.
  Lord Goodhart: I have to say that I would have supported this amendment until I heard the very persuasive speech at Second Reading of the noble and learned Lord, Lord Fraser of Carmyllie, who is not here today. He was able to explain from his experience why he thought that a power of this kind would have been useful to him. I was therefore persuaded to accept his view on that.
  However, on a technical note, I express a concern also expressed by the noble Lord, Lord Kingsland, about subsection (l)(c) concerning the consent of,
  "the person who caused the original inquiry".
  I am far from certain what that reference to the person actually means. If it is intended to refer to the individual Minister who authorised the original inquiry and who may well have ceased to hold office or hold some entirely different office, I would find it extremely difficult to see why that individual's consent would be required.
  If it does not mean that, I am not sure what it may mean. It may be intended to cover a situation where the original inquiry was set up by a member of the Westminster Government and the responsibility for that inquiry was subsequently passed to one of the devolved Administrations. But, again, if it lies with the Westminster Government, very difficult complications will arise if the inquiry has been set up by a Secretary of State because of the principle that any Secretary of State can perform the functions of any other. I should like to hear whether there is an explanation of what "the person" means. If there is no explanation, will the Government reconsider the matter and see whether some amendment would be desirable here?
  4.30 p.m
  Baroness Ashton of Upholland: I am grateful to both noble Lords for a very interesting debate. If the noble Lord, Lord Kingsland, looks at paragraphs (a) and (b) of Clause 14(2) and compares them with paragraphs (a) and (b) of Clause 1(1), I think he will find that one needs to refer to Clause 1 to explain the kind of inquiry that might be changed. That is the linkage between the

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  two clauses. In other words, the measure does not relate to just any old inquiry, if I may be so bold; it relates specifically to inquiries which might be recognised formally.
  The noble Lord, Lord Goodhart, expanded on the point raised by the noble Lord, Lord Kingsland, concerning the reference to "person" in this context. I tend to read it as "office", but I accept that I need to come back to both noble Lords. I shall write to all Members of the Committee with an explanation of precisely what it means. As ever, I am grateful when these issues are raised in Committee because that gives us time to ensure that the Bill is in the best possible shape.
  It may be helpful if I explain what was behind the clause. In a sense, the noble Lord, Lord Goodhart, alluded to it at Second Reading in his comments about the noble and learned Lord, Lord Fraser, who is not in his place today. For the benefit of any Member of the Committee who was not present, the noble and learned Lord, Lord Fraser, talked about the inquiry that he conducted into Holyrood. He spoke about his inability to obtain information from the BBC and how he would have welcomed the powers in this Bill.
  The other inquiry to which I want to draw the Committee's attention is that taking place currently under Mr Justice Keith, who is inquiring into the death of Zahid Mubarek at Feltham Young Offenders' Institution. He has no power to compel people to give evidence and he said that, if necessary, he will request such powers from the Home Office. In the right circumstances, this clause would have enabled him to have been given those powers, if needed.
  I take the point raised by the noble Lord, Lord Kingsland, about retrospectivity. With regard to inquiries currently under way, we have no plans to convert an existing statutory inquiry, and. sponsor departments have notified chairmen of inquiries to reassure them that that is not the case at present. We feel that this is a valuable option for non-statutory inquiries. Therefore, there is no question that we intend to move any statutory inquiry that is under way to this system.
  However, the main purpose behind the clause is to enable non-statutory inquiries to benefit from being converted if that would be of assistance in the two circumstances that I have outlined. For those reasons, I would be very reluctant to lose either of these clauses. I think that they offer a benefit in the circumstances described. I shall look again to see whether the wording can be made plainer and perhaps, having reflected on the matter, noble Lords will let me know whether certain things would help to make it clearer. I hope that, in the circumstances, the noble Lord, Lord Kingsland, will not press his opposition to the clause.
  Lord Kingsland: There are, fundamentally, two reasons why a Minister might wish to take advantage of Clauses 14 and 15. The first concerns matters of procedure. It may be that in an inquiry issues arise requiring a procedure which goes beyond the procedure of the original inquiry, and the noble Baroness mentioned one example in her response.
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  Connected with that is the issue of expense. It may be that the procedure in the original inquiry is unduly onerous in relation to what is sought to be concluded from the inquiry. A Minister, therefore, may be attracted to Clauses 14 arid 15 on the grounds that one could get to the root of the problem much more quickly and less expensively. That is one reason. I am reasonably content with that.
  On the other hand and secondly, I am much less content with the power that the Minister would have under Clause 15(3), which states that he must give notice, no later than the date of conversion, that the appointment of an original member is terminated. That raises quite a different issue, one not covered by the noble and learned Lord, Lord Fraser, in his speech at Second Reading. That concerns the composition of the panel, rather than the procedures of the inquiry. I should be much happier if Clause 15(3) were not in the Bill. It is one thing for the Government to substitute a better procedure for the existing one; it is quite another for them to substitute different individuals for the existing ones, especially if an inquiry is some way towards reaching its conclusion.
  Perhaps the noble Baroness will give that matter particular consideration between now and Report. Meanwhile, I shall not press my opposition to the clause.
  Clause 14 agreed to.
  Clause 15 agreed to.
  Clause 16 [Evidence and procedure]:
  Lord Howeof Aberavon Lord Howeof Aberavon moved Amendment No. 28:
  Page 7, line 20, after first "to" insert—
  "(a)"
  The noble and learned Lord said: Let me apologise at once for the fact that my submissions on this proposition will be more substantial than any that I have ventured so far, because I seek to raise an important question. It concerns the essentials of the right to legal representation before any inquiry established under the Bill.
  It may be helpful if I explain where the phraseology of Amendment No. 30 comes from. It would insert an additional paragraph. I draw attention to a document produced by the Phillips inquiry on BSE, the chairman's note on lawyers, under the signature of Sir Nicholas Phillips, as he then was, on 5 February 1998.
  The following words are drawn from his closing paragraph, in which he describes the protection of individual interests and discusses the role that lawyers may perform. He says that the first stage of the inquiry may well be devoted exclusively to obtaining evidence of fact, but then one turns to the point where witnesses or others face criticism. He states:
  "At this point, those who are invited to answer potential criticism may reasonably wish to be legally represented in order to protect their interests. Indeed, it may well be that, even before this stage, individuals may have cause to apprehend the possibility of criticism and wish to be legally represented. If a Department at any stage forms the view that an individual ought to have independent legal assistance, it is likely to be proper and desirable for the Department to fund such assistance. Equally it will, at any stage, be open to any individual to ask the Inquiry to recommend the

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  funding of obtaining legal assistance. It will, of course, be for the inquiry to decide what part, if any, a legal representative will play in the hearings themselves".
  The Committee will see that my amendment calls heavily on the sentence,
  "it may well be that, even before this stage, individuals may have cause to apprehend the possibility of criticism and wish to be legally represented".
  I emphasise that the right to legal representation does not consist simply of having someone stand up and spout for you; nor does it consist simply of having someone sit beside you, having given you preliminary advice, and holding your hand but not being heard. At the other extreme, it does not mean the right for your legal representative to reach out for unrestricted verbosity and prolixity. That is why I drew attention to the last sentence of my quotation.
  However, it does embrace the right to advice, the right to presence before the inquiry and the right to represent, and be heard on behalf of, the individual so far as is necessary. It is a question of the highest possible importance in the context of inquiries as a whole.
  I believe this is the first time that Parliament has had the opportunity to consider in such a broad context the nature and scope of the right to legal representation. I see the noble Lord, Lord Lester, sitting not far away and I dare say that if there is anyone in the room who can amplify or challenge that statement, he is better qualified than most to do so. But my belief is that this is the first occasion on which the question has been addressed and so I do not apologise for taking some time on it.
  Whereas yesterday I appeared in the role of a former counsel and a former chairman of inquiries, today I appear wearing two different hats: as a former witness before the Scott inquiry, in particular; and as a former accused. I was there not only in a personal sense as the former Secretary of State for Foreign and Commonwealth Affairs and head of department for six years; in effect, I was also there to represent all those whose conduct was under scrutiny—that is, dozens of staff who were given no access to legal advice and no assistance whatever throughout the whole period of almost four years in which the inquiry took place. I had to play a considerable part, off-stage as well as on-stage, in remedying that defect.
  The other point to which I want to draw attention is that the report of the Council on Tribunals, which I have already quoted several times, was in July 1996 announced on the day on which the Scott inquiry report was published. It was, in fact, a direct response to the changes made and to the way in which the noble and learned Lord, Lord Scott, conducted the inquiry. I shall not quote it all again but I shall quote certain passages from it in due course. It is a very important reaction to the conduct of the Scott inquiry.
  Again, to abbreviate my remarks, I have secured the agreement—engagingly, as always—of the noble Baroness to the availability in the Library of two articles which I have written on this subject. One appears in a 1996 edition of Public Law at page 445 and
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  is entitled Procedure at the Scott Inquiry, and another appears in the Political Quarterly of 1999 at page 294 and is entitled The Management of Public Inquiries. Those 25 modest pages are now available to all noble Lords who would like to rush out and study them at a later stage.
  If one looks at the whole report of the Council on Tribunals, the conclusion is clear that in virtually every respect of the proceedings conducted before the noble and learned Lord, Lord Scott, his attitude and his procedures were not upheld by the Council on Tribunals in any significant respect—that is, in relation to counsel for the inquiry sitting alongside him and the secretary of the inquiry delivering lectures about the inquiry during the course of the proceedings. There was no representation of any kind whatever except of one of our colleagues there. By making specific representations through counsel directly to Sir Richard Scott, as he then was, my noble friend Lord Trefgarne was able to secure the right of representation for a brief time on one issue.
  Against that background, I start from the important foundation for the whole of this analysis provided by the report of the Salmon Royal Commission in 1966. I refer Members of the Committee to Cmnd 3121. That commission was set up following certain anxieties about the operation of earlier 1921 Act tribunals and also in the light of anxiety about the Denning/Profumo inquiry, which was then prominent in the public mind.
  4.45 p.m
  It was a very wide-ranging and powerful Royal Commission, under the chairmanship of the late Lord Salmon, one of the most distinguished Law Lords in this House. Alongside him were a less formally distinguished but none the less formidable lawyer, Lord Goodman, who knew a thing or two about inquiries of every kind, and one of our most distinguished constitutional law experts, Professor Wade. Among the witnesses that that formidable gathering was able to persuade to give evidence were three former Lord Chancellors, one Lord Chief Justice, seven Law Lords and seven Lord Justices of Appeal. They had the advantage of a formidable armoury of evidence and consideration.
  When one moves on to consider the matter in a wider context, I draw attention to an observation made by Sir Richard Scott, as he then was, in the course of his inquiry, in a lecture to the Chancery Bar on 2 May 1995. He said that so far as procedures are concerned it is,
  "difficult to discern any difference between statutory inquiries, i.e. those set up under the 1921 Act, and other ad hoc inquiries, such as my own".
  That is an observation that most of us would share: the procedural requirements do not vary as between those set up under the 1921 Act and the rest.
  One wonders how the Scott inquiry departed so far from the recommendations of the Royal Commission. It is because the noble and learned Lord, Lord Scott, as he now is, sought to draw a distinction between the inquisitorial nature of his inquiry and the adversarial

