Inquiries Bill [Lords] |
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Clause 12 Assessors Mr. Djanogly: I beg to move amendment No. 10, in clause 12, page 5, line 17, leave out subsection (4) and insert—
The Conservative peers originally proposed this amendment as they felt that the Bill placed too much stress on costs to the detriment of other factors such as expertise. The Government addressed this by removing the reference to costs and replacing it with the current reference to expertise. That was welcomed at the time by the Opposition. However, our amendment today underlines the need also to consider costs. This is not the most crucial amendment of the afternoon, but why should the subsection, which concerns the regard chairmen must have when appointing assessors, address only expertise or costs? Why can it not address both? Mr. Leslie: Subsection (4) of this clause is very important, because it contains what is, in essence, a definition of the role of an assessor. An assessor is a person who has
If one removed that subsection, as the amendment would do, the Bill would give no indication of the requirements for being an assessor. I am not, per se, opposed to either the Minister or the chairman considering the cost of appointing an assessor. I am sure both will do so. One of the main aims of the Bill is to enable inquiries to reach conclusions and make recommendations in reasonable time and at a reasonable cost. The hon. Gentleman has already alluded to the fact that earlier drafts of this clause included a specific requirement obliging the chairman to have
when appointing an assessor. But concerns were raised in the House of Lords that too much emphasis was placed on cost at the expense of other factors. An amendment identical to this one was proposed in its place, to include the balancing factor of a need for expertise, but my noble Friend Baroness Ashton found another satisfactory solution, which was to remove the subsection completely. That ensured that the chairman would still have to make a decision that took into account all the relevant factors, but that cost was not highlighted in particular. Column Number: 69 I also have a concern about subsection (a) of the amendment, because it places an obligation on the chairman to ensure that the panel has the necessary expertise. Keen readers of the Bill will recall that clause 9(1)(a) already places that obligation firmly on the Minister. It would therefore be confusing to create a second explicit obligation and to place it on the chairman. For that reason, I ask the hon. Gentleman to withdraw his amendment. Mr. Djanogly: I hear what the Minister says, and I do not intend to die in a ditch on this clause. Therefore, I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 12 ordered to stand part of the Bill. Clauses 13 to 15 ordered to stand part of the Bill. Clause 16 Power to convert other inquiry into inquiry under this Act Question proposed, That the clause stand part of the Bill. 4.15 pmMr. Djanogly: The power to convert one inquiry into another inquiry under this proposed legislation is important. It was discussed at length in the other place. Lord Kingsland noted:
The Government answered those concerns by requiring consultation with the chairman. However, we still have some worries. The Bill has a retrospective effect, and I ask the Minister why that is necessary—and if it is necessary, it should occur only in the most extreme circumstances. Also, a Minister can convert an inquiry and change its panel and terms of reference, or even terminate it. Apart from there being too much ministerial involvement in that, it must go against the legitimate expectations of the chairman in starting the inquiry. Finally, is starting a new inquiry an alternative? Mr. Leslie: To answer that last point, the alternative of starting a fresh inquiry would exist, but there may be good reasons why one would want to convert an existing inquiry into one that had the powers granted to it by this legislation—for instance, the reason of not wanting to lose valuable evidence sessions that have previously been heard. This clause is intended specifically to enable Ministers to convert an existing inquiry into one that has the extra powers in this
The power can be used to convert inquiries set up before or after this legislation comes into force; however, it should be emphasised that by virtue of clause 45 any inquiries currently under way can continue unchanged after the Bill comes into force. The Government have no plans to convert any existing inquiries, but we cannot rule out the possibility of doing so if an inquiry panel considers that that would beneficial. The clause contains these wide provisions in case they are needed in the future. A Minister might convert an inquiry provided that he is satisfied that the subject matter of the original inquiry falls within the defining scope of clause 1(1)(a) and (b). The person who caused the original inquiry to be held must consent to the conversion, and the chairman must also be consulted. The Minister is required to advise Parliament or the relevant Assembly that an inquiry has been converted, and to provide the usual statement required under clause 6 about the terms of reference and appointments to the panel. The provision is sensible. We are taking the Bill through its legislative stages precisely because we feel that there are extra powers and scope that we can give to enhance the work of inquiries. It would therefore be sensible and prudent to allow for the conversion of inquiries in that way. I hope that the clause will stand part of the Bill. Question put and agreed to. Clause 16 ordered to stand part of the Bill. Clause 17 ordered to stand part of the Bill. Clause 18 Evidence and procedure Mr. Djanogly: I beg to move amendment No. 19, in page 8, line 34, at end add
We continue to steam through the clauses of the Bill. This is an important issue, which was discussed at some length in the other place, and which relates to legal representation if there is a risk of criticism during the inquiry. It might be helpful if I explained where the phraseology of the amendment comes from. On 5 February 1998, a document was produced by the Phillips inquiry on BSE, under the signature of Sir Nicholas Phillips, as he then was. The following words are drawn from his closing paragraph, in which he describes the protection of individual interests and discusses the role that lawyers may perform. He says that the first stage of the inquiry may be devoted
