Inquiries Bill [Lords] |
Mr. Djanogly: Such as? Mr. Carmichael: I am just coming to that. The hon. Gentleman referred to Lord Fraser of Carmyllie, who knows a thing or two about inquiries. He presided over the inquiry into the running of the construction of the Scottish ParliamentI would not have wanted to estimate the cost of that at the start. Lord Fraser did an exceptionally good job in that inquiry. He did not order things in such a way as to incur any unnecessary or excessive expense, but it would have been difficult to estimate that expense at the start. The terms of amendment No. 39, tabled by my hon. Friend the Member for North Cornwall (Mr. Tyler) and I, relate to that matter. We seek to replace the word unnecessary with excessive, so that clause 18(3) would then place a duty on the chairman to
excessive
One would hope that the chairman would always act in a way that would avoid unnecessary costs. Column Number: 48 3 pmA duty is placed on the chairman to have regard to the costs that are involved; he will not be dictated to in that respect by the Minister or even by Parliament, but he has to be mindful of the consequences of any decision that he takes. I believe that that is as far as Parliament ought to go and reasonably can be expected to go. It is right that that duty should exist, but in a hierarchy of duties that are placed on the chairman and, indeed, on the Minister, it must come somewhere below the duty to act fairly and independently of the Government. Mr. Leslie: I shall first take amendments Nos. 5 and 20, which deal with the requirement for estimates to be made in advance of the costs of an inquiry. We have significant concerns about the amendments. Amendment No. 20 would require the chairman to give a figure within one month of establishing the proceedings. I have heard the concerns of the hon. Member for Orkney and Shetland, and we also feel that there are many good reasons why the amendments should not be included in the Bill. It does not strike me as a good idea that we should have an inquiry into the costs before the inquiry gets under way, although I do not say that we cannot find better ways of encouraging good, sound budgetary management of costs as the inquiry proceeds. It is the chairmans job to plan the inquiry. To require the Minister to give a broad figure right at the start, ahead of any assessment by the chairman, could have the effect of confining the inquiry before the chairman has even considered the issues. I gather that Lord Laming, during his contribution to the debate in the other place, mentioned that sometimes it can take a significant period for the inquiry really to understand the true scale of the task before it. In the case of his inquiry into the death of Victoria Climbié, he said that even one month in, the inquiry did not have a full picture of how long proceedings would take. We must therefore be careful about drawing up an arbitrary time scale, even of a month, never mind trying to make precise predictions in advance. Even if one has a requirement for an estimate, that is not the same thing as a requirement to avoid unnecessary cost, which is provided for in clause 18. Neither amendment No. 5 nor amendment No. 20 would provide any control of the cost; other measures included in the Bill would do that better. In our view, it is more important to encourage budgeting throughout the inquiry, in close association with the sponsoring Department. There is much that we could do with the procedure rules to assist in that. For instance, in another place, my noble Friend Baroness Ashton of Upholland made a commitment to include the issue of cost estimates when there is consultation on the secondary legislation, which will set those out. There are dangers in producing arbitrary estimates. Anyone who has done building work knows that estimates are not the same as the actual costs involved. We can see that there might be benefits in publishing estimates at appropriate stages, so that the inquiry can
On amendment No. 39, I do not disagree with the gist of what was said, but on balance, having considered the proposal to use the phrase excessive cost, we believe that the concept in the Bill of avoiding any unnecessary cost is preferable, and I hope to give a few reasons why. The word unnecessary should be interpreted in the context of the inquiry; something will be necessary if it assists the inquiry in fulfilling its terms of reference. There is a great deal of similarity between the clause as it stands and the amendment. For instance, spending £15 when £10 would do might be both unnecessary and excessive. There is a subtle difference, however. The clause as drafted requires the chairman to think about the management of the inquiry in a more fundamental way, which is important. It requires him to think about what actions are necessary to achieve the aims of the inquiry, rather than simply to avoid paying excessive amounts for the actions that he takes. For example, it might not be excessive to pay a moderate fee for legal representation for three different groups with similar interests, but it might be unnecessary because they could assist