Inquiries Bill [Lords]

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Standing Committee B

The Committee consisted of the following Members:

Chairmen:

†Mr. Roger Gale, Mr. Win Griffiths

†Atkinson, Mr. Peter (Hexham) (Con)
†Campbell, Mrs. Anne (Cambridge) (Lab)
†Carmichael, Mr. Alistair (Orkney and Shetland) (LD)
†Connarty, Mr. Michael (Falkirk, East) (Lab)
†Davies, Geraint (Croydon, Central) (Lab)
†Djanogly, Mr. Jonathan (Huntingdon) (Con)
†Hall, Mr. Mike (Weaver Vale) (Lab)
Heald, Mr. Oliver (North-East Hertfordshire) (Con)
†Jones, Mr. Kevan (North Durham) (Lab)
†Leslie, Mr. Christopher (Parliamentary Under-Secretary of State for Constitutional Affairs)
Liddell-Grainger, Mr. Ian (Bridgwater) (Con)
McDonagh, Siobhain (Mitcham and Morden) (Lab)
†Pound, Mr. Stephen (Ealing, North) (Lab)
†Prentice, Ms Bridget (Lewisham, East) (Lab)
†Rooney, Mr. Terry (Bradford, North) (Lab)
†Tyler, Mr. Paul (North Cornwall) (LD)
Frank Cranmer, John Benger, Committee Clerks
† attended the Committee

 
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Thursday 24 March 2005

[Mr. Roger Gale in the Chair]

Inquiries Bill [Lords]

Clause 26

Publication of Reports

9.25 am

Mr. Jonathan Djanogly (Huntingdon) (Con): I beg to move amendment No. 26, in clause 26, page 12, line 34, leave out

‘Minister, or the chairman if subsection (2) applies,’

and insert ‘chairman’.

The Chairman: With this it will be convenient to discuss the following amendments: No. 27, in page 12, line 36, leave out subsection (2).

No. 28, in page 13, line 1, leave out from ‘The’ to ‘may’ and insert ‘chairman’.

No. 29, in page 13, line 5, leave out ‘person’ and insert ‘chairman’.

No. 30, in clause 40, page 20, line 23, leave out from ‘inquiry’ to end of line 24.

Mr. Djanogly: Welcome to the Committee in your capacity as Chairman, Mr. Gale. You will have seen how far we got on Tuesday, which will hopefully enable us to have a short day today. It is fair to point out in that regard the debt that the Committee owes to the experience and thoroughness of their noble lordships, who have enabled us to centre on the key outstanding issues, of which the Committee will appreciate there are a number at this stage.

I have already spoken at some length about the increased ministerial powers granted by the Bill and the damage that it is likely to cause to the independence and effectiveness of inquiries. I shall not repeat at length the arguments that were set out under the previous set of amendments, although I underline that the same principles apply to this group.

I draw the Committee’s attention to a joint statement issued on 22 March by Amnesty International, British Irish Rights Watch, the Committee on the Administration of Justice, Human Rights First, the Human Rights Institute of the International Bar Association, Inquest, Justice, Lawyers’ Rights Watch Canada, the Law Society of England and Wales, the Pat Finucane centre and the Scottish Human Rights centre. The pertinent statement ends:

“On 15th March, 2005, Judge Peter Cory, a retired Canadian Supreme Court justice who was appointed by the British and Irish governments in 2002 to investigate allegations of state collusion in six controversial murder cases, wrote a letter expressing his own fears about the potential effects of the Inquiries Bill. He described the Bill as ‘unfortunate to say the least’ and with specific reference to the case of murdered Belfast solicitor Pat Finucane stated, ‘It seems to me that the proposed new Act would make a meaningful inquiry impossible.’ Judge Cory noted that ‘the Minister, the
 
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actions of whose ministry was to be reviewed by the public inquiry would have the authority to thwart the efforts of the inquiry at every step’ and he concluded that he ‘cannot contemplate any self respecting Canadian judge accepting an appointment to an inquiry constituted under the new proposed act’.

We agree with all of these views and urge Parliament to take them very seriously. An inquiry held under the Bill as currently drafted would not be effective, independent, impartial or thorough, nor would the evidence presented to it be subject to sufficient public scrutiny. Such an inquiry would fall far short of the requirement of international human rights law that an effective remedy be provided to the victims of human rights violations. Moreover, the passage of the Inquiries Bill in its current form would do great harm to the tradition of public inquiries in the UK and would undermine the important principles of accountability and transparency. In order to command public confidence, it is absolutely necessary that an inquiries system permit close independent public scrutiny and provide for the active participation of the relevant victims. The Inquiries Bill does not do this.”