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  nature of conventional legal representation. The irony is that the reason for the appointment of the Salmon commission was widespread concern at the potential unfairness of the inquisitorial method. The Salmon commission started off by saying that that was,
  "alien to the concept of justice generally accepted in the United Kingdom".
  It was because of that "alien" nature that,
  "some of the safeguards of our ordinary judicial processes against causing unnecessary pain and injustice to individuals had been incorporated"
  in the inquiry procedures.
  The very reason for the Salmon recommendations was to challenge the injustice of a purely inquisitorial procedure. The Salmon commission said that it was setting out six cardinal principles and that it was,
  "of the highest importance that [they] should always be strictly observed".
  You cannot start from a higher base than that. The key principle with which I am concerned today is that the commission could,
  "see no reason why a witness, who in the public interest is to be subjected to an inquisitorial form of inquiry and its attendant publicity, should not be accorded the elementary right of being represented, should he consider himself to be in peril".
  That principle was challenged throughout the Scott inquiry, along with almost every other principle relevant to it. As I said when I appeared before the inquiry, it was the first inquiry of its kind in which lawyers were to be seen and not heard—a very restrictive position for a lawyer to find himself in. Happily I was there as a witness and as the accused. It was that set of events that was considered by the Council on Tribunals.
  I repeat: the Royal Commission regarded its admittedly adversarial principles not as optional extras but as essential modifications of a basically inquisitorial procedure. Sir Richard rejected the Salmon recommendations because he regarded them as alien to an inquisitorial inquiry. The very reason for the incorporation of those alien principles was that they were, in Salmon's view, a necessary modification of inquisitorial procedures, so they are of great importance. That is why I attach such importance to the debate on this amendment.
  To give Members of the Committee some idea of what was involved for me personally in having to undertake the representative role that I had, I quote a short passage from my public law lecture:
  "Unrepresented as I was, until very near the end, only my closing submissions were prepared by counsel and solicitors rather than myself. I struggled to keep abreast of the mountains of transcript that trailed for months before and after I gave evidence, and over the years during which I was obliged to comment on several distinct batches of preliminary conclusions. I estimate that I spent at least 30 unrewarding and unrewarded days testifying to, or preparing written submissions for, Sir Richard's inquiry. Many other witnesses, often summoned back from locations all around the world, were similarly burdened. So, too, were Sir Richard's own inquiry staff, busily preparing the increasingly prolix questionnaires, which they had to inflict upon others as well as themselves".
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  By contrast with that prolonged ordeal, Lord Justice Edmund Davies's Aberfan report, which I cited yesterday, was published within nine months of the disaster. So, too, was Lord Justice Bingham's report on the collapse of BCCI.
  I apologise to Members of the Committee for reminiscing personally, but it is important to understand the nature of the burden on all those who had the task of appearing before the tribunal. Another colleague, the noble Lord, Lord Luce, who seldom appears in the House of Lords because of his professional position, was the first witness to give evidence before the inquiry. He wrote an article in the Daily Telegraph, considered later by the Council on Tribunals, expressing astonishment and dismay at being confronted by the inquiry chairman and the inquiry counsel sitting alongside each other like two colleagues at inquisitorial proceedings. That was rejected by the Council on Tribunals in its subsequent consideration.
  There have been developments since then. I have drawn attention already in general terms to the Council on Tribunal's report, but it is important to draw attention to its particular passage on that. In paragraph 7.15, the council sets out at length that strict adherence to the sound principles regarding legal representation can create difficulties and lead to the inquiry being excessively prolonged. That is why everyone acknowledges that the chairman of the inquiry is entitled, indeed obliged, to say, "Hang on, that is enough. You do not need to question that witness", and to curtail the way in which counsel behaves, as judges do in most other proceedings. It is not a free ride for the legal profession.
  Against that background, the council says,
  "it should not be assumed that hearing legal representatives will necessarily add significantly, or at all, to the length of the inquiry, provided the inquiry itself retains overall control. Opening statements and the like from lawyers can help to distil issues and eliminate misunderstandings, and may also enhance fairness. Oral testimony can give … a better understanding of the matters under the inquiry's consideration, and may assist in allaying public concerns. Being taken through evidence in chief can put a witness at ease, enabling him to give of his best when being questioned by the inquiry. Cross-examination of other witnesses may sometimes be the most effective way of resolving conflicts of evidence. Re-examination can be a much quicker way of clarifying outstanding points than the submission of additional written statements. In short, although legal representation should not be regarded as an automatic right, and the inquiry should prevent any abuse of the opportunity to be heard—
  I emphasise the next half-sentence—
  "it may be counterproductive to start from the position that legal representations will only be heard exceptionally. The inquiry should be ready to exercise its discretion in favour of hearing legal representatives and oral testimony and allowing cross-examination whenever it seems appropriate".
  I repeat that it may be counterproductive to start from the position that legal representatives will be heard only exceptionally. I would strengthen the position myself by saying not merely that it "may not" be counterproductive; it would be so. However, the consideration should start from the crucial principle from Salmon that I quoted; that is, the reference to the

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  cardinal principles, one of which is the elementary right to be represented in the kind of circumstances we have in mind.
  We have to start from that premise. That is why I am concerned about paragraph 15 of the Draft Rules of Procedure which accompanied the letter of the noble Baroness dated 16 December. I shall not read the whole paragraph because much of it covers common ground. However, I cite this sentence:
  "To mitigate concerns that rules will lead to more claims for representation there could be a presumption against legal representation unless the chairman is satisfied that certain circumstances apply".
  I submit that that is a wholly unacceptable proposition. If that is the way the Department for Constitutional Affairs is considering the cardinal principle—the elementary right—to legal representation, I shall be extremely worried. I am sure that it will not require a great deal of thought for the noble Baroness to withdraw that sentence and the thinking behind it as fast as she can get around to doing so.
  I should mention certain other features to illustrate the extent to which people were concerned about the absence of representation before the Scott inquiry. One feature of interest, to which I have referred briefly, are the representations of the First Division Association in the days when I suspect that the noble Baroness, Lady Symons of Vernham Dean, had little idea of becoming a Baroness. At the time she was plain Liz Symons, the general secretary of the First Division Association. Within weeks of the then Sir Richard's appointment, on 23 December 1992, the noble Baroness sent a letter to him saying that:
  "The FDA had learnt from earlier inquiries just how their members could suffer in the absence of proper representation".
  That was why the association sought the right to be represented at that time. It was not granted, and more than three years later, on 8 February 1996, the noble Baroness wrote to the Guardian, stating:
  "The difficulties contingent in the way the inquiry was set up were obvious from the beginning. Over three years later, the concerns we had in 1992 remain".
  My final emphasis in this matter is drawn from two further quotations. Once the proceedings of the Scott inquiry had concluded, I received a letter from one of the FCO witnesses who had been treated in a less than friendly fashion by the inquiry panel and who, of course, had been unrepresented. He was kind enough to write to me:
  "You spoke for all of us who have had to undergo humiliation, even degradation, for doing our duty in good faith, and in fact, if not for the fiction it passes for these days, with honour and a reasonable degree of success".
  I appreciated that comment. To underline the durability of exposure of that kind, the person concerned has now died. When I wrote to his widow to ask her permission to quote the above sentence, she replied to me saying:
  "I know how much he appreciated your support during the Scott inquiry. He felt so strongly that it was unjust to himself and others. The weight of your voice was a great comfort".
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  That is the impact of the total failure to pay attention to a cardinal principle and an elementary right. The Committee will want to consider very carefully the need to insert in this Bill something that has not appeared before in the statute book; that is, the presumption of a right to representation before an inquiry that is going to expose almost every aspect of the life of a witness or an accused. I beg to move.
  Lord Goodhart: I have listened with great attention and concern to the speech of the noble and learned Lord, Lord Howe of Aberavon. For many years, I have been aware of his concerns over these matters arising out of the Scott inquiry. There are unquestionably cases of inquiries where, for some witnesses, full legal representation, including the right to cross-examine other witnesses giving evidence to the inquiry, can and should be granted. I am reluctant to get involved in the issue of whether the Scott inquiry was one of those, although it may have been.
  One must take the issue of proportionality into account. There is no doubt that granting full legal representation to a significant number of witnesses, or to people who, although not necessarily witnesses themselves, might be criticised in the report, will add immensely to the time taken by the inquiry and to the expense of the inquiry. These are factors that cannot be ignored. On the other hand, one has to take into account the consequences of criticism to any individual. The case obviously becomes that much stronger for witnesses who are potentially faced with a criminal prosecution, civil actions that might result in their bankruptcy or criticism that might lead to the loss of their livelihood. However, one must also recognise that not everyone who is potentially liable to criticism faces a potential outcome as serious as that. That is something that needs to be borne in mind.
  My view is that the Salmon report goes too far for modern times. One must recognise that there are issues such as the greatly increased expense of legal proceedings and representation by counsel since the days when Lord Salmon produced his report. So I cannot say that I disagree with what the noble and learned Lord, Lord Howe said. He undoubtedly has a very strong point to make. But one has to look at these issues with proportionality in mind. One should draw these factors to the attention of the chairman of any inquiry, but I do not think that the chairman should be invited to start with any presumption for or against the giving of legal representation. It depends on the circumstances of each case.
  Lord Lester of Herne Hill: I have not previously spoken in the debates on the Bill and I have only been tempted to do so by the fact that the noble and learned Lord, Lord Howe of Aberavon, has raised this important point. I should begin by saying that I had the privilege of being his counsel during the Scott inquiry, so I have just heard my former client speak. I agree with much of his criticism of the way in which some witnesses in that inquiry were treated.
  But it is only fair to say that the noble and learned Lord, Lord Howe of Aberavon, was represented, not only by me, but by junior counsel and by solicitors,

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  and we were paid out of public funds. Furthermore, as far as I can recall, all of the main witnesses who faced pains and penalties—to use the old American expression—were represented. The unfairness in the Scott inquiry did not arise because they were not represented by lawyers, but because the way in which the discretion about procedure was exercised led to a situation in which, although represented, the noble and learned Lord, Lord Howe, and others were not able to be represented orally at the critical moment when they faced the possibility of serious criticism. Furthermore, in some circumstances they were not able to cross-examine.
  My experience comes partly from the Scott inquiry and partly from the Crown Agents inquiry. My experience in the Crown Agents inquiry supports the balanced and proportionate approach that my noble friend Lord Goodhart has just explained. Noble Lords may have forgotten what happened in the Crown Agents inquiry. I represented the finance director of the Crown Agents, who was alleged to have lost a great deal of money in imprudent investments in Australia. It was an inquiry that probably should never have been set up. It was set up, for reasons that we do not have to go into, and it lasted at least two, if not three, years, cost millions of pounds and could not be stopped.
  The reason it took so long is because all the counsel represented scores of witnesses and were allowed to cross-examine each other's witnesses. We all did so with great enthusiasm, in order to ensure full natural justice. It made me remember the New Yorker cartoon in which the lawyer says to his client, "How much justice can you afford, Mr Pitkin?" because the cost to the public purse was enormous, the delay was vast and, by the time that the Crown Agents inquiry reported, all the lessons had long ago been learned. The whole inquiry was an exercise in futility. I formed the view at the time that of the three distinguished members of the inquiry, Sir William Slimmings, the accountant, could have decided the whole matter in about six weeks. I thought that he was the only one who really grasped what the financial issues were. It was ludicrous that what could have been an accountant's inquiry, conducted speedily and fairly, became drawn out in that way.
  Similarly, if one looks across the Irish Sea to the tribunals of inquiry that have been set up for the last decade or so, they go on and on, they cost millions, the Bar becomes greatly enriched and by the time that they report, the wrongdoing that they are meant to investigate is so stale that either the wrongdoers are dead or the whole thing has become politically and otherwise irrelevant.
  I agree with the noble and learned Lord, Lord Howe, that fairness requires anyone who is in serious risk of pains and penalties to be legally represented. I also agree that there are serious cases where the right to cross-examination should be allowed. Personally, as well as professionally, I thought that what happened in the Scott inquiry was not fair, for the reasons that I have just summarised. But this is a matter that ought largely to be left to the discretion of the inquiry chair him or herself. Furthermore—no one has yet
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  mentioned this—I would have thought that where an individual or organisation faced serious pains and penalties as a result of an inquiry, if the inquiry did not allow legal representation and, in a proper case, payment out of public funds, one could apply for judicial review on the basis of a lack of fairness at common law. That would itself be an adequate safeguard against abuse. It would not have been an adequate safeguard in the Scott inquiry, not because of a lack of representation, but because at the time the issue of orality and the rest arose, it would have been very difficult indeed to seek judicial review.
  So I am entirely sympathetic with the object of the amendment. I agree that there is a potential unfairness that may arise, but, in practice, it very rarely does arise in the inquiries that I know about. I would be worried about anything that led to what happened in the Crown Agents inquiry or in the Irish tribunal inquiries. The trap of legalism and unnatural justice seems to me to be something about which we should also be concerned.
  Viscount Bledisloe: The noble and learned Lord, Lord Howe, made a very impressive speech which I am sure would have convinced almost any gathering of lawyers or academics. I fear, however, that it would singularly have failed similarly to impress any group of ordinary men in the street. I am sure that, to the public, one of the scandals of inquiries is the enormous and inordinate cost incurred because there are a lot of lawyers present representing a lot of different people. There is not a single man in the street who thinks that the inquiry that has taken place in relation to affairs in Ireland 30 years ago, and has now cost, I think, nigh on £200 million, begins to be value for money or worth being had. We have to recognise that if there are to be inquiries that the public recognise, approve of and accept, in many cases they will have to be conducted in a more expeditious and balanced manner.
  The noble and learned Lord, Lord Howe, cited a large number of very impressive statements made by distinguished judges and lawyers, but I am afraid that the man in the street would say, "Well they would say that, wouldn't they?", not because lawyers, as the public think, are there to create jobs for each other, but because they have a totally unbalanced and excessive belief in the absolute perfection of the adversarial system. To convert and to translate the adversarial system into inquiries is to render those inquiries wholly disproportionate in length and cost.
  Of course there may be many cases of inquiries where some of the people need to be represented. Some of them will need, as the noble Lord, Lord Lester, said, to have what we may call full representation. Some of them may need to have advice, and counsel intervening only on certain specified points. But to raise, as I fear the noble Lord's amendment does, an almost irrebuttable presumption that if anyone may have cause to apprehend the possibility of criticism and may reasonably wish to be legally represented, he is allowed