The Committee will see that the amendment draws heavily on the sentence
In the other place, Lord Howe of Aberavon said:
What marvellous use of language. He continues:
I would also like to point out the Council on Tribunals report, which stated:
Lord Howe went on to say:
Those are strong words from the Lords on this issue, which is why we thought it important to reintroduce the amendments. I am interested to hear the Government’s comments on them. Column Number: 72 Mr. Tyler: I have listened with care to the hon. Gentleman. As I said earlier, I am not a lawyer. Indeed, as I said in a statutory instrument Committee last night, my usual approach is the Shakespearean one: I cannot remember which Shakespearean character it was, but one of them basically said, “Hang the lawyers.” No doubt my hon. Friend the Member for Orkney and Shetland disagrees. My experience of inquiries has always been non-legal; I have appeared at various inquiries and I have sought to help constituents at inquiries. I am not sure how compatible the amendment is, in the way in which it is written, with the subsection it seeks to amend, but no doubt the Minister can deal with that. My concern about the amendment is that the presumption should be that legal representation is not necessary, and that anything that pushes too far in the direction of making legal representation not obligatory, but encouraged, is unhelpful. On Second Reading, I mentioned the inquiry that was eventually set up into the Lowermoor water poisoning episode, which took place just before water privatisation. No doubt that was why the Government of the day were so anxious to avoid an inquiry. What was ideal about that inquiry was that there was no legal representation. As a result, it was much less formal, much less expensive and much more effective. There should not be a presumption that legal representation should be encouraged, or that it would improve the quality of exchanges or the presentation of the information. I shall listen with care to the Minister’s response, but my hon. Friend the Member for Orkney and Shetland and I feel that to pass the amendment would mean to employ the nanny state excessively. Mr. Leslie: How interesting it is, to use the description of the hon. Member for North Cornwall, that the nanny state should appear in the form of an amendment tabled by the hon. Member for Huntingdon. I understand why the hon. Member for Huntingdon advocates the amendment, but it is not necessary. It is an interesting spending commitment on legal costs from the Conservative party, on which it might be worth putting a figure at some point in order to send a little note to the shadow Chancellor of the Exchequer in case he is worried about spending commitments made by his Front-Bench colleagues. That point aside, I think that the hon. Member for Huntingdon is trying to incorporate one of the Salmon principles into the legislation. There was general agreement in the other place that accepting the amendment would take inquiries in the wrong direction. Indeed, their lordships were concerned that it could lead to more costly proceedings. The principle that the amendment would put into the Bill has been cited by commentators as one of the main factors increasing the cost and length of inquiries. The Public Administration Committee recommended that the time had come to reformulate the Salmon principles in general and to ensure fairness
Column Number: 73 Several distinguished former inquiry chairmen in another place echoed those arguments. 4.30 pmThe nub of the issue is that, although there will be cases when people need to be represented, it is important to remember that inquiries are not trials, are not about civil or criminal liability and should not be adversarial. Decisions about representation are rightly for the judgment of inquiry chairmen, but if we introduce general principles about entitlement to legal representation, we need to consider carefully whether they are at odds with the role of inquiries as inquisitorial, not adversarial, processes. In general, some substantial bodies might not need to have recourse to public funds to represent their views at inquiries, but the amendment might break with that and place extra cost on the taxpayer, and it is not necessary. The Government amended clause 18 in another place to ensure that the chairman must act fairly throughout the proceedings, and that presages some of the changes that we might be able to make to the procedure rules that will be brought forward under a statutory instrument in the usual way, when we might be able to create a balance between fairness and expediency that is more closely and precisely defined so that the chairman can be better informed about guidance on such issues. For those reasons, it would not be wise to accept amendment No. 19. It was not accepted in the other place and we should not accept it here either. Mr. Djanogly: This is not a question of the nanny state. The amendment is a way to improve representation at inquiries. As I said, legal representation can often reduce the time taken by inquiries or other procedures in which lawyers can become involved. A good lawyer will facilitate and speed up a process, not delay it—as the popular press might have us say. Cost estimates should include the likely costs of such legal representation. That will be consistent with what I said earlier, but it will not necessarily increase costs as a result. I disagree with what has been said. However, this is not an issue that I intend to press to a Division, so I beg to ask leave to withdraw the amendment Amendment, by leave, withdrawn. Clause 18 ordered to stand part of the Bill. Clause 19 ordered to stand part of the Bill. Clause 20 Restrictions on public access etc. Mr. Djanogly: I beg to move amendment No. 21, in clause 20, page 9, line 24, leave out
and insert ‘the following way’. Column Number: 74 The Chairman: With this it will be convenient to discuss the following amendments: No. 22, in clause 20, page 9, line 25, leave out paragraph (a). No. 23, in clause 20, page 9, line 29, leave out ‘notice or restriction’. No. 24, in clause 20, page 9, line 32, leave out ‘Minister or’. No. 25, in clause 20, page 10, line 8, at end add—
