HL Deb 07 February 2005 vol 669 cc615-54

7.27 p.m.

Report received.

Lord Ackner

My Lords, due to the start time of this Report stage, may I inquire whether there is any truth in the rumour that, essentially, it is to be treated as dinner-hour business?

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland)

My Lords, I can assure the noble and learned Lord that there is no truth in the rumour. We shall continue with Report stage and do as well as we can.

Clause 1 [Power to establish inquiry]:

Lord Kingsland

moved Amendment No. 1: Page 1, line 3, at beginning insert "Subject to subsections (1A) and (1B), The noble Lord said: My Lords, in moving Amendment No. 1, I shall speak also to Amendments Nos. 2, 3, 4 and 5.

Your Lordships will recall that, when seeking to promote these amendments at Committee stage, I stated that I had two objectives in mind. The first was to reverse the decision of the Government, clearly reflected in the Bill, to expunge the role of Parliament from the decision to establish public inquiries; and the second was to revitalise the role of Parliament, either in the form of its existing Select Committee system or in some other form, in conducting inquiries which involve allegations concerning ministerial misdemeanours.

Since the Committee stage of the Bill, the Public Administration Select Committee of another place has published a report entitled Government by Inquiry. Among other things, the report makes specific recommendations about both these issues. I apologise in advance to your Lordships for quoting certain passages from the report. I justify that by saying that, in my submission, they are germane to these two matters, which I trust the noble Baroness regards as fundamental to the debate on the Bill.

Paragraph 178 is the core paragraph. I should like to quote it more or less in full. The committee states: We are deeply concerned that the Government's Inquiries Bill threatens the last remaining role for Parliament in the inquiry process. Nonetheless it also provides an opportunity to update the current provision contained in the 1921 Act to reflect our recommendations for parliamentary involvement. To achieve this we propose that Clause 1 should be amended by means of an additional sub-clause to provide that, where the public concern relates to the conduct, actions or inactions of government—Ministers or officials, the Minister will cause an inquiry to be called on the basis of a Resolution of both Houses of Parliament". I pause there to say that that refers to the first of those matters with which we are concerned under this group of amendments; that is to say, whether or not Parliament should retain the initiative in this class of inquiries.

The paragraph goes on to discuss the character of individual Motions for a resolution in respect of the particular matter into which it is sought to inquire. Paragraph 178 continues: This procedural framework should itself ideally be enshrined in a Resolution, which would contain a presumption in favour of a parliamentary commission … as the most appropriate form for an inquiry of this kind. Accordingly we recommend that Clause 1 should be amended to provide for parliamentary resolutions where the events causing public concern which may have occurred involve the conduct of Ministers. We further recommend that the procedural framework for an inquiry called under this new sub-clause which we have described should be the subject of a Parliamentary Resolution once the Bill has passed into law". That aspect refers to the second issue to which this group of amendments gives rise; that is to say, the desirability or otherwise of Parliament being directly involved in the investigation of the Minister. Here the committee recommends that a form of inquiry, which it calls a "parliamentary commission", should be established and that the shape of that parliamentary commission should be developed immediately the Inquiries Bill becomes law.

So the sequence of events would be that the Inquiries Bill becomes the Inquiries Act. Next there is immediately a general resolution of both Houses of Parliament to establish the framework of something called "a parliamentary commission". Thereafter, individual inquiries into ministerial misdemeanours would follow the general shape of that parliamentary commission.

The Minister may recall that, in Committee, my ideas as to what a parliamentary commission should look like developed, as it were, on the hoof. I started by suggesting that the right shape for a parliamentary investigation of a ministerial misdemeanour in the future should be based on, first, your Lordship's House, and, secondly, the Cross-Bench component of it.

Quite rightly, a number of your Lordships suggested that that might be rather overambitious in view of the likely reaction of another place. Therefore, in winding up my own amendment later in the afternoon, my idea became to have a joint commission, consisting perhaps of three Members of another place—one from each political party—and two Cross-Benchers from your Lordships' House.

I can place my hand on my heart and say that, in all honesty, I had no idea when I said that, that the notion of a parliamentary commission, as suggested by the committee of another place, was in the offing. As it turns out, the proposed shape of this new parliamentary commission should look not unlike a mixture of three Members of another place and two Members of your Lordships' House.

The committee report goes on to look at the political feasibility of establishing such a parliamentary commission. It starts off by reminding us that not all those who gave evidence to the committee were instinctively enthusiastic about the idea. However, in its first paragraph it tells us something of which I was not aware. It is presented in the form of an extract from a submission made by the noble and learned Lord, Lord Scott, to the Public Services Committee in 1996, following his own legendary report into certain matters. The noble and learned Lord said at that time that he believed: It would be a remedy to a number of the problems that there arc, as it seems to me, at the moment in regard to Ministerial accountability, if Select Committees were treated in the same way as my own Inquiry was treated…If it had been the case that Select Committees had been able to obtain all the advantages of documents and evidence and witnesses who had it to give that I was able to obtain, I do think a Select Committee might have been a better form for the Inquiry to have taken". The report then goes on to remind us of the Osmotherly rules and how they have limited the ability of Select Committees in both another place and in your Lordships' House to obtain adequate documentary and oral evidence during an investigation. A number of distinguished Members of Parliament and Members of your Lordships' House also expressed views which might be described as somewhat sceptical. My noble friend Lord Heseltine, for example, is quoted in paragraph 200. He said: Parliament is actually run by a government and the whips are very powerful and Members of Parliament arc very ambitious. If you tell me how to turn human nature on its head—I have no way of coping with that". So, clearly my noble friend Lord Heseltine was really saying that the Select Committee system has serious structural difficulties that would be hard to overcome.

The noble and learned Lord, Lord Howe, also offered a word of caution, which is quoted in paragraph 202. The noble and learned Lord said that, the other problem about Parliament is that—parliamentarians are not accustomed to truth-seeking interrogation, they are more inclined to grand-standing as interrogators". Despite that, the committee concluded in paragraph 214 that there are activities in which another place engages that demonstrate that it is perfectly capable, if it puts its mind to it, of conducting the kind of inquiry envisaged by a parliamentary commission. That paragraph states: Members also participate in supervisory committees based on statute such as the Intelligence and Security Committee and the Privy Counsellors required to review the Anti-terrorism, Crime and Security Act 2001. A number of successful chairs of inquiries are also parliamentarians themselves. Specialist advisers can and are recruited to provide expertise and support and the House is of course accustomed to the Comptroller and Auditor General, the Parliamentary Ombudsman and the Parliamentary Commissioner for Standards undertaking investigations on its behalf and reporting to it. Parliament itself has unfettered powers to summon persons, papers and records which it can delegate at will. It is entirely possible therefore for Parliament to put together an investigatory mechanism which meets the requirements that we identify in paragraph 207 above". Having gone on to discuss how the recently established Butler committee, which, although it was a committee of Privy Counsellors, consisted of five members, two of whom were Members of another place and two were from your Lordships' House, operates, the report concludes: The similarity in form of the Franks and Butler Committees with that of a Joint Committee is striking but, as committees of Privy Counsellors, their nature is fundamentally different and, from a constitutional point of view less satisfactory. We recommend that in future inquiries into the conduct and actions of government should exercise their authority through the legitimacy of Parliament in the form of a Parliamentary Commission of Inquiry composed of parliamentarians and others, rather than by the exercise of the prerogative power of the Executive". I submit that that is a clear endorsement of and adds weight to what we said in Committee.

In the light of all that, and after discussions with the noble Lord, Lord Goodhart, we have tabled as Amendment No. 5 the precise terms of the amendment contained in the report which is intended to achieve the objectives that I have outlined. It differs in some respects from my Amendment No. 1. For example, the events that would trigger such a parliamentary commission are cast rather more narrowly than in my amendment. My amendment refers to events in a ministerial department as well as those affecting the Minister personally. I sense that the committee was considering ministerial behaviour more specifically, rather than behaviour in the department for which he was politically but not personally responsible. There are other differences between the two; but essentially Amendment No. 5, which is contained in the parliamentary report, reflects exactly the principles that we were trying to establish.

I apologise to your Lordships for taking so long to introduce this line of amendments; but the report plainly adds important new material and expresses important views. In the light of that, I thought it essential that your Lordships should be made aware of it. I beg to move.

Lord Goodhart

My Lords, I rise because my name is attached to Amendments Nos. 3, 5, 111 and 112 in this group.

We supported amendments in Grand Committee to maintain the Tribunals of Inquiry (Evidence) Act 1921. However, following debate in Grand Committee, I see no particular merit in keeping that Act in existence as it stands. Whenever it has been used, it has always been on the initiative of the Government and the main purpose of using it has been to give the inquiry power to summon witnesses and obtain documents. The parliamentary procedure in recent cases has been a formality. Since I became a Member of your Lordships' House in 1997, the 1921 Act has been initiated twice—in the Bloody Sunday and Shipman inquiries. I cannot remember a significant debate on the relevant resolution in either of those cases. The last time that Parliament seems to have been seriously involved concerned the proposal to set up a special commission of inquiry to investigate the failure of Rhodesian oil sanctions policy in 1978. That proposal failed because it was rejected by your Lordships' House—perhaps not one of the wiser decisions that we have taken.

7.45 p.m.

The Public Administration Select Committee, in its valuable report published only last Thursday has, as the noble Lord, Lord Kingsland, said, recommended that inquiries into the conduct of Ministers set up under the Bill should have a special procedure retaining some degree of parliamentary involvement. We have therefore put our names to the draft amendment published as Annexe 2 to the Select Committee's report. The Select Committee's arguments are persuasive and we support them.

That will still require the Government to initiate the inquiry procedure. There is no existing procedure by which a government who do not want to set up an inquiry can be impelled to hold one. The situation is therefore very different from that in the United States of America, where the Senate and the House of Representatives can set up inquiries without the consent of the Executive. Of course, Select Committees can carry out inquiries but, for reasons explained in the report with which I agree—in particular, as a result of my experience in considering the operation of the Committee of Standards and Privileges in the House of Commons when I was a member of the Committee on Standards in Public Life—Select Committees are not suitable bodies for conducting what might be described as forensic inquiries involving cross-examination of witnesses, as opposed to inquiries into policy.

The Public Administration Select Committee proposed a procedure to allow the Liaison Committee of the House of Commons to put a resolution before that House proposing that a matter of public concern should be the subject of a formal inquiry. That would involve a change in the Standing Orders of the House of Commons, but not statutory powers, so no relevant amendments can be tabled to the Bill. However, subject to the proposal for a Select Committee having to be approved by your Lordships'House as well as by the House of Commons, I would welcome that. It would provide an opportunity to involve both Houses of Parliament in setting up an inquiry, whether or not the Government approved it. Of course, it would always be subject to a vote of the House of Commons, where a government with a substantial majority would have a strong probability of succeeding, so that might not necessarily take the matter a great deal forward, but it would at least provide one channel by which that could be done.