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  to do so, is to perpetuate the present system which the public see as an abuse and a gross waste of money. I do not think that we should try to put that into the Bill.
  Lord Laming: As a non-lawyer I suppose that I am closer to what the noble Viscount, Lord Bledisloe, describes as "the man in the street". I am happy to try to represent that on this important matter.
  I was hugely impressed by the erudition of the presentation of the amendment by the noble and learned Lord, Lord Howe. However, I am very much with the noble Lord, Lord Goodhart, on the issues of proportionality and the issue of dealing with these matters in relation to the specific nature of the inquiry and the issues that come before the inquiry. I think that the noble Lord, Lord Lester, is absolutely right in his assessment of the dangers of going down this path. I also believe that it would be helpful if the Salmon recommendations were revisited. The time for that has long come.
  If I may, I should like briefly to indicate why I think the amendment would not be helpful. The point can be illustrated by the Shipman inquiry and—I hesitate to mention it—the Victoria Climbie inquiry. In both those inquiries a very large number of agencies were called on to give evidence. However, it would be wrong to assume that each of those agencies could be represented by the same legal team. Many of the individuals wanted separate representation. They did not want to be represented by the team that was representing the agency. Some individuals did not even want to be represented by their first-line manager because there was a dispute between the frontline worker and the first-line manager.
  What I did—and I know that other inquiries followed the same pattern—was to allow for representations to be made on legal representation, and I exercised a judgment. As has already been said, I exercised that judgment knowing that I had to give reasons and that the reasons that I gave could be subject to judicial review if they were not held to be fair and reasonable.
  This amendment would take us in the wrong direction. I think that these matters are entirely for the judgment of the chair of an inquiry. It is that judgment on which the inquiry chair has to be held accountable.
  Lord King of Bridgwater: Perhaps I may speak briefly as another non-lawyer who, like the noble Lord, Lord Laming, had an interest at the time in a number of the matters that were outlined with such erudition by the noble and learned Lord, Lord Howe.
  One is very much influenced by the last inquiry. Anyone who looks at the Bloody Sunday inquiry, as it is colloquially known, has to come down pretty strongly in favour of the preference for getting as many lawyers out of the room as possible. Anyone who went to Central Hall, across Parliament Square, and saw the set-up when the inquiry sat there could not fail to come to that conclusion. There must have been a better way for the families to be represented and for a balance to be struck. Sometimes it seems impossible to do that,
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  and sometimes there seems to be a complete surrender to the right of everyone to be represented at a huge cost. On the other hand, when the noble and learned Lord, Lord Howe, was closely involved, at the time of the Scott inquiry, there was an extraordinarily strong feeling about the way in which that was conducted. Certainly it was extremely unfortunate.
  Although I cannot quite remember the dates, I was also somewhat involved when the Phillips inquiry into BSE was announced. A number of my former colleagues saw—exactly as the noble Lord, Lord Goodhart, spelt out—the prospects and consequences that many of them might face if they were dragged into the inquiry. There was a discussion of their rights to legal representation. I forget exactly how it worked out, but I think that a number of them did receive legal representation at public expense because the issues concerned a time when they held public office.
  It is interesting to note that, despite the substantial amounts of money and time spent in that inquiry, no one has yet found the cause of BSE. I sat in on the inquiry on one occasion when the noble and learned Lord, Lord Phillips, said that that was not within the inquiry's terms of reference. The inquiry might have been better able to address some of the issues before it if it had been able first to establish the scientific basis.
  It has been a privilege to hear my noble and learned friend Lord Howe, with his extraordinary breadth of experience. As a non-lawyer, after having served on quite enough Standing Committees in the House of Commons, I believe that the quality of this debate has been absolutely outstanding. The knowledge of the noble Lord, Lord Lester, and the background of the noble Lord, Lord Laming, bring together in this Committee experience of real value.
  I do not go quite as far as my noble and learned friend Lord Howe, but I take his point. I had the impression that the noble Viscount, Lord Bledisloe, in his anti-lawyer speech, sought to suggest that there should not be circumstances in which representation is necessary, but I do not think he did so. There are many occasions when such provision needs to be made. It is difficult to strike the right balance, but in certain circumstances, in the interests of natural justice, there is absolutely no question that provision for representation must be made.
  Viscount Goschen: My noble and learned friend Lord Howe has made an extremely powerful and well informed speech on the question of legal representation, and we have heard a view from the noble Viscount, Lord Bledisloe, about the importance of proportionality, with which I concur. Not being a learned lawyer, I could not possibly venture an opinion as to which of the two is right but, as the third pseudo-layman to speak, we have to tackle the issue of cost.
  This is a case of the three-ton elephant sitting in the corner of the room that was mentioned only fleetingly at Second Reading by three or four noble Lords. I was interested to hear the Minister remark that she was, in effect, being pushed both ways: to include measures in the Bill to control costs as well as to ensure legal

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  representation and, furthermore, to ensure the independence of the chairman to determine these matters.
  The point I want to raise is that of budgeting, or at least the production of estimates of costs. The outrage at the Saville inquiry, which I share—£150 million plus to undertake an inquiry is an obscenity and totally excessive whichever way it is cut—causes me to ask whether estimates of the proposed costs were made before it was set up. There are two issues here, the first being the total cost and the second the unexpected nature of the costs incurred. According to the figures produced by the noble and learned Lord the Lord Chancellor, it would cost £150 million to run the Supreme Court for 20 years. I hope that that puts into context an inquiry into one event that took place 30 years ago. I share the public view that the costs are indefensible.
  Can the Minister tell us whether there are any procedures within the department to agree a budget with the chairman of an inquiry? I shall listen with care to what the Minister has to say and, if there are no such procedures, I may well bring forward on Report an amendment that a budget should be prepared and published. I do not suggest that such a provision would act as a cap on expenditure, but at least it would draw attention to the total costs. We would not have a blank cheque. The Minister and the chairman would be accountable and would have to produce a reasonable inquiry.
  Lord Howe of Aberavon: Before the noble Baroness replies, if it is not out of order perhaps it would help if I clarified my position on what has been said. I hope that I have not presented myself as having a passion for legal fiestas. I regret the length, scale, scope and expense of the Saville inquiry as much as anyone else, but it is important to note that my amendment would not remove the need for the chairman to avoid any unnecessary costs. It would merely introduce the other consideration alongside it.
  I also agree entirely with what has been said by virtually every speaker about the need to strike a balance and to have a sense of proportion. What emerges time and again is that what actually happens in inquiries depends greatly on the judgment and experience of the chairman. Alongside the Saville fiesta, we have seen the Hutton inquiry, which, whatever else, was not extravagant in time, lawyers or anything else. The Phillips inquiry into the BSE outbreak, to which I have referred, included the sensible provision of an original time-limit of one year, extended to 18 months or even two years. That illustrates that there was a concept of budgeting in terms of time-limits.
  However, turning to the paragraph that I have already quoted from the Council on Tribunals—I do not want to bore the Committee by quoting it at length—in paragraph 7.15 all the factors mentioned by noble Lords taking part in the debate have been taken into account. Of course we want to avoid the multiple appearance of lawyers, and of course it is important to pay attention to the words of the noble Lord,
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  Lord Lester, about the Crown Agents inquiry. I have studied it over the past couple of days. A massive cloud of lawyers gathered to represent people and, as the noble Lord rightly pointed out, that involved huge expense.
  However, that is a far cry from what I like to think of as, in many ways, the eccentric experience of the Scott inquiry. Although I had the benefit of being represented in the closing stages by the noble Lord, Lord Lester—not by his tongue but by his head—we were thrashing around from the outset with no one to speak up for us at any stage. Moreover, as has been rightly pointed out, an application for judicial review at the time would not have been easy to make. My noble friend Lord Trefgarne intervened some way through and managed to secure a one-off representation.
  I am anxious to ensure that the Bill, which has provided the only occasion on which Parliament has been able to consider this question, does not reach the outside world with the only consideration directed to the chairman being that of cost.
  Lord Lester of Herne Hill: I am grateful to the noble and learned Lord for allowing me to intervene. In fairness to the noble and learned Lord, Lord Scott, does he agree that, although we had the chance to submit only in writing—and late at that—the inquiry certainly listened to what we had to say? As a result, the report was very different and the noble and learned Lord, Lord Howe, emerged in a satisfactory position.
  Lord Howe of Aberavon: I am not quite sure about that. We may have been successful in that respect, but no doubt that owed something to my unique privilege in being represented by the noble Lord, Lord Lester. If I was the one to emerge without cause to complain, it was because I was lucky in my behaviour and my representation, but others, certainly did not do so. This is too serious an affair to jest about.
  I accept the Salmon principles tout court and I have stated them with undue simplicity. That is why I draw attention to paragraphs 7.14 and 7.15 of the Council of Tribunals report. The council was invited to investigate this issue and to try to adjust the proper conclusion as between the absolutist Salmon principles and the extremely absolutist Scott principles. I think I am right in saying that the Scott inquiry was the only public inquiry that excluded altogether counsel or representation from the public hearings. It is in an attempt to arrive at a balance between those two considerations that we must consider proportionality and cost. That is why we have provisions for joint representation and not asking questions when it is not necessary, as has already been covered. I am ruthlessly in favour of all of that.
  Perhaps I may take credit for the fact that the Ely inquiry, which I keep coming back to, was compactly conducted. Not long after I finished it, a comparable inquiry took two years to complete. We had representations throughout about the procedure as well as the substance, but we were able to finish it within three weeks of taking evidence. So I am in

