Clause
37
Investigations
requested by the Secretary of
State
Mr.
Garnier:
I beg to move amendment No. 156, in
clause 37, page 26, line 6, leave
out subsection
(2).
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 159, in
clause 37, page 26, line 46, leave
out subsection
(7).
No. 160, in
clause 37, page 27, line 7, leave
out subsection
(10).
Mr.
Garnier:
This will be a relatively brief discussion, I
hope. Clause 37 is confusing because, although the policy behind this
part of the Bill is to give the commissioner a great deal of
independence and discretion, not only is the commissioner
required—we have had this discussion before—to report to
the Secretary of State, who then lays the details before Parliament,
but apparently the Secretary of State can give the commissioner
directions. The clause does not actually use the word
“directions”; it talks about consultation. Subsection (2)
states:
“The
Secretary of State shall consult the Commissioner before making a
request under this
section.”
What is the
request the Secretary of State can make? Subsection (1)
states?
“The
Secretary of State may request the Commissioner to investigate any
matter mentioned in subsection (3) or (4) which is specified in the
request.”
I do not
understand why the Secretary of State needs to consult the commissioner
before making a request.
Why does he not simply make the request and the commissioner can
consider it on its merits? However, subsection (7)
states: “It is
the duty of the Commissioner to investigate any matter which is the
subject of a request under this
section.”
There is no
independence of action, discretion or conduct there. It seems that the
consultation proposed in the Bill is meaningless, and the request is
not a request but an order.
Subsection (10), which is the
subject of amendment No. 160—subsection (7) being the subject of
amendment No.
159—states:
“Subject
to any directions give to the Commissioner by the Secretary of State,
it is for the Commissioner to determine the scope of, and the procedure
to be applied to, an investigation under this
section.”
There
is the fig leaf of independence, but I am concerned that behind it are
messages coming from the Secretary of State saying, “This is a
‘request’, but you are to do the following.” It
seems to me that, despite the warm words that no doubt will be uttered,
the commissioner is not clearly given discretion; he is not given the
independence of action to look into what he
wants.
That
is not an entirely fanciful concern. Let us assume that a big political
storm is brewing over the management of prisons. I am sure that this is
completely impossible to imagine, but let us assume that there is a
real mess in the prison estate. It is terribly overcrowded. The suicide
rate has reached, say, 87 during the course of a year and the suicide
rate for prisoners coming out of prison is very high. There is a
tremendous public hue and cry about that, which is engendering a great
deal of public
interest.
The
Secretary of State may wish to request the commissioner to investigate
“any matter mentioned” and he may wish to consult the
commissioner before making a request under the clause. All those
behind-the-hand consultations, all those “requests” and
“consultations”, are often, given the balance of power in
the hierarchical system that we run, in fact orders and directions.
That causes me concern. The purpose of my amendments to delete the
subsections to which I have referred is to ask the Government to make
it clear in the record today that the commissioner will not be told
what to do, but will have total discretion to look into things that
require looking into and to report as he
finds.
Mr.
Heath:
The hon. and learned Gentleman is
absolutely correct. What we are talking about is clearly not a request
but a direction. It is framed in such a way that it can be interpreted
only as a direction. There may be circumstances in which it is
appropriate for the Secretary of State to direct, although given the
independence that we have sought to achieve for the commissioner, I
imagine that it would be better if it were a request. What I am not
prepared to accept is subsection (10), which in effect allows the
Secretary of State to limit the scope of an investigation, having
requested/directed that that investigation should take place.
The subsection gives the
commissioner discretion to determine the scope and the procedure, but
qualifies that by
saying:
“Subject
to any directions given to the Commissioner by the Secretary of
State”.
It cannot be right for
the Secretary of State, who in this instance will be the person who is
politically responsible for the department under investigation, to
limit the scope of an independent investigator conducting an
investigation into incidents that may have happened within the premises
run by that service. It is absolutely wrong that that should be the
case. I think—I hope—that it is inadvertent. If it is
not, the Minister must explain why she feels that the Secretary of
State should have the power to limit the scope and direct the procedure
adopted by this independent commissioner in the pursuit of his or her
duties. That cannot be
right.
Maria
Eagle:
I am not sure what the copy of the Bill held by the
hon. Member for Somerton and Frome says, but subsection (10) in my copy
says:
“Subject
to any directions given to the Commissioner by the Secretary of State,
it is for the Commissioner to determine the scope of, and the procedure
to be applied to, an investigation under this
section.”
It
is therefore not the Secretary of State who determines what the scope
of any investigation should
be.