I must say that I am less attracted than the noble Lord, Lord Kingsland, by the report's proposal of the setting up of a parliamentary commission of inquiry. I fear that that could take us back to a commission divided on party lines, as happened in the Marconi inquiry, which is perhaps one of the less reputable occurrences in the history of my party, and other inquiries that took place before 1921. Indeed, there has in the past, although less so in recent years, been a problem with the Committee on Standards and Privileges in the House of Commons. However, the question of whether we should have a parliamentary commission of inquiry is not relevant to this group of amendments. Therefore, I give our strong support to Amendments Nos. 3, 5, 111 and 112.

Lord Kingsland

My Lords, perhaps I may seek clarification. The parliamentary commission as defined in the report would not involve any party being in the majority or even party politicians having dominance. Perhaps the noble Lord might wish to reflect on that in the context.

Lord Goodhart

My Lords, I saw that the report included lay people, or those who are not Members of either House of Parliament, as well as those who were. There is no rule in the recommendation about the number in each category. I said that I was hesitant about it; I have concerns. I would not reject it entirely, but I am not convinced that it is an improvement on having a wholly independent, non-parliamentary inquiry.

Lord Borrie

My Lords, we have all had some opportunity to look at the important Public Administration Select Committee report, published last week, entitled Government by Inquiry. It is most helpful and deals with lots of issues that are the subject of our debates. In an ideal world, it would have been better if the report had been available to us before the Government started Second Reading and Committee stages. But we are where we are; we have the benefit of the report now.

I have the highest admiration for the committee chairman, my honourable friend Dr Tony Wright. The committee has done a great deal of work. As in Committee, I share somewhat the doubts of the noble Lord, Lord Goodhart, about previous parliamentary inquiries, such as the Marconi inquiry. In any case, that inquiry is supposed to have been the reason why Parliament thought it preferable to have "tribunals of inquiry", as they were called under the 1921 Act. I can see that, when Ministers' conduct is involved from the very beginning and not just as an incident to the course of investigating events, a commission of inquiry into politically sensitive issues held by parliamentarians, with or without other members, could be most valuable.

It is proposed that an amendment along the lines of appendix 2 of the report should be agreed so that Parliament could engage in such investigatory inquiries. However, the more I listened to the noble Lord, Lord Goodhart—as distinct from the noble Lord, Lord Kingsland—the more I began to think that legislative provision, through an amendment to the Bill or otherwise, was not needed, because at several points the report confirms what I understood to be the position. Parliament has inherent powers to make inquiries, to conduct investigations—by the House of Commons on its own, the House of Lords on its own or the two Houses jointly—and can invite other members to join it if it so wishes.

Paragraph 214, from which the noble Lord, Lord Kingsland, quoted, makes the point—I thought that it was well understood anyway—that, Parliament itself has unfettered powers to summon persons papers and records which it can delegate at will". There is therefore the power to make any investigatory inquiry effective. As to why legislative powers to that effect are needed, I studied the appendix that sets out what is intended and has now been repeated in the amendments. The noble Lord, Lord Goodhart, has pointed out that it is not in practice feasible or possible for an Order in Council to establish any such inquiry to be presented unless the Government agree. If the Government agree, it is not the House of Commons in the driving seat. That lies behind many of the points made in this otherwise excellent report.

The report examines over several paragraphs the government's attempt in 1978 to get the House of Commons and the House of Lords to agree to a parliamentary commission on a joint resolution to deal with matters relating to Rhodesia. They succeeded up to a point in the Commons but did not in the House of Lords.

The amendment would require that an Order in Council be laid before Parliament and that it should have the approval of both Houses. If that is the position, what extra is achieved, apart from the presence of Members of Parliament in the committee, beyond what is provided in the Inquiries Bill? There is little to be gained beyond what Parliament and the individual Houses already have: powers to conduct investigations, if they wish. Nothing prevents that at present.

Lord Goodhart

My Lords, I am grateful to the noble Lord, Lord Borrie. Given that he claims to rely on my arguments, perhaps I may ask him whether the following would not be an answer to his point: if a parliamentary process is involved, Parliament has a potential input. If it does not like the terms on which the inquiry is to be set up, Parliament could say to the Government, "This is not the form of inquiry that we want. We welcome your proposal for an inquiry but we will approve it only if you are prepared to take this away and come back with a different form".

Lord Borrie

My Lords, I believe that that is perfectly true. It brings us to what we have to discuss on other amendments, and which we discussed to some extent in Grand Committee: what the Government have to do, if anything, to inform Parliament of their proposal to set up an inquiry. Since Committee, the Government have tabled amendments. I have received a copy of the letter to the noble Lord, Lord Kingsland, and others explaining why certain government amendments answer points made by the noble Lords, Lord Goodhart, Lord Kingsland and others, so that Parliament is kept informed.

If Parliament is kept informed and has to be by statutory requirement in the Bill, which we may amend, it is up to the House of Commons and the House of Lords, through their normal procedures, to ensure that that information—keeping Parliament informed—is questioned or debated in accordance with normal ministerial accountability to Parliament. That does not need to be legislated for, as it exists in any case.

8 p.m.

Lord Ackner

My Lords, I should like to support the submissions made by the noble Lord, Lord Kingsland. Before I do so, I should confess that my credentials for speaking on inquiries are now somewhat moth-eaten. In the two or three years before I was elevated to the High Court, I appeared in three inquiries, as a result of which I was known by my alleged friends as the "disaster QC".

The inquiries were the Aberfan inquiry, at which the noble and learned Lord, Lord Howe of Aberavon, was one of my opponents. I appeared for the parents and children of those who were killed in the disaster. I also appeared in front of the noble and learned Lord, Lord Lane, in the Vanguard air crash inquiry. I last appeared in the Seagem inquiry, which was the first of the oil rigs that were overturned. I had the great advantage of having as my second junior the present Master of the Rolls who managed to massage into a tired forensic mind all that I needed to know about metal fatigue, for which I gave him the then conventional red bag.

I should like briefly to refer to the report of the House of Commons Administration Select Committee in support of what the noble Lord. Lord Kingsland, has said. Paragraph 175 states: "However, the Bill"—that is, the Bill before us— as it stands raises a number of serious concerns:

  1. (a) By abolishing the 1921 Act it finally removes the opportunity for formal parliamentary involvement in inquiries.
  2. (b) It strengthens the Executive's position by enabling ministers not just to decide on the form and personnel of an inquiry before it has begun but also influence its operation. For example in creating powers to end or suspend inquiries (clauses 12 and 13), as well as to withdraw funding in cases where ministers believe an inquiry is going beyond its terms of reference, it calls into question the independence of inquiries and means that ministers rather than chairs, as now, are interpreters of the terms of reference. In so doing the new legislation subverts the safeguards which were introduced when the original 1921 Act was debated.
  3. (c) The legislation does not address the wider questions we posed at the beginning of this report about the purpose and nature of inquiries.
  4. (d) As a result it does nothing to address the broader, more constitutional, issues about the circumstances in which Ministers should call an inquiry and determine its terms of reference and form. There is an assumption that one size fits all despite the acknowledgment of the wide variety of circumstances which apply.
It was therefore not surprising to find a little later, at paragraph 229, the following stated as part of its conclusion. The end of that paragraph states: Parliament now has to decide whether it wants to reclaim territory it has lost as far as inquiries of this kind are concerned, becoming once again the Grand Inquest of the Nation, or whether it is content to abandon the field to others, and to the executive. If it chooses the former, then this report offers a means of doing so".

Lord Donaldson of Lymington

My Lords, I do not want to take up much time, but in terms of mothballed or moth-eaten experience, probably I can do better than my noble and learned friend Lord Ackner. I was Crown Counsel, albeit in a very junior capacity, in the bank rate tribunal—I do not have any idea when that took place, except that it was a very long time ago—and the Vassall inquiry.

Even if it is right, as has been suggested, that we do not need Amendment No. 5, which concerns laying down procedure, because Parliament can lay it down itself, Amendment No. 3 will still be needed to stop the Minister or a colleague being able to set up an inquiry under this Act in its unamended form. Surely, that is one of the objects of the exercise for the noble Lords, Lord Kingsland and Lord Goodhart.

Lord Laming

My Lords, I will be very brief. I—and I am sure every Member of the House—have listened very carefully to the noble Lords, Lord Kingsland and Lord Goodhart. As ever, they have presented their views in a thoughtful and constructive way, but I am far from convinced about these amendments.

At Second Reading and in Committee, I and others expressed concerns about the Bill before us. First, it excluded Parliament from too many areas in which I and other noble Lords think that it should have a proper and distinctive role. Secondly, it gave far too much power to a government Minister. Those points have been extremely well made in the report before us today.

I hope that other noble Lords will agree that the Minister listened very carefully to those concerns and has now come back with a series of amendments that we will consider later. From my point of view, they address fully both of those concerns. I congratulate the Minister on those achievements, because they will not have been easily won.

That said, although I have great respect for parliamentary processes, particularly for the work of Select Committees, it is illusory to think that any part of the work of Parliament in this day and age can operate without the influence of party politics. The noble Lord, Lord Goodhart, was very wise in his comments on the subject.

If I have one belief more than any other, it is that if inquiries are to command the confidence of the public, they must be seen to be independent and operating apart from the influences that are all too pervasive in Parliament. I agree with the contributions to the report of the noble Lord, Lord Heseltine, and Mr Dobson. For that reason, my concerns about the amendments are so great that, despite what they seek to achieve, I do not feel able to support them.

Baroness Ashton of Upholland

My Lords, I am grateful to the noble Lord, Lord Laming, for his kind comments. I shall start what I hope will be a relatively brief response by saying how much I welcome the report of the Public Administration Select Committee. It makes an important contribution and endorses quite a lot of what the Government have been doing. Of course, not all of the total of 22 recommendations are specifically relevant to the Bill, but the report does cover some of the important issues that we discussed during our deliberations in Grand Committee and which the Government have brought forward amendments to address. Perhaps I may say particularly to the noble and learned Lord, Lord Ackner, that some of the issues of concern to him are addressed specifically and dealt with in later amendments.

I want also to say that the Government will make a full response to the Select Committee report. In view of the fact that we recognise the need to ensure that we have responded fully by the time the Bill reaches another place, we intend to curtail the normal length of time, which I believe is up to two months, that a government can take to make their response to enable the full response to be considered before Second Reading in another place. That will enable my honourable friend Chris Leslie and Members of the Select Committee to have a proper debate at Second Reading based on both the report and our full response to it. I hope that noble Lords will feel that that goes some way to acknowledging the importance we attach to this. The Government are committed to ensuring that the Bill is given a full and proper debate in another place.

I shall make a series of initial responses both to the amendments before us and to the points made by noble Lords in speaking to them. In Grand Committee I talked about the role of Parliament in the 1921 Act and the misunderstanding of the relationship between the passing of resolutions and the setting up of inquiries. Noble Lords who were present in Committee will recall that the passing of a resolution did not require a Minister to set up an inquiry, rather it enabled an inquiry to hold certain powers. Noble Lords will recognise from later amendments that I have sought to deal with the issue of parliamentary involvement in inquiries in an appropriate manner—one that reflects the reality of the position in 1921 rather than the misunderstanding that has arisen around it.