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  favour of economy. For heaven's sake, I did not spend four years at the Treasury without picking up a thing or two about that!
  I would have been appalled at the amount of money spent on the Saville inquiry. It probably exceeds what I had to spend on the DeLorean experiment in Northern Ireland, which is a pretty remarkable achievement. I am extremely sensitive to these things, so I urge noble Lords and the noble Baroness not to discount my central point. I am not an absolutist on this or on almost anything else. I am a devoted admirer and client of the noble Lord, Lord Lester, and I believe that in truth we are pretty much pointing at the same target.
  Let us retain the existing subsection. By all means let the chairman pay attention to that, but let us accept an amendment such as mine. It has been modelled on advice given by the noble and learned Lord, Lord Phillips, who achieved a conclusion in a reasonable time. That balances what we are trying to achieve. I hope that the noble Baroness will think about it very carefully before she reaches any conclusion.
  5.30 p.m
  Baroness Ashton of Upholland: This has been a long and extremely useful debate. I am very grateful to the noble and learned Lord, Lord Howe, for giving us the benefit of his experiences.
  I had the benefit of talking with the noble and learned Lord yesterday evening. I was delighted that we were able to put in the Library of the House a copy of the two articles to which the noble and learned Lord referred. I hope that Members of the Committee will take the opportunity to read them.
  I shall also ensure, as it has been referred to several times, that the 1996 advice of the then Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern, to the Council on Tribunals is also available, especially as the noble and learned Lord, Lord Howe, referred extensively to certain paragraphs. Again, I benefit from having that before me.
  The noble Viscount, Lord Bledisloe, reiterated the purpose of an inquiry. He referred to the man in the streetfor those purposes I will include myself in that group—o find out what happened. In the Bill we seek to embrace a range of inquiries where the central tenet must be to find out what happened and to prevent it happening again. That is what the Bill must deal with.
  I shall not spend much time going through the particular points made; I can add nothing to them. If the noble Viscount, Lord Goshen, looks at page seven of the note on rules of procedure that we placed in the Library just before Christmas, he will see that we have talked specifically about budgets. I take his point.
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  I cannot answer the noble Viscount's question on the Saville inquiry. I imagine that he would not expect me to at this point. I shall write to him to ensure that we have that information. The noble Viscount looks surprised. I do not see why he thinks that I would.
  Viscount Goschen: I am surprised only because I had given the noble Baroness notice of the question. I am more than content that she should write to me.
  Baroness Ashton of Upholland: If the noble Viscount gave me notice of the question, I did not receive it, for which I apologise. I know that the costs were £155 million. I do not have notice of whether the budget was set in advance.
  Page 7 deals with the fact that the provision will enable, if we look at the rules, the question of budgeting to be considered, which is, as the noble Viscount said, very important.
  At Second Reading, noble Lords dealt with the Salmon principles, which have been referred to. Different views were expressed on the Salmon principles, some of which have been reiterated today. Indeed, the noble and learned Lord, Lord Howe of Aberavon, talked about the "kind of circumstances", to quote him precisely, that existed in the Scott inquiry. I do not think that he seeks a generality of view in terms of the kind of legal representation to which he referred.
  We have said that there is a power in the Bill for "the appropriate authority"—I think that that is the way it is written—to make rules of procedure. We need to look at those rules to see how they can assist the chairman in making the decisions on legal involvement throughout the inquiry. I refer again to the note that we have placed in the Library of the House, which I hope noble Lords have had the chance to look at, as our first stab at that.
  We believe that the issue that the noble and learned Lord has raised is one of those areas to be discussed. We want to consult on the rules in due course. I shall read with great care all noble Lords' contributions, and indeed will seek further conversations with them about their views. I will be very grateful for any assistance given by noble Lords in looking at what the rules would be. There will be opportunity to discuss those matters further. That is the place for any further debate on the issue. Until then, I shall look with great care at what the noble and learned Lord has said. I thank him very much for raising this debate.
  Lord Howe of Aberavon: I am most grateful to the noble Baroness for the courtesy and good sense of her reply. I think that the questions need the profound consideration she has devoted to them. I can understand that a redrawing of the regulations in the light of this debate might help a little. I would hope that the concept of having some guidance on this principle, not in any absolutist form, on the face of the Bill, alongside the need to pay attention to expenditure, can be considered very closely.
  I have one last point, which was made by several colleagues—one has to make it with courtesy and care. So much depends on the choice and composition of the

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  tribunal. It is a mysterious business. At the end of my article in the Political Quarterly, I draw attention to the need to have,
  "a small corpus of people with experience of this work … who can be thoroughly consulted by those involved in shaping any fresh inquiry".
  They consider who is to do it and how it is to be done. It may be that at least one benefit of that development is the coming together of this talent in the Department for Constitutional Affairs. The wisdom in choosing the tribunal's composition can be very important.
  Having said that, I hope the Minister will also pay attention to all the other arguments. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 29 and 30 not moved.]
  Clause 16 agreed to.
  Clause 17 [Restrictions on public access etc]:
  Lord Kingsland Lord Kingsland moved Amendment No. 31:
  Page 7, line 27, leave out "either or both of the following ways" and insert "the following way"
  The noble Lord said: Amendment No. 31 is the first of a number of amendments to the clause, which I regard as one of the most critical in the Bill. The fact that I shall not take very long in speaking to these amendments should not in any way lead the Minister to underestimate the importance I attach to them.
  As the noble Baroness kindly reminded the Committee this afternoon, one of the two themes of the Opposition's approach to the Bill has been the lack of balance between the powers of the Minister and the powers of the chairman in respect of any particular inquiry. This lack of balance is graphically illustrated by Clause 17, which gives rise to two sorts of restriction instruments—a restriction notice, which is to be issued by a Minister, and a restriction order, which is to be made by the chairman of an inquiry committee.
  I should like to say at the outset that so far as concerns the restriction orders, we have no difficulty with the powers that Clause 17 grants to the chairman. These are traditional powers and powers that are rightfully and sensibly granted to somebody in charge of a public inquiry.
  However, we do not believe it appropriate for the Minister to have any of the powers, which are comprised in and implied by a restriction notice. These powers would give a Minister the authority to issue notices restricting, for example, the access of the public to an inquiry's proceedings, to evidence given to an inquiry or to documents produced to an inquiry.
  The essence of the role of a chairman of an inquiry is to balance considerations of national security, international relations and comity, economic interests both national and international, and questions of commercial secrecy against the public interest in having a complete picture of the subject matter of the inquiry itself. In respect of any individual matter which gives rise to one or other of these considerations, the chairman of the committee has to make a balancing decision. For example, he has to balance the interests of national security against the interests of the
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  individual, whether a witness or somebody who is really under investigation, to have the matter properly exhibited to the general public.
  We have no difficulty with the chairman being charged with these responsibilities, but we do not see how the Minister can possibly place himself in the same situation as the chairman. The public inquiry has been set up by the Minister to investigate a matter. The Minister then stands back while the inquiry conducts its business. At any stage of the inquiry the Minister is simply not qualified to make these balancing judgments. He appointed the chairman to make these judgments in the interests of the public.
  If the Minister is informed by his department that on day 42 of a public inquiry an important national security issue was raised, he is almost bound to err on the side of that national security issue being given undue weight because he has no feel for the particular circumstances in which it is an issue.
  So, in short, these amendments remove the right of a Minister to issue restriction notices while preserving the chairman's right to make restriction orders. I ask the Minister most earnestly to reflect on the Government's draft between now and Report. I beg to move.
  Lord Goodhart: I entirely agree with the noble Lord, Lord Kingsland, on the problem. All I would say is that our position is that while we recognise the problem, our preference is for dealing with it in a different way. That is by ensuring, as we raised in the debate yesterday, that material that is seen by an inquiry panel is brought within the scope of the Freedom of Information Act.
  Lord Laming: I think that it is a very powerful argument to say that once the chairman has been appointed, it is his or her responsibility to conduct the business of the inquiry and to be accountable for the way in which the inquiry is conducted. It seems to me that the Minister is not well-sited and stands well back from the action. Any intervention of the Minister at that stage is likely to be seriously misunderstood.
  Baroness Ashton of Upholland: I am grateful to the noble Lord, Lord Kingsland, for his brevity. I also recognise the importance of the issue that he raises. It is important to remind noble Lords that the idea of the discretion of a Minister to hold inquiries in private, in part or in total, is not new. There are existing provisions in legislation—for example, in the Children Act and in the Police Act 1996, and other legislation is silent on it.
  So, as I think I indicated, particularly at Second Reading, part of the purpose of the Bill is to bring together elements of existing legislation and to make sure that they fit and are fit for the purpose, in that sense. What is new—and this is worth saying—is that this is the first time that we have set out the reasons why a Minister could hold an inquiry in private. In that respect this Bill restricts Ministers' current powers.
  It creates a clear structure in which decisions about public access and privacy must be made and it makes clear in what circumstances restrictions can be

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  imposed and what factors should be taken into account when determining whether a restriction is justified.
  That is important because it sets a framework around these matters in a way that does not currently exist. That is the backdrop to the provisions we have put in the Bill.
  I did not hear Members of the Committee saying that at the beginning of an inquiry it was inappropriate for the Minister to make those decisions. It is logical to me that the Minister is the person or the office with the information on which to determine whether an inquiry should be in public or in private. I think that there was a generality of view on that. The Committee will accept that there are lots of good reasons why a job can be better done in private. It is not always about issues of national security, the economy or other reasons. For example, the inquiry into the Royal Liverpool Children's Hospital was held in private at the request of relatives. They felt that a better job would be done in those circumstances.
  Issues about cost have also been raised. Those need to be considered, although I would not say that they should be the driving force.
  5.45 p.m.
  The question here is really about the course of the inquiry. I accept that there is an issue surrounding the relationship between the Minister and the chairman, but we would contend that even when an inquiry is under way, the Minister may see information whose impact he can assess in a different way from that of the chairman. We are simply trying not to exclude the opportunity for the Minister, who may be aware of other information which might not be available to the chairman because it is not relevant to the specific inquiry, to make a decision based on it.
  I submit that we have made the circumstances much clearer by providing greater clarity about the role of the Minister at the outset, and we have ensured that we do not find ourselves in a difficult position by not allowing the Minister to take note of information that may be relevant and appropriate, or the way in which certain information may relate to other elements—if I may so describe it—that could affect how the inquiry is conducted or cause the Minister to warn that extra care is needed in certain areas; that is, to be restrictive in terms of privacy and so forth.
  That in essence is why we have drafted the clause in this way. It will enable us to deal with situations as they arise. Moreover, I remind noble Lords of what I said at the beginning of my response. This is the first time that these provisions have been set out. They are more restrictive than the current position.
  In reply to the noble Lord, Lord Goodhart, I have already undertaken to review and discuss with the noble Lord the issues about freedom of information. Yesterday I accepted that we would need to consider those matters. I hope that, on the basis of my remarks, the noble Lord, Lord Kingsland, will feel able to withdraw his amendment. I hope that he recognises the
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  issues that could arise and acknowledges that we taken the important step of ensuring that the position is much clearer—although, in a sense, more restrictive.
  Lord Kingsland: In the circumstances of the Committee proceedings taking place in the Moses Room, I could hardly threaten to put the matter to a vote. However, I am happy to withdraw the amendment on the understanding that the noble Baroness will look at this matter very carefully before the Bill returns to your Lordships' House on Report.
  In High Court proceedings, judges commonly have to consider pleas of Crown privilege. In the old days, the raising of the plea was in the virtual certainty that the judge would concede to the Crown on the matter; but nowadays High Court judges are much more robust. They will insist on looking at the papers and, in certain circumstances, they will not grant the plea.
  I understand that it is the Government's intention to continue to use High Court judges to chair public inquiries, despite the enhanced role since June 2003 of the doctrine of the separation of powers. I would imagine that any High Court judge appointed to chair a public inquiry would find the issue of a restriction notice by a Minister very unwelcome indeed. I see no reason why others chairing inquiries who are not High Court judges, but who by definition will be men and women of experience and stature, would not also greet any attempt to second-guess their own judgment on these matters with a high degree of displeasure.
  I think that the restriction notice is first of all unnecessary because in 99 cases out of 100 the Government will appoint chairmen who are very well qualified to reach balanced judgments about whether or not a particular piece of evidence should be admitted by use of the restriction order.
  Secondly, I regard it as wrong in principle that a Minister should be able to swoop on a public inquiry at any stage and, in effect, alter the balance of the evidence presented to that inquiry and, therefore, have an effect on its outcome even though he or she will have heard none of the prior proceedings.
  In all the circumstances, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 32 to 35 not moved]
  Lord Kingsland Lord Kingsland moved Amendment No. 36:
  Page 7, line 40, leave out "inhibit the allaying of" and insert "cause"
  The noble Lord said: Amendments Nos. 36 and 37 are, I think, matters of drafting. In the light of what the noble Viscount, Lord Bledisloe, said to me about the drafting of my amendments, I would normally have embarked on this group of amendments with great trepidation. However, as he is no longer in his place, I think that I can promote vigorously Amendments Nos. 36 and 37 as expressing in a more elegant way what I think the Government wanted to express.

