Inquiries Bill [Lords] |
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Mr. Djanogly: Although the chairman will obviously no longer be chairman of the inquiry because the inquiry will have finished, that does not mean to say that he could not have a role. Judging from the explanatory notes, I think it is the Government’s intention that he would have, even though the DPP would be involved. That is what I am trying to tease out. Will the Minister confirm that the chairman would be brought into the process, because he would still know what the situation was? Mr. Leslie: Once the inquiry has finished, the chairman is a private citizen like anyone else and he may or may not wish to get involved in bringing the
Question put and agreed to. Clause 36 ordered to stand part of the Bill. Clauses 37 to 39 ordered to stand part of the Bill. Clause 40 Payment of inquiry expenses by Minister Mr. Djanogly: I beg to move amendment No. 31, in clause 40, page 20, line 25, leave out subsections (4) and (5). Throughout the Committee, I have described our concern that the Minister will be entrusted with too much power. Although I will not take up time by running through those arguments again, I do not want my brevity to distract from the importance of the amendment or the particular way in which the Minister’s power may, in this case, risk the independence and effectiveness of the inquiry process. The amendment would remove the Minister’s ability to withhold the funding of an inquiry that strays outside its terms of reference. The power is unacceptable to us for two reasons. First, it would, in effect, allow the Minister to dictate the path that the inquiry should take. He could at any time claim that the inquiry was outside its terms of reference and so withhold funds, which would, in practice, be tantamount to stopping it in its tracks. That power could be used to the Minister’s advantage to prevent an inquiry from entering an area that could be damaging or embarrassing to the Government. That will clearly affect its credibility. Secondly, it is for the chairman to interpret and apply the terms of reference once the inquiry is up and running. He is the man on the ground and only he can know the exact path that the inquiry may need to follow. For example, if new evidence arises that opens a new avenue to be explored, only the chairman would have intimate knowledge of its interrelationship with other aspects of the inquiry. As such, only he should be able to decide, in an informed and independent manner, whether to follow up that lead and bring about the related expenditure. The Minister may not be in a position to make that judgment at the outset because uncertainty is inherent in an inquiry. One just cannot know the exact direction that an inquiry will take; if one does, the inquiry may not be necessary. Our amendment removes the ability of the Minister to dictate how the terms of reference are applied, by withholding funds when he argues that those terms of reference have not been respected. Column Number: 93 10 amThe approach taken in the amendment is supported by the Joint Committee on Human Rights, which stated in paragraph 221 of its fourth report:
Indeed, the Committee wrote to the Lord Chancellor to express this concern and also asked why the clause is considered to be compatible with article 2 of the European Convention on Human Rights. The Lord Chancellor replied that the clause provided a mechanism for ensuring that the inquiry remained on track and argued:
The Committee appreciated the need for an inquiry to adhere to its terms of reference, but repeated its view that a characteristic of an independent inquiry is that the terms of reference are interpreted and applied by the chairman and the inquiry panel. The Opposition support this view and argue that that aim cannot be fully achieved while the Minister has the ability to remove funds to ensure that the terms of reference are interpreted and applied in a particular way. Mr. Paul Tyler (North Cornwall) (LD): I am sympathetic to at least the intentions of the amendment. The Minister may recall that concerns were raised in the other place by my noble Friends and others about subsection (3), which originally used the phrase “reasonably incurred expenses”, and that seems to have been dealt with. The amendment, which would remove subsections (4) and (5), is useful. I hope that it will at least enable the Minister to explain in more detail exactly how the channel of communication between the chair of an inquiry panel and the appropriate Minister will operate. I hope that there would never be a situation in which a panel was acting outside its terms of reference. I am sure that we all take that view, but in such circumstances it is important that the means of communication are absolutely clear to all concerned and I hope that that can be clarified now. Considering that the Government gave way on the issue of the Minister consulting the chair of the inquiry when setting up and amending the terms of reference, that matter becomes even more important. The Committee may wish the Minister to explain how the chair of an inquiry could have some come-back on an issue of this sort. If, for example, the Minister notifies the chair that he has been acting outside his terms of reference, does that chair then have a right of appeal, as it were, and an opportunity to explain to the Minister why he acted as he did? We can all imagine circumstances in which an action was totally reasonable, but an explanation may be required. We may need to know precisely why the circumstances have arisen, but in addition we may