the inquiry just as well if they shared representation. I assure hon. Members that the clause will in no way hinder the inquirys ability to get to the facts and do its job. If something is necessary, it should be done and paid for. We hope to strike the right balance and not be tipped too far in the wrong direction by some of the official Oppositions amendments. With those comments and for those reasons, I hope that the amendment will be withdrawn. Mr. Djanogly: The hon. Member for Orkney and Shetland (Mr. Carmichael) said that I had suggested a cap. That is simply not correct. Certainly our amendments do not suggest a cap in any way. Mr. Carmichael: In fact, I quite explicitly said that a cap was an inevitable consequence of the amendments that the hon. Gentleman proposes. Does he not see that if what he speaks of as financial discipline is to have any meaning, we would eventually end up with a cap? Mr. Djanogly: The hon. Gentleman said that in his second round of comments. Initially, he said that we were suggesting a cap, but I am pleased that he has made that clear. The hon. Gentleman then said that he did not know how estimates could be made, although when he discussed the private sector he admitted quite plainly that estimates are made all the time. The Liberal Democrats and the Government seem to be saying that where taxpayers money is concerned, different bases apply and estimates are not appropriate. Conservative Members maintain that it is fully appropriate that the Minister who calls for the inquiry should be able to give legitimacy to the costs involved in it and should be responsible for explaining to Parliament variations to
Amendment, by leave, withdrawn. Clause 6 ordered to stand part of the Bill. Clause 7 Inquiries where ministerial conduct in issue Mr. Djanogly: I beg to move amendment No. 7, in clause 7, page 3, line 17, leave out
The Chairman: With this it will be convenient to discuss amendment No. 8, in clause 7, page 3, leave out line 22. Mr. Djanogly: These, too, are important amendments. We have been witnessing the Government repeatedly taking advantage of their majority in this place to gnaw away at Parliaments influence over the Executive. There is concern that, should that pattern continue, the checks and balances underlying our very constitution could be threatened and chipped away. Unfortunately, this Bill is no exception to the trend. Earlier, my hon. Friend the Member for North-East Hertfordshire spoke eloquently of the overreaching powers of the Government that are peppered throughout the Bill. In the Inquiries Bill, the most critical appropriation of power by the Government to the detriment of Parliament relates to ministerial misconduct, which is the subject of the amendments. Public inquiries into ministerial misconduct lie at the heart of Parliaments role of ensuring ministerial responsibility. In its report, the Treasury and Civil Service Committee noted that the system of ministerial accountability depended upon
Inquiries enable Parliament to obtain that essential information, which should in turn clarify who should be held to account. However, despite the clear need for parliamentary involvement, the Government seem to be shunning it at every stage. Mrs. Campbell: The report of the Select Committee on Public Administration does not talk about misconduct. Instead, it recommends that the ombudsman should investigate alleged breaches of the ministerial code. The proposal is rather unfortunate because it refers to ministerial misconduct and at the
Mr. Djanogly: I will come to that report, so I ask the hon. Lady to hold on. In the other place, the Government consistently fought against amendments to improve the constitutional balance between the two organs of state. Despite the Governments resistance, the other place secured an amendment on Division, which allows the possibility of some parliamentary involvement. The compromise reached between the Conservative and Liberal Democrat peers provides the option for a Minister to move a motion before the relevant Parliament or Assembly, as is embodied in clause 7. However, even the permissive, non-obligatory provision seems too restrictive for the Government. Amendment No. 32, which has not been selected, is presumably to be dealt with in the clause stand part procedure. Mr. Leslie indicated assent. Mr. Djanogly: The amendment would have deleted clause 7, removing all statutory footing for parliamentary public inquiries into ministerial misconduct. That is worrying, not only because of the lack of parliamentary involvement but also for the excessive discretionary powers entrusted to the Ministers. As Lord Kingsland noted
Our answer must be that it will never be appropriate and must be addressed by the Committee. In a later debate, Lord Kingsland stated:
He continued:
It is clear that the Minister will have a strong interest in an inquiry not going ahead. There will always be the risk of ministerial, departmental or governmental embarrassment or, as is often the case, the death of a political career. Indeed, the very existence of the inquiry would cast doubt on a Ministers credibility and reduce public confidence. Given the extensive powers granted to the Minister in setting up, running