Noble Lords referred to the proposed commission that was considered in 1978 and the difficulties which arose when the proposal was approved in one House but not in the other. Noble Lords are also correct to assume that, if it so wished, Parliament could set up such a commission now. Nothing in law would prevent it. I look forward to a meeting scheduled with the honourable Dr Tony Wright to debate and discuss these issues. I agree with all that has been said about his excellent chairmanship of the Select Committee. I want to deal with a few of the points that have arisen in speaking to the amendments, thus enabling noble Lords to reflect even further on these issues. I turn briefly to the issue of misconduct. I understand what noble Lords are seeking to achieve, but in legislation we have to be crystal clear and say what we mean. There is an issue as regards determining or defining what "misconduct" means. We have sought to ensure in the Bill that inquiries are set up to look into events in order to identify what happened and what were the causes. That exercise might well identify misconduct, but we recognise that that should not be prejudged. I am concerned that we need to be clear about precisely what is being described and I would ask noble Lords to reflect on that point a little further.

I have already indicated that Amendments Nos. 1 and 2 in the name of the noble Lord, Lord Kingsland, do not give Parliament the power to force an inquiry to be held because Ministers would still initiate inquiries, appoint the panel members and set the terms of reference. Rather, the amendments would allow Parliament to delay or prevent inquiries being held by refusing to pass the relevant resolutions. I repeat what I said earlier: the 1921 Act did not do what some noble Lords who considered this in Grand Committee felt it might.

There are some technical issues with the amendments, but I shall not address those because the noble Lord, Lord Kingsland, has rightly asked us to focus on the amendment suggested in the report. I have indicated already that it would be possible for a parliamentary commission of inquiry to be set up without the need for primary legislation, but I also recognise the points made by both my noble friend Lord Borrie and the noble Lord, Lord Goodhart, on the particular example of the Rhodesian oil sanctions special commission and the difficulties it ran into.

A couple of other issues are also worthy of consideration. The committee itself acknowledged the difficulty of distinguishing between politically sensitive inquiries and others. Of course, "involving the conduct of Ministers" is a very broad definition.

There have been a great many inquiries beyond those referred to within the report where it could be relevant to suggest that there was ministerial involvement. When I looked at the report, two that sprang to mind were the BSE inquiry and the North Wales child abuse inquiry. In both instances there were questions and issues about the behaviour, on the one hand, of the Department of Health and, on the other, the reorganisation of local government in the 1970s, where it was felt in the North Wales child abuse inquiry that it had become easier for abuse to go undetected.

I was struck by the evidence given to the committee by Sir Michael Bichard on 9 December. He referred to inquiries falling along points on a continuum. In the proposed amendment there is an issue about where one would draw the line on that continuum.

I have already indicated that I am concerned not to pre-judge inquiries. We are specifically considering inquiries to investigate the causes of events, not to pre-judge whether there has been misconduct by either Ministers or departments. I am not entirely sure about how we would deal with an inquiry that was established under one framework but then discovered that there were issues of ministerial conduct. I am concerned about how we would ensure that such issues were properly investigated.

As my noble friend Lord Borrie said, Ministers provide advice about Orders in Council to ensure that they are initiated. Effectively, that would simply set up another route for the Government to initiate inquiries.

There is also the issue of what the noble Lord, Lord Laming, described as the political reality of divisions along party lines. Indeed, in the report there is some criticism of the Select Committee process in regard to that very issue. So there are particular concerns there.

I have deliberately tried quickly to raise some of the issues that I shall be keen to discuss with the chairman of the Public Administration Select Committee, Dr Wright, when I meet him, and also the questions that we will be addressing in our full response.

I understand what noble Lords are seeking to do. I also understand that the Select Committee is concerned to ensure a role for Parliament and to consider how best to deal with particular kinds of inquiries. I have difficulty with the amendments around the issues I have raised: about the fact that one can already set up a commission—it is available—if Parliament so wishes; about ensuring that the partisanship the committee had concerns about in the Select Committee process is dealt with differently; about prejudging what has happened in an inquiry before it begins; and about the other questions I have raised.

I hope that noble Lords will further consider these issues. I shall be very happy to discuss some of these concerns in more detail. As I have said, I very much look forward to discussing the issue with Dr Wright. On the basis of what I have said so far, I hope the noble Lord will feel able to withdraw his amendment.

8.15 p.m.

Lord Kingsland

My Lords, I am most grateful to the Minister for her response and to all noble and noble and learned Lords who have spoken.

As I said at the outset, two quite distinct issues are raised by this group of amendments. The first issue is to what extent Parliament should be involved in the establishment of a committee, including its membership, its terms of reference and so on. The second, quite distinct, issue is what form the committee of inquiry should take, whether it should be a parliamentary commission as suggested by the report or of some other character, perhaps chaired by a judge.

Your Lordships have several options: your Lordships can reject both aims that lie behind this line of amendments; your Lordships can accept both aims; or your Lordships can accept one aim and refuse the other. The noble Lord, Lord Goodhart, seemed to be suggesting that he accepted entirely the need for Parliament to be involved in the setting up of a committee which sought to investigate a potential ministerial misdemeanour; but that he had reservations about the second aim and whether or not the committee should be composed of Members of Parliament. The noble Lord, Lord Goodhart, I like to think, is out to the jury on the second point, and not entirely determined one way or the other. So I entirely accept that there may well be a variety of views that emerge from your Lordships' House when we come to consider the matter again at Third Reading.

I remain a firm adherent of both aims that are implied by this line of amendments. I must confess to being somewhat surprised by those of your Lordships who are worried about the role that Parliament might play in what is, after all, one of the fundamental conventions of our constitution—the responsibility of a Minister to Parliament. If we do not make that convention work, then one of the two core tasks of Parliament will simply cease to function. We can continue making legislation but we will have no influence over the conduct of the Executive. I simply cannot believe that that is what your Lordships want.

The point was extremely well illustrated by the final quotation from the noble and learned Lord, Lord Ackner, when he took us to the conclusions and recommendations of the report and read out the last part of paragraph 229. I make no apologies for quoting it again: Parliament now has to decide whether it wants to reclaim territory it has lost as far as inquiries of this kind are concerned, becoming once again the Grand Inquest of the Nation, or whether it is content to abandon the field to others, and to the executive. If it chooses the former. then this report offers a means of doing so". I find it very hard to believe that Parliament would want to abandon this central field to others; because it is one of the two main purposes for the existence of Parliament. So leaving your Lordships to reflect on that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 2 to 5 not moved.]

Clause 3 [The inquiry panel]:

Lord Howe of Aberavon

moved Amendment No. 6: Page 2, line 3, leave out paragraphs (a) and (b) and insert— (a) by a chairman with one or more other members, or (b) by a chairman alone. ( ) In deciding whether or not an inquiry can acceptably be conducted by a chairman alone, the Minister must have regard to the considerations specified in section 7. The noble and learned Lord said: My Lords, Amendments Nos. 6, 7 and 8 to some extent contain alternatives or cumulatives. The essence of them is to press the case for a broadly based panel of inquiry, more than a chairman sitting on his own, flanked by wingmen or wingwomen—as we must take care to say—of sufficient expertise and sufficiently balanced to equip the inquiry to do its task.

Before I embark on the arguments in support of that proposition, I should like, with great respect to the Minister, for whom we all have respect in her conduct of these and other proceedings, to echo the concern expressed by noble Lords on both sides of the House at the somewhat ridiculous position in which we find ourselves. Legislation of this importance, effecting far-reaching changes and sweeping up decades of piecemeal, but not too badly workable, history, is being considered and has almost reached the point of departure from your Lordships' House at the moment when the Public Administration Committee in the other place has concluded a formidably effective inquiry. I echo the admiration expressed by a number of colleagues already for the diligence, zeal and effectiveness of that committee, particularly of its chairman, Mr Tony Wright.

For us to be assured by the Minister that even if we catch only a fleeting glimpse of her exchanges with the committee report, it will hasten its response so that the Commons will have a chance to glance at it before the Bill completes its proceedings in that House is an extraordinary situation. I do not want to sound too harshly critical, but it does no credit to the Government, Parliament or the Department for Constitutional Affairs. The department itself has been conducting a long-running and meticulous inquiry, but it has not run on a parallel course. Different evidence has been heard in different ways and we have not had the opportunity of, rather than knocking heads together, rubbing wise heads together and distilling a greater degree of wisdom than has so far been available to us. I am sorry to start on that critical note, but it makes nonsense of any real achievement of good administration—or joined-up government to use the fashionable phrase.

Making the best of that, this group of amendments is concerned with anxiety about the appointment of solo inquiries and the absence of wingmen. That is not founded on the proposition that solo inquiries are bound to go wrong—far from it—nor that joint inquiries are bound to be right. We can think of many examples of solo inquiries conducted with distinction by learned judges, Members of this House and other judges. Shortly after the tragic death of Lord Scarman one recollected a number of inquiries that he conducted in this country and in Northern Ireland which certainly got it right as far as it is possible to do so.

However, even if that is the case, in our Committee proceedings the noble and learned Lord, Lord Hutton, drew our attention to the extent to which the judiciary on its own, conducting politically charged inquiries, is obliged to follow what can be a high-risk course when one considers the respect with which the judiciary is entitled to be held. That is particularly so in today's media environment when the outcome of such inquiries is all too likely to provoke an outburst of whitewash throwing to try to conceal and obscure the wisdom of the conclusion. That can be rapidly followed—this can even be used as an alternative—by mud throwing to challenge the integrity of the inquiry in a different way. In those circumstances, one reason for believing that one should have more than a single judge in charge of an inquiry in the ordinary way is to protect the judiciary from that kind of hazard. However, that is not my only reason for advancing this case and the judiciary, notwithstanding those hazards, is well able to look after itself. Again with respect to the judiciary, I also wish to broaden the basis of judgment of such panels of inquiry when they are investigating fields with which, by definition, traditional figures may not be familiar. The noble and learned Lord, Lord Scott, told the noble Lord, Lord Garel-Jones, at some stage when giving evidence to the inquiry that the noble Lord conducted that his first acquaintance with the machinery of government had come solely from his experience in the conduct of that inquiry. It is not surprising, but it was a hazard to which he ought not to have been exposed.

I think that I am right in quoting the noble and learned Lord, Lord Hutton, in his evidence to the Public Administration Committee saying that there was no discussion in that case—and there was none in the case of the noble and learned Lord, Lord Scott, about whether wingmen might be desirable. Be that as it may, as I told the Grand Committee, in my modest experience when I sat with great hesitation as a deputy chairman of quarter sessions, not having been a prolific practitioner in the criminal courts, I was enormously fortified by having the presence of magistrates alongside me, especially when it came to sentencing.