It might help the
Committee if I explain the circumstances in which we envisage use of
this element of the remit and the type of case in which it has been
used in the past. In some cases, a swift investigation by an existing
body with proven technical expertise into a set of circumstances that
requires urgent independent scrutiny might be a very useful
method—indeed, the best method—of getting to the bottom
of what has happened. That is the purpose of having the powers set out
in the clause in the Bill at
all.
For
example, in 2004, the prisons and probation ombudsman investigated a
major fire and disturbance at Yarl’s Wood immigration removal
centre that happened suddenly one night. It obviously caused a lot of
concern and needed a swift, independent look at what had happened.
Other examples of what the ombudsman has been asked to investigate
include attempted suicides in prison that resulted in serious injury
short of death. The purpose of the clause is to continue the current
practice— which is not set on a statutory basis—of the
prisons and probation ombudsman that he can be asked to investigate an
incident of concern on request by the Secretary of State. We are merely
replicating that in the statutory
provisions.
Investigations
under clause 37 will, by definition, be special commissions from the
Secretary of State. That is why it provides for the Secretary of State
to give the commissioner directions as to the matters to be
investigated—the terms of reference or the overall remit.
“Will you go and have a look at what happened at Yarl’s
Wood last night?” is the sort of direction that we anticipate
the Secretary of State will give. It would then be for the commissioner
to decide precisely the scope of the his action and how he does what he
does.
Mr.
Heath:
That is not what the clause
says.
Maria
Eagle:
That is what it says in subsection
(10).
However,
we recognise that it will be important for the commissioner to be
consulted by the Secretary of State before commissioning an
investigation. Obviously,
the Secretary of State will want to hear whether the commissioner thinks
that he can do something that suddenly comes up. We would not want to
ask him to do something without being clear whether he can carry out
the commission. That is why the provision makes reference to the
commissioner being consulted by the Secretary of State. It is clear
that the commissioner can determine the scope of and procedure to be
applied in the investigation that he then undertakes. We believe that
that will give an appropriate balance of powers and form the basis of a
viable relationship between the Secretary of State and the commissioner
for the purposes of the
clause. The
amendments tabled by the hon. and learned Member for Harborough would
remove the duty on the commissioner to carry out an investigation
requested under the clause. The result would be that the commissioner
would, in effect, carry out the commissions by agreement and could, if
minded to do so, refuse to carry out a particular investigation. I do
not understand how that would have helped in respect of Yarl’s
Wood, where an investigation was needed. The commissioner could just
say, “Well, I am not going to do it.” Clearly, the
commissioner has a great deal of independence, but the whole point of
the powers under the clause is to give the Secretary of State the
capacity to have an ad hoc, swift, independent but expert investigation
into a matter that cannot perhaps be easily
anticipated.
Mr.
Garnier:
I do not think that I heard the hon. Lady say
this—I hope that I did not—but is she suggesting that the
ombudsman needed to be directed by the Secretary of State to look into
Yarl’s Wood, or that he was utterly reluctant to do
so?
Maria
Eagle:
The ombudsman was asked to investigate on an ad hoc
basis. I am not absolutely sure that his remit at the time extended to
immigration removal
centres.
Mr.
Garnier:
On that basis, the example is not terribly
useful.
Maria
Eagle:
The point of the example and the clause is to make
it clear that, occasionally, it is in the public interest and necessary
for the Secretary of State to be able to respond to an incident, which
was unforeseen and presents great public concern, with a swift sending
in of independent expertise that can report on what has happened within
a short time.
Clearly,
the generality of the clause is about giving the commissioner the power
that the current prisons and probation ombudsman has to investigate
complaints and deaths. Perhaps a better example than Yarl’s
Wood, where deaths did occur, is a case involving a near-death. There
have been several cases of people attempting suicide, not dying and not
necessarily making a complaint—Indeed, some might not have
recovered consciousness and could not make a complaint. The ombudsman
can only investigate complaints from individuals within the custody
setting, and deaths. There are circumstances in which the Secretary of
State might want to ask him to investigate matters that are not
technically within his remit, but which he has the expertise to
investigate and on which
he could produce a good, swift, independent report. The arrangements
already exist; we are just putting them into statute. There is no
question in this part of the remit of the Secretary of State telling
the commissioner what to say or what not to look at, because the
commissioner will be determining the scope and the way in which he
carries out the investigation into what he has been asked to
investigate. 10.15
am
The issue here
is about matters that are partially out of the
commissioner’s remit—that do not involve deaths or
complaints—that the Secretary of State would like him to look
at. The Secretary of State will consult him first and then ask him to
take a look. He will be able to get on with his usual job,
independently and will himself determine how to proceed. He will then
write a report, which will be published. The sinister interpretation
made by Opposition Members is not the intention or the import of the
Bill. I hope that the hon. Member for Somerton and Frome accepts
that.