Those are serious and contemplative words, indeed.

Amendments Nos. 26 to 29 seek to address the imbalance of powers between the Minister and the chairman in relation to the publication of an inquiry’s report.

Mr. Alistair Carmichael (Orkney and Shetland) (LD): The hon. Gentleman read an interesting passage, but he did not tell us whether he agreed with it.

Mr. Djanogly: I agree with the greater part of it. If the hon. Gentleman had followed my speeches during previous sittings, he would appreciate that that is my position.

In its present form, the Inquiries Bill allows either the Minister or the chairman to publish the report, decide which aspects of the report should not be published and also decide on the timing of its publication. The Opposition believe that those powers should lie solely in the hands of the chairman. First, the Minister could clearly use those provisions to his political advantage. He can hide any facts that are embarrassing to the Government by withholding the incriminating aspects of the report. Also, he can use the timing of the report to his advantage and wait for the optimum moment, be it for maximum exposure, if the results were complimentary, or for minimum publicity, if the conclusions could be damaging to the Government. That political temptation may be just too much for any Minister to resist.

Secondly, as described by Lord Kingsland in the other place, we may find ourselves

“in a situation where chairmen, before they publish the conclusions of their inquiry, would feel obliged to send the draft conclusions to the Minister, to wait until they are approved or otherwise and then to issue only those parts that have been approved.”—[Official Report, House of Lords, 19 January 2005; Vol. 668, c. GC297.]

That would be totally against the public interest.

The principle behind the amendments received strong support from the Public Administration Committee in its report “Government by Inquiry”. The Committee stated:

“It is important that ministers should not manipulate the publication date of an inquiry report for their own ends or undermine a parliamentary debate on its findings by limiting access to it”.

 
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In particular, the report made reference to Sir Richard Scott’s report on arms to Iraq. When concluding, the PAC specifically recommended that

“the presumption should be for chairs to handle publication. This should be reflected in the Bill.”

Similarly, the Joint Committee on Human Rights stated in its fourth report:

“We are concerned that this degree of ministerial discretion as to publication of the conclusions of an inquiry puts at risk both the independence and the appearance of independence to the inquiry”.

Further, in relation to inquiries into deaths, the Joint Committee found that clause 26 may fall short of compliance with article 2 of the European convention on human rights. The Committee doubted the Bill’s compliance with the provision, stating:

“The extent of ministerial control over whether the conclusions of an inquiry, or the evidence which led to those conclusions, will be made public has the potential to frustrate compliance with the Article 2 requirements that the inquiry be open to a sufficient degree of public scrutiny to ensure accountability, and that it provide the next-of-kin of the deceased with an explanation of the circumstances of the death.”

The Committee also wrote to the Lord Chancellor to ask why the degree of discretion in the Bill is considered compatible with article 2. It sought reassurances that responsibility for publication would be allocated to the chairman at the outset of an inquiry that engaged article 2, and that consideration would be given to making provision to that effect in the Bill. The Lord Chancellor in his reply to the Committee maintained that under the Bill there is a presumption in favour of the publication of the report. Despite those assurances, the Joint Committee’s concerns remain. It stated:

“In relation to the publication of reports, we re-emphasise our conclusion that where Article 2 is in issue, responsibility for the publication of the report should be allocated to the Chairman of the inquiry at the outset, rather than to the Minister, in the interests of ensuring an effective, as well as an independent, inquiry.”

The Conservative Opposition believe that that conclusion should be the case for all inquiries. In order to ensure that the Minister does not use the powers to his advantage, and that the individuals involved in an inquiry are sufficiently protected, it is essential to leave it to the chairman to decide which conclusions can be published and at what time.

The Chairman: Hon. Members who have sat under my chairmanship before know that I take a fairly relaxed attitude to stand part debates. You can either have one at the beginning of a debate of this kind or at the end, but you cannot have both. In view of the hon. Gentleman’s preamble, which I permitted although it was not strictly in order, I daresay that the Minister will wish to respond. That being so, I take it that it is likely that we shall have the stand part debate at the beginning rather than the end of this sequence of amendments.