I well remember, as will the noble and learned Lord, Lord Donaldson, the care that we took in the initial construction of the National Industrial Relations Court which he launched with such distinction. It is now better known as the Employment Appeals Tribunal although it is in much the same state. There was enormous value in that tribunal of having wingmen there—representatives in the old-fashioned phrase from both sides of industry. However, it is beyond the substance of the issue that one sees the need for support in that form. The noble and learned Lord, Lord Bingham, a Member of this House and a senior Law Lord, paid specific tribute to that after his conduct of the BCCI inquiry. I quoted him in Grand Committee. He referred to the benefit of, 'drawing on their experience and expertise. They have contributed invaluable insights and guidance'. But, almost more importantly, he said: 'I have also found their judgments on more mundane factual issues consistently shrewd and realistic"'.—[Official Report, 18/1/05; col. GC 212.] That judgment was endorsed by the Council on Tribunals in its report of 1996, when it praised not only the breadth of experience that can be brought to bear on the subject of an inquiry. It said that wingmen can also, enhance public confidence in the fairness of the process and in the inquiry's conclusions. They can afford the inquiry chairman helpful support and some protection against errors of judgment, in matters of both substance and procedure". The council concluded that, if the inquiry involved consideration of broad policy issues, a spread of expertise will almost always be desirable". 8.30 p.m.

Since then, we have of course received the report of the Public Administration Committee. On this issue, its judgment is if anything even clearer than that of the Council on Tribunals. Paragraph 73 of the committee's report said: We agree with and endorse the view that the use of 'wing members' brings expertise, reassurance, support and protection to inquiry chairs. We particularly recommend the use of panels in politically sensitive cases as a non-statutory means of enhancing the perception of fairness and impartiality in the inquiry process. We also recommend that where judges are seen as the most appropriate chair, they should usually be appointed as part of the panel or be assisted by expert assessors or wing members When the Minister replied to the debate in Grand Committee, she sought to rely on the references in Clause 7 on the need to have regard to expertise and the need for balance. She said that those provisions provided an answer to the question, covered by my previous amendment, that there should be a preference for a panel rather than a single individual. Some noble Lords, particularly the noble Viscount, Lord Bledisloe, said that I had argued in favour of an irrebuttable presumption in that direction. I had not—but if it looked as if it had, I take it back.

I return to the central point. The Public Administration Committee in another place endorsed without qualification the central proposition of what I seek to embody in this amendment. I beg to move.

Lord Donaldson of Lymington

My Lords, I strongly support Amendments Nos. 7 and 8, in particular, proposed by my noble and learned friend Lord Howe. It is a long time ago and he may have forgotten this but, although Lord Denning's report into the Profumo problem was widely acclaimed by the public and was indeed a bestseller, some people said that it might have been rather better if he had had wingmen of one form or another.

I have myself been involved in four inquiries for government since I retired from the Bench. In each case, I told the Minister that I was not prepared to undertake the inquiry unless I had two wingmen. I said that because I would then have someone to put my tentative inquiries to and see how he reacted. Also, to a greater or lesser extent in the cases with which I was concerned, they added expertise, or different angles of expertise, that I did not possess. I have no doubt at all that that they improved the quality of the ultimate product.

Of course, I imagine that there will in the case of those of us who are married—I have been married when doing these inquiries—always be a shadow wingwoman. There certainly has been in my case. She looked at most of the things I did, whether judicially or not, to see whether it was intelligible to members of the public. If my wife said, "I do not understand it", I rewrote it. I do not suggest that that should be a statutory requirement, but it has to be remembered.

I have one word about the NIRC. I was involved in the sense that I was asked to comment on the Industrial Relations Bill, as it then was. I said to government, "It is all very fine, but you have a clause in here that says that the tribunal is three—myself and two legally unqualified but otherwise very highly qualified wingmen—and that any question of law should be decided by a majority. That does not seem very sensible". They said, "It is not very sensible, and we are sorry, but it was taken from the restrictive practices Bill. We really cannot alter it now because any amendment at this stage will lead to at least a day's discussion in one House or the other". But they added, not unkindly I am sure, "If you cannot persuade your two laymen to agree with your view, you are not fit to be president". I was not sure that I agreed about that.

I agreed even less when, on one occasion, my two wingmen declared unequivocally that they did not accept my view. I thought that I was going to have to put my pride in my pocket and perhaps hope that the Court of Appeal or someone would put it right from my point of view. Happily, my noble and learned friend Lord Griffiths was another judge. I was moaning to him about this. He said, "Leave it for a moment". When we adjourned for tea, he went and had tea with my two laymen and came back and told me that their objections had been withdrawn.

We need to be a little bit careful on what powers we give to the wingmen, but not very.

Lord Hutton

My Lords, the Public Administration Select Committee, in a very interesting and thoughtful report, has made recommendations which, as the noble and learned Lord, Lord Howe, has remarked, gives support to this amendment. I should like to make some comments on the amendment and on the recommendations in the committee's report.

I do not doubt that there will be inquiries where a judge should sit with other members of the panel or with expert assessors; as my noble and learned friend Lord Donaldson has remarked, they will often be of great assistance. But I do have reservations about the committee's recommendation that a judge should usually not sit alone. I think it should depend on the nature of the inquiry.

The committee refers in paragraph 41 of its report to the reasons which can be advanced in favour of a judge chairing an inquiry and sitting alone. They are, very briefly stated, first, that a judge has a great deal of experience in conducting hearings, in defining issues, in assessing evidence and in determining facts. Secondly, judges are viewed as independent and impartial. They are apolitical and not concerned to advance the interests of one political party over another. Thirdly, they can be transferred relatively easily from their ordinary judicial duties to the conduct of an inquiry.

However, the committee states in paragraph 44 of its report that none of those reasons seems to it to be totally compelling. It takes the view that a judge should not sit alone to conduct an inquiry where the matter is politically sensitive or politically contentious—its reason being that in such cases because of the political context the report may be criticised, the standing of the judiciary may be undermined and the reputation of the individual judge may be harmed.

As I have said, I have some reservations about the recommendation that usually a judge should not sit alone because I think, with respect, that the committee's view fails to take account of a distinction which should be drawn. On the one hand when the need for an inquiry arises there may be issues that are politically sensitive or politically contentious because they relate to questions which are themselves political, for example, whether public funds should have been used for one public purpose or another. Clearly a judge, particularly a judge sitting alone, should not embark on such an inquiry because that would take him into the political arena.

However, there may be other issues that involve questions of fact which a judge is well qualified to hear and determine, but where there would be very serious consequences for a Minister or for the government as a whole if the questions were answered in a particular way. I believe that the Minister referred to that point a short time ago. Such an inquiry can, of course, be termed politically sensitive because of its possible political consequences. However, I think that is not necessarily a reason why a judge sitting alone should not conduct such an inquiry. Judges sitting alone frequently have to decide cases that are politically sensitive. Many judicial review cases in the Administrative Court are politically sensitive because if the judge rules that a government department has acted unlawfully, that may give rise to criticism of the Minister in charge of the department. However, that is not a reason why the judge should not hear the case and give his ruling.

I regarded the inquiry into the circumstances surrounding the death of Dr David Kelly as such a case. It gave rise to largely factual questions that I considered a single judge was qualified to inquire into. Briefly they were, first, how did Dr Kelly come to die; secondly, did the Government probably know that the 45 minutes figure in relation to weapons of mass destruction was wrong before it was put in the dossier, as the BBC "Today" programme reported; and, thirdly, was there an underhand and dishonourable strategy on the part of the Government to leak covertly Dr Kelly's name to the press without appearing to do so? These were questions that were politically sensitive and politically contentious in a very high degree because if either the second or the third question had been answered in the affirmative, there is little doubt that the Prime Minister would have had to resign. However, in my opinion they were questions that a judge could properly consider and give a ruling on.

The Public Administration Select Committee is concerned about the risk in a politically sensitive case that the report of a judge who chairs an inquiry without other panel members or assessors may be criticised, with harmful consequences for the judiciary as a whole or for the individual judge. However, it is the duty of a judge to decide issues before him fairly and properly on the evidence without fear or favour and without being swayed by pressure from sections of the media or by concern that he will be criticised if he decides in a particular way. The risk of being criticised for the discharge of his duty is simply a burden that a judge has to accept.

Before I published my report I expected that on publication I would be criticised by some newspapers and some commentators who had been predicting that the Prime Minister would be compelled to resign. That is why I set out at considerable length in the report the evidence which had led me to the conclusions to which I had come.

I also doubt whether the criticism which may be levelled from some quarters at a report which is politically sensitive will be greatly reduced if the report comes from a panel of three or more as opposed to a single chairman. I was criticised for my conclusion that the BBC report was unfounded that the Government probably knew that the 45 minutes figure was wrong. The committee of five Privy Counsellors chaired by the noble Lord, Lord Butler, came to the same conclusion. Paragraph 310 of their report referred to, allegations that the intelligence in the September dossier had knowingly been embellished, and hence over the good faith of the Government. Lord Hutton dismissed those allegations. We should record that we, too, have seen no evidence that would support any such allegations". Yet that finding by the committee chaired by the noble Lord, Lord Butler, did not result in any diminution of the criticism directed at that section of my report.

There is little doubt that a judge sitting alone can conduct an inquiry with greater expedition and efficiency than if he is one of a panel. If there is a panel, there will have to be adjournments to enable the panel to discuss issues that arise as to the admissibility or relevance of evidence, and the flow of the evidence will be interfered with. In the future there will be inquiries, even if they are politically contentious, where it will be beneficial to have a legal chairman sitting alone. It will depend on the nature of the issues that fall to be considered, and it is preferable that there should not be a presumption set out in the clause. Therefore, with respect, I am unable to support the amendment.

8.45 p.m.

Lord Laming

My Lords, lest there be any misunderstanding, will the Minister, and maybe the noble and learned Lord, Lord Howe, who moved the amendment, make it plain that if in future a chairman is appointed to chair an inquiry and he is accompanied by assessors, the conduct of the inquiry, and the report of the inquiry, is solely the responsibility of the chair?

Baroness Ashton of Upholland

My Lords, the noble Lord, Lord Laming, is correct. I was much taken by the statutory requirement proposed by the noble and learned Lord, Lord Donaldson, for women to determine the eligibility or intelligibility of contributions from men. I might sign up to that, if the noble and learned Lord would care to put an amendment down to that effect. I will be brief, which is no disrespect to the important contributions that have been made, but I might be able to deal with this quite quickly.

I say to the noble and learned Lord, Lord Howe of Aberavon, that in my statement about the Select Committee I was in no way suggesting that we should only be offered the opportunity to—the noble and learned Lord said—glance at the report. Rather, I was ensuring that as it is a committee of another place, and as I would expect the members of the committee to wish to debate in full, and rightly so, the issues as the Bill reaches them, that I would curtail the normal length of time to ensure that that could take place. I was attempting to he helpful, and I was rather sad that it was interpreted in that way—but what can I do?

This reflects much of what the noble and learned Lord, Lord Hutton, said. We should not make general rules, or presumptions, about what would work best in future. It depends on the nature of the inquiry, and I accept what the Select Committee said about the value of contributions from wingmen. I accept what the noble and learned Lord, Lord Howe of Aberavon, said about the importance of a panel operating in the appropriate circumstances. All that we are saying in the Bill is that different constitutions of panels are appropriate to different sets of circumstances. On occasion, it is right for a chairman to sit alone, and in the clauses referred to in these amendments we talk about the role of assessors.

The noble Viscount, Lord Bledisloe, made an important alternative suggestion. I am sorry that he is not in his place to hear me say this. The statement to Parliament on terms of reference would be an appropriate place to set out proposals about panel membership. Indeed, we have incorporated that idea in government Amendment No. 18, which we will debate shortly. It is important for the appropriate chairman and/or panel to be appointed; we want to retain that flexibility, and we accept much of what has been said about the value of panels, the value of assessors, and the value of wingmen. I hope that the noble Lord will feel able to withdraw his amendment.