The Conservative Opposition strongly believe that that will not suffice. I must refer again to Lord Kingsland, who succinctly described the defects of investigating ministerial conduct through exercising the ministerial code. 3.15 pmLord Kingsland described
That view is not only held by the Conservative Opposition; it has received widespread support. For example, over the past four years four reports by two separate bodies have criticised the Prime Ministers ability to investigate under the ministerial code. Each report has been dismissed and their recommendations have been ignored by the Government. First, in a 2001 report, the Public Administration Committee recommended, as the hon. Member for Cambridge said, that the parliamentary ombudsman should be given a policing role in relation to the ministerial code. Secondly, the Committee on Standards in Public Life recommended a new investigation mechanism for alleged breaches of the code in its ninth report of 2003. Among other things, that report recommended that two or three individuals be publicly nominated by the Prime Minister following consultation with the Leader of the Opposition. Those individuals would be available to investigate any alleged breach of the ministerial code. However, the Government rejected that proposal saying:
Thirdly, in its recent report, Government by Inquiry, the Public Administration Committee stated:
As the Committee will be aware, the Select Committee also took that opportunity to recommend several
In commenting on the recent Budd inquiry into the behaviour of the right hon. Member for Sheffield, Brightside (Mr. Blunkett), the Wicks Committee expressed its concern that no appropriate investigation mechanism existed and called for changes to the law to ensure clarity, transparency, accountability and public trust. Are the Government really so arrogant that they can ignore the overwhelming consensus of various reports, common sense and the very constitution on which our parliamentary system is based? I fear that that must be so, as the Inquiries Bill presents the perfect opportunity to revise the process for investigations into ministerial misconduct. The Government are not only ignoring that opportunity but seeking to undo the amendment secured by the other place. In its present form, the Bill does not sufficiently address the need for parliamentary involvement, but Conservative amendments Nos. 7 and 8 would ensure that Parliament reclaimed its role and the correct balance of powers was restored. The Public Administration Committee showed similar concerns in its report, Government by Inquiry, in which it stated:
Unfortunately, instead of seizing that opportunity, the Government seek to undo the good work that the other place achieved on Third Reading. I remind hon. Members that the amendment secured by the other place allows a motion to be moved, at the Ministers discretion, if ministerial conduct is in question. We believe that the motion for a Parliamentary resolution should be moved each and every time the events relate to alleged ministerial misconduct. That is the only way of ensuring that inquiries into Ministers actions receive full democratic legitimacy. There was concern in the other place that all inquiries, in some way or another, could relate to Ministerial misconduct, a question that often cannot be answered until the inquiry is up and running. However, clause 7 addresses that concern, as it only applies to those inquiries that relate wholly or primarily to alleged ministerial misconduct. As such, any latent ministerial involvement would not be relevant at the time the clause came into play. Once the inquiry is up and running, the Minister would have limited involvement in its processes, particularly if our earlier amendments had been accepted. Column Number: 54 I underline the need for parliamentary involvement in public inquiries, and the absolute requirement for it when the inquiry relates to alleged Ministerial misconduct. We cannot allow the current imbalance of powers between Parliament and the Executive to shift further to the latters benefit. We currently have no satisfactory procedure for investigating ministerial conduct, a situation that could be abused. Mr. Paul Tyler (North Cornwall) (LD): My hon. Friend the Member for Orkney and Shetland and I support the amendments because the clause is central to public confidence in the Bill. As has been said, the clause has received the support of the other place as the result of cross-party anxiety that the Bill would otherwise not be sufficiently rigorous in its application. I remind the Committee that the clause derives from the report Government by Inquiry by the Public Administration Committee which was published just before the Report stage in the Lords. That Committee has a Government majority and is chaired by a very distinguished parliamentarian, the hon. Member for Cannock Chase (Tony Wright), who has given a great deal of thought to these issues. Paragraph 178 of the report states:
The hon. Member for Cambridge was wrong. There was a recommendation in that report. It is very specific and I invite her to look at it again. Mrs. Campbell: My point was that nowhere in the report does it refer to ministerial misconduct. It refers to ministerial conduct, which is a completely different matter when we look at how policy is conducted. It is completely different from the kind of inquiry that was conducted by Sir Alan Budd into potential ministerial misconduct, which the Select Committee firmly believes should be adjudicated on by the ombudsman and not by an inquiry. Mr. Tyler: I am full of admiration for the hon. Lady who, like me, is not trained as a lawyer. To some extent, I think that that argument is a matter of semantics. Of course, there are grey areas between good conduct and misconduct. We need some provision to deal with the specific circumstances to which the Select Committee drew attention. I shall give a couple of examples from my own experience. I was the spokesman for agriculture and rural affairs during the last days of the Major Government. The conduct of Ministers, whether it was misconduct or misapplied judgment, became a matter of judgment itself, but it was clear that there needed to be an inquiry into the BSE disaster. Yet Ministers were able to avoid that and no inquiry took place. In the run-up to water privatisation, in my constituency in 1988, before I was electedit might have been part of the reason for my electionthe Government of the day refused an inquiry into the poisoning of 20,000
In both circumstances, playing games to determine whether the Governments decision was misconduct or lacking in judgment is unimportant. The point is that there was ministerial involvement in both appalling episodes and there was not a sufficiently effective and rigorous mechanism for Parliament to be involved in the establishment of the appropriate inquiry. All clause 7, strengthened by the amendments, would do is to make such a provision in a sufficiently robust way. That was why, as a direct result of the recommendation of the Public Administration Committee report, Lord Kingsland and our noble Friend, Lord Goodhart, tabled an amendment in the other place. After debate, it was withdrawn because it was not considered to be sufficiently effective. Indeed, that might be because the specific need for amendments Nos. 7 and 8 was not anticipated. A revised amendment was tabled on Third Reading in the other place which was again supported by the noble Lords. It received cross-party support, as well as from Cross-Bench peers. It was accepted and its provisions are set out in the Bill. The measure needs a little strengthening, which is why we support the amendments. I assume that the Minister will resist them, but I hope that he will give us a full explanation of why he wants to remove the entire clause. It is absolutely axiomatic that, when the conduct of a Minister of the Crown is in question, Parliament plays a key role in assessing the situation. It is not good enough for a Minister simply to make a statement. He should come before Parliament, place a motion on the Order Paper and seek parliamentary approval. That would give legitimacy to the approval of the inquiry into a particular set of circumstances. Without such a provision, the Bill will be gravely weakened. The Chairman: Order. It has been a bizarre experience for me as a Chairman to hear the Committee debate amendments when there will be a move to remove the clause to which they apply. Perhaps the Minister could put his arguments for clause 7 not being in the Bill, so that our proceedings are speeded up a little. Mr. Leslie: It is an excellent idea, Mr. Griffiths, and, with your permission, I shall do exactly that. There are specific reasons to oppose amendments Nos. 7 and 8, but it will help the Committee in general if I set in context some of our worries about the clause. I understand the rationale behind it, but it would have several perverse consequences. It should be removed for many reasons, not least because it is unnecessary. Let us consider some of the basics. My hon. Friend the Member for Cambridge referred to the difference between ministerial misconduct and ministerial conduct, and they could have extremely wide definitions. It could mean the personal, individual acts
I am worried, for instance, that there would be pressure to apply the resolution procedure to a far greater number of inquiries than the noble Lords intended when they amended the Bill. That could lead to false expectations. Inquiries often cover emotive and highly sensitive issues. Certain people may see the Government as wholly or primarily to blame for what has happened and may argue that Ministers have committed misconduct even though their actions have not constituted anything like what we would regard as misconduct. That might not only sour the process of getting the inquiry set up and under way, but lead to legal challenge. For instance, certain individuals might think that the parliamentary resolution procedure under the misconduct arrangements is not being properly pursued. Legal challenges through the courts because an inquiry was set up without a resolution would be undesirable, not least because of the delays and complications that they would add. That is why I am particularly worried about the amendments. 