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  Amendment No. 38, by removing the word "not" in Clause 17(4)(d), will, effectively, be changing the presumption which, I think, in the context of that clause, is desirable. I beg to move.
  Baroness Ashton of Upholland: I was delighted that the noble Lord, Lord Kingsland, said that the amendments are about drafting because that is what I have been arguing today. That is what I thought the noble Lord was seeking to do. However, the consequence would be quite different from what the noble Lord wishes to do—to make the Bill read better. One has to consider whether restrictions would cause fresh concern or inhibit the objective of allaying public concern. We are back to the purpose of an inquiry, which is to promote public confidence and allay public concern.
  I would contend that the noble Lord's amendments would have the effect of making it easier to issue a restriction notice. I am sure that that is not what he wishes to do at all.
  Lord Kingsland: These amendments were tabled on the assumption that the restriction notices had been removed.
  Baroness Ashton of Upholland: I am responding on the assumption that they have not. On the basis that, at the moment, they have not—and I hope that they have not—that would be the consequence of the amendments. I can see why this wording might read more appropriately and why the noble Lord was attracted to it. However, it does not do what he wishes it to do.
  We return to the purpose of the inquiry. If you are doing something different, you have to use wording that says that you are starting from the principle of allaying public concern. Therefore, you would also have to consider whether the other thing would inhibit the allaying of the concern. That wording is perhaps not as elegant, but it is the best wording possible for what we want to achieve.
  The doubled negative in subsection (4)(d) is there in order to make it consistent with the other subsection. Its effect is that the Minister or chairman should consider the extent to which a restriction would improve the efficiency or effectiveness of the inquiry to reduce costs. The effect of the noble Lord's amendment is to remove that option. I think that that would seriously affect the ability of the Minister or chairman to ensure that the inquiry takes the most effective form.
  The noble Lord always invites me to consider his amendments carefully, and I always look back on all our discussions and deliberations to see what more we might do. However, whereas I was drawn naturally to better wording, as I say, the wording that we have fits the Bill most appropriately in that context. On that basis, I hope that the noble Lord is able to withdraw his amendment.
  Lord Kingsland: I am most grateful to the noble Baroness for her observations on the amendments. I hope that she will believe me when I say that our
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  amendments to Clause 17(4) were intended to assist the Government by ensuring that any intervention by the Minister would have public confidence. That is why I changed the wording as I did. If a Minister is to issue a restriction notice then, before he or she does so, it is vital that he or she reflects on the effect on public confidence that the issuing of that restriction will have. That ought to be a factor that weighs in the balance before the Minister issues his restriction notice.
  Baroness Ashton of Upholland: At the risk of prolonging this debate, I completely accept what the noble Lord was seeking to do, but I submit that the way that we achieve that is to say that the purpose of the inquiry is to allay public concern of one kind or another and, therefore, to consider whether what one is doing inhibits the allaying of that concern. That is the right way round. Of course I will consider the matter again. I am sure that the noble Lord does not want to enter into a dialogue with me at this stage, but that wording works best to achieve what we both want.
  Lord Kingsland: What on earth is the point of setting up a public inquiry to allay public concern if, in the course of that public inquiry, we issue a series of notices that cause public concern? The way in which we conduct the inquiry is a crucial ingredient in the overall picture that the Government are seeking to portray to the public.
  Baroness Ashton of Upholland: The issue for the inquiry is to deal with the matter—the event—that has caused great concern. One must consider the impact of restrictions on the objective of the inquiry. It is possible that such a restriction can assist the allaying of public concern. That is the right way round from which to approach it. I see exactly what the noble Lord is seeking to do, but the effect of his amendment would be to make it easier for restriction notices to apply. Assuming that the provision survives the passage of the Bill through your Lordships' House, I do not believe that that is where the noble Lord wants to end up.
  Lord Kingsland: I shall not prolong this exchange. I am most grateful to the noble Baroness for responding to the amendments. I shall reflect on what she said but, meanwhile, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 37 and 38 not moved.]
  Lord Smith of Clifton Lord Smith of Clifton moved Amendment No. 39:
  Page 8, line 11, leave out "national security or"
  The noble Lord said: In the course of this Committee, we have heard much about previous inquiries and conclusions that may be drawn from that experience. This amendment, by contrast, anticipates future inquiries in Northern Ireland relating to the deaths of Pat Finucane, Robert Hamill, Rosemary Nelson and Billy Wright. They will presumably take place under the provisions of the Bill after it is enacted. Those particular enquiries may well be unduly impaired by the imposition of restrictions, especially with regard to issues of national security. Given the

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  particular character of Northern Ireland and its politics, "national security" could be a very widely stretched concept to cover an extensive range of issues. That would not reassure public opinion.
  Would the noble Baroness please elaborate on the imposition of that restriction and how it may be parsimoniously, rather than widely, employed? I beg to move.
  6.00 p.m
  Lord Lester of Herne Hill: My noble friend's amendment enables me to make a short point and to ask the Minister to think about it with her advisers and reply, but not necessarily today. In the Explanatory Notes on Clause 17, with which the amendment is concerned, we are told, in relation to the European Convention on Human Rights, that the Government consider that the only provision that engages the right to free expression is Clause 17(7). I refer to paragraph 113 of the Explanatory Notes. I do not know what the Joint Committee on Human Rights will report—I am no longer a member of the committee, but I think that it is reporting on Monday—but that seems incorrect. I shall briefly explain why, and why that matters.
  Clause 17(1) deals with restrictions imposed, among other things, on the,
  "disclosure or publication of any evidence or documents given, produced or provided to an inquiry".
  So there is a restriction on the freedom to communicate information or ideas to the public that are contained in evidence or documents given or produced at the inquiry. That being a restriction on Article 10, which covers freedom of expression, it must be imposed subject to the test of necessity or proportionality for one of the legitimate aims stated in Article 10(2) of the convention. One of them is the one dealt with by my noble friend's amendment—namely, national security—but the test would be necessity and proportionality.
  As I said, I do not expect an answer now, because I have given no notice of the question, but my first point is that surely free expression rights are engaged by the restrictions imposed or potentially to be imposed by Clause 17. If that is right, surely the legal tests given in Clause 17 for circumstances in which such restrictions can be imposed do not pass muster as they stand with the test in Article 10(2) of the European convention, because they do not require that only necessary and proportionate restrictions should be imposed, regardless of whether we include national security or otherwise.
  If that is so, will we not finish up with the muddle that the inquiry will be subject to the obligation under the Human Rights Act 1998 to comply with Article 10 of the convention? If the inquiry gets it wrong, a claim can be made under the Human Rights Act but, in any event, the inquiry must apply not just the criteria in Clause 17, say in relation to national security, but also the criteria contained in the European convention. Ought not that potential for unnecessary litigation be
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  removed by reconsidering the wording of Clause 17 and the advice in the Explanatory Notes? I hope that that is clear.
  Baroness Ashton of Upholland: The noble Lord is always clear. I have a note that says that, apparently, we do not agree with him about Article 10 and that case law supports our position, but I shall, of course, write to the noble Lord and copy it to other Members of the Committee, because these are important matters. To the noble Lord, Lord Smith of Clifton, I say that the Nelson, Wright and Hamill inquiries are already set up and there are no plans to convert them.
  The effect of the amendment is clear. It is relatively rare that inquiries will consider information so sensitive that disclosure could damage national security, but it has happened. The Committee only need think of the inquiry of the noble Lord, Lord Butler, and even of the Hutton inquiry, which was held up as a model of openness. Of all the information that was revealed, a small amount of material was withheld from the public domain for reasons of national security. The Bill does not allow restrictions to be placed on access to material simply because it relates to national security. The Minister or chairman has to weigh up what is involved in disclosing the information, weighing all the factors, including the extent to which placing a restriction would inhibit the allaying of public concern—I use that phrase with some trepidation in view of our previous debates.
  All decisions have to be justified. Any decision that was improper or unreasonable would be challenged in the courts. I do not believe that the noble Lord, Lord Smith of Clifton, was seeking to create a situation where neither the Minister nor the inquiry chairman would have any power to prevent disclosure of information that could cause real damage, so I hope that the noble Lord will feel able to withdraw his amendment. We are very clear about the framework. On that basis, and on the basis of any further discussions that the noble Lord may want, I hope that he will feel able to withdraw his amendment.
  Lord Smith of Clifton: I am most grateful to the minister for that elucidation and I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Kingsland Lord Kingsland moved Amendment No. 40:
  Page 8, line 12, leave out paragraph (c).
  The noble Lord said: This amendment refers to Clause 17(5)(c). I note that the issue of risk of damage to the economy is also dealt with in Clause 21.I tabled this amendment simply to ask the noble Baroness what is the relationship between Clause 17(5)(c) and Clause 21, both of which appear to deal with the same issue. I recognise that Clause 21 gives power to intervene to the Financial Services Authority and the Bank of England, as well as the Crown; but I wonder whether a more elegant solution would not be simply to accept that, if they had a concern, the Financial Services Authority and the Bank of England could get the Crown to issue the appropriate restriction notice,