Lord Howe of Aberavon

My Lords, I am grateful to all those Members of the House who have contributed to the debate. I shall respond first of all to the noble Lord, Lord Laming. Where a panel consists of the chairman alone, it is clear that, however many assessors he may have, the panel report is his responsibility beyond doubt. That was the case for the noble and learned Lord, Lord Hutton. I well understand the case that was made, and do not intend any disrespect by putting my proposition in a slightly different light.

However skilful the judicial approach—heaven knows that the noble and learned Lord has had a mountain of experience with which to equip himself in that way—public confidence in some cases, notwithstanding the respect for the judicial figure, may be broadened by the input of a further group of people. In a sense, that is the reason in the very special case of the input of jurors, where juries are involved. It is possible to hold all sorts of different views about that. The case for solitary judicial inquiries must be treated with great respect and caution. However, I take the point made by the Minister and the noble and learned Lord, Lord Hutton, about "presumption". I confess that the word was not in my original version of Amendment No. 7; this is one of alternatives. Perhaps I should have taken it out, as it requires too heavy a burden of proof in the other direction. However, I still think that there should be an inclination towards a panel-equipped chairman, be he a judge, lawyer or layman. On the whole, a broader grouping is more likely to be accepted by the wider public, and even by the media. A broader grouping is more likely to avoid the risk of reaching a conclusion that, given a little more time, might have been differently expressed. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 7 and 8 not moved.]

Lord Goodhart

moved Amendment No. 9: After Clause 3, insert the following new clause— "FREEDOM OF INFORMATION

  1. (1) An inquiry panel is not a public authority for the purposes of the Freedom of Information Act 2000 (c. 36).
  2. (2) But at the end of an inquiry all recorded information given to or created by the inquiry shall be transferred to and kept by the Minister and shall be subject to the right to information under that Act.
  3. (3) Section 32 of the Freedom of Information Act 2000 (court records etc.) is amended as follows.
  4. (4) In subsection (2) omit the words "inquiry or" in each place.
  5. (5) In subsection (4) omit paragraph (c)."

The noble Lord said: My Lords, in speaking to Amendment No. 9, I shall speak also to Amendments Nos. 80 and 87. This important group of amendments deals with some, though not all, of the freedom of information issues raised by the Bill. I have to say that the Bill appears to have been originally drafted in apparent ignorance of the existence of the Freedom of Information Act.

Our original amendment proposed that the inquiry panel be treated as a public authority for the purposes of that Act. I was persuaded by the Government's argument in Grand Committee that the inquiry panel should not be treated as a public authority, because it was said to be inappropriate for the panel—a small body set up for a particular purpose—to have to deal with requests for information under the Act while the inquiry was continuing; I agree. Instead, we now propose in Amendment No. 9 that recorded information be handed over to a Minister at the end of the inquiry and be accessible under the Act, subject of course to the exemptions contained in it. Amendment No. 9 also proposes that Section 32 of the Freedom of Information Act, which gives absolute exemption to inquiry documents, be disapplied.

I am glad to say that the Government have responded helpfully to the amendments that we moved in Grand Committee. In Amendment No. 107, they have provided for rules to be made about dealing with documents given to or created by an inquiry. I understand that the provision is intended to provide for the inquiry documents to be handed over to the sponsoring department—if I can call it that—which will be a public authority, of course. I hope that the Minister will confirm that.

Subsections (3) and (4) of government Amendment No. 52 disapplies Section 32(2) of the Freedom of Information Act to documents which are handed over to the sponsoring department. The result will be that the documents will be accessible under the Freedom of Information Act subject to the exemptions in that Act, other than those in Section 32(2). That is a satisfactory result.

A similar problem which arose under the Bill as drafted was the publication of inquiry reports. Clause 23(4) gives power to a person whose duty it is to publish the report—either the Minister or the chairman—to withhold such material as the publisher considers necessary in the public interest. The decision to withhold as now in the Bill could be challenged by judicial review, but otherwise it is a matter of discretion for the publisher. It could be interpreted, as it now stands, as overriding the Freedom of Information Act. Our Amendments Nos. 80 and 87 provide that information cannot be withheld from a report if it is information which could be accessible under the Freedom of Information Act.

The Government have responded with their Amendment No. 86, which makes it clear that the power to withhold material from the report does not override the Freedom of Information Act. Again, this appears to us to be acceptable and if material is withheld from the report, the media, individuals or political parties can probe for that material. If exemption is claimed, the decision whether it should be withheld is taken by the Information Commissioner or the Information Tribunal and not by the Minister or chairman.

We are grateful to the Government for listening to our arguments. We accept their amendments in this group. I beg to move Amendment No. 9 but I shall not press our other amendments in the group.

Lord Dubs

My Lords, I broadly welcome Amendment No. 52 relating to public access to inquiry proceedings and information. It represents a step forward, although I am concerned that it is constrained by Section 17, some of whose provisions can be applied onerously and broadly. However, it depends on the spirit within which these things happen.

I notice in the much-quoted House of Commons Public Administration Select Committee report at paragraph 99: Although the 1921 Act provides for a presumption of openness we are concerned that the Government's new Inquiries Bill creates wide powers for ministers to restrict access to inquiries, making public accessibility subject to restriction notices. This subverts accepted presumptions of openness and public interest and we recommend it should be reversed". Possibly the Select Committee report preceded Amendment No. 52 tabled by the Government. Can my noble friend clarify that point?

Be that as it may, there must be concern about whether the effect of Clause 17 would not to some extent negate the presumption of openness in government Amendment No. 52. It depends on how the Government do it. I am aware that there are concerns in Northern Ireland about the Finucane inquiry and clearly it would be helpful if the Government—perhaps not today but at some point—made clear how open such inquiries would be. If the Government act in the spirit of subsections (1)(a) and (b) of Amendment No. 52, that will be fine. If they seek to allow the more restrictive parts of Clause 17 to have too much effect, that will not be fine. However, the government amendment represents progress and I welcome it.

Lord Laming

My Lords, my speaking notes were compiled before the noble Lord, Lord Dubs, made his contribution. I welcome Amendment No. 52 for its greater clarity and because it emphasises the responsibilities and powers of the chair of an inquiry.

9 p.m.

Baroness Ashton of Upholland

My Lords, I am grateful for the welcome that has been given to the government amendments. They accept in principle what the noble Lord, Lord Goodhart, proposes. I agree that inquiry panels are not public authorities for the purpose of the Freedom of Information Act. There is no need to set that out explicitly in the Bill because it is a provision of the Bill as drafted. As the noble Lord, Lord Goodhart, realises, subsection (2) of Amendment No. 9 contains a matter that we intend to deal with in procedural rules, as government Amendment No. 107 makes clear. I can assure the noble Lord that our intention is that at the end of an inquiry the records that are retained will pass to a public authority, usually a government department or the National Archives.

The noble Lord, Lord Goodhart, has convinced me that there is no need for the absolute exemption conferred by Section 32 to apply to the records of inquiries under the Bill once those inquiries are over. Amendments Nos. 52 and 62 address that point. Amendments Nos. 108 and 110 are consequential definitions.

I do not believe that it would be right for a Minister to use the powers in Clause 23 to withhold information from a report that a person would have the right to see under the Freedom of Information Act. We are happy to make provision in the Bill to that effect.

As the noble Lord, Lord Goodhart, knows, there are difficulties regarding how his amendments would work in practice, not least because we are concerned that the sensitivity of information changes all the time. Information that may be exempt today may not be exempt in six months' time. So we believe that it is better to ensure that any actual request received must be complied with in accordance with the Freedom of Information Act and that Clause 23 cannot override any rights of access. We have tabled Amendment No. 86 to that effect.

The noble Lord, Lord Goodhart, said to me before that he wished to see a right of appeal to the Information Commissioner on materials withheld from reports. I am not sure that the amendment tabled by the noble Lord would introduce that right, but I believe that Amendment No. 86 would.

Scotland has a separate Freedom of Information Act. The Scottish Ministers are happy to make parallel provisions for that Act, and those are included in the government amendments.

I am grateful to my noble friend Lord Dubs for raising the issues, but we shall have opportunities to discuss Clause 17 specifically when we get there. It clarifies the rules. I look forward to that debate and hope that my noble friend will participate in it. On the basis that the Government have achieved what 1 hope the noble Lord, Lord Goodhart, was looking for, and—dare I say—added to it, not least in the case of Scotland, I hope that the noble Lord will feel able to withdraw his amendment. I shall move the government amendments at the appropriate time.

Lord Goodhart

My Lords, I say in response to the noble Lord, Lord Dubs, that the issue will be raised when we reach the group of amendments starting with Amendment No. 65. As I have already said, I am happy to ask leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Clause 4 [Appointment of inquiry panel]:

Lord Kingsland

moved Amendment No. 10: Page 2, line 9, at end insert ", after consultation with the chairman The noble Lord said: My Lords, I can deal with this point very briefly. The amendment would ensure that the Minister consults the chairman before appointing anyone else to the inquiry panel. In Committee, there was a discussion, and the Minister very kindly agreed to think about it. The Government have tabled an amendment which, essentially, would achieve the same objective as mine. In those circumstances, depending on what the Government say about it of course, I am happy to accept their version. I beg to move.

Lord Evans of Temple Guiting

My Lords, I hope I shall be able to satisfy the noble Lord, Lord Kingsland. The amendment that the Government propose would compel the Minister to consult the chairman or the person he wishes to appoint as chairman before appointing a member, or a further member, of the inquiry panel. We had a full discussion of that point in Committee and, having considered what noble Lords have said about the need for a statutory requirement, we have tabled Amendment No. 11 to address the point.

That amendment will introduce a requirement for consultation for all appointments of panel members other than the chairman, including any further appointments made under Clause 6. It allows for the consultation to take place before the formal appointment of the chairman if the whole panel is being appointed at the same time.

As before, if the Minister proposes to increase the number of panel members during the inquiry, without having set out his proposal before the start under Clause 5(b)(ii), the chairman's consent is required.

I hope that we have satisfied noble Lords. We had a very long discussion about this in Grand Committee.

Lord Kingsland

My Lords, I am most grateful to the Minister for his response. In those circumstances, I am happy to beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Evans of Temple Guiting

moved Amendment No. 11: Page 2, line 11, at end insert— ( ) Before appointing a member to the inquiry panel (otherwise than as chairman) the Minister must consult the person he has appointed, or proposes to appoint, as chairman. On Question, amendment agreed to.

Clause 5 [Setting-up date and terms of reference]:

Lord Goodhart

moved Amendment No. 12: Page 2, line 20, at end insert— ( ) Before establishing the terms of reference the Minister shall consult the chairman. The noble Lord said: My Lords, in speaking to Amendment No. 12 I shall speak also to Amendment No. 14. Amendment No. 12 requires a Minister to consult the chairman of the inquiry on the terms of reference. Amendment No. 14 permits the terms of reference to be modified without having to terminate the inquiry and reboot it—to use computer-speak—subject to the agreement of the panel to the modification.

