§ 4.56 p.m.
§ The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland)My Lords, on behalf of my noble and learned friend Lord Falconer of Thoroton I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
§ Clause 11 [Duration of appointment of members of inquiry panel]:
§ Lord Kingslandmoved Amendment No. 32:
Page 5, line 11, leave out "consult" and insert "secure the agreement ofThe noble Lord said: My Lords, I rise to move Amendment No. 32. We had a long discussion about this amendment in Grand Committee and I was delighted to have strong support both from the noble Viscount, Lord Bledisloe, and the noble Lord, Lord Laming, from the Cross Benches.I do not intend to repeat the analysis to which the clause was subjected at that stage; suffice it to say that, as far as I am concerned, no problems are presented by Clause 11(2) or part of subsection (3)(a). But that part of subsection (3)(a) which includes the expression,
for any other reason",693 and subsections 3(b), (c) and (d) all give the Minister wide scope to remove a member for improper or illegitimate reasons.Our view is that Clause 11(6) does not go far enough to check the discretion of the Minister. It places only the obligation to consult on the Minister. We believe that the Minister should not only be obliged to consult but also to obtain the approval of the chairman.
We take that view, first, because of our general philosophy about the appropriate balance of power in the Bill between the Minister on the one hand and the chairman on the other; and, secondly, because, frankly, it is common sense to take that view. In practice, the Minister is likely to find it almost impossible to remove a member of an inquiry board if the chairman of that board is opposed to it, without being faced with the prospect of the chairman's resignation. I beg to move.
§ 5 p.m.
§ Baroness Ashton of UphollandMy Lords, I am again grateful to the noble Lord for explaining the issue that concerns him. I agree that it is very unlikely that a Minister would remove a panel member against the wishes of the chairman, because the chairman has the ultimate, extremely powerful option of going public with any objections to that.
However, my two concerns remain as to why it is important to retain the provision. The first was drawn out by the noble Lord, Lord Laming, who is not in his place today, which concerns the responsibility for an inquiry. If there were to be a removal and the chairman's consent were needed, that would put the chairman in the difficult position of being publicly made to take responsibility for a decision that may attract a lot of attention.
Our view is that we should ensure that the chairman gets on with finishing the inquiry. Ultimately, the Minister must take responsibility for appointing the panel members and for any changes made. Secondly, we have placed with the Minister responsibility to ensure that resources are used effectively, so we need to ensure that the Minister can deal with very unlikely circumstances that may arise, perhaps concerning a loss of confidence that requires removal. Again, it is important that the Minister should take that responsibility.
I promised the noble Lord, Lord Kingsland, that I would consider the wording of subsection (3)(a) concerning "any other reason". In considering that, we felt that it was important to cover eventualities that we cannot foresee. Therefore, we feel that we need to leave those words in. It is not a wide power, because it falls within the context of the clause. It is a standard phrase; I have checked. It is used in numerous pieces of legislation—for example, the Sex Discrimination Act 1975 and the National Heritage Act 1980. It allows us to encompass situations that we cannot predict. For example—perhaps one that has resonance at present—if a member of a panel were to disappear 694 in circumstances that suggested that he had been involved in a natural disaster, but there was no certainty, it would enable us to act on that basis.
I have thought carefully about the clause; I have thought carefully about where the responsibility should lie; but I must tell the noble Lord, Lord Kingsland, that it is right that it rests with the Minister and that, in this context, we have got the relationship about right. On that basis, I hope that he will feel able to withdraw the amendment.
§ Lord KingslandMy Lords, while, of course, being grateful for the Minister's reply, I cannot disguise the fact that I am extremely disappointed by it.
I submit that the Minister has two options. The first and better option is to adopt our proposal and add the expression in our amendment to Clause 11(6). The alternative, on which noble Baroness dilated towards the end of her speech, would be to reduce the scope of the various paragraphs under subsection (3).
Extremely unconvincingly, in my view, the noble Baroness sought to explain why she felt that the expression,
or for any other reason",should remain. That expression is cast in the widest possible form. It will give the Minister discretion to remove a member of an inquiry simply because he does not like the direction in which that member was tending in what he said during the inquiry. It could be open to the most abject abuse by the Minister. If the noble Baroness is correct in expressing the real intentions of the subsection, I should have thought it only right that she should have provided herself with proper protection by narrowing the definitions in it.Nevertheless, the noble Baroness has said what she said to your Lordships. In those circumstances, I beg to withdraw the amendment, but assure her that I shall return to this matter on Third Reading and hope that, meanwhile, she will think again.
Amendment, by leave, withdrawn.
§ Clause 12 [Power to suspend inquiry]:
§ Lord Goodhartmoved Amendment No. 33:
Page 5, line 27, at end insert—( ) The Minister shall lay a notice under subsection (1) before each House of Parliament, together with a statement of his reasons for suspending the inquiry.The noble Lord said: This amendment, in my name and that of my noble friend Lord Smith of Clifton, is entirely covered by government Amendment No. 36, which is acceptable to us. In those circumstances, I shall simply move Amendment No. 33 formally to start the debate. I beg to move.
§ Lord Evans of Temple GuitingMy Lords, I am most grateful to the noble Lord, Lord Goodhart, for agreeing that government Amendment No. 36 answers his concerns. We should be most grateful if noble 695 Lords would accept our amendment, because it contains the necessary provision for the devolved Administrations as well.
§ Lord GoodhartI beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendment No. 34 not moved.]
§ Lord Evans of Temple Guitingmoved Amendment No. 35:
Page 5, line 29, at end insert—( ) Before exercising that power the Minister must consult the chairman.The noble Lord said: The amendment requires the Minister to consult the chairman of the inquiry before suspending it. That reflects concerns raised in Committee and formalises what we believe would be the normal practice in any event. I beg to move.On Question, amendment agreed to.
§ Lord Evans of Temple Guitingmoved Amendment No. 36:
Page 5, line 32, at end insert—( ) Where the Minister gives a notice under subsection (1) he must—On Question, amendment agreed to.
- (a) set out in the notice his reasons for suspending the inquiry;
- (b) lay a copy of the notice, as soon as is reasonably practicable, before the relevant Parliament or Assembly."
§ [Amendment No. 37 not moved.]
§ Clause 13 [End of inquiry]:
§ Lord Kingslandmoved Amendment No. 38:
Page 6, line 5, at end insert "after consulting with and securing the agreement of the chairmanThe noble Lord said: Clause 13 refers to circumstances in which an inquiry may be brought to an end. Clause 13(1) states:For the purposes of this Act an inquiry comes to an end—(a) on the date, after the delivery of the report of the inquiry, on which the chairman notifies the Minister that the inquiry has fulfilled its terms of reference, or"—and this is the point material to my amendment—(b) on any earlier date specified in a notice given to the chairman by the Minister".As I said in Committee, there seems to be no constraint whatsoever on the circumstances in which the Minister may bring an inquiry to an end. The clause is one of astonishing breadth. I think that I am right to say that I have strong support from both the noble Viscount, Lord Bledisloe, on the Cross Benches, and those on the Liberal Democrat Benches.The Government have furnished your Lordships' House with an amendment; but I submit that it does not go far enough. My attention is particularly drawn to the words of the noble Lord, Lord Evans of Temple Guiting, in Committee, when he said, in broad terms, that the purpose of the clause is to deal with situations where an 696 inquiry is no longer needed. In other words, it has become otiose—entirely surplus to requirements. He continued:
In constructing this clause, we have clearly not done what we intended to do".—[Official Report, 19/1/05; col. GC 261.]That is a brave admission from the government Benches by one so green in experience, even though so confident and eloquent.At the very least, the grounds for ending an inquiry should be in the Bill. If the interpretation made by the noble Lord, Lord Evans, of the clause's purpose is correct, I see no reason why the paragraph should not say simply, "an inquiry can be brought to an end where it serves no further useful purpose" or some such form of words. Instead we have the government amendment, which for the reasons that I have given, is not satisfactory. I beg to move.
§ Lord GoodhartMy Lords, Amendment No. 40 in this group is tabled in my name and that of my noble friend. It proposes simply that,
The Minister shall lay a copy of the notice before each House of Parliament, together with a statement of his reasons for terminating the inquiry".It coincides with government Amendment No. 39.I have some sympathy with the views expressed by the noble Lord, Lord Kingsland. It is well arguable that his proposal is the proper course to take; certainly I would not object to its being taken. I am not sure whether I would go so far as saying that it is essential to take that course because ultimately the Minister must be accountable for the termination of the inquiry. For that reason, it is essential that he place his reasons before Parliament so that they can be challenged, if necessary, in Parliament. Ultimately, the burden must rest on the Minister.
I am not convinced that it is essential, for those purposes, that the Minister should get the agreement of the chairman. It would be an unhappy situation if an inquiry continued when the Minister wanted to end it and the chairman did not. In that case, the better option is to end the inquiry and for the Minister to defend his action in Parliament. We will accept Amendment No. 39 and not move our Amendment No. 40.
§ Lord Evans of Temple GuitingMy Lords, I am grateful to the noble Lord, Lord Goodhart, for accepting government Amendment No. 39, which accepts the principle, to which we have agreed, that any notice ending an inquiry early should be laid before Parliament.
Amendment No. 38, tabled by the noble Lord, Lord Kingsland, seeks the consent of the chairman to the early termination of an inquiry under subsection (1)(b). Amendment No. 39 contains a requirement to consult, but we do not agree that there is a need to require the chairman's consent. That power is included in the Bill so that there is a way in which the inquiry can be brought to a close when it is clear that it is no longer needed. There could be all 697 sorts of reasons for that; our problem is predicting them all. A Minister must be able to ensure that public money is not wasted by continuing if there is no point.
We understand absolutely the concerns about the potential for abuse of those powers but we believe that the requirement to explain the reasons to Parliament will act as a strong safeguard. In addition, any unreasonable or improper decision to terminate an inquiry early can always be challenged through judicial review. If the chairman disagrees with a decision to end an inquiry and the Minister ends it anyway, the chairman has a powerful option available to him: he can make his views public, no doubt prompting detailed public media and parliamentary scrutiny of the decision.
We think that it would be very unwise for any Minister to attempt to end an inquiry without the chairman's agreement, unless he was absolutely certain that he could justify the decision to Parliament, the courts and the public. Having said that, I agree with the noble Lord, Lord Kingsland; my views as read out in Committee were much firmer than those in the brief that I have been given today. We considered and tried to construct a list of all the possible reasons but gave up because we believed that we could not capture all the reasons why an inquiry might not be needed, or needed to be closed down. Obviously, parliamentary scrutiny of the reasons is an alternative safeguard.
We have done our best. In the light of my remarks, I hope that the noble Lord, Lord Kingsland, will be satisfied and prepared to withdraw his amendment.
§ 5.15 p.m.
§ Lord KingslandMy Lords, one of the many reasons why I admire the noble Lord, Lord Evans of Temple Guiting, so much is that he is a man of transparent honesty. I can think of very few occasions when I have heard from the government Benches an admission that what had been said at an earlier stage of the Bill was exactly as it was interpreted by the opposition Front Bench. I am most grateful.
However, sometimes change is for the worse. In this case, the amendment that the Government have tabled on Report is worse than it would have been had it reflected what the noble Lord, Lord Evans of Temple Guiting, said in Committee. In my submission, this matter is curable in precisely the same way as the situation in relation to Amendment No. 32 is curable.
If Clause 13(1)(b) expressed the circumstances in which an earlier date would be appropriate, we would be in a much better position to accept the Government's approach. If the Government are right in saying that there are a very limited number of circumstances in which a committee's deliberations would be brought to an end prematurely, and they will only be circumstances in which the committee can serve no useful purpose, surely it is not beyond the skills of the parliamentary draftsman, together with the appropriate Ministers, to devise a form of words that reflects that exactly. That is all we ask.
§ Lord Evans of Temple GuitingMy Lords, I am probably breaking all the procedural rules by rising 698 again. In the light of this discussion, we would like the opportunity to think, yet again, about the clause. We will come back to the noble Lord, Lord Kingsland, before Third Reading. We hope that we can satisfy what seem to be absolutely legitimate concerns.