Mr. Carmichael: I am grateful to you, Mr. Gale, for that guidance, as I am sure all members of the Committee are. I echo the words of the hon. Member for Huntingdon (Mr. Djanogly) in welcoming you to the Chair. I recall that you chaired the first Standing
 
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Committee on which I served in this Parliament, and if we believe certain rumours that I have heard, you may be chairing my last. There is a certain symmetry, some might even say a certain justice, in that.

I am in broad agreement with the thrust of the amendments tabled by the hon. Member for Huntingdon, and he does us a service by tabling them. I am concerned about the nature of clause 26; it leaves a great deal of discretion in the hands of the Minister. I have no doubt that if it were in the hands of the Minister present, that discretion would be exercised in a perfectly reasonable manner. However, it is possible that others who will hold ministerial office will not be as reasonable as the Minister. When considering legislation, one always has to consider the worst-case scenario—naming no names.

The matters described in subsection (5) that should be considered by a Minister when making a decision to publish seem exceptionally woolly. There is more than a whiff of a patrician element about them. The first matter is

“the extent to which withholding material might inhibit the allaying of public concern”.

That is a highly curious formulation of words. I do not know that it should be the business of government to allay public concern. In my experience, more often than not public concern is justified. We should not encourage the inhibition of the allaying of public concern—sorry, that is the wrong way round, which shows how woolly the wording is. The second matter to be considered is

“any risk of harm or damage that could be avoided or reduced by withholding”

information. That is a wide discretion to give the Minister.

The matters cited are all ones that should be in the remit of the inquiry. If the inquiry is to do its job properly—which, returning to points made in debates on Tuesday, means that it is seen to be independent—there should be no difficulty with their being in its remit. There should be no problem with the chairman applying those considerations. If the inquiry is to be independent and to be seen to be independent, the opportunity for such ministerial interference is not only unnecessary but damaging.

The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. Christopher Leslie): Good morning, Mr. Gale. As always, it is a pleasure to serve under your chairmanship.

First, I will give a little background to clause 26. Its drafting reflects the different practices of inquiries and some of the legislation that is being replaced or amended by the Bill. Generally, an inquiry submits its report to the Minister, because it is a ministerial inquiry established by the Minister. It is the duty of the Minister to publish the report. That has been the practice for many years and in many inquiries. Under clause 27, we are introducing another step: the Minister lays the published report before Parliament. So, we are enhancing many of the publication steps. However, the Bill also allows the Minister to pass on the responsibility for publication to the chairman where that is more appropriate.

 
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For a number of reasons, I do not agree with the amendments. Until now, surprising though it may be, there has been no general statutory obligation to publish inquiry reports. There has, therefore, been no limit on the types of information that could be withheld. However, the vast majority of inquiry reports have still been published in full—even reports of wholly private inquiries such as the Penrose inquiry on Equitable Life. We expect that that will be the case for future inquiries.

Clause 26(3) says:

“Subject to subsection (4), a report of an inquiry must be published in full.”

The powers to withhold information from publication are limited. We made amendments in another place to ensure that the powers could not be used to prevent disclosure of, for example, any information under the Freedom of Information Act 2000—so that there are clear limits to the powers.

The amendments tabled by the hon. Member for Huntingdon would leave such decisions entirely to the chairman. They would leave Ministers unable to fulfil their duty to protect the public interest for national security reasons or to safeguard an individual’s rights under human rights legislation. They would remove important safeguards against serious harm or damage.

I hear and understand what the hon. Member for Orkney and Shetland (Mr. Carmichael) says about the wording of subsection (5), but I believe that it covers neatly the matters that the person in charge of publication must have regard to when they make such decisions, and it sets out clearly the considerations about allaying public concern and the damage that could be done by withholding or releasing material. In fact, it is fairly straightforward.

The Minister will often be in a better position than an inquiry chairman to decide whether disclosure of particular information is likely to cause harm. A good example is an inquiry that is considering information related to national security issues. Two seemingly innocuous pieces of information may have the potential when taken together to cause harm. In some situations, something as simple as using a direct quote from a source may be harmful, but harm could easily be avoided by paraphrasing. The Government have greater expertise and responsibility in security matters to spot the dangers and to judge the risk involved—that is the nature of government—whereas the chairman may not be personally aware of the dangers. As I said, we do not expect that situation to arise in the vast majority of cases, but we must be able to act to protect the public interest on national security grounds, among others.