Amendment No. 16, in the name of the noble Lord, Lord Kingsland, is to the same effect as our Amendment No. 14, but requires the agreement of the chairman rather than that of the panel as a whole.

Government Amendment No. 15 accepts these amendments, except that in the case of the modification of the terms of reference it requires only consultation with the chairman, not consent. I can see that the chairman has the ultimate weapon of resignation if a Minister tries to force an unwelcome change to the terms of reference on him or her, but I would still prefer the requirement to be consent. I would suggest that there is a need for the whole panel at least to be consulted on the matter.

I can well imagine the furious reaction of a panel member if he or she finds that the terms of reference have been altered without anyone consulting him or her. I should like to hear further the views of the Minister on these points. I beg to move.

Lord Kingsland

My Lords, I have nothing to add to what the noble Lord, Lord Goodhart, has said.

Lord Evans of Temple Guiting

My Lords, I hope again that I shall be able to satisfy the noble Lord, Lord Goodhart. As I said in Grand Committee, in practice the Minister will invariably consult the chairman before setting out the terms of reference. However, I was persuaded by the arguments that the noble Lord made for having a specific provision.

During debate in Grand Committee, it was clear that there were strong feelings for a provision to enable the terms of reference to be amended during the course of an inquiry. I think it is very important not to encourage such changes unless they are absolutely necessary and have been very carefully thought through. However, we were attracted by the idea put forward by the noble Lord, Lord Goodhart, in Grand Committee that a power to change the terms of reference should be limited to situations in which a change was in the public interest. We thank him for that idea. I therefore support in principle Amendments Nos. 12, 14 and 16 but I ask noble Lords not to press them and instead to accept government Amendment No. 15 which the parliamentary draftsman has provided.

I also ask noble Lords to accept government Amendment No. 43, which would allow the same provisions to apply to the conversion of an inquiry, and government Amendments Nos. 91, 92 and 93, which reflect the changes that would be caused by introducing a power to modify the terms of reference. I beg to move.

Lord Goodhart

My Lords, I do not think that the noble Lord does beg to move the amendment. I accept what he says. I am happy with government Amendments Nos. 43, 91, 92 and 93. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart

moved Amendment No. 13: Page 2, line 20, at end insert— ( ) The Minister shall lay the terms of reference before each House of Parliament. The noble Lord said: My Lords, since this amendment is fully covered by government Amendment No. 18, the simplest thing would be for me to move it formally and leave the Minister to get on with it. I beg to move.

Viscount Goschen

My Lords, my Amendment No. 19 is included in this group; it is an amendment to government Amendment No. 18. It relates to costs, on which we had extensive deliberations in Committee. I attempted to press the Minister for an explanation of what budgeting process goes into the setting up of inquiries. I note that there are provisions in the Bill to get a grip on costs. I note the new provision introducing a requirement for the chairman to have regard to costs and a requirement in Clause 36 to publish final costs. Those are all well and good, but the fact that we now know, more or less, how much the Bloody Sunday inquiry will cost when it is finished does not alter the fact that a very disproportionate sum has been spent. My amendment attempts to focus minds on the question of costs before money is spent. The noble Baroness's amendment sets down duties for the Minister to inform the Parliament or the Assembly. My amendment adds to the end of her amendment: (d) an estimate of the likely cost of the inquiry". I fully accept that that may be very difficult to do, as inquiries by their very nature deal with uncertainties. The chairman or the Minister will not know for sure where the developments will go. But that is the same with many other areas of public interest; for example, rehabilitation of London Underground's infrastructure. One does not know the condition of the assets, yet assumptions are made and estimates produced.

Estimates are currently made. In her letter to me of 31 January, the Minister said: it is up to each Department whose minister sets up an inquiry to discuss with the chairman matters such as estimated duration of the inquiry and estimated costs". On the specific point of the Bloody Sunday inquiry, she further said: I understand that estimates were prepared at the outset". However, tellingly, she does not say what those estimates were.

Much reference has been made to the report of the House of Commons Select Committee on Public Administration. In paragraph 127, the committee concludes: We recommend that Ministers should announce a broad budget figure early on at the start of an inquiry. Any increases over the announced limits would then need to be publicly explained at the end of the inquiry when final costs are published". I agree entirely with that. I hope that the Minister will feel able to accept my amendment.

Lord Fraser of Carmyllie

My Lords, I support my noble friend's proposal. I hope that the Government think that it is a useful provision because, although there is often a terrific demand out there for inquiries into this or that, possibly enthusiasm for such inquiries would he modified if people appreciated that it would cost them a significant sum and that public funds might be better spent elsewhere.

Of course my noble friend is right; it is very difficult to give an absolutely accurate forecast of the cost of an inquiry, not least because those who have to chair it will not yet have decided whether they will allow any particular party to be represented. So I appreciate that there are difficulties. But I have no doubt that when the Minister has decided to set up an inquiry and has discussed it with the chairman, there must be at least some appreciation, understanding or calculation of who will be allowed to attend. However, ultimately, it will be for the chairman of that inquiry to decide who should or should not be allowed to put forward their representations and be present at the inquiry. But Parliament should be given the opportunity to know what the inquiry will cost at the outset. If there can be only an estimate, that is the best that can be done.

Baroness Ashton of Upholland

My Lords, as the noble Lord, Lord Goodhart, said, I promised in Grand Committee to give further thought to the involvement of Parliament and how that could be strengthened. Indeed, I welcomed the idea of a requirement to inform Parliament of the terms of reference.

Government Amendment No. 18 goes even further than the amendment in the names of the noble Lords. It requires the Minister to make a statement to Parliament on the establishment of an inquiry, its terms of reference, its chairman and the form of the panel. Amendment No. 44 makes similar provision for inquiries that could be converted. Amendment No. 109 defines how they would work for the different administrations in the United Kingdom.

9.15 p.m.

As the noble Viscount, Lord Goschen, has indicated, his Amendment No. 19 attempts to deal with costs by having the requirement to provide "an estimate". I fully appreciate what the noble Viscount seeks to do, but my difficulty is that the chairman should be in the driving seat in terms of planning the inquiry. I would be nervous about a Minister setting the parameters of the inquiry ahead of any assessment that the chairman might make.

We have spoken to former inquiry chairmen and to the secretaries of those inquiries. Of course, noble Lords will not be surprised that they indicated that it can be quite hard to estimate the budgets before there is a clear idea of the scale of the task and the amount of evidence. It is argued that budgeting should be done with the chairman during an inquiry, in dialogue with the sponsor department. We will look at the procedure rules that could assist with that and may go some way to addressing the point made by the noble Viscount.

Viscount Goschen

My Lords, would the noble Baroness therefore be willing to give an undertaking that that budgeting process—whether it occurs under my amendment at the beginning, or shortly after the beginning, of the inquiry, as the Public Accounts Committee recommends—and figure would be published?

Baroness Ashton of Upholland

My Lords, I am certainly willing to consider that. I shall speak to colleagues to determine what we might be able to do. Publishing the figure does not necessarily control the cost per se. I would be nervous about any lack of public confidence because we published a figure, but then an inquiry, for perfectly legitimate and good reasons, exceeded that figure.

There are issues that we will come to. Certainly, the noble and learned Lord, Lord Howe of Aberavon, has concerns about representation. I think that I am right in saying that the noble and learned Lord is concerned about how the cost issues will play with those questions. Perhaps I may take that issue away and think about it.

My immediate concern is that we need to ensure that the chairman, in planning the inquiry in conjunction with the sponsor department, is looking at the issues of cost, as we have indicated. But I will come back to the noble and learned Lord on that point. On the basis of what I have said, I hope that the noble Lord, Lord Goodhart, will feel able to withdraw his amendment.

Lord Goodhart

My Lords, I welcome what the Minister said. I agree that her formulation goes somewhat further than ours and, to that extent, is an improvement on it. I have some sympathy with the noble Viscount, Lord Goschen, although I am not sure that my sympathy goes quite as far as wishing to press this amendment to see it in the Bill. I would have been interested to see the initial proposed budget for the Bloody Sunday inquiry. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Speaker (Baroness Hooper)

My Lords, Amendments Nos. 14 and 15 have been incorrectly marshalled. I must therefore call Amendment No. 15 first.

Baroness Ashton of Upholland

moved Amendment No. 15: Page 2, line 21, at end insert— (3) The Minister may at any time after setting out the terms of reference under this section amend them if he considers that the public interest so requires. (4) Before setting out or amending the terms of reference the Minister must consult the person he proposes to appoint, or has appointed, as chairman. On Question, amendment agreed to.

[Amendment No. 14 not moved.]

[Amendment No. 16 not moved.]

Lord Ackner

moved Amendment No. 17: Leave out Clause 5. The noble and learned Lord said: My Lords, in the interests of not testing to destruction the tolerance of a much-valued carer, perhaps I may be allowed to refer to this amendment together with other amendments tabled solely in my name that take a similar course in subsequent clauses. I refer, among others, to Amendments Nos. 17,22,26 and 37.

I have tabled the amendments as the result of reading a detailed memorandum from the Association of the Bar of the City of New York. The association has set out, in so far as it relates to this Bill, its concern that two fundamental tenets of democratic governance, transparency and accountability, seem to be eroded. It goes on to point out that, as drafted, the Bill takes away from Parliament, the ability to establish inquiries into matters of public concern and hands over all power over such inquiries to the Executive". The memorandum continues by saying that a, Government Minister would have complete authority over the scope of an inquiry, the selection of panel members, public access to the inquiry and whether any resultant findings would be made public". It says in terms that, as drafted, the Inquiries Bill represents a retreat from meaningful, independent and transparent public inquiries in the United Kingdom. It goes on to state: By concentrating power in a single government official who will have control over the terms of reference and disclosure of information related to the inquiry, there is a loss of the accountability necessary to a successful inquiry". The memorandum continues in that vein.

The noble Baroness, who has been unstinting in her assistance in regard to my problems, was interested to see the document. I provided her with copies. Thereafter, she sent me copies of the amendments that she has proposed and most helpfully dealt fully and point by point with the points made by the Association of the Bar of the City of New York, which did not have the benefit of the amendments being proposed by the Government.

I am now content not to press this amendment or move the other amendments standing solely in my name. As a point of courtesy to the House, I can indicate now that I shall not move the remaining amendments. I beg to move.

Baroness Ashton of Upholland

My Lords, I am grateful to the noble and learned Lord, Lord Ackner. I did indeed write to him in some detail to deal with all the issues raised in the paper from the Association of the Bar of the City of New York. I understand that the noble and learned Lord now accepts that the issues have been dealt with either in my letter or by the amendments now before your Lordships' House. Again, I am most grateful to the noble and learned Lord.