§ Lord KingslandMy Lords, I am most grateful. I do not think that the noble Lord, Lord Evans of Temple Guiting, should apologise for coming back. Although this is Report stage, the Bill was debated in Grand Committee in the Moses Room and therefore this is the first opportunity that we have had to deal with those matters on the Floor of the House. In my submission, therefore, it is wholly appropriate that greater flexibility should apply to our deliberations. I am most grateful to the noble Lord for his response. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Lord Evans of Temple Guitingmoved Amendment No. 39:
Page 6, line 7, at end insert—( ) Before exercising his power under subsection (1)(b) the Minister must consult the chairman.( ) Where the Minister gives a notice under subsection (1)(b) he must—On Question, amendment agreed to.
- (a) set out in the notice his reasons for bringing the inquiry to an end;
- (b) lay a copy of the notice, as soon as is reasonably practicable. before the relevant Parliament or Assembly."
§ [Amendments Nos. 40 and 41 not moved.]
§ Clause 14 [Power to convert other inquiry into inquiry under this Act]:
§ Baroness Ashton of Uphollandmoved Amendment No. 42:
Page 6, line 22, at end insert—( ) Before exercising that power the Minister must consult the chairman.The noble Baroness said: My Lords, in Grand Committee, the noble Lord, Lord Kingsland, raised several issues relating to Clauses 14 and 15. I promised to give them further consideration. As noble Lords will recall, the clauses deal with the conversion of inquiries.Amendment No. 42 will require the Minister to consult the existing inquiry chairman about the proposed conversion. I think that I said in Committee that we would expect that to happen in practice in any event.
Amendments Nos. 46 and 47 will, I hope, deal with a concern expressed by the noble Lord, Lord Kingsland, in Grand Committee about the power of the Minister to remove panel members on conversion. Amendment No. 47 will remove the power of the Minister to terminate the appointments of the original panel at the same time as he converts the inquiry. Amendment No. 46 will ensure that a panel member cannot be removed from the panel later on for having an interest or association that the Minister was aware of at the time of conversion. 699 In essence, the amendments protect the panel from being removed as a result of conversion. If the Minister takes a decision to convert an inquiry, he must be satisfied that the panel can continue as it stands. I beg to move.
§ Lord KingslandMy Lords, I am most grateful to the noble Baroness for responding in the way that she has to the discussion that we had in Committee about Clauses 14 and 15. The noble Baroness will recall that we had two concerns about the powers contained in the clauses.
The first concern was one of principle. The Bill seemed to us to contemplate retrospectiveness in the management of existing inquiries. After the Bill became an Act, it would give a power to the Minister, in effect, to close down ongoing inquiries and replace them with inquiries under the Bill. That would give rise to two issues, one of which is far more important than the other.
The first is that it would provide a new procedure to an ongoing inquiry. We could see the force of doing that, if formal procedures were not proving to be satisfactory in dealing with the matter under review. Our other concern was that an inquiry might be closed down and replaced in order to get rid of members who were saying and doing inconvenient things and replace them with placemen. It is on that issue that the noble Baroness has been helpful, not only in the wording of the amendment but in the reassuring things that she said about them. In those circumstances, I simply want to thank her for tabling the amendments.
On Question, amendment agreed to.
§ Baroness Ashton of Uphollandmoved Amendment No. 43:
Page 6, line 30, at end insert—(6) 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.(7) The Minister must consult the chairman before—On Question, amendment agreed to.
- (a) setting out terms of reference that are different from those of the original inquiry, or
- (b) amending the terms of reference under subsection (6)."
§ Baroness Ashton of Uphollandmoved Amendment No. 44:
Page 6, line 30, at end insert—(8) Section (Minister's duty to inform Parliament or Assembly) applies, with any necessary modifications, in relation to—as it applies in relation to causing an inquiry to be held, or amending an inquiry's terms of reference under section 5(2A)." On Question, amendment agreed to.
- (a) converting an inquiry under this section, or
- (b) amending an inquiry's terms of reference under subsection (5),
§ [Amendment No. 45 not moved.]
§ Clause 15 [Inquiries converted under section 14]:
§ Baroness Ashton of Uphollandmoved Amendment No. 46:
Page 6, line 39, at end insert", and for the purposes of section 11(5) is treated as made by the Minister on the date of conversionOn Question, amendment agreed to.
§ Baroness Ashton of Uphollandmoved Amendment No. 47:
Page 6, line 40, leave out subsections (3) to (5).On Question, amendment agreed to.
§ [Amendment No. 48 not moved.]
§ Clause 16 [Evidence and procedure]:
§ Lord Howe of Aberavonmoved Amendment No. 49:
Page 7, line 20, after first "to" insert—(a)The noble and learned Lord said: My Lords, I apologise for the fact that the legislative train that has been steaming so rapidly along the last stretches of line will now move a little more slowly for a time. I shall try to avoid the risk of simple repetition of the helpful debate that we had in Grand Committee on the points raised in Amendments Nos. 49, 50 and 51.I draw attention in particular to the extent to which there is a significant difference between Amendment No. 50 and Amendment No. 51. That is a result of my consideration of what was said in Grand Committee, of subsequent discussions with a number of people, and of a study of the Public Administration Committee of the other place, to which I have already paid tribute.
Amendment No. 50 was the original amendment. It was based on the rather wide-ranging advice given by the noble and learned Lord, Lord Phillips of Worth Matravers, before the BSE inquiry. It can be said to be very subjective and wide-ranging and to raise a presumption. Having considered that, I propose to replace it with Amendment No. 51, which is manifestly more objective and restrained and more related to proportionality. It says:
the extent to which any person or organisation who may be the subject of criticism in course of, or as a result of, the proceedings may, as a matter of fairness, require legal representation".That is a more restricted proposition.I understand the need that has been made clear to be concerned, when considering the management of inquiries, about the need for economy as well as expedition. I have great sympathy with the amendment proposed by my noble friend Lord Goschen, with the speech that he made in Grand Committee and with the speech made by the noble Lord, Lord Lester of Herne Hill. From Crown Agents to Bloody Sunday, the need for economy is overwhelmingly established. It is not just mentioned in the Bill but stressed—rightly so. However, the other aspect that is, at the very least, equally important is the need for justice in the management of the inquiry or, to put it another way, the need to avoid injustice and the need for fairness. 701 At the heart of my case for the amendments is my conviction that it would be a grave mistake to omit from the primary legislation that is intended to set the framework for inquiries in general for years to come any reference to that aspect of the matter and leave it to regulations for the whole field. Expenditure and justice must both be mentioned in the same tone of voice in the legislation.
There is a misapprehension that continues in the mind of some people, and I can understand why. It is that lawyers inevitably, irresistibly, inescapably add to the cost and burden of an inquiry.
§ Lord Garel-JonesSurely not.
§ Lord Howe of AberavonMy Lords, I am delighted by that support from my noble friend.
The fact is that lawyers can and do save money, as well as time. For an example of an inquiry that was prolonged by their absence, one need only refer again to the inquiry conducted under the noble and learned Lord, Lord Scott of Foscote. I was struck by one aspect of it, and I re-examined it over the weekend. It is the amount of time devoted in that inquiry to the question of the legality of public interest immunity certificates, at the time when those certificates were given on the advice of the then Attorney-General, Sir Nicholas Lyell. In that area, the noble and learned Lord, Lord Scott of Foscote, held that the then Attorney-General had acted on a mistaken basis of law.
When the report was debated in this House two years later, the law had been changed by the legal system, by the judges. All the Law Lords who spoke on the topic in the House agreed that Sir Nicholas Lyell's advice was absolutely right, as the law had been in 1992, when he gave the advice. More decisively, Lord Williams of Mostyn conceded as much in the debate. So, one had the proposition that was at the heart of the finding of error on the part of the Attorney-General not having been argued by advocates before the inquiry but only argued so far as the Attorney-General was able to do it in his role as a witness. It had a great deal of time devoted to it. That is a very good example of the proposition of waste of time in justice and the matters about which I am complaining.
5.30 p.m.
To illustrate the extent to which lawyers can be helpful and sensibly managed, I should like to remind noble Lords again of the wide-ranging instructions given by the noble and learned Lord, Lord Phillips, at the setting up of his inquiry into BSE. He gave great encouragement to the role that lawyers can play. He said:
In many cases the assistance of lawyers in identifying and preparing the evidence will be essential … I would hope that those Departments or other bodies which played a major part in the story will instruct Counsel to attend the hearing, or at least those parts of the hearing with which they are particularly concerned, in order to assist with the presentation of evidence, or any other way that may appear desirable".702 Beyond that, he continued, in respect of matters which,deserve further urgent investigation … it will be very desirable to have legal representatives present to whom we can turn for assistance".At that stage, that may conjure up the prospect of the inquiry being riddled with lawyers waiting to pounce at every point. In fact, as the noble and learned Lord, Lord Phillips, explained in a speech given on 5 December 2001 in the City of London, what happened was different from what might have been feared. He said:Most witnesses who had played leading roles in the story had legal representation. We made it plain that they were welcome to have their lawyers sitting beside them but that lawyers were expected to play a backseat role at the hearing. A short opening statement and a little re-examination was acceptable, but in essence, the proceedings were to be inquisitorial not adversarial".The point is that the lawyers were there. They were ready, able and willing to speak, if invited to do so or if the need arose. They helped the noble and learned Lord, Lord Phillips, substantially in completing the inquiry more expeditiously rather than less.Perhaps I may say that I had much the same experience in the Ely hospital inquiry, which, on the face of it, was a formidable operation. We had 52 witnesses. We wrote, as it were, "Salmon" letters to 44 members of hospital staff and 254 letters to relatives or friends of patients. Representing the different parties before me were three members of the Bar, two trade union officials and one solicitor.
One advantage of the modesty with which we conducted the proceedings was that, of the junior members of the Bar, one of them went on to become—25 years later—the Attorney-General, about whom I have just been speaking, and one of the others is now Lord Justice Potter who is in the Court of Appeal. They were then young, very competent, seedling lawyers. I remember to this day that the closing address made by Nicholas Lyell, as he then was, decisively shifted the judgment that we gave in respect of his client, the chief male nurse.
However, more importantly, we completed that inquiry with only 15 hearing days for the taking of evidence. So it is possible to show that lawyers assist the expedition as well as increase the fairness of an inquiry. Perhaps I may say without undue immodesty that a lot depends on the experience and performance of the panel of the inquiry and on the extent to which it gets guidance from the accumulated wisdom of departments.
That is why the Government's proposal to establish a unit in the centre of government, which is not attached to any department, where the collective wisdom of government of the kind that has been gathered in the Public Administration Committee report, is such a valuable one. It would enable lawyers to be available when they should be available, but to be guided by the inquiry in a sensible and productive fashion.