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  should that procedure still be available under Clause 17, by the time that the Bill becomes law. I beg to move.
  Lord Goodhart: My objection to Clause 21 stand part has been included in this group. Clause 21 seems simply unnecessary. I do not see the need for any special procedure here. If Clause 21 was removed, it would still be perfectly possible for the Treasury, the FSA and so on, to raise that issue before the inquiry panel and the panel, or the chairman, would no doubt consider their submissions in deciding whether to make a restriction order. I cannot see why this clause is needed, but not a similar clause if the security services say that there is a risk to national security or if the Foreign and Commonwealth Office says that there is a risk to international relations. Existing provisions cover that adequately.
  Further, if we are to tie the Bill in with the Freedom of Information Act, as we should, damage to the economy is a ground for exemption from disclosure under Section 29 of that Act.
  Baroness Ashton of Upholland: We specifically felt it important to include Clause 21 in the Bill. It is important that we recognise the consequences if we do not. Certain types of information could have a hugely damaging economic and financial impact, and we felt it important to recognise that and to ensure that we stated in the Bill who could come forward to the inquiry.
  As the noble Lord, Lord Goodhart, said, it is the Treasury, the Bank of England or the Financial Services Authority who could do that. The clause allows for those bodies—other people could apply too, but we have been specific about these—to apply to the inquiry to ask for the information to be kept confidential. Of course, the inquiry has the power to refuse to do that, but we thought it important to recognise those issues in the Bill. It does not prevent the inquiry being given information.
  As the noble Lord, Lord Goodhart, knows, at present public inquiries are not covered by the Freedom of Information Act 2000 because they are public bodies. Public interest immunity works for national security issues but would not cover the issues under Clause 21. Therefore, the noble Lord would not have covered those effectively.
  We think that these are matters of enormous seriousness and therefore feel that they should be included, but with clarity about who comes forward and to whom, so that the inquiry can determine whether or not it wishes to treat them seriously. That is very important therefore we wish the provision to remain in the Bill. I hope that the noble Lord will feel able to withdraw his amendment.
  Lord Kingsland: I am most grateful to the noble Baroness. I am sure that she will reflect on what the noble Lord, Lord Goodhart, and I have said on this matter. I continue to think that Clause 21 is difficult to justify, although I accept that no particular additional harm is done by including it. In those circumstances, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Kingsland Lord Kingsland moved Amendment No. 41:
  Page 8, line 14, at end insert—
  "() In proceeding under this section, the chairman must start from the presumption that public access should not be restricted."
  The noble Lord said: I can deal with this amendment extremely telegraphically. In doing so, however, I do not want it to be thought that the brevity of my submissions in any way reflects the importance that I attach to the issue. We would like it said, in terms, that the chairman of any public inquiry must start from the presumption that public access should not be restricted. I beg to move.
  Baroness Ashton of Upholland: I am grateful for the noble Lord's brevity but I accept the principle behind his amendment—that is, the presumption should be that public access should not be restricted. The starting point in Clause 17 is that members of the public must be given full access to hearings and evidence. That is already in the Bill and is found in subsections (3) and (6) taken together. Subsections (4) and (5) simply clarify and narrow down die criteria in subsection (3). Subsection (6) contains the requirement that members of the public be given full access, subject to any restrictions.
  My notes state that I accept that the presumption would be even more apparent if we started with subsection (6) and then followed it with subsections on restrictions, but it does not say in my notes that I shall therefore go away and rewrite the clause. I shall reconsider the matter but the amendment does no more than is already in the Bill. I am happy to clarify that and hope that the noble Lord will be able to withdraw his amendment.
  Lord Kingsland: I am most grateful to the noble Baroness. I would be happier if the declaration were made in such a way that the principle was incontrovertible; so perhaps the noble Baroness will look at that again. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 42 not moved.]
  Clause 17 agreed to.
  Clause 18 [Further provisions about restriction notices and orders]:
  Lord Goodhart Lord Goodhart moved Amendment No. 43:
  Page 9, line 9, at end insert—
  "() No variation of a restriction notice or restriction order under subsection (7) may extend the operation of the restriction then in force or impose any new restriction."
  The noble Lord said: This amendment is self-explanatory. I hope that the power to make restrictions more draconian after the end of an inquiry is not the intended effect of this clause, and that the Minister will be able to confirm that that is so. I beg to move.
  Baroness Ashton of Upholland: It is certainly not the Government's intention that the power under the clause should be used to introduce greater restrictions after the end of an inquiry. I had considered that that was implicit in the wording of Clause 18(7) but I am happy to clarify it if the noble Lord thinks it necessary. I hope that the noble Lord will withdraw his amendment and I shall think about bringing forward a government amendment at the next stage.
  Lord Goodhart: In the circumstances, I am happy to beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  6.15 p.m.
  Clause 18 agreed to.
  Clause 19 [Powers of chairman to require production of evidence etc]:
  Lord Goodhart Lord Goodhart moved Amendment No. 44:
  Page 9, line 33, at end insert—
  "( ) he should not be required to comply with such a notice because compliance would not give any material assistance to the inquiry,"
  The noble Lord said: The production of documents to a court or an inquiry can be time-consuming and troublesome, particularly if a large number of documents is involved, and it can disrupt the normal business of an enterprise or organisation. Normally, the production of documents requires a court order and is part of a judicial process. In an inquiry, particularly if it is being conducted by a non-lawyer, without experience of what lawyers describe as "discovery", it is possible that the chairman may ask for more documents than are actually needed. It should be possible for someone to come to the inquiry and say, "You have asked me for thousands of documents. I can produce them if I have to, but it is pointless to do so because they have no relevance".
  The Government may say that that problem is covered by Clause 19(5), but my reading is that Clause 19(4)(b), which states that someone,
  "cannot reasonably be expected to comply with such a notice",
  is directed to physical difficulty in producing the documents. This is an issue that should be clarified. Will the Government consider some suitable amendment? For instance, the words in Clause 19(4)(b),
  "cannot reasonably be expected",
  could be altered to something like,
  "should not be required to comply with the notice".
  I beg to move.
  Lord Lester of Herne Hill: I shall say a couple of words in support of my noble friend's amendment. In judicial proceedings, it is now clear that serious restrictions are imposed upon the unnecessary use of compulsory disclosure for the reasons given by my noble friend. That applies in judicial review proceedings and in ordinary civil proceedings under the civil procedure rules. It is now perfectly clear that
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  one cannot go on fishing expeditions and that only such documents as are relevant and necessary in the interest of justice should be required to be disclosed. Otherwise, disclosure can be an instrument of oppression. Whatever language is used, it is important that there should be a test of necessity in the interests of the inquiry, or something like that, so that chairs of inquiries, especially lay chairs, are given clear direction by the statute that only relevant and necessary disclosure takes place.
  Baroness Ashton of Upholland: I have a lot of sympathy with what noble Lords have said. I say to the noble Lord, Lord Lester, that any evidence requested has to be within the terms of reference of the inquiry. It would be considered ultra vires if the inquiry asked for evidence that was nothing to do with it. In Clause 19(4)(b), the person could reasonably argue that he should not be expected to comply with the notice. We want the panel, not the witness, to decide what evidence will be of assistance to the inquiry. It is difficult to envisage how it can do that if it cannot see the evidence. We have been trying to create a situation where the panel is allowed to get the evidence that it thinks is necessary and the practicalities are recognised. There will be cases where it is very difficult to gather the evidence or it would take an enormous amount of time to do so. None the less, we want to put the onus on someone to provide the evidence if it is required.
  If we accepted the amendment, we would have a situation where the chairman would have to decide a claim that the evidence would not give material assistance without being allowed to see the evidence in question. That would be quite difficult. But I shall reflect on whether the wording is exactly right because I take the point that it is not about going beyond the scope of the inquiry, which we have covered, nor of making impossible demands on witnesses. We are trying to seek a balance where the panel is allowed to seek the evidence within the terms of the inquiry that it believes it needs and the practical difficulties are recognised. I shall look again at this point and speak to the noble Lord, Lord Goodhart. On that basis, I hope that he will be able to withdraw his amendment.
  Lord Goodhart: I am grateful to the Minister. This is a matter that needs looking at again. I recognise that the inquiry panel may ask for documents, but it should at least be possible for the person who is asked to produce this, let us assume, very large number of documents to give information about what kind of documents they are and to explain why he says that there is no justification for asking for them for the purposes of the inquiry. That can be done without looking at the documents. A provision of that kind is necessary. I hope that the Government will come back with an amendment on Report because otherwise this is probably a matter that we would wish to bring back. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 19 agreed to.
  Lord Kingsland Lord Kingsland moved Amendment No. 45:
  After Clause 19, insert the following new clause—
  "ARTICLE 6 RIGHTS
  Irrespective of the jurisprudence of the European Court of Human Rights, those appearing before an inquiry under this Act shall enjoy the rights conferred by Article 6 of the European Convention on Human Rights."
  The noble Lord said: I say at the outset that this amendment has been drafted rather provocatively. I make no apologies for that because it is intended to be a probing amendment.
  The Inquiries Bill sets out in black and white terms the obligations on the chairman and the various other participants in a public inquiry. What can the noble Baroness tell us about the relationship between what is in the Bill and Article 6 of the European Convention on Human Rights? Does the content of that article in effect stand behind the Bill and fill any gaps that might appear once it becomes an Act of Parliament and is in operation? I beg to move.
  Lord Lester of Herne Hill: It is in no sense my purpose to do the Minister's work for her but perhaps I may attempt an answer, in very short form, to what the noble Lord, Lord Kingsland, has rightly described as a provocative amendment. I suggest that the answer is roughly as follows, but I shall undoubtedly be corrected by wise advisers across the Table.
  Article 6 of the European Convention on Human Rights applies to courts and tribunals which determine civil rights and obligations or criminal charges. An inquiry panel created under the Bill will have no such power. That is set out in Clause 2(1). Article 6 also applies to administrative authorities, which must act fairly. They thereby reflect the common law, even if an administrative body does not determine civil rights or obligations, or criminal charges.
  However, provided that the judicial review court has full jurisdiction over law and fact to correct, in this case, an inquiry panel which acts unfairly, Article 6 is fully satisfied because the European Court of Human Rights looks not only at what happens with the inquiry, but also at what happens with any judicial review proceedings. Therefore, I believe that in the main Article 6 is satisfied, but judicial review proceedings would also come into play.
  Furthermore, the restrictions on the publication of reports that are prejudicial—in, I believe, Clause 23(4)—provide further safeguards needed under the convention. But then we come to the joke. What is provocative about the amendment of the noble Lord, Lord Kingsland, is the part that states:
  "Irrespective of the jurisprudence of the European Court of Human Rights".
  Article 6 of the convention will apply. That seems to me to be a bit of a howler. We know, for example, from Section 2 of the Human Rights Act that courts must have regard to Strasbourg case law. One cannot pluck out Article 6 of the convention, free from the jurisprudence, and explain what it means in the way suggested by the amendment.
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  Finally, as I have tried to explain, the amendment is misconceived because in this respect the Bill complies with Article 6. The common law standards of fairness are as strong as the convention standards of fairness. I think that the Bill contains effective and adequate safeguards against the abuse of procedure, as does the common law, and I repeat what I said in response to the amendment of the noble and learned Lord, Lord Howe of Aberavon: if we are not careful, we arrive at the legalistic approach, which no one would want in these tribunals. For those reasons, I do not regard the amendment as likely to commend itself.
  Baroness Ashton of Upholland: I want to add only a brief comment to those of the noble Lord, Lord Lester. As the noble Lord, Lord Kingsland knows, Article 6 states, in terms of what treatment a person is entitled to:
  "In the determination of his civil rights and obligations or of any criminal charge against him".
  Inquiries determine neither civil rights and obligations nor criminal charges and they should not seek to do so. We have made that clear in Clause 2. My plain answer is that Article 6 does not apply in these circumstances.
  However, I thank the noble Lord, Lord Lester, for his exposition. It was much clearer than any I could have given. I hope that the noble Lord, Lord Kingsland, will feel able to withdraw his amendment.
  Lord Kingsland: I am most grateful to both the noble Baroness and the noble Lord, Lord Lester, for their interventions on this amendment. I am aware that the civil rights doctrine in Article 6 does not apply to inquiries as set out in the Bill, and it was never my intention to suggest otherwise. I was keen to tease out the point about judicial review, but the noble Lord, Lord Lester, anticipated that by giving us a very full and extremely learned explanation of how the Bill relates to judicial review.
  Perhaps I may also say to the noble Lord, Lord Lester, that it was also never my intention that this particular amendment should form part of the Bill. In introducing it I made it absolutely clear that it was probing in nature. However, the combination of his words and the response of the noble Baroness has satisfied me entirely. In the circumstances, I will not reintroduce this matter on Report. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 20 agreed to.
  Clause 21 [Risk of damage to the economy]:
  Lord Goodhart Lord Goodhart moved Amendment No. 46:
  Page 10, line 15, leave out from "in" to end of line 17 and insert "avoiding a risk of damage to the economy outweighs the public interest in the information being revealed."
  The noble Lord said: Under the formula now set out in the Bill, if there is an equal balance between public interest in disclosure and public interest in avoiding damage to the economy, there can be no disclosure. I believe that that is the wrong way around. We should follow the precedent set by Section 2 of the Freedom