Lord Ackner

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Ashton of Upholland

moved Amendment No. 18: After Clause 5, insert the following new clause— "MINISTER'S DUTY TO INFORM PARLIAMENT OR ASSEMBLY

  1. (1) A Minister who proposes to cause an inquiry to be held, or who has already done so without making a statement under this section, must as soon as is reasonably practicable make a statement to that effect to the relevant Parliament or Assembly.
  2. (2) A statement under subsection (1) must state—
    1. (a) who is to be, or has been, appointed as chairman of the inquiry;
    2. (b) whether the Minister has appointed, or proposes to appoint, any other members to the inquiry panel, and if so how many;
    3. (c) what are to be, or are, the inquiry's terms of reference.
  3. (3) Where the terms of reference of an inquiry are amended under section 5(2A), the Minister must, as soon as is reasonably practicable, make a statement to the relevant Parliament or Assembly setting out the amended terms of reference.
  4. (4) A statement under this section may be oral or written."

[Amendment No. 19, as an Amendment to No. 18, not moved.]

On Question, Amendment No. 18 agreed to.

[Amendment No. 20 not moved.]

Clause 6 [Further appointments to inquiry panel]:

[Amendments Nos. 21 and 22 not moved.]

Clause 8 [Requirement of impartiality]:

Lord Kingsland

moved Amendment No. 23: Page 3, line 14, leave out subsection (1). The noble Lord said: My Lords, the amendment was the subject of a long and illuminating debate in Committee. I stated at the time that it was intended to be of a probing nature. The Minister engaged most helpfully in the discussion and has emerged from it with Amendment No. 24, with which I am content. I beg to move.

Baroness Ashton of Upholland

My Lords, I am grateful to the noble Lord for being entirely content with what I sought to do. The credit must go to the noble Lord. I have also tabled Amendment No. 31 to ensure that there is consistency between Clause 11(3)(c) and Clause 8(1) as amended by Amendment No. 24.1 hope these changes will help to promote public confidence, which is what we are seeking to do. I am very grateful for what the noble Lord said and I hope that he will withdraw his amendment in favour of mine.

Lord Kingsland

My Lords, it follows ineluctably from what I said earlier that I shall, indeed, beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Baroness Ashton of Upholland

moved Amendment No. 24: Page 3, leave out lines 18 and 19 and insert— unless, despite the person's interest or association, his appointment could not reasonably be regarded as affecting the impartiality of the inquiry panel On Question, amendment agreed to.

Clause 9 [Appointment of judge as panel member]:

Lord Goodhart

moved Amendment No. 25: Page 3, line 33, leave out "consult" and insert "obtain the consent of The noble Lord said: My Lords, the purpose of this amendment and Amendment No. 26, tabled by the noble Lord, Lord Kingsland, is to require the consent of the relevant senior judge to the appointment of a judge as chairman or member of a panel. The relevant senior judge would be the senior Law Lord in the case of the proposed appointment of a Law Lord, the Lord Chief Justice in the case of a judge in England and Wales, the Lord President of the Court of Session in the case of the appointment of a Scottish judge, and the Lord Chief Justice of Northern Ireland in the case of the appointment of a Northern Irish judge. At present the Bill requires only consultation, not the consent of the relevant senior judge.

As anything I would say would be based on the views of the noble and learned Lord the Lord Chief Justice, as expressed in his evidence to the Public Administration Select Committee, and as both the noble and learned Lords, Lord Woolf and Lord Cullen, are in their places and intend to speak, I shall simply move the amendment in order that they may be heard as soon as possible. I beg to move.

Lord Cullen of Whitekirk

My Lords, whatever once upon a time was the position, it is nowadays common for judges to he asked to conduct public inquiries. However, it cannot simply be taken for granted that there is a ready availability of judges. Taking, a judge away from his normal work for a public inquiry has important implications for his work as a judge and for the work of the court of which he is a member. This is particularly the case with smaller jurisdictions. I must, of course, declare my interest as the Lord President of the Court of Session. Judges have been called upon from that court in recent years to conduct inquiries not only in Scotland but also in England.

No doubt judges are sought as chairmen because of the qualities which they bring to their work as judges. In their natural setting, they have independence and authority. However, it is not inconceivable that the involvement of a judge in an inquiry which is concerned with the conduct of the Executive might damage those very qualities which he otherwise possesses—that high-risk strategy which was referred to earlier. If he is asked to deal with matters which are sensitive in political terms, he may run the risk of being depicted either as favouring the Executive or as becoming embroiled in a confrontation with the Executive.

So there is much to be said for enacting that before a judge is appointed to chair a public inquiry, the Minister should obtain the consent or the agreement of the senior judge. I support what was said on this score by the Lord Chief Justice in his evidence last year to the Public Administration Committee in another place.

This matter should be in the hands of the senior judge; it should not be left to the judge who is the target of the Minister's attentions. From my own experience as an inquiry chairman, I think that most judges would feel very diffident about turning down an invitation to take an appointment which was seen as being for the public good.

In this Bill, as in the Constitutional Reform Bill, we are witnessing a process of transition from convention to prescription by the letter of the law. I am concerned that if the statute merely were to require consultation with the senior judge, that would place him under pressure to agree to the abstracting of a judge for a public inquiry when he did not consider that this was in the interests of the administration of justice.

9.30 p.m.

Lord Woolf

My Lords, you will not be surprised to hear that I endorse every word that my noble and learned friend, the Lord President of the Court of Session, has uttered. His view coincides entirely with my own feelings on the matter.

I see the issue as having two limbs: one is now an issue—for me, at any rate—of principle. I know that principles are unwieldy and dangerous steeds to mount. However, we have recently agreed a concordat, thanks to the consensus that was reached between the Secretary of State for Constitutional Affairs—the noble and learned Lord the Lord Chancellor—and myself. It appears that what is now being resisted is inconsistent with the concordat. For good reason, the concordat, which is now reflected in the Constitutional Reform Bill, states: The Lord Chief Justice will be responsible for the posting and roles of individual judges, within the framework set by the Secretary of State". It seems that the deployment of a judge as an inspector of an inquiry falls readily within those words.

This view was supported by the Public Administration Committee in the other place which, as your Lordships know, concluded that the appointment of a judge to a public inquiry should be a decision taken jointly by the Lord Chancellor and the Lord Chief Justice. It is also, I suggest, a matter of plain English. If a judge is being deployed to conduct an inquiry, that is deployment of that judge, so the concordat applies. It could be said that the concordat deals with deployment in the courts, but I would not so understand it. That I am right in taking that view is reflected in paragraph 47 of the concordat which states that the appointment of judges to committees, boards or similar bodies is the responsibility of the Lord Chief Justice.

I also ask that these amendments receive the support of the House because of the merits of what is proposed, which I understand are the merits that the noble Lord, Lord Kingsland, had in mind when drafting his amendment. There will be occasions when it is inappropriate, because of the intensely political nature of the issue at stake, for a judge to be asked to conduct an inquiry. The judge that the Government wish to invite may not be qualified to perform an assessment on that. The Lord Chief Justice, on the other hand, should be.

Even if the judge is qualified, as the noble and learned Lord, Lord Cullen, indicated, it is very difficult if he is approached by a Minister or even the Prime Minister to say no. The Lord Chief Justice is in a much better position to say no. Further, the Lord Chief Justice knows the intentions surrounding the employment of that judge and whether the appointment would interfere with the administration of justice.

Finally, in recent history there have been incidents where the question of the impartiality of the judge has been unfairly impugned. Such allegations could of course still be made if the consent of the Lord Chief Justice is obtained. However, I suggest that the allegations would have less force if it were known that the Lord Chief Justice was primarily responsible for agreeing to that appointment. I suggest that the desirability of that being the position is particularly important if the Government's activities are involved in the inquiry.

The involvement of the Lord Chief Justice would ensure that the right judge is appointed for the right reasons. That is something that is also supported by the committee. I accept that the Minister would also have an interest and that is why I suggest that the joint consent of the Lord Chief Justice and the Minister should be sought.

No doubt, the noble Lords, Lord Goodhart and Lord Kingsland, will consider which amendment is the appropriate one. I am bound to say that I find both proposals equally attractive and I hope that the amendments are successful.

Lord Ackner

My Lords, just before I leave, I would like to say that it is astonishing that this issue has been raised at all. A judge is contemplated being removed from the strength of the judiciary yet the Lord Chief Justice is only to be consulted and his consent is not being required. It is he who can make a balanced assessment of what may be the effect of the decision, especially where the judge who will deal with the case is likely to be attacked whichever way he decides. Such criticism would not only reflect on the judge when he returns to get on with his ordinary judicial duties, but it can erode confidence in the whole system and that is not a matter on which the Minister should have a total monopoly in decision. It is quite unarguable to say that the Minister can override the views of the Lord Chief Justice. His concurrence must be obtained. If it is not obtained, there should be no appointment.

Lord Fraser of Carmyllie

My Lords, in the Grand Committee I supported a comparable amendment. At that time, I knew the views of neither of the noble and learned Lords, Lord Cullen and Lord Woolf, or whether they would agree to the desirability of their consent being obtained. I once again wish to support the amendment. Like the noble and learned Lord, Lord Woolf, I am not particularly bothered which amendment is preferred, as they both seem to secure the same result.

The one concern with which I came out of Grand Committee relates to the powerful point made by the noble and learned Lord, Lord Cullen. It is very difficult. If they are approached by a Minister of the Crown who says that it is in the public interest that an inquiry should be held into such a matter, it is not in the tradition or background of judges or even senior lawyers to say no to such a request. In such circumstances—and the point is well made in my view—it is much easier for whoever is the head of the court to make that point on their behalf. For that reason, I strongly urge the Minister to accept one or other of the amendments.

Lord Hutton

My Lords, I know that before the noble and learned Lord the Lord Chancellor asked me to conduct the inquiry into the death of Dr Kelly, his permanent secretary told the senior Law Lord, the noble and learned Lord, Lord Bingham, that he was proposing to do so, and the noble and learned Lord raised no objection. In addition—and on this point I am perhaps slightly differing from the noble and learned Lord, Lord Fraser—I believe that there is a practical consideration, in that a judge is unlikely to accept an appointment if he knows that the Lord Chief Justice or the senior Law Lord is opposed to it, notwithstanding his wish to carry out a public duty and his readiness to do so.

Lord Kingsland

My Lords, the Public Administration Committee report, Government by Inquiry, has a great deal to say on this issue, and it is worth your Lordships' while to glance at the assessment that it has made in chapter 3.

It begins by observing that, since 1990, some 65 per cent of inquiries have been chaired by a serving judge. It also observes that there are a number of reasons why judges make an attractive option to chair committees. They are plainly valued for their skills; they are appreciated for their independence and impartiality; and, more than perhaps any other single profession, they are more likely to be available to serve on a public inquiry.

However, the balance of chapter 3 cautions us on the use of judges. Mr Justice Beatson, giving evidence, is recorded in paragraph 44 as stating that the skills argument for judges is, strongest where the task of the inquiry is solely to find facts. It is less compelling where issues of social or economic policy with political implications are involved'". In paragraph 46 he is further quoted as saying: Given the political nature of the British constitution, judicial skills may not necessarily be the most appropriate where an inquiry concerns the relationship between the government and Parliament". The committee went on to make a judgment, in paragraph 47, that: The notion of judges as above the political process has also begun to be challenged…Cases such as Pinochet, the conjoined twins and the anti-terrorism legislation have also resulted in the media seeking to position the judges along conservative-liberal and activist-deference spectrums and discussing their religious, educational and ethnic backgrounds". It adds, moreover, in paragraph 48: The authority of the judiciary, itself seen as a valuable import into an inquiry, risks being damaged by its aftermath. Those who do not agree with an inquiry's conclusions may not perceive it as independent and objective, regardless of whether the chair is a member of the judiciary…If their reports fail to conclude that ministers and senior officials are to blame, they may be heralded as a 'whitewash' by political opponents and the media and the judge criticised, as Lord Hutton was, for interpreting his terms of reference too narrowly, for being too establishment-minded and for showing a lack of understanding of the political context. If they are critical of ministers and senior officials, they may, like Lord Scott, be accused by government supporters of being antigovernment and having a lack of understanding of how government and the political process work". 9.45 p.m.