All of those arguments were underlying the central discussion that took place in Grand Committee when a number of colleagues were less than enthusiastic about 703 the amendment that I had put forward. However, almost all of them laid more than a seed of hope for my central argument. The noble Lord, Lord Goodhart, said:
My view is that the Salmon report goes too far for modern times".He referred to the mounting expense. I am not sure why it is inevitable for there to be such mounting expense. I shall return to that point later on. The noble Lord went on courteously to say:So I cannot say that I disagree with what the noble and learned Lord, Lord Howe, said. He undoubtedly has a very strong point to make. But one has to look at these issues with proportionality in mind".That is the lesson that I would draw from that discussion. He continued:I do not think that the chairman should be invited to start with any presumption for or against the giving of legal representation. It depends on the circumstances of each case".—[Official Report, 19/1/05; GC 272.]That was echoed by virtually all the speakers. The noble Lord, Lord Lester, after we had discussed our client relationship, made the same point in a different way. He said that,fairness requires anyone who is in serious risk of pains and penalties to be legally represented. I also agree that there are serious cases where the right to cross-examination should be allowed … I thought that what happened in the Scott inquiry was not fair".He closed by saying,So I am entirely sympathetic with the object of the amendment".—[Official Report, 19/1/05; GC 273–274.]The noble Viscount, Lord Bledisloe, who, perhaps I may say is never knowingly understated with regard to his impressive style of advocacy, expressed the fear without prescribing a legal fiesta. He delivered the other phrase that impressed me so much, which was,to raise, as I fear the noble Lord's amendment does, an almost irrebuttable presumption that if anyone may have cause to apprehend the possibility of criticism and may reasonably wish to be legally represented, he is allowed to do so, is to perpetuate the present system which the public see as an abuse and a gross waste of money".—[Official Report, 19/1/05; GC 274–275.]I understand that reasoning, which is why I have changed the drafting substantially to avoid any longer raising a presumption of that kind. Hence, there is balance in Amendment No. 51. It is objective, proportionality is at the heart of it and there is no presumption. The overriding test is contained in the words,as a matter of fairness".That is not my phrase. It was used by the noble and learned Lord, Lord Cullen, which he was unable to recall when I spoke to him last night about it. It came not from any evidence submitted by him, but from his instructions for the Piper Alpha inquiry. Paragraph 15 of the paper distributed by the noble Baroness before Christmas stated that,Lord Cullen allowed people to be parties 'if they were able to show an interest, in some aspect of the subject matter of the inquiry which as a matter of fairness required protection by such [legal] representation".That is the right approach.704 A clear reference to the need for the inquiry to address itself directly to that factor as much as it does to the avoidance of undue expenditure is an essential provision that should appear in the Bill, without any presumption either way. I say "without any presumption either way": I have withdrawn my presumption.
I draw attention, as I think I did in Grand Committee, to one of the closing sentences of paragraph 15, which states:
To mitigate concerns that rules will lead to more claims for representation there could be a presumption against legal representation unless the chairman is satisfied certain circumstances apply".That illustrates how easy it would be for the chairman to put the burden of proof in relation to the right to legal representation on the applicant for such benefit. The paragraph continues:The Inquiries Bill places the chairman under an obligation to have regard to costs in his running of the inquiry so the chairman must consider cost implications of permitting legal involvement".I would not disagree with that. The obligation in that respect is right and "must" is not too strong. But the same burden, the same duty, should rest upon the chairman to consider the question of legal representation, without any presumption, in the light of the circumstances of the inquiry and as a matter of proportionality.The Minister said—one so easily lapses into sexist metaphors—with her beguiling charm, how much we could rely upon the regulations that are yet to be born, as they are entitled to be, as a result of the Bill. But if one looks at the phraseology adopted in paragraph 15 one sees—in the words of one cynical lawyer or another—that, even in an affidavit, the truth will out. Here one finds paragraph 15 revealing the way in which the department might think about it, unguided, if there is not a proposition of the kind for which I ask on the face of the Bill.
I am prepared to concede that as long as the Minister is there she may well put her weight against such a fearful presumption as now appears in the text—but, who knows, when Cathy goes, might Clarke be far behind, or whatever? One cannot make any presumptions about the benignity of future holders of the office, even in the event of a change of government, for which we all devoutly pray.
I turn now to the report of the Public Administration Committee of the other place. It is a very impressive and comprehensive document. I draw attention to paragraph 101, where it is said:
Only Lord Howe, sharply critical of the Scott inquiry argued for retention of the full Salmon principles".I may have been "over-Salmonised". I have never argued for their retention in full. The last sentence of the paragraph of my own evidence which is quoted states:We do need to introduce these principles there within reason. and where it is appropriate".705 In paragraph 104, the Committee sums up in this way:The Inquiries Bill is in some ways an attempt to redress the worst excesses of the Salmon principles which have reached their nadir in the Saville Inquiry. The time has clearly come to reformulate the Salmon principles".I do not quarrel with that. But "reformulate" does not mean discard or disregard.The paragraph continues:
We recommend that the procedures followed by inquiries in the last ten years should be reviewed. In particular there should be a re-evaluation of how to ensure fairness within the inquisitorial process while minimising the adversarial, legalistic element of inquiries".Those, too, are well-chosen words which refer to the need to ensure fairness. The emphasis attached to the need for fairness is very well judged.The words,
while minimising the adversarial, legalistic element of inquiries",are also well chosen. Minimising but not eliminating is the burden of the argument that I have sought to deploy before your Lordships. That is fortified by the much wider guidance given in the document produced as a result of the request made in 1996 by the noble and learned Lord, Lord Mackay of Clashfern, to the Council on Tribunals to offer its advice in the light of the recommendations of the noble and learned Lord, Lord Scott, because those recommendations clearly avoid the trap of a presumption one way or another.Paragraph 7.15 of the Council on Tribunals report of 1996—I do not propose to read it again—describes well enough the extent to which the Salmon principles could be over-applied. On the other hand, it indicates many ways in which the chairman can and should make use of and control the way in which lawyers perform in the services of the inquiry.
Paragraph 7.14 demonstrates that lawyers can be useful for opening statements, oral testimony. evidence-in-chief, and sometimes cross-examination and re-examination. It concludes by stating,
In short, although legal representation should not be regarded as an automatic right"—I agree with that—and the inquiry should prevent any abuse of the opportunity to be heard, it may be counterproductive to start from the position that legal representatives will only be heard exceptionally. The inquiry should be ready to exercise its discretion in favour of hearing legal representatives and oral testimony and allowing cross-examination whenever it seems appropriate".It is that balanced approach which I urge upon your Lordships.The closing paragraph of this over-lengthy presentation is drawn from paragraph 2.9 of the 1996 report, which states that,
the objectives of effectiveness and fairness should not, as a matter of principle, be sacrificed to the interests of speed and economy".They should not as a matter of principle, in my submission, be omitted from this Bill. This is a topic on which Parliament is rightly exercising its duty to insist on the inclusion of that matter. I beg to move.
§ 5.45 p.m.
§ Lord Lester of Herne HillMy Lords, I shall not repeat anything that I said in Grand Committee. While I entirely agree with the closing words of the noble and learned Lord, Lord Howe of Aberavon, about fairness being the overriding principle, I shall briefly seek to explain why I do not feel able to give wholehearted support to his watered-down, diluted amendment which now creates no presumption either way.
My starting point is Clause 16(1) which states;
Subject to any provision of this Act or of rules under section 38, the procedure and conduct of an inquiry are to be such as the chairman of the inquiry may direct".I take it—I am sure the Minister can confirm this—that, in acting under Clause 16 and all the other provisions, there is an overriding common law duty for the chairman to act fairly. In making rules under the rule-making power, I also have no doubt that the Minister will be able to confirm that the rules must ensure the overriding objective of fairness in the procedures to be adopted by an inquiry.If that were not the case, there is no doubt that the administrative court would be able to give effective relief by way of judicial review if any inquiry were to act unfairly in the procedures that were followed. That would apply whether a person faced criticism of any kind or for any other reason. Whatever the position may be about a court of law, it is quite clear under the public law of the United Kingdom that any body or public authority charged with the responsibility of carrying out an inquiry under statutory powers must act fairly.
One element in fairness is, obviously, the need for there to be effective legal representation in circumstances where it would be unfair for that not to apply. One characteristic example of that is where a person is in jeopardy not of the possibility of "any" criticism, as the amendment of the noble and learned Lord, Lord Howe, would put it, but of the possibility of criticism seriously damaging to that person's reputation. In that case, a chairman would be well advised to have regard to the needs of fairness in ensuring that there should be legal representation.
We do not have the proposed rules to be made under Clause 38, but it is in those rules that one would expect procedural fairness to be spelled out by the Lord Chancellor in order to ensure that all inquiries are, as far as possible, conducted fairly. I ask myself what is added in the amendment of the noble and learned Lord, Lord Howe of Aberavon, that is not in common law and is not, therefore, redundant.
The chair is to have regard to,
the fact that any person or organisation who may have cause to apprehend the possibility of criticism in the course of, or as a result of, the proceedings may reasonably wish to be legally represented at the inquiry".Were any chair not to do that on an application by such a person, there would again be the possibility of judicial review, not only on grounds of fairness but also on grounds of irrationality, because the chair would not be having regard to a relevant factor. So I do not feel that putting this into primary legislation is necessary.707 Doing so singles out one aspect only, the aspect about which the noble and learned Lord, Lord Howe, feels most strongly. If I may say so, jokingly, he pursues it like Captain Ahab pursuing Moby Dick. I understand why, but the zeal that he has shown, which is commendable, has now reached the point where the amendment does not serve a practical, useful purpose. Fairness should be spelled out in the rules, the common law and the protection given by the common law.
Finally, what the report of the Public Administration Select Committee, Government by Inquiry—in the passage significantly headed "Fair Play" which begins at paragraph 100—had to say about this is important and persuasive, as anyone who has read the report will see. After taking evidence, the committee was worried about the trap of legalism and about lawyers taking over inquiries and turning them into expensive, dilatory and protracted proceedings. The committee explained why and recommended that procedures should be reviewed. In particular, it recommended that there should be a reevaluation of how to ensure fairness within the inquisitorial process, while minimising the adversarial, legalistic element of inquiries. It suggested that good practice should be codified, possibly though the rule-making powers contained in the Inquiries Bill.
I think that that is the way forward. I hope that we will have sight of the draft rules at an early stage and will have an opportunity to debate them. For those reasons, and also because there is now to be no presumption either way, I would not regard the amendment as necessary or desirable.
§ Lord Mackay of ClashfernMy Lords, before the noble Lord sits down, can he help me with a question that is troubling me a little? Would it be possible in the procedural rules to determine that lawyers should not be allowed in these inquiries at all as a matter of general provision?
§ Lord Lester of Herne HillMy Lords, I would say that it would not be possible. To exclude the right of legal representation or the opportunity for it where a person is facing serious pains and penalties in the course of an inquiry would be so unfair that, if it were to be put forward as a rule-making provision, the Lord Chancellor would face a serious risk of a successful judicial review.
§ Baroness Ashton of UphollandMy Lords, I am grateful for the contributions that have been made. I intend to be extremely brief. I am sorry that my beguiling charm completely failed to work on the noble and learned Lord, Lord Howe, but I am very grateful to him for returning to what I know is a very important issue to him. I understand that in his revised amendment he is seeking to achieve a balance between fairness and economy. The noble Lord, Lord Lester, is right in everything he said, especially about the inquiry's common-law duty.
At present, I remain not against the spirit of the amendment but, because this is a complex issue, we believe that this is much better dealt with in the procedural rules after proper, detailed consultation, 708 including with noble Lords. I could also refer to various passages in the Public Administration Select Committee report to back up my argument. We need to look at the rules, not least to see how they can assist the chairman in decisions on legal involvement throughout an inquiry, so that representation contributes to the objective of a fair inquiry without having any adverse effects on the length and cost of the proceedings.
As the noble and learned Lord, Lord Howe, has said, this is one of the topics put forward in the document that I placed in the Library before Christmas. We will consult properly on the rules and I shall be very grateful for the input that I hope will be given by noble Lords, not least the noble and learned Lord, Lord Howe. I intend to ensure that we have detailed conversation with him.
There is no question that legal representation can play an important part in helping inquiries to establish the facts and in ensuring that witnesses and those with a direct interest in the inquiry are treated fairly. But inquiries are not trials. It has been the practice of many recent inquiries to keep legal representation, in particular, the cross-examination of witnesses by the legal representatives of other witnesses, to a minimum. That is the direction in which inquiries are going.
I have said to the noble and learned Lord that I shall do two things. I have made a commitment that there will be full and proper consultation on the rules. and I intend to ensure that it happens. As I have already indicated to the noble and learned Lord outside your Lordships' House, I shall look again to see whether there is anything that I can do within the Bill that does not breach the principle that I have already outlined. I shall continue the dialogue with the noble and learned Lord between now and Third Reading. My brevity is very deliberate. It is not meant to be disrespectful. In that spirit, I hope that the noble and learned Lord will continue his conversations with me and we will continue to explore how best to meet his legitimate concerns.
§ Lord Howe of AberavonMy Lords, I am most grateful for the way in which the Minister has presented her position, beguiling as it is. I am delighted to be beguiled. I hope that she will forgive me if I conclude by recapping the central point.