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  of Information Act 2000 that in cases of equality of the balance, there should be disclosure. Indeed, Section 2(2) states that:
  "In respect of any information which is exempt information by virtue of any provision of Part II section l(l)(b) does not apply if or to the extent that … in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information".
  I remember that well because it was one of the central points in the negotiations over the Freedom of Information Bill. That Bill originally came down the same way as this Bill now does by saying that if there was an equal balance, there should be no disclosure. A fairly prolonged and tough negotiation ensued with the then Minister of State at the Home Office, the noble and learned Lord, Lord Falconer of Thoroton. As a result it was agreed to reverse the provision and to provide that in cases of equality, there should be disclosure. I believe that the same principle should be applied here. I beg to move.
  Lord Lester of Herne Hill: My noble friend's amendment is also supported by European human rights law. I have made the point before, but I want to make it again so that it can be given careful thought.
  Clause 21 deals with circumstances where information held by someone cannot be disclosed because of the risk of damage to the economy. What the European Convention on Human Rights makes perfectly clear is that the right to free expression, to communicate information and ideas, may be restricted or limited only where necessary and where it is proportionate to do so. In the Sunday Times case No. 1, the thalidomide case, the European Court made it quite clear that it is not a question of an equal balance but that the starting point is the right to freedom of communication, subject to necessary exceptions. This has been reiterated again and again. Those exceptions must be not merely reasonable, but necessary and proportionate. The case law is completely clear. In my view, how this clause is now worded does not comply with Article 10 of the convention.
  6.30 p.m.
  Baroness Ashton of Upholland: In case any noble Lord is in doubt, I remind the Committee that Clause 21 does not prevent information reaching the inquiry panel or being taken into consideration by it. Under the Freedom of Information Act, if there is equal balance there is no disclosure.
  Lord Goodhart: It says that if there is equal balance there is disclosure.
  Baroness Ashton of Upholland: That is not the information I have before me.
  Lord Goodhart: I am afraid that that information is wrong. It is quite clear.
  Baroness Ashton of Upholland: The noble Lord is correct and I apologise. That is not what it says on my note.
  Lord Lester of Herne Hill: I am very grateful. Although it is true that it is restricting information to the panel and not to the public, that is not my point.
  Baroness Ashton of Upholland: I know that that is not the noble Lord's point, but I am making the point because it is important that we are clear about what we are discussing in Committee. The panel receives the information and takes it into account. The question is about what happens next. In this clause the inquiry panel must apply a test when deciding whether the information should be revealed to the inquiry. We say that the decision rests with the panel, not with the Government. I think that is right. If the panel decides that the balance of public interest lies in that information being revealed, then it would be.
  I have to say to the noble Lord, Lord Goodhart, that there is a problem with his amendment. It does not quite do what the noble Lord wants. But, as always in these cases, I shall go back and make sure that this does what I have said it does, particularly because I am not entirely certain of the information I have before me, and I shall talk to the noble Lord. On that basis, I hope that he will withdraw his amendment.
  Lord Goodhart: Clause 21 is concerned with disclosure to people who are not members of the panel. Clause 21(4) makes it perfectly clear that the information would still be revealed to the panel, so one is looking at what is, in effect, disclosure to the public.
  Baroness Ashton of Upholland: The noble Lord is absolutely correct. I shall look at the clause again, but we are clear that the critical thing about information is that the inquiry has the opportunity to consider it. There is another question about what then happens with that information and the issues and tests that we have put into the Bill to ensure that there is no "damage".
  Lord Goodhart: I have made my point and I shall not make it again. This may well be an amendment to bring back on Report. However, for the moment I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 21 agreed to.
  Clause 22 [Submission of reports]:
  [Amendment No. 47 not moved.]
  Clause 22 agreed to.
  Clause 23 [Publication of reports]:
  Lord Kingsland Lord Kingsland moved Amendment No. 48:
  Page 11, line 6, leave out "Minister, or the chairman if subsection (2) applies," and insert "chairman"
  The noble Lord said: What I have to say about Clause 23 mirrors what I have already said about Clause 17. It raises once again the issue of the balance of power between the Minister and the chairman of the public inquiry. Essentially, my amendments are directed against the mischief whereby the Minister can determine what parts of the report can be published. In my submission, what the final report contains should be entirely for the chairman, and no one else.

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  Otherwise, we shall be in a situation where chairmen, before they publish the conclusions of their inquiry, would feel obliged to send the draft conclusions to the Minister, to wait until they are approved or otherwise and then to issue only those parts that have been approved. That would be totally against the public interest. It is for those reasons that I have tabled my amendments. I beg to move.
  Lord Lester of Herne Hill: Once more, I would like to make a similar point about this amendment, with the object of which I agree. Section 23 gives a wide discretion to the Minister or the chairman not to publish a report of an inquiry in full or, in some circumstances, at all.
  The test in Clause 23(4) is that:
  "The person whose duty it is to arrange for a report to be published may withhold material in the report from publication to such extent … as is required by any statutory provision, enforceable Community obligation or rule of law".
  If by,
  "as is required by any statutory provision",
  one means Section 6 of the Human Rights Act, read with Article 10 of the European Convention on Human Rights and the Minister accepts that that applies to the Minister or the chairman, so that neither can exercise the wide discretion except in accordance with the duty imposed by Section 6 of the Human Rights Act to act in a way that complies with Article 10, that will remedy what is at present a defect or ambiguity in the Bill.
  I am not clear whether the reference to "any statutory provision" is meant to apply to the Human Rights Act. If I receive confirmation that it is, I am not as unhappy about the Minister deciding, because the Minister will be as bound as anyone else by the convention.
  Baroness Ashton of Upholland: I hope that Clause 23 reflects existing practice for publication of inquiries. An inquiry submits its report to the Minister, so it logically follows that the Minister should be the one to publish the report. That has been the practice in many past inquiries, not least because the sponsoring department can do that effectively because it already has procedures in place. However, for some inquiries, most notably the Hutton inquiry, it was clear that it was more appropriate for the inquiry to be published by the chairman, so Clause 23 has been drafted to allow for that.
  When we consulted in our paper, Effective Inquiries, there were mixed views about whether the Minister or the chairman should be responsible for publication. That reflected the diverse range of inquiries that have been called and the reasons behind them.
  In answer to the noble Lord, Lord Lester, as public authorities for the purposes of the Human Rights Act, both the Government and the inquiry have an obligation to ensure that they act compatibly with the articles of the European Convention on Human Rights, which have been incorporated into UK law.
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  For example, information might be withheld if disclosure could put individuals in danger and threaten their rights to life under Article 2.
  Subsection (4)(b) allows the person publishing the report to withhold information when that is in the public interest, having particular regard to the factors set out later in the clause. The power to withhold information when there is a real risk of damage is important, as I think that all Members of the Committee accept, especially for national security matters. But that is not about the Government removing huge swathes of the report to cover up criticisms; it is the power to make small and justified redactions of information where disclosure might cause harm. Of course, any decision will be reviewable by the courts.
  I hope that on the basis of what I have said, especially to the noble Lord, Lord Lester, the noble Lord will be reassured about why the clause is drafted as it is and feel able to withdraw his amendment.
  Lord Kingsland: My concerns are much more with Clause 23(4)(b) and the supporting criteria set out in subsection (5)(a) and (b). I submit that where the Minister, rather than the chairman, is the publishing authority, those paragraphs give him much wider discretion to withhold material than is proper. The noble Baroness has not allayed my concern about that. We have received a number of submissions from different bodies about the Bill during the past six to eight weeks and I must say that the overwhelming preponderance of view is against the noble Baroness's judgment on Clause 23; but she may have access to views that we do not.
  In all the circumstances, I really hope that she will think again about her response to our amendments and return on Report with the draft that reflect our views rather than hers.
  Baroness Ashton of Upholland: Until now, there has been no requirement to publish reports, but I think that the noble Lord accepts that reports have been published, even into quite private issues. So I hope that he will not assume in any way that there is a desire not to publish reports. We believe that this clause deals with the issue.
  I take the noble Lord's point about not wishing to see reports change. Indeed, that was an issue we discussed at length during the passage of the Children Bill when debating the role of the Children's Commissioner and his relationship to the Minister. I shall of course reflect on what the noble Lord has said, but there is no intention whatever other than to see reports published within this framework and published well.
  Lord Lester of Herne Hill: Before the noble Baroness sits down, perhaps a further question could be considered by the Government. It follows on from the noble Baroness's answer to me that paragraph (b)— the objectionable part of this measure—as well as paragraph (a) would be subject to the Human Rights Act and to the test that I have mentioned. I know that

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  it is not drafted like that but the Minister could not use paragraph (b) to get round the Human Rights Act. Can that point also be given consideration?
  Lord Kingsland: I think I have said all that I want to say for now. In those circumstances, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Kingsland Lord Kingsland moved Amendment No. 49:
  Page 11, line 7, at end insert—
  "() Any report published under subsection (1) must be laid before both Houses of Parliament."
  The noble Lord said: This amendment is self-explanatory. I beg to move.
  Baroness Ashton of Upholland: The idea behind the amendment is clearly very sensible. The only issue I would raise with the noble Lord is that, as drafted, the amendment does not take account of the devolved administrations and cross-border inquiries. Parallel arrangements would have to be made for such inquiries to be laid before the appropriate Parliament or Assembly. I would be very happy to take the matter away and think about it further.
  Lord Kingsland: I am most grateful to the noble Baroness. In those circumstances, of course I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 50 not moved]
  Lord Goodhart Lord Goodhart moved Amendment No. 51:
  Page 11, line 13, at end insert "and without delay"
  The noble Lord said: There is a risk that if the Minister is responsible for the publication of a report, he or she may sit on it for a long time after it has been handed over by the chairman. To avoid that risk, should there not be a requirement—we feel that there should—that the report be published without delay? I beg to move.
  Baroness Ashton of Upholland: I agree with the noble Lord that it is important that inquiries are published without unnecessary delay, not least because part of the purpose of an inquiry is to allay concerns—particularly those of the public. I asked whether it was necessary to set that out in the Bill but I understand that the general principles of administrative law—I am sure that there are many lawyers in the Committee today who can back this up—already ensure it. Where there is an obligation to publish, the Minister and chairman cannot attempt to avoid that obligation by introducing unnecessary delays. On that basis, and that basis alone because I take on board what the noble Lord is saying, I ask him to withdraw his amendment.
  Lord Goodhart: In the circumstances, I am happy to beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 52 to 54 not moved.]
  Lord Kingsland Lord Kingsland moved Amendment No. 55:
  Page 11, line 21, leave out "inhibit the allaying of and insert "cause"
  The noble Lord said: In moving Amendment No. 55,1 shall speak also to Amendment No. 56. These amendments mirror two similar amendments to Clause 17. The noble Baroness and I had an exchange of views about their effect in relation to Clause 17. Would I be right in thinking that what the noble Baroness is about to say is exactly in accord with what she said earlier?
  Baroness Ashton of Upholland: Indeed, but at length, which the noble Lord would not necessarily need to hear.
  Lord Kingsland: Our position is, as it was in relation to the earlier amendments, that these are sensible drafting amendments that improve the quality of the text without shackling in any way the intentions of the Government. I beg to move.
  Baroness Ashton of Upholland: I shall not repeat our previous discussion; I shall try to reassure the noble Lord that I wholeheartedly share his intention. I need to discuss the issue with the noble Lord before Report. I will write to him initially to explain why I believe that the wording we have chosen does a better job than his wording. The noble Lord will then have the opportunity to reflect and perhaps discuss the matter with me. So, while absolutely understanding what the noble Lord seeks to do, I ask him to withdraw the amendment.
  Lord Kingsland: I am most grateful to the noble Baroness. Under those circumstances, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  6.45 p.m.
  [Amendments Nos. 56 to 58 not moved.]
  Clause 23 agreed to.
  [Amendment No. 59 not moved.]
  Clauses 24 to 26 agreed to.
  Clause 27 [Northern Ireland inquiries]:
  [Amendment No. 60 not moved.]
  Lord Smith of Clifton Lord Smith of Clifton moved Amendment No. 61:
  Page 14, line 25, leave out subsection (7).
  The noble Lord said: This amendment refers to my earlier intervention, which the Minister has answered. I tried to move the amendment before and I apologise to the Committee that I confused the amendment numbers with the clause numbers. It is not clear why in this clause Northern Ireland is apparently treated differently from Scotland and Wales, in that it will not be open to devolved Ministers in Northern Ireland to inquire into matters that occurred prior to devolution