I remind the Committee that the powers are clearly defined in the Bill. They are defined better than they have been in previous inquiries legislation. They are now enshrined in the Bill, and, as we know, any decision to withhold information will be reviewable by the court. That is another safeguard. Given those safeguards and the fact that the clause is much more up
 
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front about the framework for publication of reports, I ask the hon. Member for Huntingdon to withdraw the amendment.

Mr. Djanogly: The Minister implied that this is an excellent clause because there have been no such rules before. Indeed, there have not been any, and it is certainly a good thing that the Bill addresses the requirements. However, the fact that to date there have been no rules on the requirement for publication of the report does not mean that now that we are addressing the issue we should legislate wrongly, particularly by giving too much power to the Executive in respect of publication.

The hon. Member for Orkney and Shetland said that the subsection (5) reasons were “woolly”, and I agree with him. In the context of the ministerial power involved, that is particularly the case. For those reasons, I shall ask for a Division.

Question put, That the amendment be made:—

The Committee divided: Ayes 3, Noes 8.

[Division No. 6]

AYES

Atkinson, Mr. Peter
Carmichael, Mr. Alistair
Djanogly, Mr. Jonathan

NOES

Campbell, Mrs. Anne
Connarty, Mr. Michael
Davies, Geraint
Hall, Mr. Mike
Jones, Mr. Kevan
Leslie, Mr. Christopher
Prentice, Bridget
Rooney, Mr. Terry

Question accordingly negatived.

Clause 26 ordered to stand part of the Bill.

Clauses 27 to 35 ordered to stand part of the Bill.

Clause 36

Offences

Question proposed, That the clause stand part of the Bill.

9.45 am

Mr. Djanogly: The clause relates to offences that may be committed in the event of non-compliance with the inquiry or due to actions that are likely to hinder the inquiry in some way. There is universal acceptance for the principle behind the clause, which is that although the inquiry may not enforce sanctions when actions frustrate it, it is important that court support is available to ensure the smooth running and effectiveness of the inquiry process. I have two points for clarification in respect of subsections (5) and (6), which specify who can bring proceedings and under which circumstances.

It is appropriate that a distinction be drawn between the offences under subsection (1) and those under subsections (2) and (3). The former relates to offences when a person does not, without reasonable excuse, comply with a chairman’s notice under clause 22.
 
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Clause 22 notices can require a person to attend the inquiry to give evidence, to produce documents or to provide any other thing in their custody that the chairman feels may aid in his investigations. As subsection (1) has a narrow and directed ambit, applying only to such notices, it seems appropriate that only the chairman can bring proceedings for non-compliance. Only he will know when such action may hinder the inquiry to such an extent that proceedings would be appropriate. The enforcement of clause 22 notices will also be relatively swift, as the chairman need not go through the Director of Public Prosecutions to institute proceedings.

By contrast, subsections (2) and (3) have a much wider scope. They relate to any acts that may distort or suppress evidence or relevant documents. Given the general application to all issues relating to inquiry evidence, it is feasible that persons other than the chairman may have an interest in bringing proceedings. The Bill recognises that, but it also recognises the strength of opinion and possible bias of many people interested in an inquiry’s process. As such, subsection (6) requires that all proceedings brought under subsections (2) and (3) must go through the DPP. The Conservative Opposition fully appreciate the importance of ensuring that the availability of offences under the Bill and the related procedures are not abused by persons with an interest in the inquiry.

Why is it not open to the chairman as well to bring proceedings for offences under subsections (2) and (3)? He is chosen for his independence and so would not have any bias or ulterior motive in using the procedure to further any aim other than the efficient and effective progress of the inquiry. The need for him to go through the DPP each time he wants to bring such proceedings may be a waste of time and resources. In most instances when such proceedings are brought, it will be the chairman who will instigate them. Also, as with clause 22 notices, the chairman will be best placed to know when a person is distorting or suppressing evidence. No doubt the DPP would ask for the chairman’s judgment as to whether any complaints of such action were well founded and not tainted by bias. That underlines yet again the important role that the chairman can and should play in bringing proceedings for all clause 36 offences.

The Government state in the explanatory notes that they would like to leave open the possibility

“that prosecutions can be brought after the inquiry has ended (which would not be the case if the chairman had to bring them).”