Everything that she said about what can be dealt with in the regulations is right. Some very helpful advice is given in the report from the other place on the Irish approach. It breaks down the different kinds of representation that could be allowed, and so on. I am more than happy to take part in consultation about the regulations.
However, I use the strongest language that I can to urge her to analyse the logic of what has been said by the noble Lord, Lord Lester. If, in fact, the need for fairness is so obvious in and central to the common law—which indeed it is—and if, as he said, any well conducted chairman should immediately say to himself, "That chap is in jeopardy, so I must be fair", why is it redundant to put that in the Bill? I am passionately devoted to the inclusion in the Bill of the 709 need to avoid undue public expenditure. I devoted years of my life to trying to achieve that objective. I cannot see why it is unacceptable to the noble Lord to include the other factor. The two have to be balanced, just in case the rule-makers are not as instinctively responsive to the common law as he is, and just in case a stray chairman, from time to time, fails to respond to them in advance.
The extent to which it is said that judicial review can be the answer to this worries me. If the risk is to be avoided at the cost of the added expenditure of judicial review as the only escape, I beg the Minister to consider the wisdom, common sense and acceptability of including this proposition alongside expenditure. What harm would it do? What evil could come of it? The details could be filled in with regulations on all these points. There is a risk that this opportunity for Parliament to draw the attention of the rule-makers to this principle could be overlooked for no good reason.
§ 6 p.m.
§ Lord Lester of Herne HillMy Lords, before the noble and learned Lord sits down, would he be content if the Bill made clear that there had to be fair procedures? If that was written into the primary legislation would that meet his point?
§ Lord Howe of AberavonMy Lords, I am grateful to the noble Lord for intervening because that is the point that I have encapsulated in my latest amendment. It is a phrase drawn from the noble and learned Lord, Lord Cullen. I have no special attachment to the precise nuances of the burden of proof—I share everyone's lack of enthusiasm for presumptions either way. But I do think that attention should be directed to this.
I hope that the noble Baroness will be beguiled by the provisional concession made by the noble Lord, Lord Lester. He must have remembered a phrase that we share with each other. It is a quotation from the American judge, Learned Hand:
The spirit of liberty is the spirit which acknowledges that it may not always be right.I am grateful to him as well as to the noble Baroness.I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 50 and 51 not moved.]
§ The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton)moved Amendment No. 52:
After Clause 16, insert the following new clause—Public access to inquiry proceedings and information(1) Subject to any restrictions imposed by a notice or order under section 17, the chairman must take such steps as he considers reasonable to secure that members of the public (including reporters) are able—710
- (a) to attend the inquiry or to see and hear a simultaneous transmission of proceedings at the inquiry;
- (b) to obtain or to view a record of evidence and documents given, produced or provided to the inquiry or inquiry panel.
(2) No recording or broadcast of proceedings at an inquiry may be made except—Any such request or permission must be framed so as not to enable a person to see or hear by means of a recording or broadcast anything that he is prohibited by a notice under section 17 from seeing or hearing.
- (a) at the request of the chairman, or
- (b) with the permission of the chairman and in accordance with any terms on which permission is given.
(3) Section 32(2) of the Freedom of Information Act 2000 (c. 36) (certain inquiry records etc exempt from obligations under that Act) does not apply in relation to information contained in documents that, in pursuance of rules under section 38(1)(aa) below, have been passed to and are held by a public authority.(4) Section 37(1)(b) of the Freedom of Information (Scotland) Act 2002 (asp 13) (certain inquiry records etc exempt from obligations under that Act) does not apply in relation to information contained in documents that, in pursuance of rules under section 38(1)(aa) below, have been passed to and are held by a Scottish public authority.On Question, amendment agreed to.
§ Clause 17 [Restrictions on public access etc]:
§ Lord Kingslandmoved Amendment No. 53:
Page 7, line 27, leave out "either or both of the following ways" and insert "the following way".The noble Lord said: My Lords, we debated this amendment at length at Committee stage. In those circumstances I can be telegraphic in my presentation. The Minister will recall that one of the themes of the debate that we had at Committee stage was the imbalance of power between the Minister on the one hand and the chairman of the committee on the other.Clause 17 is perhaps the locus classicus of that phenomenon. This clause gives the Minister the power, through a restriction notice, to prevent the public from attending the proceedings and to prevent evidence given in the proceedings and documentary evidence from becoming public. I accept that it is proper that the chairman of the inquiry should have this power. The chairman of the inquiry is often asked to balance the interests of the individuals, who might be adversely affected by the proceedings, on the one hand, against the interests of national security, for example, on the other. The chairman will normally have his feet well under the table before he has to make these balancing judgments.
By contrast, having set up the inquiry, the Minister should then stand back and leave its running to the chairman. It is, in my submission, wholly inappropriate for him to intervene, suddenly, on day 20, for example, and say, "There is an important consideration of national security here. I have exercised my balancing power and in those circumstances, prohibit this piece of evidence from being made public." The Minister is simply not in a position to make that judgment. He cannot be in a position to balance the interests of the individuals who are likely to be adversely affected by the inquiry against the public interest. 711 The restriction order, which is a power given to the chairman in the Bill, is wholly adequate protection for all the interests which are of concern to the Government in casting this clause. The Minister is aware of my opinions as I have expressed them at Second Reading and Committee stage. I do not intend to delay your Lordships' proceedings any further. I beg to move.
§ Lord Lester of Herne HillMy Lords, I am grateful to the Minister and her officials for having met me to discuss my concerns about Clause 17. I would like to explain such concerns and seek something on the record to meet them.
I have in mind the powers under Clause 17 and a similar power under Clause 23(4). As the noble Lord, Lord Kingsland, has pointed out they are powers to restrict the free flow of information in relation to inquiries. They relate to whether it is accepted that the Minister or the chairman, as public authorities within the meaning of the Human Rights Act, are under a duty in exercising the restraining powers to do so in a way which is compatible with the right to free expression in Article 10 of the European human rights convention.
If that is the position, the Minister or the chairman has to act reasonably and proportionately in an objective sense and would have to justify the scope and effect of any restriction in terms of the case law under Article 10 of the convention read with the Human Rights Act. There is the separate question about public access to inquiries. I am satisfied that there is no obligation to hold a public inquiry in relation to Article 10. What I seek from the Minister is an assurance that it is accepted that Ministers and chairmen of inquiries must exercise their prior restraint powers compatibly with Article 10 and the right to free speech.
§ Lord GoodhartMy Lords, I am grateful to my noble friend for raising the point about Article 10, which I fully support. I wait with interest to hear what the Minister says.
As regards amendments moved by the noble Lord, Lord Kingsland, we certainly took the view in Grand Committee that there was a good deal of force in them. Our position has been considerably affected by the fact that government Amendment No. 67, which we have not yet reached, will mean that a restriction order or restriction notice will apply only up to the date at which the inquiry comes to an end. After that, any material in the hands of the Minister, which is accessible under the Freedom of Information Act, will be disclosed on request, subject to the exemptions.
Everybody recognises that there are some circumstances in which part or all of some inquiries are more appropriately held in private than in public. In those circumstances there may be some occasions on which it is more appropriate for that decision to be taken by a Minister who is accountable to Parliament 712 than by a chairman of the inquiry panel who is not so accountable. In those circumstances, we do not feel that we are able to support the amendments moved by the noble Lord, Lord Kingsland.
§ Viscount BledisloeMy Lords, while I see force in what the noble Lord, Lord Kingsland, is proposing, is he not going too far in the opposite direction? I can understand why he says that at day 20 of an inquiry, when the chairman is fully in the saddle, it is for the chairman and not the Minister to decide what to control. But when setting up an inquiry or before an inquiry has got under way, why should a Minister not say, "I am setting up this inquiry but I should like to make it plain from the start that information in the following categories will not be disclosed and will not be disclosable"? Alternatively, he could say, "Certain parts of the inquiry, relating to x and y, shall be held in private". It would then be open to the proposed chairman to say, "I don't want to embark on an inquiry on that limited basis. If you're going to restrict it as much as that, you won't get me".
Surely, at that stage when the Minister knows all the details from the chairman, he should be allowed to impose restrictions on the inquiry. People can then say that they do or do not want an inquiry on that basis.
§ Baroness Ashton of UphollandMy Lords. I say to the noble and learned Lord, Lord Howe, that if the spirit of liberty is as he says I am indeed a free woman.
I say straightaway to the noble Lord, Lord Lester, that where the exercise of the power in Clause 17 engages Article 10, the Minister or the chairman must of course act compatibly with Article 10.2. That means that the exercise must be both necessary and proportionate. I am grateful to the noble Lord, Lord Lester, for discussing the matter with me. I believe that that addresses the point which he is keen I should place on the record.
I shall briefly deal with the issues which have been raised. We believe that when setting up an inquiry the Minister must be sure that witnesses are not endangered and that national security is not at risk. The Minister has to be satisfied about the effective use of public funds and has to set up the inquiry in a way that will allow it to get to the truth most effectively. Decisions about privacy must be part of that process.
Under the Bill, for example, if much of the information will be sensitive, it is much better to have a single decision about public access at the start, which can be challenged, rather than numerous applications for public interest immunity throughout the inquiry, which can cause delays.
These powers are not new. Existing legislation such as the Children Act 1989 and the Police Act 1996 have explicit powers for Ministers to hold inquiries, or part of inquiries, in private. Unlike the provisions in the Bill, those powers are not qualified by the legislation in any way.
For the first time, we have set out the reasons for which a Minister can hold an inquiry in private. The Bill actually restricts Ministers' current powers in this respect. It creates a clear structure in which decisions 713 about public access and privacy must be made. Clause 17 draws on the reasons for which restrictions have been justifiably placed on public access in the past, including decisions that have been upheld in the courts.
My submission is that during an inquiry you cannot always predict what will arise. Ministers must be able to ensure, for example, that the UK complies with the European Convention on Human Rights. If the disclosure of information would breach individual rights under the ECHR, Ministers must be able to issue restrictions to protect those rights. If the inquiry panel breaches the individuals' ECHR rights, it is the Minister, not the panel, who will be taken to court in Strasbourg.
It is not fair, in our view, to place the responsibility solely on the chairman to weigh up the wider public interest all the time when conducting his inquiry, particularly if he has no expertise in security, international relations, economic matters or whatever the relevant field might be. The job of the chairman is to get to the truth in the most effective way possible. It is the Minister's job to protect the wider public interest.
A restriction notice would not stop any information from going to the chairman and the rest of the panel. Of course, if the chairman was not happy with the notice, he could say so publicly. I believe that that carries a tremendous amount of power.
The clause sets out very clearly the circumstances in which restriction notices can be justified. It is in the business of safeguarding the public interest, preventing real harm and making the inquiry effective. Any unreasonable or improper restrictions could, and undoubtedly would, be challenged in the courts.
For the reasons I have given, I hope that the noble Lord, Lord Kingsland, will withdraw his amendment.
§ Lord KingslandMy Lords, I am most grateful to the Minister and to all noble Lords who have spoken in the debate. I shall respond briefly. The noble Viscount, Lord Bledisloe, asked whether it would not be all right if the Minister, at the outset of the inquiry, imposed certain constraints—for example, with respect to public security—and made that a condition for the chairman to abide by when undertaking the inquiry. That, for me, would not be a problem because it could form part of the terms of reference of the inquiry.
My concerns relate to the issue of a restriction notice in the course of an inquiry. It is then that the interests of the individuals who might be adversely affected by the ultimate decision of the inquiry emerge and become clear. But they will become clear only to the chairman. Therefore, when it comes to measuring the various public interests which are expressed in Clause 17, it is, in my judgment, only the chairman who can make an appropriate balancing judgment.
I shall not repeat the arguments I made at the outset and certainly not those I made in Committee. This is, for us, an important point of principle and therefore I would like to test the opinion of the House.
§ 6.16 p.m.
§ On Question, Whether the said amendment (No. 53) shall be agreed to?
§ *Their Lordships divided: Contents, 61; Not-Contents, 162.
