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Lord Goodhart: My Lords, we broadly welcome the Bill. We believe that it simplifies and consolidates existing legislation on public inquiries, and that this is a desirable objective. But, as is to be expected in cases of this kind, we have a number of concerns.
It is clear that someone must initiate a public inquiry, and that person will almost always be a Minister. The only serious alternative to a ministerial inquiry would be an inquiry by a parliamentary Select Committee, and such Committees do carry out some investigations. However, there are serious defects in that procedure. That became evident to me when, as a member of the Committee on Standards in Public Life, I looked at the handling of complaints against Members of Parliament by the Committee on Standards and Privileges in the House of Commons. The cross-examination of witnesses by committee members was chaotic, and to be effective, a committee would have to appoint counsel to cross-examine witnesses, as happens with committees of the Senate or the House of Representatives in the USA.
If the Minister, therefore, is the person to initiate an inquiry, it seems a necessary conclusion that the Minister must also be the person who decides on the terms of reference. It would be wrong to give an outside body power to impose terms of reference on an unwilling Minister. That would discourage Ministers from setting up inquiries which are usually set up in response to public demand.
We have received some briefings which are critical of the Minister's unfettered power to decide the terms of reference, but no viable alternatives have been suggested. It is, of course, plain that the Minister should consult widely on the terms of reference, but it is right that the ultimate responsibility should rest with the Minister, who is accountable for his or her actions in office to Parliament and the electors.
One concern is that the Bill provides no role for Parliament. At present, there is no need for parliamentary authority for an inquiry unless the inquiry is being set up under the Tribunals of Inquiry (Evidence) Act 1921, in which case resolutions of both Houses are needed. But, as the Minister pointed out, that Act has been used infrequently—only 24 times, in fact, since 1921. The only current inquiries held under the Act are the Bloody Sunday and Shipman inquiries.
Most inquiries are non-statutory or come under other statutes containing powers to set up an inquiry. I therefore do not believe that there is a general necessity to obtain parliamentary endorsement for the setting up
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of an inquiry. That is an executive, not a legislative, act. But Parliament should be kept informed, and I believe that whenever an inquiry is set up, the Minister should be required to lay before Parliament a Written Statement on the terms of reference, the setting-up date, and the names of the chairman and of any other panel members who have been appointed before the date of the statement.
There is one issue on which I have somewhat more concern about the lack of parliamentary involvement. Under the Bill, any inquiry, including those which until now have been non-statutory, can require the production of evidence or documents under Clause 19. Failure to do so is an offence under Clause 32, and could be dealt with by a court as contempt under Clause 33.
An inquiry is not a court, and the effect of the legislation will be that the chairman of the inquiry can insist on the production of evidence and documents which the Minister could not obtain directly by other means. That seems, at first sight, to raise some constitutional concerns. I would have been tempted to insist that the notice under Clause 19 should require some kind of parliamentary authority. However, the current position is that most, if not all, statutory provisions for inquiries—such as the ones mentioned by the Minister and Section 250 of the Local Government Act 1972—provide that evidence can be obtained for an inquiry and do not require any prior authority from either Parliament or a court. It would be difficult to justify imposing an obligation to obtain parliamentary orders where no such obligation now exists, or to treat some inquiries as requiring such authority but not others. I may well put down an amendment to obtain a further debate on this serious issue in Committee.
There is one other issue which I regard as probably the most important; it is the most serious criticism of the Bill. I refer to the nature of the power to maintain secrecy by restricting public access to the hearings and the evidence and, more importantly, by the possibility of withholding parts of the report from publication. I can of course see circumstances in which withholding evidence or part of the report could be justified. For example, that might apply on questions of national security or when a report contains information about a vulnerable individual. But I believe that the powers in the Bill are too wide in that regard. Since the whole purpose of the inquiry under Clause 1 is to investigate matters of public concern, there must be a strong presumption that reports should be published in full in order that public concern may be either allayed or shown to be justified.