3.30 pmThere are perversities about clause 7 in general. Not only do these complicate the legislative structure in the Bill; it could be argued that there might be a disincentive for future Ministers to use the legislation and therefore the provision might diminish Parliaments involvement in inquiries. To avoid the inevitable argument and confusion, future Ministers might consider it better always to set up non-statutory inquiries, outside the procedures in the legislation. That would be particularly difficult if we accepted amendments Nos. 7 and 8. There could be great difficulties if future Ministers, perhaps in another Administration, did not want to go through those parliamentary procedures and were therefore more likely to set up non-statutory inquiries. There are other concerns. We have touched on some of the concerns expressed by the hon. Member for Huntingdon that the ministerial code of conduct is not the best framework to safeguard good ministerial conduct. We believe, however, that the code is the best framework. It sets out the standards that the Prime Minister expects Ministers to uphold, and the Prime Ministers foreword makes it clear that he expects all Ministers to work within the letter and spirit of the code and to undertake their official duties in a way that upholds the highest standards of propriety. Section 1 of the code makes it clear that Ministers remain in office only so long as they retain the confidence of the Prime Minister. Of course, implicit in that is the confidence of Parliament too, because in theory Parliament already has the power, if it so wishes, to censure Ministers in relation to particular issues. Column Number: 57 Hon. Members seem to have the impression that Parliament is constrained in what it can do unless something is in statute. That is not the case. With Parliament being sovereign, it has the ability to act should it wish to do so. As I said, section 1 of the ministerial code of conduct makes it clear that Ministers remain in office only as long as they retain the confidence of the Prime Minister, who is the ultimate judge of the standards of behaviour expected of a Minister. It is for the Prime Minister to investigate and decide on misconduct. It is not, in the first instance, for Parliament to do so, although there is nothing preventing Parliament from doing so if it so wishes, because ultimately all Ministers, as I know, are routinely and rigorously held to account in Parliament. It follows that it is for the Prime Minister to decide whether an allegation relating to ministerial misconduct under the code needs to be investigated, and the means by which any such investigation should be conducted. He would need to be able to act swiftly and to take quick decisions on ministerial misconduct. The public would expect the Prime Minister to do that. He needs the ability to act quickly but not necessarily to have this parliamentary process in front of him. I think that the Prime Ministers oversight is best, and that view has been supported by others. In April 2003, the Committee on Standards in Public Life agreed in its ninth report that it should continue to be for the Prime Minister to decide whether an investigation is needed. The Government continue to believe that that is right and is the best approach. To accept the amendments would lead to a blurring of the lines of accountability between Parliament and the Executive. Parliament is, of course, supreme, but the Executive must be able to act and the Prime Minister must be able to take swift action in relation to the conduct of his or her Ministers. There is another worry about the parliamentary resolution process occurring before an inquiry into ministerial conduct is set up. In practice, we know what would happen; there would be a lot of prejudgment of what did or did not happen even before the inquiry established the facts of the case. In addition, there are other reasons why we need to worry about clause 7 as it stands. There are dangers in amendments Nos. 7 and 8; in particular, they could set precedents for inquiries that will always be on the borders of whether they concern ministerial conduct. For example, many would argue that the handling of the foot and mouth and BSE outbreaks were about ministerial misconduct. If there were a statutory requirement for resolutions, Ministers would come under considerable pressure to use that for inquiries, even if it was not, strictly speaking, required. Each inquiry would then set a precedent and would increase the pressure for Ministers to seek resolutions on similar inquiries in
Although I understand what many have argued for in clause 7, it has perverse consequences, it is unnecessary because Parliament already has a number of other powers, and it has a number of undesirable aspects, as I have mentioned. I hope that the Committee will resist amendments Nos. 7 and 8 and clause 7, so that it will not stand part of the Bill. |
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