715| Division No. 2 | |
| CONTENTS | |
| Anelay of St Johns, B. | Howe of Idlicote, B. |
| Astor of Hever, L. | Howell of Guildford, L. |
| Attlee, E. | Inglewood, L. |
| Baker of Dorking, L. | Kimball, L. |
| Brougham and Vaux, L. | Kingsland, L. |
| Byford, B. | Knight of Collingtree, B. |
| Chalker of Wallasey, B. | Laird, L. |
| Colwyn, L. | Liverpool. E. |
| Cope of Berkeley, L. [Teller] | Luke, L. |
| Denham, L. | Lyell, L. |
| Dixon-Smith, L. | Mancroft, L. |
| Eccles of Moulton, B. | Marlesford, L. |
| Elton, L. | Mayhew of Twysden, L. |
| Feldman, L. | Morris of Bolton, B. |
| Ferrers, E. | Noakes, B. |
| Flather, B. | Northesk, E. |
| Fookes, B. | Norton of Louth, L. |
| Fowler, L. | O'Cathain, B. |
| Fraser of Carmyllie, L. | Park of Monmouth, B. |
| Freeman, L. | Rees, L. |
| Gardner of Parkes, B. | Seccombe, B. [Teller] |
| Geddes, L. | Selborne, E. |
| Glenarthur, L. | Skelmersdale, L. |
| Harris of Peckham, L. | Stewartby, L. |
| Hayhoe, L. | Strathclyde, L. |
| Henley, L. | Swinfen, L. |
| Higgins, L. | Tebbit, L. |
| Thomas of Swynnerton, L. | |
| Hooper, B. | Ullswater, V. |
| Howe, E. | Wade of Chorlton, L. |
| Howe of Aberavon, L. | Wilcox, B. |
| NOT-CONTENTS | |
| Acton, L. | Clinton-Davis, L. |
| Addington, L. | Corbett of Castle Vale, L. |
| Ahmed, L. | Darcy de Knayth, B. |
| Allenby of Megiddo, V. | David, B. |
| Alton of Liverpool, L. | Davies of Oldham, L. [Teller] |
| Amos, B. (Lord President of the | Desai, L. |
| Council) | Dholakia, L. |
| Andrews, B. | Dixon, L. |
| Archer of Sandwell, L. | Drayson, L. |
| Ashton of Upholland, B. | Dubs, L. |
| Avebury, L. | Dykes, L. |
| Barnett, L. | Elder, L. |
| Bassam of Brighton, L. | Evans of Parkside, L. |
| Beaumont of Whitley, L. | Evans of Temple Guiting, L. |
| Berkeley, L. | Farrington of Ribbleton, B. |
| Bhattacharyya, L. | Faulkner of Worcester, L. |
| Blackstone, B. | Filkin, L. |
| Bledisloe, V. | Finlay of Llandaff, B. |
| Borrie, L. | Gale, B. |
| Bragg, L. | Gibson of Market Rasen, B. |
| Brooke of Alverthorpe, L. | Giddens, L. |
| Brookeborough, V. | Gilbert, L. |
| Brookman, L. | Golding, B. |
| Burlison, L. | Goldsmith, L. |
| Campbell-Savours, L. | Goodhart, L. |
| Carter, L. | Gordon of Strathblane, L. |
| Carter of Coles, L. | Goudie, B. |
| Christopher, L. | Greengross, B. |
| Clarke of Hampstead, L. | Greenway, L. |
| Clement-Jones, L. | Griffiths of Burry Port, L. |
| Grocott, L. [Teller] | Patel of Blackburn, L. |
| Harris of Haringey, L. | Pendry, L. |
| Harris of Richmond, B. | Pitkeathley, B. |
| Harrison, L. | Plant of Highfield, L. |
| Hart of Chilton, L. | Prys-Davies, L. |
| Haskins, L. | Radice, L. |
| Haworth, L. | Ramsay of Cartvale, B. |
| Henig, B. | Razzall, L. |
| Hilton of Eggardon, B. | Rendell of Babergh, B. |
| Hogg of Cumbernauld, L. | Renwick of Clifton, L. |
| Hollis of Heigham, B. | Richard, L. |
| Holme of Cheltenham, L. | Roberts of Llandudno, L. |
| Hunt of Kings Heath, L. | Rodgers of Quarry Bank,L. |
| Janner of Braunstone, L. | Rogan, L. |
| Jay of Paddington, B. | Roper, L. |
| Jones, L. | Rosser, L. |
| Judd, L. | Royall of Blaisdon, B. |
| Kilclooney, L. | Russell-Johnston, L. |
| King of West Bromwich, L. | St. John of Bletso, L. |
| Kirkhill, L. | Sandberg, L. |
| Lea of Crondall, L. | Sawyer, L. |
| Leitch, L. | Scotland of Asthal, B. |
| Lester of Herne Hill, L. | Sheldon, L. |
| Lipsey, L. | Shutt of Greetland, L. |
| Livsey of Talgarth, L. | Simon, V. |
| Lofthouse of Pontefract, L. | Smith of Leigh, L. |
| Ludford, B. | Stern, B. |
| McDonagh, B. | Stone of Blackheath, L. |
| Macdonald of Tradeston, L. | Sutherland of Houndwood, L. |
| McIntosh of Hudnall, B. | Symons of Vernham Dean, B. |
| MacKenzie of Culkein, L. | Taylor of Blackburn, L. |
| Mackenzie of Framwellgate, L. | Temple-Morris, L. |
| McKenzie of Luton, L. | Thomas of Gresford, L. |
| Maclennan of Rogart, L. | Tomlinson, L. |
| Maddock, B. | Tordoff, L. |
| Mallalieu, B. | Triesman, L. |
| Mar and Kellie, E. | Truscott, L. |
| Masham of Ilton, B. | Tunnicliffe, L. |
| Mason of Barnsley, L. | Turnberg, L. |
| Maxton, L. | Wallace of Saltaire, L. |
| Merlyn-Rees, L. | Walmsley, B. |
| Michie of Gallanach, B. | Walton of Detchant, L. |
| Mitchell, L. | Warner, L. |
| Monson, L. | Warwick of Undercliffe, B. |
| Morgan, L. | Watson of Richmond, L. |
| Morgan of Drefelin, B. | Whitaker, B. |
| Morris of Aberavon, L. | Whitty, L. |
| Northover, B. | Wilkins, B. |
| Oakeshott of Seagrove Bay, L. | Williams of Elvel, L. |
| O'Neill of Bengarve, B. | Williams of Horton, L. |
| Palmer, L. | Woolmer of Leeds, L. |
| Parekh, L. | Young of Norwood Green, L. |
§ [*See col. 742]
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 6.28 p.m.
§ [Amendments Nos. 54 to 56 not moved.]
§ Lord Kingslandmoved Amendment No. 57:
Page 7, line 40, leave out "inhibit the allaying of" and insert "causeThe noble Lord said: My Lords, the Minister sent me a letter about this amendment which I have read but not clearly understood. I continue to adhere to the view that my amendment would have no effect on the substance of the matter. It is no more nor less than a more elegant way of expression. I beg to move.
§ Baroness Ashton of UphollandMy Lords, I am desperately sorry that my letter to the noble Lord did 716 not do the trick. In our discussions around Clause 17, we are looking at when a chairman or Minister is considering issuing a restriction notice balancing up different factors. The factor that will usually weigh heavily in favour of disclosure is the one affected by this amendment:
the extent to which any restriction on attendance, disclosure or publication might inhibit the allaying of public concern".I will not repeat everything that I said in Grand Committee. I appreciate that the provision is not the most elegant of phrases, but I believe that it is the most appropriate. Of course, as the noble Lord would expect, I have gone back and checked his amendment to see whether it would have the same effect or whether there was a more elegant way of describing the provision. My deliberations have resulted in my view that we have indeed got the right phrase.As I said in my letter to the noble Lord, what we are seeking to do with an inquiry is to allay public concern. Whatever the event that has triggered the particular need for an inquiry, our objective is to allay public concern. There may be other objectives, but that is the central concern. Therefore, if one looks at the factors that weigh around the disclosure, one must consider that a restriction on attendance would inhibit the allaying of that public concern. So it links back to the purpose of an inquiry, which is precisely to allay that concern. If withholding material or issuing a restriction will inhibit that process, that is a good argument for not imposing it. That is why we believe that the wording in the clause is more appropriate.
6.30 p.m.
With regard to Amendment No. 58, when deciding whether it is in the public interest to issue a restriction notice or order, it makes sense for the Minister or chairman to have regard to any risk of harm or damage that could be caused if the information was made public. The effect of the amendment proposed by the noble Lord, Lord Kingsland, would be to remove the requirement for the Minister or chairman to have regard to the risks caused by disclosure, and instead to introduce a new requirement to have regard to the risk of harm that could be caused by not publishing the information. Given the definition of "harm or damage" in subsection (5), we do not believe that that would make a lot of sense in most cases.
We have seen from past experience that some inquiries can proceed most effectively, and ultimately allay public concern, with some restrictions on public access. We do not want to force inquiries to abandon the types of effective and legitimate semi-private models that have been developed by the Department of Health, for example, when those models have proved to work well. So Clause 17 allows those types of procedures to be followed, if they can be justified. The starting point is always that there should be full public access but, at the end of the day, if the inquiry will be faster, more effective or even less costly in private, and will still deliver a valuable and widely accepted report, we should not rule out that option. 717 Clause 17 provides that the Minister or chairman should consider the extent to which a restriction would improve the efficiency or effectiveness of the inquiry or reduce costs. The amendment proposed by the noble Lord, Lord Kingsland, would remove that option. I would be concerned that such a change could hamper the ability of the Minister or chairman to ensure that an inquiry takes the most effective form. For that reason, I hope that the noble Lord will feel able to withdraw his amendment.
§ Lord KingslandMy Lords, as I said, I do not agree that my amendment would have the effect that the Minister claims. I believe that it would simply more felicitously express what the Minister seeks to express herself. Since the matter does not go to the substance of the clause. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendments Nos. 58 to 60 not moved.]
§ Lord Kingslandmoved Amendment No. 61:
Page 8, line 14, at end insert—( ) In proceeding under this section, the chairman must start from the presumption that public access should not be restricted.The noble Lord said: My Lords, this amendment is about the presumption that public access should not be restricted. In Grand Committee on 19 January the Minister said:My notes state that I accept that the presumption would be even more apparent if we started with subsection (6) and then followed it with subsections on restrictions, but it does not say in my notes that I shall therefore go away and rewrite the clause. I shall reconsider the matter but the amendment does no more than is already in the Bill". —[Official Report, 19/1/05; col. GC 290.]The Minister was kind enough to say that she would reconsider the matter. She accepts that the presumption would be even more apparent if the clause had started with subsection (6). I note that the Government have not tabled an amendment at this stage on the matter. Does that mean that the Minister is not prepared to move on the issue at all? I beg to move.
§ Baroness Ashton of UphollandMy Lords, I agree with the noble Lord, as I did in Committee, that the starting point for inquiries must be full public access. What I thought to do with Amendment No. 52, which has been accepted, was to draw out the parts of Clause 17 on public access and put them in a separate clause beforehand to make it even clearer that public access is the starting point. I hoped that in doing that I had kept my promise about making the matter even clearer. Perhaps I may ask the noble Lord to reflect on that fact and tell me if he feels that I have failed. But it was partly to keep the promise to him that I have done what I did and inserted the new clause after Clause 16, in Amendment No. 52. I hope that he will feel able to withdraw his amendment on that basis.
§ Lord KingslandMy Lords, I am most grateful to the Minister for drawing our attention to that amendment, which of course I have seen. I must say that it did not immediately strike me as having the 718 effect that she says it has, but I shall go away and reflect and if necessary return to the matter on Third Reading. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Baroness Ashton of Uphollandmoved Amendment No. 62:
Page 8, line 15, leave out subsections (6) and (7).
§ The Deputy Speaker (Baroness Fookes)My Lords, I remind the House that if this amendment is agreed to. I cannot then call Amendment No. 63 because of pre-emption.
On Question, amendment agreed to.
§ [Amendments Nos. 63 and 64 not moved.]