Therefore, the powers in the Bill to maintain secrecy over evidence or over parts of the report are too wide and need further restriction. In particular, I should like evidence and reports to be brought within the scope of the Freedom of Information Act 2000, so that after the report has been published, any withholding of documents or of unpublished parts of the report can be challenged before the Information Commissioner. I also believe that reports, as with the initial statement, should be laid before Parliament when published.
I have a number of other points. First, the Bill contains no power to modify the terms of reference after the inquiry has begun. It is not uncommon to find
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that after the inquiry has started there is a need to extend its scope. I can see advantages in allowing the Minister to vary the terms of reference during the course of the inquiry, if that is done at the request or with the consent of the panel. It has been suggested that the Minister could achieve that result by terminating the existing inquiry and restarting with new terms of reference, but that seems an altogether unnecessarily complicated procedure. Secondly, there are concerns about the power to convert existing inquiries to inquiries conducted under a different set of rules and, perhaps, with different terms of reference.
I have one or two minor matters to raise, but I do not believe that they are worth raising today. I shall raise them in Committee. This is a useful Bill that will improve our system of inquiries, but it contains issues that will need further examination in the later stages of its passage through your Lordships' House.
Lord Howe of Aberavon: My Lords, unhappily, as I respect the way in which the Minister handles so many issues in this House, I must be less welcoming to the Bill than the noble Lord, Lord Goodhart. My first anxiety relates to the publication and consideration of the Bill at this stage, when the consideration of the whole topic by the Public Administration Select Committee has not concluded its examination or report. It has had to resort to delivering a letter, which reached me this morning and which I have copied for the benefit of my noble friend Lord Kingsland, so that he may be aware of it. I cannot understand the need for the helter-skelter rush towards this House with this legislation.
On 6 May, the noble and learned Lord the Lord Chancellor, in his foreword to the consultation document, said:
"We will be co-operating fully with the Select Committee's investigation, and hope and expect that useful conclusions will flow from it".
Therefore, it seems premature in the extreme to offer his own approach to the matter without awaiting the arrival of those conclusions. They are of enormous importance. The committee will take account of the evidence given to it by my noble friend Lord Norton, as well as by myself, which was printed only in September. The matter is very serious and casts a shadow over the whole of the Bill.
The second matter relates to my anxiety that the belief here is that long and substantial legislation will solve most of the problems that have arisen with inquiries. In my judgment, almost all the problems that have arisen are not addressed by the Bill. The Bill, although difficult to challenge intellectually, is enormously comprehensive and a manifestation of what I call "legislative lust". The noble Lord, Lord Carlile of Berriew, not long ago wrote an article that will take us into fanciful territory. He said, of the Queen's Speech:
"My fantasy is of a speech in which her Majesty announces NO legislation for a whole session, an opportunity to draw breath and consider maturely what we have, rather than . . . debate what we think we must need".
Considering that, as the Minister explained, deliberations have been going on with regard to the subject of the Bill since at least 1973, a few weeks more to listen to the Select Committee in the other place would have been prudent, to say the least of it.
My other anxiety is that the structure of the legislation is psychologically linked with another contemporary disease, which I call "giantism"—the belief that by rolling everything up under one great umbrella one somehow provides a framework for issues to be addressed sensibly. I cite in that regard Ofcom, Ofwat, Of-everything, Oftoff, as well as the structure to consider human rights in the field of sex, disability, race and perhaps, who knows, religion as well. The Bill suffers from that misapprehension. It also disturbs the existing landscape. Schedule 3 repeals provisions from almost every regulatory statute that exists. People working in the fire service or the police have become accustomed to working within the legislative framework that they have. They will come to this Bill wondering where to start. So I am anxious about the entire psychology behind the Bill.
Another disturbing feature, which is a consequence of the same approach, is the impact of the Bill on some of the people most concerned about these matters. The noble Lord, Lord Goodhart, referred to representations that he had received from Northern Ireland and from Justice, all of which perceive a conspiracy theory behind the Bill. They believe that it extends the powers of government into every nook and cranny and enables government Ministers to override provisions that they ought not to be able to override.
I would not go as far as that, but I have had an intimation from someone with long experience of many years of inquiries of the kind dealt with in the Bill. I do not think that I can identify him, because I have not been able to establish his consent. This man of immense reason, discretion and wisdom sent me this comment:
"The arrogant authoritarianism of this proposed measure peers out from beneath every slippery stone in it".