Mr. Leslie: The Bill, particularly in clause 40, places a welcome new statutory obligation on the Minister to fund an inquiry, which does not exist in current legislation. I know that the Opposition tend to look at the glass as half empty, but it is a positive step forward to enshrine the obligation in the Bill, and I would have thought that they would welcome that. Of course, any obligation must be properly defined and its limits set out. The extent and the shape of those limits are the point of contention here. It is highly unlikely that the power to withdraw funding would ever be needed, but it has to be included as an emergency safeguard. We would not be doing our job in safeguarding public money if the Bill did not provide some mechanism to prevent expenditure on matters wholly outside the terms of reference of an inquiry. If the amendment were agreed, it could have the effect of giving an inquiry a blank cheque to spend money on anything it wanted to. The Minister would then, in theory, be obliged to fund that. Obviously, ministerial accountability to Parliament, and ultimately to the taxpayer for their money, requires that the Minister has some control over that money. That is one of the reasons why I do not want to see the Committee accept the amendment. There are strict conditions on the withdrawal of inquiry expenses by a Minister. The withdrawal of funding would be a temporary measure used as a last resort in relation to a particular activity. Funding could never be withdrawn retrospectively. Clause 40 requires the Minister to give the chairman a formal notice. That is the communication process in extremis. Costs arising from the period before the notice is given would have to be met. In practice, a formal notice would be the end of a dialogue between the Minister and the chairman. To answer the point raised by the hon. Member for North Cornwall (Mr. Tyler), that dialogue would be ongoing before the formal notice stage. Once the inquiry returned to performing the task set out in its terms of reference, funding could be reinstated. Mr. Peter Atkinson (Hexham) (Con): Surely the heart of this is the terms of reference and how they are interpreted. A situation could arise in which the chairman and the Minister disagreed on the minutiae of the terms of reference. In that sort of dispute, who would be the final arbiter? Mr. Leslie: Of course, I accept that it is for the inquiry to interpret the terms of reference set out for it. The power would only ever be used if the inquiry were very clearly working outside its terms of reference. The hon. Member for North Cornwall asked what recourse the chairman had in those circumstances. In essence, the powers could not be used to stop an inquiry looking around the terms of reference or at
Without the power to withdraw funding, the Minister’s only option for safeguarding public funds would be to attempt to end the inquiry under clause 13. That would mean that all the money spent on the inquiry so far would have been wasted and whatever problem the inquiry had been set up to investigate would not be resolved. That sort of nuclear option is probably not the only safeguard that should be included in the Bill. The option in this clause is a slight refinement on that. Again, at this stage, I do not envisage circumstances in which it could be used, but we need to have that safeguard in the Bill just in case. For those reasons, I hope that the amendment will be withdrawn. Mr. Djanogly: The Minister maintained that the measure would be relevant only if the inquiry was acting very clearly outside its terms of reference. To that extent, I accept what he has to say. I just hope that there are not future occasions when someone has to repeat his words because a Government have stymied some inquiry on a technicality. However, on the basis of what he said, I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 40 ordered to stand part of the Bill. Clause 41 ordered to stand part of the Bill. Clause 42 Rules Mrs. Anne Campbell (Cambridge) (Lab): I beg to move amendment No. 37, in clause 42, page 21, line 20, at end insert—
It is pleasure to be sitting on a Committee under your chairmanship, Mr. Gale. I am conscious that when the Committee considered earlier clauses there was much debate that was relevant to the amendment, so I shall not speak to it for long. I hope that my hon. Friend the Minister will see fit to accept the amendment, which is very mild. It simply says:
and goes on to talk about
and
Column Number: 96 That would not unnecessarily constrain the Government, but would set the framework for good practice. It must be noted by the Committee that the Minister has not given way on anything so far. I hope that he will break the habit of a lifetime and give way on this amendment. Mr. Mike Hall (Weaver Vale) (Lab): Don’t hold your breath. Mrs. Campbell: I am not. The Select Committee discussed consultation on the terms of reference at some length, and some years ago the Salmon commission said that the terms of reference should be drawn as precisely as possible. In the course of taking evidence, we found that negotiation appeared to take place between the Lord Chancellor and the chairman of an inquiry. Lord Falconer told the Committee that if Lord Hutton had said:
he—the Lord Chancellor—would have agreed. That is a strong indication that the Government are open to such negotiation between the Lord Chancellor and chairmen. In such circumstances, it would be sensible to enable more public consultation on the terms of reference. There is little public trust in politicians at the moment, so it is sensible for us to be as open and transparent as possible about the ways in which we do our business. The terms of reference are extremely important when setting up an inquiry. Indeed, when the Government gave evidence to the Committee, they conceded that there could often be a case for announcing terms of reference after a set period—perhaps a few weeks—to allow for discussion and preliminary investigation, and to allow individuals to make representations to the Minister setting up the inquiry. In its conclusions and recommendations, the Select Committee said:
I am conscious that the hon. Member for Orkney and Shetland tabled an amendment on this point, relating to an earlier clause, which he withdrew after some discussion, but I am giving the Minister the opportunity to reconsider the issue and, perhaps, make us all happy by saying that he agrees after due consideration that the amendment is sensible. Paragraph (b) of the amendment refers to costs. The hon. Member for Huntingdon tabled a similar amendment, which we debated earlier in our proceedings, when there was some discussion about the procedures and who would be responsible for keeping the costs under control. Column Number: 97 10.15 amUnder the Bill, the chairman is obliged to have regard to the need to avoid unnecessary costs in considering how to conduct the inquiry, but the Select Committee was struck by the way in which the US Congress conducts its inquiries, which is very different. It may involve congressional legislation, which may not only establish the inquiry but determine its budget. For example, the Act that established the 9/11 commission provided for a budget of $3 million. Obviously, we have a different legislative framework, and I do not suggest that we need to go as far as placing a limit on the expenditure, but the Select Committee recommended that Ministers should announce a broad budget figure fairly early on, at the start of the inquiry, and that any increase on the announced figure would need to be publicly explained at the end of the inquiry, when final costs were publicised. That approach would not unnecessarily constrain the work of the inquiry. I do not foresee any unnecessary difficulty for the Government in taking that course. However, in a time when there are, perhaps, concerns about the way in which we spend public money, it is right that the Government should be seen to have due regard to costs in that way. It would not seem difficult to make an announcement at the start of the inquiry about the broad costs, as well as the length of the inquiry—something that of course relates to the cost—and, at the end, to announce the actual cost and provide an explanation if the inquiry has run over budget. I hope that the Minister will be prepared to accept amendment No. 37. Mr. Djanogly: I commend the hon. Member for Cambridge (Mrs. Campbell) on her constructive input and recognise how she has represented the interests of the Select Committee, on which she serves very well. The amendment deals with the principle that we promoted in amendments Nos. 4, 5 and 20, and I shall not take up the Committee’s time by repeating our arguments. However, in summary, amendment No. 4 would have placed some control over ministerial freedom to draft the terms of reference, and amendments Nos. 5 and 20 dealt with the pressing issue of the ever-increasing costs associated with public inquiries. The hon. Lady has approached those concerns in a slightly different way. Instead of prescribing more intervention from the chairman or Parliament for every inquiry, her amendment would provide an opportunity for the appropriate authority to introduce rules for every specific inquiry. It should be stressed that the introduction and extent of such rules would be optional, and therefore their effectiveness might be limited. As to the terms of reference, we asked for agreement between the Minister and the chairman to be obligatory. By contrast, the amendment would allow the authority to “make provision for” consultation. That might go some way to ensuring that the chairman is adequately consulted, but it would not ensure
The Committee debated the need to control costs and avoid unnecessary expenditure of taxpayers’ money. The amendment would give the appropriate authority the option to make provision for
We fail to see why such provision should be at the discretion of the appropriate authority. It should be obligatory at the outset of every public inquiry, as addressed in amendments Nos. 5 and 20. The hon. Lady has also proposed that control be available in relation to the duration of inquiries, an issue that has not, until now, been tackled by the Committee. We welcome the introduction of that and she makes valid points. For example, the Saville inquiry was expected to take one year to complete. That was nearly seven years ago and we are still waiting for the final report. The disastrous collapse of the Jubilee line fraud trial after 21 months, at a cost of £60 million, shows how vital effective case management is, whether it is for a trial or an inquiry. Some checks on the duration of inquiries are required. An overly long inquiry translates into increased costs and a greater commitment of time for those involved. It also allows the period of uncertainty regarding the subject matter of the inquiry to continue, which runs contrary to public interest and may cause much distress for the next of kin when it relates to someone’s death. However, it is difficult, if not impossible, to forecast at the outset exactly how long an inquiry will last. Therefore, it seems sensible to give the appropriate authority the option of calling in the chairman to check what is happening, if it is felt that the inquiry is taking an unreasonably long time. On the terms of reference and costs, the optional measure does not go far enough to ensure the involvement of the chairman and the avoidance of over-expenditure. However, given that our amendments were not accepted by the Government, we are willing to support the amendment in the alternative. We also welcome the recognition of the need to control the duration of inquiries. On that basis, we consider that a Division on the amendment would be appropriate. Mr. Michael Connarty (Falkirk, East) (Lab): I was not going to speak, but I was so impressed by the reasonable nature of the amendment and the way it was moved that I will give it further thought. It seems to me that some of the consultations need not be covered by the Bill if there is a custom of doing what those consultations suggest. That may be more reasonable. I have some reservations about estimating costs and duration because, instead of focusing on the inquiry, those who have an axe of a political nature to grind, will focus on the estimates. The Government have set many targets to raise the standards of public services, but they get attacked because they may not reach such a high standard. That becomes a political point of contention. I was slightly disappointed that my hon. Friend the Member for Cambridge referred to the United States. The