§ Clause 18 [Further provisions about restriction notices and orders]:
§ Lord Goodhartmoved Amendment No. 65:
Page 8, line 40, leave out subsection (5).The noble Lord said: My Lords, in moving Amendment No. 65 I shall speak to Amendments Nos. 68 and 69.This group of amendments raises another freedom of information issue. Under the Bill as it is now drafted, restrictions on the release of information under a restriction order or notice remain in force for 30 years from the end of the inquiry unless revoked in the interval by the Minister. Our amendments would bring the restriction order or notice to an end at the end of the inquiry so that disclosure thereafter is governed by the Freedom of Information Act 2000 and remove those parts of Clause 18 that apply only after the end of the inquiry.
Government Amendment No. 67, to a considerable though not complete extent, achieves that result. But that amendment, unlike ours, does not remove subsection (5), which provides that restrictions may continue in force indefinitely. It seems therefore that a restriction order may apply to an individual witness after the end of an inquiry, even though it does not apply to a public authority, because of Amendment No. 67.
Could, therefore, a restriction order be applied to prevent a witness repeating to the media his own evidence to the inquiry? What would be the justification for that if the Official Secrets Act 1989 did not apply? Can an indefinite restriction order be justified under Article 10 of the ECHR? Should some provision be made, short of judicial review, for a person subject to a restriction order or notice to challenge it? I am sorry if my questions have caused some consternation. I beg to move.
The Deputy SpeakerMy Lords, I remind the House that if the amendment is agreed to, I cannot call Amendment No. 66 because of pre-emption.
§ Baroness Ashton of UphollandMy Lords, I fully agree with the noble Lord, Lord Goodhart, that restriction 719 notices and orders should not prevent the disclosure of information from inquiry records under the Freedom of Information Act. That has always been our policy. The original draft of the Bill achieved that, but some modifications are needed if the exemption in Section 32 of the Freedom of Information Act is not going to apply.
Government Amendments Nos. 66 and 67 ensure that restriction notices and orders will not apply to any information held by a public authority once an inquiry is over. I do not agree that it is right to go further than that and stop all restriction notices and orders at the end of an inquiry. Restrictions have an important role quite separate from inquiry records. They can be vital in protecting sensitive or private information, by preventing people who have heard it as a result of the inquiry from passing it on. There is no intention that someone who gives evidence to the inquiry could not repeat that. Article 10 would, indeed, be engaged and apply under those circumstances.
As I indicated during the Grand Committee sessions, I have also brought forward Amendment No. 70 to ensure that a Minister could not vary a restriction notice or order in such a way as to make it more restrictive. I hope that answers the point made by the noble Lord, Lord Goodhart, and that he will therefore feel able to withdraw the amendment.
§ Lord GoodhartMy Lords, as I understand it, therefore, the position is that a restriction order, if it continued after the end of the inquiry, would engage, or potentially engage, Article 10. I refer to the Minister's answer to the inquiry of my noble friend Lord Lester. The retention of at any rate part of subsection (5) would not prevent information being disclosed where there was no justification under Article 10 for keeping it secret. While I am a little concerned that that is not in the Bill as I think it may give people a misleading impression of the position, nevertheless I am prepared to accept that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Baroness Ashton of Uphollandmoved Amendment No. 66:
Page 8, line 41, after "documents" insert "("disclosure restrictions")On Question, amendment agreed to.
§ Baroness Ashton of Uphollandmoved Amendment No. 67:
Page 9, line 1, leave out subsection (6) and insert—( ) After the end of the inquiry, disclosure restrictions do not apply to a public authority, or a Scottish public authority, in relation to information held by the authority otherwise than as a result of the breach of any such restrictions.
The Deputy SpeakerMy Lords, if this amendment is agreed to, I cannot then call Amendment No. 68 by reason of pre-emption.
On Question, amendment agreed to.
§ [Amendment No. 68 not moved.]
720§ [Amendment No. 69 not moved]
§ Baroness Ashton of Uphollandmoved Amendment No. 70:
Page 9, line 8, leave out from "suitable" to end of line 9 and insert—(a) revoke a restriction order or restriction notice containing disclosure restrictions that are still in force, or(b) vary it so as to remove or relax any of the restrictions.On Question, amendment agreed to.
§ Clause 19 [Powers of chairman to require production of evidence etc]:
§ Baroness Ashton of Uphollandmoved Amendment No. 71:
Page 9, line 22, after "inquiry" insert "panelThe noble Baroness said: My Lords, in moving Amendment No. 71, I wish to speak also to Amendments Nos. 95, 96, 97 and 102. These amendments are a set of clarifications. They make it absolutely plain that these references to the "inquiry" are references to the inquiry panel or those working on its behalf. We felt it was appropriate to make these amendments to ensure that no confusion is caused. I beg to move.On Question, amendment agreed to.
§ Lord Goodhartmoved Amendment No. 72:
Page 9, line 32, leave out from "section," to end of line 33 and insert—( ) his evidence, or the production of any documents or things which he is required to produce by the notice, would not give any material assistance to the inquiry, or( ) the burden of producing any document or thing which he is required to produce by the notice would be disproportionate to the assistance likely to he given to the inquiry by their production,The noble Lord said: My Lords, in moving Amendment No. 72, I wish to speak also to Amendment No. 74.The order in a court case for disclosure of documents is a powerful order made by a judge and perhaps involving time and expense to the person against whom the order is made. Orders will not normally be made for fishing expeditions; that is, a trawl through documents to see if anything unexpected but helpful turns up. Production orders may be made in inquiries by a chairman who is not a lawyer and not familiar with the law on disclosure. It seems to us that the chairman should be given some guidelines on the circumstances in which the order could be made.
The Bill as drafted applies if a person,
cannot reasonably be expected to comply with such a notice".That is a vague phrase and could be regarded as being a high hurdle to get over. It suggests, to my mind at any rate, that only great physical difficulty, or something like it, in producing the documents would suffice.Our amendments provided that there should be two tests for objecting to an order. One is that the documents requested were irrelevant and therefore could not assist the inquiry in any way. The second is that while 721 documents might have limited relevance, the burden of producing them would be disproportionate to the assistance which their production would provide to the inquiry.
The Government did not accept those but have come back with an alternative formula in Amendment No. 73. This seems to impose a test which constitutes a lower hurdle than Clause 19(4) as it now stands. Does the Minister believe that the new amendment is sufficient to prevent fishing expeditions and a disproportionate burden on the person against whom a disclosure order is sought? I beg to move.
The Deputy SpeakerMy Lords, if this amendment is accepted, I cannot call Amendment No. 73 by reason of pre-emption.
§ 6.45 p.m.
§ Baroness Ashton of UphollandMy Lords, I agree completely with the noble Lord, Lord Goodhart, that it is important to ensure that the chairman does not use the powers of compulsion in relation to information that is not necessary, which could lead to undue demands on individuals.
I accept that subsection (4) of Clause 19 might not adequately cover the situation in which an inquiry chairman asked for irrelevant material—the fishing expedition—because it focused more on the practical difficulties of obtaining that material.
Government Amendment No. 73 has exactly the same purpose as Amendment No. 72 in the name of the noble Lord, Lord Goodhart. The noble Lord will know that I try to accept amendments but sometimes the wording has to be rewritten. As I say, my notes say that government Amendment No. 73 has exactly the same purpose as Amendment No. 72, which I hope allays the noble Lord's concern. Amendment No. 73 allows individuals to claim that it is not reasonable "in all the circumstances" to require them to produce evidence. That will cover practical difficulties, but will also cover the situation in which the evidence will not be of material assistance to the inquiry. It will also cover any other unforeseen situation in which the use of powers of compulsion would be unreasonable, so it goes a little further than the noble Lord's amendment. I hope that that answers the noble Lord's concern and that he feels able to withdraw his amendment in favour of government Amendment No. 73.
§ Lord GoodhartMy Lords, I am very grateful to the Minister for that reply. I am certainly very happy to accept her explanation of the intention of the government amendment. Therefore, I am happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Baroness Ashton of Uphollandmoved Amendment No. 73:
Page 9, line 33, leave out "he cannot reasonably be expected" and insert "it is not reasonable in all the circumstances to require him722 The noble Baroness said: My Lords, this amendment has already been spoken to. I beg to move.On Question, amendment agreed to.
§ [Amendment No. 74 not moved.]
§ Clause 21 [Risk of damage to the economy]:
§ Lord Goodhartmoved Amendment No. 75:
Page 10, line 15, leave out from "in" to end of line 17 and insert "avoiding a risk of damage to the economy outweighs the public interest in the information being revealedThe noble Lord said: My Lords, in moving Amendment No. 75, I wish to speak also to Amendment No. 76. These two amendments represent the only respect in which the Government have not broadly accepted the freedom of information arguments which we put forward in Grand Committee.Amendment No. 75 would reverse the outcome which would happen under the Freedom of Information Act where there is an equal balance between public interest in disclosure and the public interest in refusing disclosure. Under Section 2 of the Freedom of Information Act 2000, where there is an equal balance, there is to be disclosure. The same principle should apply under Clause 21.
However, Amendment No. 76, which of the two amendments I prefer, raises a more fundamental question and seeks to leave out Clause 21. Why is Clause 21 necessary? The Crown, or the other objector, can make a case either to the Minister, or to the chairman of the inquiry, for the imposition of a restriction order or notice on the evidence that the relevant witnesses are going to give. Damage to the economy is a ground for an exemption, although not an absolute exemption, under Section 29 of the Freedom of Information Act.
Clause 17(5) of this Bill provides that damage to the economic interests of the United Kingdom is a matter to which the Minister or chairman must have regard in deciding whether to make a restriction order or notice. What on earth does Clause 21 add? Why are the Government objecting to its removal? It seems to me to be simply surplus. The interest of the Bank of England, the Treasury, or whoever else is concerned here with the economy of the United Kingdom, is perfectly adequately met by the other provisions in the Bill. I beg to move.
§ Lord KingslandMy Lords, I simply add that we entirely share the views that have just been expressed by the noble Lord, Lord Goodhart.
§ Baroness Ashton of UphollandMy Lords, I agree that when a person making the assessment of public interest is fully informed, information should be released when public interests are equal, which is the issue raised by the noble Lord, Lord Goodhart, around the Freedom of Information Act.
However, inquiry panels would not be fully informed. European law prevents tripartite authorities—that is, the Treasury, the Bank of England, and the Financial Services Authority—from passing some information to inquiry panels, including in many cases information needed to assess where the balance of the public interest 723 lies. Because inquiry panels would often be assessing public interests while unaware of the true extent of the likely damage to the economy, it is right that information should be released to inquiry panels only when public interest in disclosure clearly outweighs public interest in avoiding the risk of damaging the economy.
I reassure the noble Lord that authorities would not make an application under Clause 21 when information that is at hand would be disclosed under the Freedom of Information Act. In other words, that is when the Treasury has assessed balancing public interests, while fully informed of all relevant facts, and has concluded that the public interest in avoiding damage to the economy does not outweigh the public interest in disclosure.
The noble Lord is particularly concerned as to why we need Clause 21, and what it adds to what we already have. I have tried to indicate that it is a different and a tougher test than the test of disclosure in Clause 17, and it is deliberately more general than that test. For example, the matters to which the panel must have regard under Clause 21 are not stated as they are in Clause 17. We recognise that when assessing the Clause 21 submissions, the panel will have incomplete background information, which is because Community law has restrictions that do not allow tripartite authorities to release all the relevant background information. We have it here as an additional safeguard to Clause 17 because of the different circumstances that apply; and that is the reason for it.
Where you have an informed body, where it is weighed up—despite my attempts to get this completely wrong in Committee—the balance is in favour of the Freedom of Information Act requirements. Where we know that a body will not have complete information, we have looked at that balance and thought again. Where we recognise that because of the nature of the disclosure regime that would apply around Community law, it is right and proper to have greater clarity in the Bill. Clause 21 enables these tripartite bodies to go to the panel and make a submission, and it will be for the panel to determine the outcome of that submission.
I hope that is helpful to the noble Lord, and I am happy to discuss it further with him. On that basis, at least for the moment, he may be able to withdraw his amendment.