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  without the permission of the Secretary of State. No similar restrictions seem to apply to other jurisdictions. I beg to move.
  Baroness Ashton of Upholland: The simple answer is that the clauses reflect the devolution settlement. But I shall take a moment to explain the provision to the noble Lord, Lord Smith of Clifton, so that he may reflect on what I have to say.
  As the noble Lord knows, national security matters are excepted matters and therefore not the responsibility of Ministers in the Northern Ireland Executive. Those Ministers would therefore not be able to set up an inquiry whose terms of reference specifically required it to look at matters of national security or any other reserved or excepted matter. Similarly, inquiries set up by Northern Ireland Ministers would not be able to exercise their powers of compulsion in respect of matters that fall in the reserved and excepted fields.
  It is important to ensure that there are appropriate safeguards in place to prevent damage to national security. I do not mean that damage would be caused either by the inquiry itself or by the Minister establishing it, but, if I may say so, vexatious testimony to an inquiry that, deliberately or otherwise, caused damage to national security by virtue of it being disclosed.
  Clause 27(7) is designed to ensure that, if an inquiry set up by the devolved administration found itself approached by an individual with so-called "evidence" that went into matters relating to national security, it is clear that it is beyond the scope of such a "devolved" inquiry to consider those matters.
  The subsection is included in the clause relating to Northern Ireland and not to Scotland and Wales because of the particular history of Northern Ireland and the greater likelihood, perhaps, of such vexatious testimony being offered. It is intended to exclude the risk that an inquiry legitimately set up to look into a specific matter of concern might be overtaken or, indeed, hijacked by an individual wishing to use it to do damage. So the provision is based on those circumstances. I am very happy to write further to the noble Lord on these issues. I hope that, on that basis, he will feel able to withdraw his amendment.
  Lord Smith of Clifton: I thank the Minister for that explanation; it was what I expected but was a very good elaboration of the situation. For that reason, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 27 agreed to.
  Clauses 28 to 35 agreed to.
  Clause 36 [Payment of inquiry expenses by Minister]:
  Lord Goodhart Lord Goodhart moved Amendment No. 62:
  Page 18, line 25, leave out "reasonably"
  The noble Lord said: This is a probing amendment. Clause 36(3) states:
  "The Minister must meet any other expenses reasonably incurred in holding the inquiry".
  First, what is meant by "expenses reasonably incurred"? Do we have any guidance on what constitutes reasonable expenses and what does not? Secondly, who is to pay those expenses if they are not to be paid by the Minister out of public funds? Thirdly, who, if anyone, monitors the costs of the inquiry to put a finger on anything which may not be reasonable?
  Baroness Ashton of Upholland: I think that the noble Lord, Lord Goodhart, accepts that inquiries need the right kind of funds to ensure that they can investigate properly. The requirement that the Minister need only meet expenses reasonably incurred seeks to underline the need for inquiries to be cost-effective. The noble Lord knows from other parts of the Bill that we have measures to safeguard costs; for example, Clause 16(3) and Clause 36. But I am alive to the noble Lord's concern that the inclusion of the qualifying term "reasonably" might lead to uncertainty for the chairman about liability for certain expenditure. I am very happy to look again at Amendment No. 62 to see whether we could consider it.
  It follows that the obligation must have limits. Without the limits in Clause 36, which Amendment No. 63 would remove, inquiries could be given a blank cheque. I am sure that that is not what the noble Lord seeks to do. Under Clause 36, refusal of funding is the last step in the process of dialogue between the chairman and the Minister. It is the responsibility of the chairman, working with the Minister, to consider what is happening as regards expenditure. The inquiry could not be left without the means to meet expenditure incurred before notice was given. Funding can never be withdrawn retrospectively; the Minister must give notice, which gives the chairman a chance to resolve the situation with the Minister. In practice, inquiries have worked within their terms of reference, and it is unlikely that the power to refuse funding would ever be needed. But the provision needs to be there as a safeguard. I will look again at Amendment No. 62 but I hope that the noble Lord will feel able to withdraw Amendment No. 63.
  Lord Goodhart: I am grateful to the Minister for offering to look at Amendment No. 62 again. There is certainly a case for clarifying some of these issues, not necessarily in the Bill. I would be grateful to know what the arrangements are for dealing with these issues. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 63 not moved]
  Clause 36 agreed to.
  On Question, Whether Clause 37 shall stand part of the Bill?
  Lord Fraser of Carmyllie: I appreciate that the Chairman of Committees wishes to proceed at a great pace at this time. However, I wish to explore briefly a broad issue, with a view to tabling an amendment at a

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  later stage, particularly as it stems from an exceptionally helpful letter that I received from the Minister on Clause 37, dealing with the payment of witnesses' expenses. She said:
  "In recent inquiries the Government has agreed to meet the costs of individuals or small organisations who are considered to have a direct interest in an inquiry but may be unable to fund representations themselves".
  That is exceptionally wise advice. If a large public quoted company seeks to be represented at an inquiry, it would be unreasonable for it to try to claim out of public funds its costs for its appearance at that inquiry. I do not see why public funds should meet that.
  I am not clear, and perhaps we should explore at some point, what is meant by "small". As the noble Baroness appreciates, I recently had cause to conduct an inquiry at which what I think is one of the best architectural firms in the world appeared. That firm would certainly nevertheless regard itself as small. I was reluctant to see the taxpayer take responsibility for its expenses. It would be helpful if at some point the chairman of an inquiry could be given guidance on who should be paid for appearing and representing their interests. I am concerned about the grey area between individuals and multinational corporations, which certainly should not be paid, as they already have funds. Small firms are in the middle of that scale. I am not entirely sure what the noble Baroness meant by "small" organisations. I wanted to test that point, to see whether I might table an amendment at a later stage.
  Baroness Ashton of Upholland: I am grateful to the noble Lord for his intervention. We had an earlier discussion about the role of the rules. I draw the noble Lord's attention to the note on rules of procedure that I placed in the Library of the House. We had a longer debate—I am sorry that the noble Lord was not able to attend it but I am sure that he will read the report—led by the noble and learned Lord, Lord Howe of Aberavon, which began the discussion on rules, in a different context and for different reasons.
  Page 6 of the note that I put in the Library relates to cost assessment. I take absolutely the noble Lord's point about the word "small". I indicated that I would very much welcome the expertise of noble Lords, particularly those with experience, but also more generally, as we begin to look at the rules of procedure and the guidance to the chairman of an inquiry—that was the noble Lord's point—or to the panel about those issues. I refer the noble Lord to that document and invite him to give me the benefit of his view on how one might provide a definition, without being too restrictive. I am delighted that the noble Lord was pleased with my letter.
  Clause 37 agreed to.
  Clauses 38 to 40 agreed to.
  Clause 41 [Transitory, transitional and saving provisions]:
  [Amendment No. 64 not moved.]
  Clause 41 agreed to.
  Clauses 42 to 44 agreed to.
  Schedule 1 agreed to.
  Clause 45 agreed to.
  Schedule 2 agreed to.
  Clause 46 [Repeals and revocations]:
  [Amendment No. 65 not moved.]
  Clause 46 agreed to.
  Schedule 3 [Repeals and revocations]:
  [Amendment No. 66 not moved.]
  On Question, Whether Schedule 3 shall be agreed to?
  Lord Kingsland: This Question is by way of a series of probing questions, although how I phrase them may not prove to be particularly probing. I seek to inquire about certain aspects of this schedule.
  As I understand it, Schedule 3 repeals a number of statutory investigatory provisions which hitherto existed in certain pieces of legislation. First, what consultation took place in respect of each one of these provisions? I am concerned as to whether the contents of the Bill have been tested against the existing provisions to ensure that what we have, in each case, is an improvement.
  The other reason for my inquiry is to ask whether there are still some other investigatory procedures in statute which remain. If that is so, why have they survived the test of the Bill? My noble and learned friend Lord Howe is whispering the word "cull"; perhaps that is a more effective description of what the noble Baroness has undertaken. However, to the extent that some statutory procedures have survived, can the noble Baroness tell us what they are and the reasons why, despite this new initiative, the Government have thought it important that they remain?
  Baroness Ashton of Upholland: The noble Lord, Lord Kingsland, is right in saying that the purpose behind the repeal of these provisions is to bring together the powers that could have been used to establish inquiries that fall within the definition of Clause 1 of this Bill. We are consolidating the provisions. During our consultation, that was the embracing element of the exercise in liaising with different government departments.
  What has been left behind are the provisions in legislation for opportunities to hold forward-looking policy inquiries; that is, those not addressing events of public concern. What is left are the provisions in legislation that relate to inquiries not covered by Clause 1. They might be inquiries into other issues, but not those defined in that clause.
  I know that the noble Lord is concerned that we should not create confusion for those accustomed to using particular powers. All the powers being repealed are used only rarely, if ever. We have taken great care to ensure that, in repealing these provisions, we have looked at each one in some detail.

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  If the noble Lord looks at the table we set out in the consultation paper, he will see which of these subject-specific powers have been used for inquiries held since 1990. The most frequently used power is that set out in Section 84 of the National Health Service Act 1977. It has been used on six occasions over the past 15 years. Section 49 of the Police Act 1996 has been used twice, and Section 81 of the Children Act 1989 has been used once. We have found no evidence that the transport powers being repealed have ever been used.
  We have worked very closely with the Department of Health, the Home Office, the Department for Education and Skills and any others whose powers are being repealed in this schedule to ensure that the Bill before noble Lords will do everything that those inquiry powers did and that it will be entirely suitable for the types of inquiry that have been set up under them.
  The principle here is to bring together piecemeal provisions in legislation under one Act. Yesterday I referred to the fact that the Climbie inquiry was set up under three different pieces of legislation. The provisions will be set out in a proper and defined framework, save for inquiries that are not relevant to Clause 1.
  I hope that that satisfies the noble Lord. If not, I shall be happy to write to him.
  Lord Kingsland: I am most grateful to the noble Baroness for her response. If I have understood her correctly, her reply does fully answer my question. She
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  has said that all competing inquiries which fall within the scope of Clause 1 are included in Schedule 3. If that is so, it must follow that Clauses 14 and 15 will have only a limited life. If all competing tribunal procedures have been repealed, then once the existing inquiries under those procedures come to an end, Clauses 14 and 15 will become otiose.
  Baroness Ashton of Upholland: That is not correct because Clauses 14 and 15 refer to non-statutory inquiries. Schedule 3 deals with statutory inquiries, the provisions for which have been repealed and brought together in this Bill. The power to convert other inquiries into inquiries under this Bill, as I referred to earlier, provides the opportunity to convert non-statutory inquiries.
  Lord Kingsland: I am grateful to the noble Baroness. I had not understood that Clauses 14 and 15 were so limited. I had thought that the power to intervene under Clause 14 applied to any investigatory inquiry, whatever its status. The noble Baroness has answered my query under the Question whether Schedule 3 shall be agreed to; she has also further illuminated the debate on Clauses 14 and 15. I am indeed most grateful.
  Schedule 3 agreed to.
  Remaining clauses agreed to.
  Bill reported without amendment.
  The Committee adjourned at six minutes after seven o'clock.