We do not seek
to enable the Secretary of State to fetter what the commissioner would
say in these circumstances. Rather, there will be a proper consultation
about the technical possibility of doing an investigation that the
Secretary of State might, on an ad hoc basis, wish the commissioner to
look at. That would be done swiftly, and the commissioner would then
get on and do the job. There is no more to it that that. I hope that
that persuades the hon. Gentleman—we will find out soon whether
it
does.
Mr.
Heath:
This is one of those Humpty-Dumpty moments where we
are invited by a Minister to look at words that are written on the
paper, and construe them in the opposite way to how any other person
would understand them. I return to subsection (10). How can the
words:
“Subject
to any directions given to the Commissioner by the Secretary of
State”,
be construed in
any way other than as a potential—I must say
potential—limit to the commissioner’s discretion to
determine the scope of and the procedure to be applied to an
investigation and a decision? Had it said,
“following a direction from the
Secretary of State”,
I
might have been able to understand the Minister’s point, but it
says,
“Subject
to any directions...by the Secretary of
State”.
Despite the hon.
Lady’s suggestion that I am incapable of reading the clause in
front of me, those words cannot be interpreted as being anything other
than an overlying control of the discretion on the part of the
Secretary of State. If it is her intention to state the wide discretion
available to the commissioner, she would be better off leaving those 10
words out altogether. In that way everybody would be clear that a
direction would be given by the Secretary of State, and that once it
had been given it would be for the commissioner to determine the scope
and nature of the investigation. I invite the hon. Lady to consider
that before Report.
Mr.
Garnier:
I thought that the debate would be quite clear,
but it has become rather more muddled as we have moved along. There
will not be any reluctance
on the part of the commissioner—certainly not the commissioner or
ombudsman who gave evidence at the evidence session—to
investigate matters that are within its remit. In the same way, there
has been no reluctance on the part of prisons inspectors—Her
Majesty’s chief inspector of prisons, the chief inspector of the
constabulary or of the probation service, or all the other senior
inspecting officials—to investigate matters within their remit.
The only reluctance comes from Ministers. This is not a party political
point. I am sure that in the last Conservative Government there were
occasions when my colleagues would have preferred things not to have
come out and when they did come out, preferred them not be
investigated, but that is not the point. The point is that when things
go wrong and offices are created to investigate things that go wrong,
they should jolly well get on and investigate them and not feel in the
least bit inhibited. There is a confusion: the Bill will give the
commissioner the powers of a High Court judge to summon people and
documents. Whether he can summon the Secretary of State or summon
documents from his Department it will be interesting to find out in due
course, when he sends a request to the Secretary of State using the
powers given him in the Bill.
The Minister seems to be saying
that clause 37 is essentially about ad hoc investigation. If the
Government want to use the office holder to carry out a particular
function on an ad hoc basis, they are appointing the man and not the
office holder. We must distinguish between the office of the
commissioner and the individual office holder, who may or may not be
requested to hold an inquiry, in the same way that a judge or a
chairman of a statutory inquiry might be requested to do so by the
Government. When we have a train disaster, the Government often set up
either a judicial or other statutory inquiry, but that does not affect
the position of the coroner as an office holder. In the clause, the
Government are saying that there may be circumstances in which they
want particular investigations to take place. I am not suggesting that
the Government should not be enabled to cause particular people to
carry out particular investigations, but it is not apt to do so under
clause 37.
My
suspicion, which has not been allayed by the arguments put forward by
the hon. Lady either in response to me or the hon. Member for Somerton
and Frome, is that the Government want the Secretary of State to have
some form of direction, a power of control, over matters that the
commissioner should look into. I do not think that that is right;
either we have an independent commissioner or we do not, and on the
face of the Bill we do not.
I shall not press the amendment
to a Division, but I urge the Government to be clear in their thinking.
To elide functions and to allow confusion to exist, either because the
Government want that to happen or because they have not thought about
it, is not a sensible way to make legislation. As I am happy to tell
the Minister of State, this a plum-duff of a Bill. It is a complete
meccano set of lots of different things bolted together; it is an ugly
Bill and a badly-designed one. We should be even more careful when we
have a Bill of this nature not to make mistakes and not to allow the
Government to put things in that they have not properly thought
about.
As a condition of my withdrawal
of the amendment, I ask the Government to think a little more carefully
before we have to deal with this sort of measure in
future.
Maria
Eagle:
I am happy to undertake to do
that.
Mr.
Garnier:
I beg to ask leave to withdraw the
amendment.
Amendment, by leave,
withdrawn.
Clause 37 ordered to stand
part of the
Bill.
| 