§ Lord GoodhartMy Lords, I am not entirely satisfied with the response. Clause 21 states:
The panel must not permit or require the information to be revealed, or cause it to be revealed, unless satisfied that the public interest in the information being revealed outweighs the public interest in avoiding the risk of damage to the economy".Subsection (4) states:'Revealed' means revealed to anyone who is not a member of the inquiry panel".My assumption is that the Crown, the FSA, or the Bank of England, is coming to the inquiry with information that it is going to disclose to the inquiry, so the panel does in fact see it. Therefore, the panel is in a perfectly good position. It is the panel that must take the decision as to whether it is satisfied about the balance of the public interest. It is not the Crown, the 724 FSA, or the Bank of England that takes that final decision. Really, I still find it extremely difficult to see how this adds anything to the protections that are already there—the right to go and ask the chairman for a restriction notice.However, I am happy to take up the proposal from the Minister to discuss the matter further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendment No. 76 not moved.]
§ Clause 22 [Submission of reports]:
§ [Amendment No. 77 not moved.]
§ Clause 23 [Publication of reports]:
§ Lord Kingslandmoved Amendment No. 78:
Page 11, line 6, leave out "Minister, or the chairman if subsection (2) applies," and insert "chairmanThe noble Lord said: My Lords, the substance of this amendment has been dealt with in considerable detail both on Second Reading and in Committee. I can therefore be extremely terse.Essentially, this amendment is directed against the power of the Minister to determine what parts of a public inquiry report can be published. The noble Baroness well knows that it is my view that the contents of the final report should be a matter entirely for the chairman; otherwise we will be in a situation whereby a chairman, before he agrees the final version, will have to check it with the Minister. My preoccupations, as the noble Baroness well knows, are especially with Clause 23(4)(b) and the additional criteria set out in subsection (5)(a) and (5)(b). I beg to move.
§ 7 p.m.
§ Baroness Ashton of UphollandMy Lords, Clause 23 is designed to reflect what have been differing practices in past inquiries. Generally, an inquiry submits its report to the Minister, and the Minister then publishes the report. That has certainly been the practice for many past inquiries. The clause allows for the chairman to publish instead, so that can be done in cases where it is more appropriate.
Until now, there has been no general statutory obligation to publish inquiry reports, and therefore no limit on the types of information that could be withheld. Yet we have still seen the vast majority of inquiry reports published in full, even for some inquiries—the Penrose inquiry into Equitable Life, for example—that have been wholly private. We fully expect that to be the case for future inquiries as well.
We have given only limited powers to withhold information from publication. We shall shortly come to a government amendment that ensures that those powers could not be used to prevent disclosure of any information under the Freedom of Information Act, so there would be clear limitations to them. Under that amendment, a person could make a request under the Act for any information that had been withheld from a report. As a result of the usual operation of the Act, 725 there would then be a right of appeal to the Information Commissioner. Any decision to withhold information is, of course, reviewable by the courts.
That is the principle behind the clause—to bring into the Bill the ability to publish a report, to make clear the role of the Minister and the issues concerning publication. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.
§ Lord KingslandMy Lords, I am most grateful for the noble Baroness's response. Her amendment, while welcome, does not go far enough to meet my central concern. However, I shall not put the amendment to the test tonight, but shall go away and reflect on whether I can come up with a further amendment that might take the noble Baroness a little further down the road that I want her to take, without perhaps going as far as this amendment. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendments Nos. 79 to 85 not moved.]
§ Baroness Ashton of Uphollandmoved Amendment No. 86:
Page 11, line 32, at end insert—( ) Subsection (4)(b) does not affect any obligation of the Minister, or any other public authority or Scottish public authority, that may arise under the Freedom of Information Act 2000 (c. 36) or the Freedom of Information (Scotland) Act 2002 (asp 13).On Question, amendment agreed to.
§ [Amendments Nos. 87 and 88 not moved.]
§ Baroness Ashton of Uphollandmoved Amendment No. 89:
After Clause 23, insert the following new clause—"LAYING OF REPORTS BEFORE PARLIAMENT OR ASSEMBLYWhatever is required to be published under section 23 must be laid by the Minister, either at the time of publication or as soon afterwards as is reasonably practicable, before the relevant Parliament or Assembly.The noble Baroness said: My Lords, the amendment introduces a new clause to ensure that the final published report must be laid before both Houses of Parliament. The noble Lord, Lord Kingsland, proposed a similar amendment in Grand Committee that I promised to take away and consider further. Amendment No. 89 supplements a number of other amendments designed to provide greater parliamentary involvement in the inquiry process. It also provides parallel requirements for the devolved administrations to lay reports before their own parliaments or assemblies. I beg to move.
§ Lord KingslandMy Lords, I simply express my gratitude to the noble Baroness.
On Question, amendment agreed to.
§ Lord Goodhartmoved Amendment No. 90:
After Clause 23, insert the following new clause—"INQUIRIES INTO LOSS OF LIFE
- (1) Where an inquiry involves investigation into loss of life, this Act shall apply with the following modifications.
- (2) No restriction notice may be given by a Minister.
- (3) It is the duty of the chairman to arrange for reports of the inquiry to be published.
- (4) Subsection (1) of section 8 shall have effect as if the words following "party" had been omitted.
- (5) Subsection (4) of section 37 shall not apply to an award of amounts in respect of legal representation which is reasonably required for the representation of family members of persons whose deaths are a subject of the inquiry."
The noble Lord said: My Lords, this is a new amendment concerning a matter not raised in Grand Committee. It is based on the report of the Joint Committee on Human Rights on the Bill, which was not published until after the Bill had finished its time in Grand Committee.
The Joint Committee was concerned whether the Bill satisfied the requirements of Article 2 of the European Convention on Human Rights in cases of inquiries into loss of life. Under the law as laid down by the European Court of Human Rights and subsequently applied by the courts of the United Kingdom, an investigation under Article 2 must be independent of the Government.
The Joint Committee was concerned whether a number of provisions in the Bill satisfied that test. Those provisions included: the Minister's power to make a restriction notice; the Minister's power to decide what material in the report is to be withheld from publication; the possible appointment to a panel of a member having a direct interest in the subject matter or a close association with an interested party; and the absence of any express reference to providing legal representation for families of those whose deaths were the subject of the inquiry.
Amendment No. 90 is intended to cover those points. Does the Minister believe that the amendment is necessary to meet the concerns of the Joint Committee on Human Rights? If not, how can those concerns be met? I beg to move.
§ Baroness Ashton of UphollandMy Lords, I am grateful to the noble Lord. He will have seen me scrabbling around on the Front Bench, which was to find a copy of my noble and learned friend's letter to Jean Corston, the chair of the Joint Committee on Human Rights. I hope that a copy found its way to the noble Lord today. He may want to discuss issues regarding that letter with me before Third Reading, which I shall be happy to pick up. However, it has only just arrived with me too, so I am not as up to speed with it as I would like. I shall try to deal with the amendment and see whether that will help him as well.
The noble Lord will not be surprised if I say that the majority of notable inquiries have been established in recent years to investigate circumstances in which loss of life has tragically occurred in some way. In some cases Article 2 has been engaged, but in others it has not. For the reasons that he outlined, he has proposed the 727 amendment so that there should be a separate provision for inquiries involving loss of life. We are clear that the inquiries under the Bill must be capable of contributing to the discharge of the state's obligation, under Article 2 of the European Convention on Human Rights, to provide an effective investigation into a death the circumstances of which suggest state involvement in some way. Such inquiries must meet certain standards of independence and public scrutiny to meet the criterion of being "effective".
As I said, my noble and learned friend has written to the Joint Committee on that. I hope that the noble Lord, Lord Kingsland, has a copy of the letter, and I will ensure that other noble Lords who have participated today also receive copies. We are satisfied that the Bill enables us to establish inquiries that will comply with the requirement to hold an effective investigation where Article 2 is engaged. As the noble Lord, Lord Goodhart, knows well, both the Government and the inquiry panel will be public authorities for the purposes of the Human Rights Act and will be under a duty to exercise their powers under the Bill in a way compatible with Article 2. There is no need for an amendment specifically to require them to do so.
I am concerned that the amendment—it goes much wider than the point that the noble Lord seeks to address—would cause some confusion in the way in which the provisions would need to be applied. I shall not go into detail, because I do not think that that was his intention; he seeks to ensure that the issues concerning Article 2 are effectively dealt with, as opposed to trying to set up separate inquiry routes, unless I have completely misread what he seeks. Our contention is that the matter is satisfied in the Bill. I hope that the noble Lord will have the opportunity to look at the letter from my noble and learned friend, and perhaps to discuss with him or me any other issues that he would like to raise.
§ Lord GoodhartMy Lords, I have a copy of the letter dated 6 February which I think is the one to which the Minister is referring. It gives me a good deal of reassurance as to what is necessary. The matter has been of particular concern in Northern Ireland where there are issues regarding inquiries into deaths. Such inquiries should be conducted in a way that satisfies the criteria of Article 2. I feel considerably reassured, but if I have further concerns I shall raise them before Third Reading. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Clause 25 [Scottish inquiries]:
§ Baroness Ashton of Uphollandmoved Amendment No. 91:
Page 13, line 4, leave out from "reference" to end of line and insert "of the inquiry must not require itOn Question, amendment agreed to.
§ Clause 26 [Welsh inquiries]:
§ Baroness Ashton of Uphollandmoved Amendment No. 92:
Page 13, line 21, leave out from "reference" to end of line and insert "of the inquiry must not require itOn Question, amendment agreed to.
§ Clause 27 [Northern Ireland inquiries]:
§ Baroness Ashton of Uphollandmoved Amendment No. 93:
Page 13, line 38, leave out from "reference" to end of line 39 and insert "of the inquiry must not require itOn Question, amendment agreed to.
§ Clause 29 [Joint inquiries]:
§ Baroness Ashton of Uphollandmoved Amendment No. 94:
Page 15, line 24, at end insert ", or section 31,The noble Baroness said: My Lords, this is a minor amendment relating to joint inquiries. It ensures that when there is a change of responsibility for an inquiry under Clause 31 that results in two or more Ministers being responsible, the inquiry is recognised as a joint inquiry. I beg to move.On Question, amendment agreed to.
§ Clause 32 [Offences]:
§ Baroness Ashton of Uphollandmoved Amendments Nos. 95 to 97:
Page 16, line 30, after "inquiry" insert "panelPage 16, line 32, after "inquiry" insert "panelPage 16, line 39, after "inquiry" insert "panelOn Question, amendments agreed to.
§ 7.15 p.m.
§ Clause 33 [Enforcement by High Court or Court of Session]:
§ Lord Borriemoved Amendment No. 98:
Page 17, line 18, at end insert "or(c) does any other thing which would, if the inquiry had been a court of law having power to commit for contempt, have been contempt of that court,The noble Lord said: My Lords, the purpose of the amendment is to replicate what appears currently in Section 1 of the Tribunals of Inquiry (Evidence) Act 1921. Amendment No. 99 is intended to replicate Section 20 of the Contempt of Court Act 1981. Both are amendments to Clause 33, which is concerned with the enforcement of earlier Clauses 17 and 19, which empower the chairman of the inquiry to require by notice someone to attend and give evidence or to produce documents of the inquiry, and to impose restrictions on attendance at the inquiry or restrictions on disclosure of evidence or documents.The means of enforcement provided by Clause 33 are to enable the chairman to certify a failure to comply with the requirements to the High Court, or the Court of Session in Scotland. The court then has 729 power, after hearing evidence or representations, to order enforcement as if the matter had arisen in court proceedings.
The 1921 Act contained similar provisions, but they were broader than what is currently in Clause 33 of the Bill. Indeed, the 1921 Act covered anything that would amount to contempt of court if the tribunal inquiry had been a court of law. My amendment would replicate that broad provision of the 1921 Act and bring it into the Bill. As it stands the Bill does not cover the whole gamut of conduct that may distort or inhibit the ability of the inquiry to do its job, which is to get at the truth of the matter being inquired into. That is just as important for an inquiry held in future under the Bill as it is for any court of law proceedings.