Mr. Tyler: I am sympathetic to the amendment. I pay tribute not only to the hon. Member for Cambridge, who moved it, but to the work of the Select Committee. When a Select Committee reports to the House on an issue of this sort, the House must carefully consider how seriously we take that advice. The Select Committee has carefully assessed an issue that is of great importance when we legislate. It would be inappropriate for me to talk about the issue at length, but we seem to think that Select and Standing Committees are a race apart and that we cannot have cross-fertilisation of ideas and scrutiny from one to the other. I understand the point made by the hon. Member for Falkirk, East (Mr. Connarty), but I think that the amendment is well drawn because it is not prescriptive, it is permissive. That was the product of careful discussion in the Select Committee. Mr. Djanogly: The hon. Gentleman makes an important point about Select Committees which I support. He will appreciate that I have given the Select Committee’s point of view on almost every amendment that I have tabled. It is a shame that the Minister has not addressed that. Mr. Tyler: I acknowledge that and am grateful for the hon. Gentleman’s support. I say in parentheses that I was locked in one of these Rooms in the middle of the night in 1974 when I had the casting vote. I hope that this is my last appearance in a Standing Committee because I do not want to repeat that in the next Parliament. Careful consideration was given to the subject in the Select Committee. The amendment draws on that study. I am particularly supportive of paragraph (a) in the amendment which is on consultation. At the moment, the Bill is remiss in that it does not give sufficient emphasis to consultation. It will be improved if there is a specific, albeit permissive, reference to consultation, as in the amendment. There has been a lot of discussion about that at all stages and it would be an improvement if there were specific reference to consultation on the terms of reference. I acknowledge that there is also value in paragraphs (b) and (c) of the amendment because they make clear and open the issues with which the order of the inquiry may take place. I understand that in the other place the Minister said that there was nothing to stop the Minister from consulting anyone he wished. Of course: that is a fact of life. However, we surely have a responsibility to give more specific guidance than just, “Well, it’s good practice. Wouldn’t it be nice if . . . ?” I see the hon. Member for Cambridge nodding. That
There has been much lobbying from groups interested in inquiries. I take two examples: Deepcut and the death of Patrick Finucane. In those cases, the circumstances were such that those people most intimately affected felt that the terms of reference were either too narrow or drawn in a way that did not take full account of their concerns. If, in those circumstances, the confidence in the validity and value of the inquiry of those most deeply affected is reduced, that is serious. We are trying to improve confidence in the way in which inquiries are handled, and I very much hope that the Minister will be prepared, as the hon. Lady was, to accept the suggestions as a useful addition that in no way weaken the intention of the Government or the Bill. Mr. Leslie: I shall try my best to answer the perfectly reasonable points made by my hon. Friend the Member for Cambridge, although much as I might be tempted to give way on the subject, I am sorry to inform her that I do not intend to. That probably will not surprise her, but I hope that my eloquent argument will persuade her that there are very good reasons why the amendment should not be added to the Bill. I understand that Select Committees often analyse subjects with great seriousness and in great depth. The Bill was prompted by and large by our debate with the Select Committee, so much good work has come from that dialogue, and the Bill is in many ways the product of it. There is always the impetus and temptation to add to a Bill, but I urge my hon. Friend to consider the fact that sometimes we must judge where the balance lies between things that need to be enshrined rigidly—in concrete—on the face of a Bill and in statute and those things that can take place outside statute, with good practice, guidance and convention. We should not always fall into the trap of writing every dot and tittle of legislation in a Bill. That would not necessarily constitute good governance for our country. I set my remarks in that context because much can be achieved in the spirit of my hon. Friend’s amendment without putting everything in the Bill. She wants to amend the clause, which deals with rules, effectively saying that there should be specific rules on the nature of consultation, cost estimates and the duration of an inquiry. I have concerns about that. |
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