Although that may be a reason to include the DPP in the process, it provides no basis for excluding the chairman from bringing proceedings during the lifetime of the inquiry. In any case, I imagine that proceedings would be brought after the conclusion of the inquiry only in exceptional circumstances, such as the destroying of evidence right at the end of the inquiry process, leaving little time to go through the courts. How does the Minister expect the post-inquiry procedure to be put to more frequent use? Such an unlikely occurrence provides little justification for the
 
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exclusion of the chairman from the procedure at all times and for the increase in bureaucracy and red tape involved in that process.

My second point can be dealt with more quickly. I note that subsections (5) and (6) prescribe who should instigate proceedings for the various offences under clause 36 in England, Wales and Northern Ireland. Scotland seems to have been overlooked. The explanatory notes provide some enlightenment in that in Scotland the offences under subsections (2) and (3) are the responsibility of the Crown Office and the Procurator Fiscal Service. However, no mention of Scotland is made in relation to the offence under subsection (1). No doubt there is an entirely sensible explanation for that, but I would appreciate it if the Minister clarified matters.

Mr. Carmichael: I find it difficult to share the hon. Gentleman’s concerns. I note that the offence is only triable summarily. My recollection is that under the terms of the Criminal Procedure (Scotland) Act 1995, summary prosecutions can only be brought in Scotland by the procurator fiscal acting on behalf of the Lord Advocate. There is no scope for anyone else to prosecute in summary courts, with the exception of truancy offences, which can still be brought by local education authorities. I presume that that is why the point is properly made in the explanatory notes that the process will be carried out by the procurator fiscal.

In my view, this is the sort of situation in which the prosecution ought to be brought by the Director of Public Prosecutions acting in the public interest, as would be the case north of the border by the equivalent officers there. I will not go too far into this because I respect the fact that English and Welsh jurisdiction has always taken a different approach to the question of who brings prosecutions and there is a much wider range of bodies with that entitlement. I cannot pretend to understand why that should ever have been the case, but there are many things in England and Wales that I do not understand, which I merely have to accept.

I can certainly see circumstances in respect of which the offence would be very grave, so why is it to be tried summarily only? In a case of significant national importance, the route should be open to bring a prosecution on indictment. That does not seem to be open to the court. The maximum penalty is level 3 on the standard scale, which, from recollection, is about £1,000—I might be wrong about that—or six months imprisonment, which is the statutory maximum for a summary court in Scotland.

Mr. Leslie: The clause provides sanctions for non-compliance with an order of the inquiry or for actions that are likely to hinder the inquiry. If an inquiry has formal powers to compel information, there must be a sanction consequent on that for anyone who fails to comply with an order made under those powers. Although experience of past inquiries shows that sanctions are rarely likely to be needed, it is nevertheless important to have them. The recent example of Lord Laming successfully bringing a prosecution against a witness who refused to comply
 
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with the inquiry into the death of Victoria Climbié demonstrates that, on occasion, some sanctions are necessary.

The hon. Member for Orkney and Shetland asked why the offence is made summarily only. The offences created in the Bill are similar to those in section 250 of the Local Government Act 1972, which is the model used in many subject-specific inquiry powers. We decided to take that precedent and use it in this case. I understand that an argument can be made for stronger powers and I take his point, but that is our rationale for drawing up the provisions in that way.

Subsection (1) makes it an offence not to comply without reasonable excuse with a request under clause 19. It is for the chairman to decide whether to institute a prosecution under that subsection. He also has the alternative option of using the enforcement route under clause 37. It is important that the inquiry has access to all available evidence, subject to clause 23 on privileged information.

Subsections (2) and (3) make it an offence deliberately to distort or conceal evidence. Those sanctions can be applied only to actions taken after an inquiry has been set up and are framed so that a person could not unwittingly commit an offence. The clause also ensures that actions authorised by the panel are not offences.

We do not want a situation in which anybody can bring a private prosecution simply because they disagree with particular evidence, which is why prosecutions under subsections (2) and (3)—to answer the query from the hon. Member for Huntingdon—can be brought only by or with the consent of the Director of Public Prosecutions or, in Northern Ireland, by the DPP for Northern Ireland. Since it would be possible for prosecutions to be brought following an inquiry—although only for actions that had occurred during it—it is not appropriate for the decision about whether to prosecute to be taken only by the chairman.

Essentially, the hon. Gentleman asks why there is a difference between those things. Our concern is that offences might come to light after the end of an inquiry, at which point it would not be appropriate for the chairman to have a role in those proceedings because the inquiry would have concluded. That was how we framed the clause.

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Prepared 29 March 2005