I note that Clause 32(2) covers another specific kind of conduct that would amount to contempt if it related to legal proceedings—doing something intended or believed likely to have the effect of,
distorting or otherwise altering any evidence",or preventing evidence being given. I suppose that that would cover the intimidation of witnesses so that relevant evidence may be withheld from the inquiry. It also no doubt covers bribery of witnesses so that evidence may he withheld, made up or tailored to suit the interests of the provider of the bribe. I should be glad if my noble friend would give me reassurance on that.I am not sure whether Clause 32(2) or any other provision of the Bill would cover a newspaper article or television documentary that might unduly influence witnesses at the inquiry or, indeed, members of the inquiry, so disabling it from getting at the truth.
I recall that that was a problem for the Edmund Davies inquiry into the Aberfan disaster. Lord Salmon said in 1969 that the law of contempt should apply, albeit in a modified form, to inquiries. The trouble is that potential witnesses may have previously been cross-examined by expert interviewers—say, on television—and become committed to a version of the story that they then told, and perhaps were paid for telling, before the official inquiry even began.
The Bill picks selectively on only some aspects of the law of contempt to apply to inquiries. As it does not apply more comprehensively it seems clear that if abuse or, more seriously, missiles are thrown at the inquiry panel, or if one of the panel is assaulted, such contempt—which would be contempt in a court—is not covered. Sadly, I do not think that the potentiality for violence in public bodies has lessened since 1921, as demonstrated by the attack a few years ago—a precedent when it occurred—on a woman judge at the Old Bailey. Many additional security provisions have now had to be made for courts of law. I do not think that inquiry panels are immune in this day and age from some attack.
730 Of course, there is always the possibility of a prosecution or a civil action by a member of the inquiry panel for a common assault. But the possibility of a finding of contempt, which has a particular resonance, is a better deterrent.
Inquiries under the Bill, rather than more informal inquiries which we have discussed, will be instituted only when there is public concern. That is right at the beginning of the Bill. Setting up an inquiry will not be an everyday occurrence. Inquiries need to be as free from interference as a court of law. Certainly they are not courts of law, as has been said many times in our debates. They are not adversarial but investigative. If they are worth setting up to look into a matter of public concern, their proceedings should be as well protected as those of courts of law, irrespective of whether the chairman of the tribunal or the inquiry is a judge, a legal figure or someone else. That seems to be irrelevant to the need to protect the inquiry and its integrity.
There is nothing automatic about Clause 33 either as it stands or as I propose.
The chairman is given discretionary powers. If he certifies that a matter should go to the High Court because it is sufficiently serious, that court also has discretion as to the powers of enforcement.
In relation to Amendment No. 99, which is grouped with Amendment No. 98, I have already said that this in effect replicates Section 20 of the Contempt of Court Act 1981, applying the 1981 Act to tribunals of inquiry. The 1981 Act in general imposes a strict liability involving a fine or imprisonment—up to two years' maximum—in respect of publications which create a substantial risk of serious prejudice to the ability of a court, or of course an inquiry, to do its job.
General discussion of the subject matter of an inquiry is not contempt under the Tribunals of Inquiry (Evidence) Act, if the risk of impediment or prejudice is merely incidental to that general discussion. The purpose of the two amendments is to enable inquiries set up under the Bill to be as free from dangerous interference with their proceedings as possible. I beg to move.
§ Baroness Ashton of UphollandMy Lords, I am very grateful to my noble friend for tabling these amendments and for the time that he has given me and my officials in talking through the issues. This is an issue that we gave significant consideration to when preparing the Bill. I understand why my noble friend has suggested it, but I do not believe that the changes are appropriate.
Contempt is a concept associated with the courtroom. Inquiries are not courts, which I know my noble friend accepts, but in recent times inquiries have moved away from a court-based model.
My noble friend will recall that in bringing forward the Bill we incorporated legislation from different areas in order to create a new comprehensive Bill. In doing so, we were conscious that the 1921 Act is exceptional in that it incorporates the law on contempt. Most modern inquiry legislation draws on the provisions of Section 250 of the 731 Local Government Act 1972, which does not include any provisions on contempt. Instead, Section 250 makes it a summary offence to fail to comply with an inquiry or to destroy or tamper with evidence. We opted for that approach in Clause 32(2).
The Bill has been influenced, as my noble friend pointed out, by the findings of the Salmon committee on contempt in 1969, which recommended that the law on contempt should apply in a narrower form to courts. While not replicating the concept of contempt, we have incorporated the committee's recommendations into the offences in Clause 32.
The committee felt that it was very important not to curtail media comment about the inquiry. However, it considered—and my noble friend was concerned about this area—whether some media interviews or articles could be intended or likely to prejudice the inquiry. The wording in Clause 32(2), which is similar to the Salmon committee's recommendation 4, is aimed at covering such situations. Inquiries therefore will still have the powers and protections they need to operate effectively without applying the law of contempt. My noble friend will probably be aware that there is a further problem with the amendment as a result of the different references to the "course of justice" and the "administration of justice" in the Contempt of Court Act. These are concepts which are key for court proceedings, but which do not make much sense in the context of inquiries which, as we have said many times in the passage of the Bill, are all about public confidence.
I hope on that basis that my noble friend will feel able to withdraw his amendment.
§ Lord BorrieMy Lords, I am most grateful for my noble friend the Minister's response. I understand more since I have had consultations with her and heard her speech this evening. The Government have considered these matters of interference with inquiry proceedings most carefully. I am particularly grateful to her for indicating that Clause 32(2) can properly be interpreted as covering certain forms of interference, such as television and press interviews with potential witnesses. I was and am concerned about that.
I still do not fully understand why all the provisions of the Tribunals of Inquiry (Evidence) Act 1921 were not included because there may be gaps, and who knows what types of interference with inquiry proceedings may emerge in future. It is a pity that for some of them certain discretionary powers will not be in the hands of the inquiry chairmen and on his reference in the hands of the High Court. I shall of course consider the Minister's words most carefully. For the moment, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
§ [Amendment No. 99 not moved.]
§ Clause 36 [Payment of inquiry expenses by Minister]:
§ Baroness Ashton of Uphollandmoved Amendment No. 100:
Page 18, line 25, leave out "reasonably732 The noble Baroness said: My Lords, in moving Amendment No. 100, I shall speak also to government Amendments Nos. 104, 105 and 106.Amendment No. 100 requires the Minister to meet all expenses, as opposed to all expenses "reasonably" incurred in holding the inquiry.
I am grateful to the noble Lords, Lord Goodhart and Lord Smith of Clifton, who tabled a similar amendment in Grand Committee. I undertook then to consider whether inclusion of the term "reasonably" in this context added anything to the Bill.
I recognise that the term raises questions about how "reasonably" might be defined and who would meet expenses considered unreasonable. There are other provisions in the Bill to safeguard costs that negate the need to qualify here what expenses the Minister must agree to pay. Therefore, the term "reasonably" serves no purpose.
Government Amendments Nos. 104, 105 and 106 clarify some of the arrangements for payment of expenses to witnesses. It is only fair that people asked to assist the inquiry by providing evidence can be given their travel and similar expenses in advance. In particular, as there are criminal sanctions as well as a civil enforcement procedure in the Bill for failing to comply with notices to attend, it cannot be right that an individual should be forced to expend his own money in order to avoid a criminal charge. Amendment No. 104 ensures that situation would not arise.
Amendments Nos. 105 and 106 ensure that the chairman always has the power to pay witness costs, although that power is subject to any qualifications and conditions imposed by the Minister. They remove the possibility under that current draft that the Minister could fail to notify the chairman that he has the power to pay any costs at all. I beg to move.
§ Lord GoodhartMy Lords, these amendments seem to me to be an improvement to the Bill. I am happy to welcome them.
On Question, amendment agreed to.
§ [Amendment No. 101 not moved.]
§ Baroness Ashton of Uphollandmoved Amendment No. 102:
Page 18, line 30, leave out "is acting outside its" and insert "panel is acting outside the inquiry'sOn Question, amendment agreed to.
§ [Amendment No. 103 not moved.]
§ Clause 37 [Expenses of witnesses etc]:
§ Baroness Ashton of Uphollandmoved Amendments Nos. 104 to 106:
Page 19, line 4, after "incurred" insert ", or to be incurredPage 19, line 15, leave out from "section" to "is" in line 16.Page 19, line 17, at end insert "and notified by him to the chairmanOn Question, amendments agreed to.
§ Clause 38 [Rules]:
§ Baroness Ashton of Uphollandmoved Amendment No. 107:
Page 19. line 21, at end insert—(aa) the return or keeping, after the end of an inquiry, of documents given to or created by the inquiry;On Question, amendment agreed to.
§ Clause 40 [Interpretation]:
§ Baroness Ashton of Uphollandmoved Amendments Nos. 108 to 110:
Page 20. line 33, at end insert—"public authority" has the same meaning as in the Freedom of Information Act 2000 (c. 36);Page 20, line 33, at end insert—"the relevant Parliament or Assembly" means whichever of the following is or are applicable—
- (a) in the case of an inquiry for which the Treasury is responsible, the House of Commons;
- (b) in the case of an inquiry for which any other United Kingdom Minister is responsible, or one for which the Secretary of State exercising functions by virtue of section 42(2) is responsible, the House of Parliament of which that minister is a member;
- (c) in the case of an inquiry for which the Scottish Ministers are responsible, the Scottish Parliament;
- (d) in the case of an inquiry for which the National Assembly for Wales is responsible, that Assembly;
- (e) in the case of an inquiry for which a Northern Ireland Minister is responsible, the Northern Ireland Assembly:"
Page 20, line 40, at end insert—"Scottish public authority" has the same meaning as in the Freedom of Information (Scotland) Act 2002 (asp 13);On Question, amendments agreed to.
§ [Amendments Nos. 111 and 112 not moved.]
§ Schedule 2 [Minor and consequential amendments]:
§ Baroness Ashton of Uphollandmoved Amendment No. 113:
Page 27, line 10, leave out paragraph 14.The noble Baroness said: My Lords, this amendment removes a consequential change to the Tribunals and Inquiries Act 1992, which make clear that inquiries under this Bill were outside the remit of the Council on Tribunals.The amendment will not change the legal position. Inquiries under the Bill will not fall within the remit of the Council on Tribunals. The council's role extends only to inquiries which a Minister has a statutory duty to hold—like planning inquiries—and to inquiries where there is a statutory power to hold and that the Lord Chancellor has designated within its remit by order. Inquiries under the 1921 Act, for example, are not within the council's remit.
The amendment would leave open the option of designating these inquiries within the council's remit by order at a later date, if that were felt to be appropriate. I beg to move.
734 On Question, amendment agreed to.
§ [Amendment No. 114 not moved.]
§ Clause 46 [Repeals and revocations]:
§ [Amendment No. 115 not moved.]
§ Schedule 3 [Repeals and revocations]:
§ Lord Kingslandmoved Amendment No. 116:
Leave out Schedule 3.The noble Lord said: My Lords, this amendment refers to Schedule 3 and has been moved simply to give the noble Baroness the opportunity to make a statement about the relationship between Clauses 14 and 15 and Schedule 3.As I understand it, towards the end of our previous proceedings, the noble Baroness stated that Clauses 14 and 15 referred solely to non-statutory inquiries. Subsequent correspondence with the noble Baroness revealed that their scope is somewhat wider than that. I believe that it covers some statutory inquiries that do not have powers of compulsion. I should be most grateful if the noble Baroness would confirm or otherwise that information. I beg to move.
§ Baroness Ashton of UphollandMy Lords, I am most grateful to the noble Lord, who will remember well the confusion that I got myself into at the end of Grand Committee. I will attempt to do precisely what the noble Lord wants.
Clause 14 could be used to convert statutory inquiries as well as non-statutory inquiries. I think that that is the essence of what the noble Lord wanted me to say. I am extremely grateful for the opportunity to put on the record that that is indeed what I meant.
§ Lord KingslandMy Lords, I am most grateful to the noble Baroness. In those circumstances, I feel compelled to withdraw my amendment.
Amendment, by leave, withdrawn.