Mr. Djanogly: We now come to restrictions on public access. The amendments relate to the imbalance of power between the Minister and the chairman. We believe that the chairman would be more independent and have more intimate knowledge of the inquiry if our proposals were accepted. Our position has been strongly supported by the Public Administration Committee, the Joint Committee on Human Rights, the Lord Chief Justice and many other Law Lords, as well as the Finucane family, the Committee of International Human Rights of the Association of the Bar of the City of New York and many others. It was pointed out by Lord Kingsland in the other place that clause 20
under clause 20—
I agree with Lord Kingsland that that is a draconian power, allowing the Minister to second-guess the judgment and discretion of the man on the spot who is the chairman of the inquiry. Amendment No. 21 is the first of several amendments to the clause that we regard as important. One of the two themes of the Opposition’s approach to the Bill has been the lack of balance between the powers of the Minister and the powers of the chairman in respect of any particular inquiry. This lack of balance is illustrated by clause 20, which gives rise to two sorts of restriction instruments—a restriction notice, which is to be issued by a Minister, and a restriction order, which is to be made by the chairman of an inquiry committee. We have no difficulty with the powers that clause 20 grants to the chairman. These are traditional powers and powers that are rightfully and sensibly granted to somebody who is in charge of a public inquiry. However, we do not believe it appropriate for the Minister to have any of the powers that are comprised in and implied by a restriction notice. These powers would give a Minister the authority to issue notices restricting, for example, public access to an inquiry’s proceedings, to evidence given to an inquiry or to documents produced to an inquiry. The essence of the role of a chairman of an inquiry is to balance considerations of national security, international relations and comity, economic interests both national and international, and questions of
We have no difficulty with the chairman being charged with these responsibilities, but we do not see how the Minister can possibly place himself in the same situation as the chairman. The public inquiry has been set up by the Minister to investigate a matter. The Minister then stands back while the inquiry conducts its business. At any stage of the inquiry the Minister is simply not qualified to make these balancing judgments. He appointed the chairman to make these judgments in the interests of the public. If the Minister is informed by his Department that on day 42 of a public inquiry an important national security issue was raised, he is almost bound to err on the side of giving that national security issue undue weight because he has no feel for the circumstances. So, in short, these amendments remove the right of a Minister to issue restriction notices while preserving the chairman’s right to make restriction orders. The Public Administration Committee’s report said:
and further commented that the Council on Tribunals considered that
However it went on to suggest that on certain occasions there might be advantages in holding inquiries in private as long as its report was published:
In their response to the Select Committee’s recommendation, the Government noted that they:
Will the Minister justify how that is so, because I cannot see it? Mr. Carmichael: It is a funny old world when you find the Tories promoting openness and scrutiny of Government decisions and a Labour Government denying them. I presume that the Minister is going to deny them. I wait with some interest to be shown to be wrong. Column Number: 76 On this occasion I am broadly in sympathy with the amendment and the remarks of the hon. Member for Huntingdon. There will be times when it will be necessary for information to be excluded from the public part of a public inquiry, but that decision needs to be made by the chairman of the inquiry if the inquiry is to be seen as open, transparent and independent of the Government. If the Minister insists on providing a power—similar to a public interest immunity certificate, frankly—for people not to co-operate with an inquiry by providing information, the independence of the inquiries in question will be fundamentally compromised and we will have a very flawed beast. The Government can do better, and the amendments tabled by the hon. Member for Huntingdon would constitute a significant improvement. Mr. Leslie: It is important at the outset to understand what clause 20 is designed to do. Quite properly, it defines the circumstances in which restriction notices can be agreed by Ministers or restriction orders can be agreed by inquiry chairmen. It allows Ministers to consider the wider public interest and whether the inquiry should have private sessions. However, we need to remember that, even if there are restrictions on public access, nothing can prevent an inquiry from having all the information before it. That is especially so if it is in private session. It will be able to have the full facts—the full information—before it to determine the truth and reach conclusions. An inquiry may be in private session for national security reasons, but it will have full access to the facts and will therefore be able to reach a truthful conclusion. That may be so obvious that it has not been stated so far. We are talking about public access to inquiries versus private sessions, not about restricting what inquiries can consider. Amendment No. 25 is the most straightforward amendment in the group. It would introduce a general presumption of public access, but that presumption is already in the Bill. Clause 19 already makes it clear that the starting point for any inquiry is full public access to all proceedings and evidence. Clause 20(3) makes it clear that restrictions can be imposed only when the criteria in that clause are met. The presumption is that public access should not be restricted. The onus is on the Minister or the chairman to satisfy themselves that certain tests are met before they issue restrictions. |
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