In paragraph 54, the report goes on to look at this matter from another angle. It says: There is, additionally, an important argument against judges chairing inquiries, based on the separation of powers and closely allied to judicial independence—The expansion of judicial review, the incorporation of the European Convention on Human Rights…through the Human Rights Act 1998, and the devolution legislation…are likely to increase the number of constitutional issues that come before the courts". In paragraph 56, Professor Robert Stevens is quoted to some effect. It states: Professor Robert Stevens highlighted the irony of a government arguing, on the one hand, for the establishment of a Supreme Court and Judicial Appointments Commission and the abolition of the office of Lord Chancellor, on the grounds that 'the judiciary and politics live in totally different systems and never the twain shall meet', while, on the other, continuing to 'offer the judges on the sacrificial alter of public inquiries, which inevitably have a greater or lesser political content'". Finally, in paragraph 58, the report concludes: We agree with Lord Woolf's concerns over the current provisions in the Inquiries Bill and recommend that decisions about the appointment of judges to undertake inquiries should be taken co-equally by the Government and the Lord Chief Justice or senior law lord". In the course of its investigations the committee travelled to the United States. When the issue of the chairing of inquiries by judges was discussed with American legislators and American judges, they were aghast at the thought. In paragraph 30 of the report, the committee's conclusion on the American approach is expressed as follows: The legitimacy of the judicial branch ultimately depends upon a reputation of impartiality and non-partisanship. That reputation may not be borrowed by the political branches to cloak their work in the neutral colours of judicial action".

Lord Lester of Herne Hill

My Lords, I happened to be in the House, in another part, when the noble and learned Lord, Lord Hutton, was giving the report of his important inquiry. Many senior judges from the supreme court of Israel were present, including the president. I remember that as the noble and learned Lord was giving his important report, they said that they were quite astonished that we allowed judges to be used in such politically sensitive matters and that it was inconceivable that that would happen in the state of Israel.

That reflects very much my own feeling, which is that we are far too ready to use overworked and over-employed judges to deal with problems that would perhaps be better dealt with in other ways. But that has been part of our tradition. I certainly recall some of the great judgments that have been given in reports, including, for example, the report of the noble and learned Lord, Lord Woolf, on prisons, Lord Scarman on Red Lion, and now the report of the noble and learned Lord, Lord Hutton, himself.

In the 11 or 12 years I have been a Member of your Lordships' House, I have never heard the senior judges from the three jurisdictions of England and Wales, Scotland and Northern Ireland speaking in the same way, coming together in their own concordat, together with support from advocates across the House. I have to say that, as a great supporter of what the Government are doing in the Constitutional Reform Bill, I agree with the part of the report that the noble Lord, Lord Kingsland, did not mention in paragraph 58, when, before the committee comes to its conclusion in support of this amendment, it said: With developments in public law, Human Rights Act considerations about impartiality, and the proposed establishment of a Supreme Court, which involves the institutional separation of the judges from the House of Lords, care needs to be exercised in the future use of judges for such work, particularly those from the highest court, and especially in relation to politically sensitive inquiries". We all remember that two Law Lords dealt with inquiries at the same time in the House of Lords, which gave rise to serious practical problems over which the senior Law Lord probably had little control. I very much hope that these sensible amendments, whichever is selected in the end, will meet with the favour of the Government.

Baroness Ashton of Upholland

My Lords, I am grateful to all noble Lords who have spoken. I fear that I will be in a minority as regards what I have to say to your Lordships. I do not suspect that will come as any surprise to noble and learned Lords. I begin by recognising the huge respect in which we hold the noble and learned Lords, Lord Woolf and Lord Cullen, in particular. I am grateful that they shared their thoughts with your Lordships this evening.

I take on board what the noble and learned Lord, Lord Hutton, said about the relevance of knowing the views of the Lord Chief Justice to a judge who was considering whether to accept the request of a Minister to chair an inquiry. Indeed, if a judge believed that the Lord Chief Justice—if that were the appropriate judge in the case—or a colleague felt that such a course was inappropriate, that would weigh very heavily on the judge in question. However, we begin from the principle that it is right and proper for individual judges to make their own decisions about whether they wish to take up an appointment that is offered to them to chair an inquiry. I am afraid that is where we differ from the noble and learned Lord the Lord Chief Justice.

We believe that it is a question not only of whether resources are available but of the public interest and the level of public concern that may be expressed about an event. It is conceivable—I cast no aspersions on anyone in my example—that a Minister would believe that an event had occurred that was of such a serious nature and of such great public concern that the only appropriate person to deal with it in the circumstances might be a judge. In Committee the noble Lord, Lord Kingsland, said that judges were often ideal people to chair inquiries. There are many good examples of that.

In my theoretical example, the Lord Chief Justice of the day might well consider that resources were an issue. However, the Minister might consider that the issue that was raised was of such great concern that a judge should none the less be approached. It is because we believe that ultimately the responsibility for approaching a judge and inviting him or her to chair an inquiry should rest with the Minister that we do not support the amendment. At one level, it is a matter of nuance, as I expect full consultation to take place. I recognise that judges will take note of what was felt by either the senior Law Lord or the Lord Chief Justice. However, we think it is right and proper that at the end of the day the Minister, having regard to public concern and to who might best lead an inquiry, should be able to say, regardless of resources—I accept that there are other considerations that the noble and learned Lord, Lord Woolf, considered were important—that he or she wishes to approach a judge.

That is why we do not support the amendment, notwithstanding all that has been said about the positive relationships that exist and the need to ensure that there is full consultation. However, at the end of the day our premise is that the buck stops with the Minister and he should make the decision to approach a judge. At the end of the day, the individual judge should have the right to say "Yes" or "No". On that basis, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Goodhart

My Lords, we have had an interesting debate, with noble Lords on all sides speaking from great experience. Perhaps greatest of all is that of the noble and learned Lord, Lord Cullen, who has presided over three public inquiries of great importance and has done so with enormous ability and skill.

It is obvious that judges do sometimes make particularly suitable and good chairmen of inquiries; there are also cases of judges who have done not so well. I am not suggesting that we should go as far as the American or Israeli judges to say that no judge should ever be involved in chairing an inquiry. However, we must consider the effect on judicial manpower. For example, it is unfortunate that the Appellate Committee of your Lordships' House has been deprived for some seven years of the services of the noble and learned Lord, Lord Saville, who is potentially one of the most outstanding judges in this country.

We also must take into account the effect of the forthcoming Constitutional Reform Bill, which means that the role of the head of the judiciary will be passing from the Lord Chancellor to the Lord Chief Justice in England and Wales and also to the senior Law Lord in respect of the House of Lords. In those circumstances, it seems to me entirely right and proper that the senior Law Lord, or the Lord Chief Justice, or the Lord President, or the Lord Chief Justice of Northern Ireland, should have the right to be consulted and to agree to the appointment of any particular judge to head a particular inquiry. I see no reason to suppose that consent would not be forthcoming in a case where it was appropriate. Indeed, I see the noble and learned Lord the Lord Chief Justice nodding at that. As head of the judiciary in England and Wales, the Lord Chief Justice should have the right to say, "I am afraid that I cannot spare this particular judge for this particular inquiry".

While of course I shall ask the leave of the House to withdraw the amendment, in one or other of its versions it will be returning for Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 26 not moved.]

Clause 10 [Assessors]:

Lord Kingsland

moved Amendment No. 27: Page 4, line 13, at end insert "after consultation with the chairman The noble Lord said: My Lords, this is another occasion on which the Government have most helpfully responded to the tenor of our debate in Committee, and they have furnished your Lordships' House with an amendment that is wholly satisfactory. I beg to move.

Baroness Ashton of Upholland

My Lords, I am grateful to the noble Lord, Lord Kingsland, and also to the noble Lord, Lord Laming, who is no longer in his place. Noble Lords will recall that the noble Lord, Lord Laming, spoke about the relationship that can exist between the chairman of an inquiry and an assessor. He spoke too of how success can depend on close teamwork and mutual confidence.

While it is highly unlikely that a Minister would ever appoint an assessor without consultation with, or against the wishes of, a chairman, I have been persuaded by the arguments for a specific provision. I have catered for such provision in my Amendment No. 28. On that basis, I think that the noble Lord has indicated that he will withdraw his amendment in favour of mine.

Lord Kingsland

My Lords, I am most grateful to the noble Baroness. In those circumstances, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Baroness Ashton of Upholland

moved Amendment No. 28: Page 4, line 15, at end insert— ( ) Before exercising his powers under subsection (2)(a) the Minister must consult the person he proposes to appoint, or has appointed, as chairman. On Question, amendment agreed to.

10 p.m.

Baroness Ashton of Upholland

moved Amendment No. 29: Page 4, line 19, leave out subsection (4). The noble Baroness said: My Lords, one of the main aims of the Bill is to enable inquiries to reach conclusions and make recommendations in reasonable time and at a reasonable cost. I noted the concerns expressed in Grand Committee about the specific requirement obliging the chairman to have, regard in particular to the cost", when appointing an assessor. Noble Lords will recall that it was felt that too much emphasis was placed on cost at the expense of other factors, and that current drafting was too restrictive to the chairman if he decided to appoint an assessor.

After further consideration, we have proposed an amendment that will remove Clause 10(4). The chairman will still have to make a decision taking into account all the relevant factors, but cost will not be highlighted in particular. I hope that that addresses noble Lords' concerns. I beg to move.

Lord Howe of Aberavon

My Lords, when I saw the pair of amendments coupled together, I thought for a moment that the noble Baroness had shot my fox—God forbid the thought. In fact, she has done exactly the opposite; she has enabled the principle for which I argued to be put into its proper perspective. I am most grateful to her for achieving this ingenious way of shooting the fox but enabling its resurrection.

On Question, amendment agreed to.

[Amendment No. 30 not moved]

Clause 11 [Duration of appointment of members of inquiry panel]:

Baroness Ashton of Upholland

moved Amendment No. 31: Page 4, leave out lines 41 and 42 and insert— such that his membership of the inquiry panel could reasonably be regarded as affecting its impartiality; On Question, amendment agreed to.

Lord Kingsland

My Lords, my understanding was that the House would now rise, it being ten o'clock. Perhaps I was misinformed.

Baroness Ashton of Upholland

My Lords, we shall endeavour to find out the current situation for the noble Lord and report back as soon as possible.

Lord Grocott

My Lords, I beg to move that consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.

House adjourned at three minutes past ten o'clock.