That is a notable mixed metaphor—but if that is the impact on a mature judge, one can well understand the impact on more ordinary citizens.
The Bill gives powers to the Minister to dismiss, replace, regulate and inhibit access and, above all, limit publication. The definition of "Minister" includes any and every Minister of the Crown, whatever his status. That really is granting a huge blank cheque over "independent public inquiries". I rather wonder at the comparison between the upheaval that has been taking place in the Lord Chancellor's Department in order to ensure the separation of powers and the intermingling of powers in this Bill. Powers to change the structure of an inquiry, to change its terms of reference and to sack the chairman or replace him are all in the hands of the Minister—albeit that when he sacks the chairman he is at least obliged to consult the chairman. There is a remarkable comparison to be made with the way in which the Government have approached the larger question.
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I share in particular the concern about the power to limit publication expressed by the noble and learned Lord—I keep on calling the noble Lord, Lord Goodhart, learned, and he is when he is not in this House. I can cite my own experience in one of the inquiries with which I was closely concerned into the events at Ely hospital 30 years—a long time ago. We were appointed by the Welsh board of health. We delivered our report and were confronted by the entire board, who suggested that we should rewrite it with a summary of the central conclusions, as that was all that they expected. My colleagues and I resisted that invitation. We produced a report along those lines, but we included in it a closing paragraph to say that we could not refrain from protesting at the editorial influences that had been brought to bear on us, which we considered we must draw to the attention of a wider public. Happily, all the material was transmitted to Richard Crossman, one of whose most notable acts was to publish the whole of our original report. Therefore, it is understandable that there should be anxiety about the extent of that power.
I also share the concern expressed by the Commons Public Administration Committee at the disappearance of the 1921 Act. I do not argue at all with the fact that it may need to be brought up to date, but I believe that the existence of a power that can be exercised by Parliament, and only by Parliament, remains useful. It is, incidentally, an answer to the concerns expressed by the noble Lord and, indeed, by the Minister herself, about the shortcomings of parliamentary Select Committees. I entirely agree that, in the investigation of misbehaviour and misdeeds, having the power of cross-examination scattered among 12 Members of the Committee does not induce successful cross-examination. However, I believe that Parliament should retain the right to play a part in the appointment of more important inquiries of this kind.
The real problems with which we should be concerned arise not from the absence of rules but almost always from the failure of judgment in the exercise of existing conventions and rules, either in the appointment of the inquiry or in the performance of the members of the inquiry. A host of inquiries are conducted without regulation from outside and give rise to no complaint. I refer to those in the health service and many other specialised services. However, one must acknowledge that those that have given rise to anxiety are principally those under the chairmanship of the noble and learned Lords, Lord Hutton and Lord Scott, and, at least in relation to expense, that under the chairmanship of the noble and learned Lord, Lord Saville.
Some of the most important inquiries conducted under the 1921 Act—for example, the Aberfan inquiry, which dealt with a very sensitive issue—were conducted without any public complaint about it at all. I had the privilege and burden of appearing before that inquiry. The Waterhouse inquiry, which examined immensely sensitive matters in north Wales, was again appointed under the 1921 Act but was conducted without complaint of injustice. The faults, if I may summarise them briefly, have been the shortcomings of judgments given by solo chairmen. That applies to the Hutton inquiry and to the
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Scott inquiry. I am glad to note that the Public Administration Select Committee recommends a wider inquiry.
I shall not dwell on the extent of the powers given to the Minister under the Bill, but it seems to me that they go a great deal too far and deserve a great deal more examination. The remedy that is needed—we may be part of the way towards achieving it—is the existence in government of a unit with specialised knowledge drawn from the experience of years—which I have been told now exists in the Cabinet Office. It would avoid the faults of appointing the wrong people and appointing a wrongly composed tribunal. If that wisdom is available, the need for such detailed regulatory control is not made out, and certainly it has not been made out in a manner that satisfies both Houses of Parliament. The Commons Select Committee is still considering the matter.
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