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Lord Maginnis of Drumglass: My Lords, I certainly cannot speak about this Bill with the experience of the noble and learned Lord, Lord Howe. However, I have to ask at the outset: why are Bills now brought before this HouseI have been associated with another place and here for more than 20 yearsthat are little more than frameworks for legislation? The problems do not appear to be thought out and understood before those Bills come before this House.
I envisage that with this legislation we shall find ourselves in a similar situation to that which occurred when the Civil Partnership Bill was brought before this House. Literally hundreds of government amendments had to be tabled before we could get something that made the slightest sensenot that I think that measure is a great asset but that is another matter. It is important to bear in mind that this Bill puts in place a framework of procedures for setting up inquiries but it does not give guidance regarding the circumstances in which an inquiry should be set up. There are no criteria save for those in Clause 1. The power to establish an inquiry is left entirely to the relevant Minister and there are two considerations onlythat,
"particular events have caused, or are capable of causing, public concern, or . . . there is public concern that particular events may have occurred".
I believe that we need something much more specific regarding why an inquiry should be established in the first place.
Thereafter, everything is the gift of a Minister. As a consequence of that nothing would, for exampleI refer to something that was mentioned in your Lordships' House earlier todayguarantee the holding of a Deepcut inquiry. There is nothing that would restrict expenditure on something like the Bloody Sunday inquiry. Recently I read an article in the Independent in which Queen's Counsel who were engaged in that £155 million inquiry said that it had cost far too much.
If we do not have control, that may not appear here in England or, indeed, perhaps in Wales and Scotland, to have the far-reaching effect that it would have in Northern Ireland where, unlike the other three regions,
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there is a degree of corporate responsibility and one might reasonably expect that a Minister would consult his colleagues before deciding to have an inquiry. But would that happen in Northern Ireland? I fear that it may not. I cite an example of the kind of thing that may happen. I draw attention to the Parthian shot of Minister Martin McGuinness when the Assembly was being wound up. Without any consultation whatever with colleagues and without any sense of corporate responsibility he made a decision which had a far-reaching effect on education, and especially on that particularly successful stratum of educationour grammar schools in Northern Ireland. That was highlighted by the response to a question that I asked on whether an infrastructural audit or cost assessment had been carried out in respect of some of the proposals that were brought forward. I was told that there had been no such infrastructural audit or cost analysis. I am sorry if I appear to stray but I consider that this is a very good example of arbitrary activity by a Minister in Northern Ireland. I can find nothing in this Bill that guarantees that we will not find ourselves going down that road.
Perhaps Clause 24(7)(c) should be amended so that nothing could happen in Northern Ireland without a prior seal of approval from the First and Deputy First Minister, acting jointly. To fail to put in that safeguard would lead to a form of almost legalised anarchy in terms of some of the problems that could arise because of the particular nature of proposed devolved government in Northern Ireland.
I turn to a related matter. Although this Bill imposes geographical restrictionswe deal differently with Wales, with Scotland, with England and with Northern Irelandthere is no restriction on areas of responsibility, so that we could find, for example, a finance Minister triggering an inquiry on a matter that related specifically to health. Or we could find the Minister with responsibility for health triggering an inquiry that was to do specifically with an employment, environmental or educational matter. That surely is not going to be of any advantage to those of us who live in Northern Ireland and want to see devolved government brought forward in some sort of constructive way, where we reduce the tension between our traditions in Northern Ireland rather than put a dangerous weapon in the hands of an unscrupulous Minister. Let us remember that the way in which our Ministers will be appointedon a d'Hondt systemdoes not give the corporate responsibility that one might expect an opportunity to flourish.
I shall refer briefly to one or two other issues. I am concerned by the compulsion that Clause 19 may place on people to come before an inquiry and be obliged to participate in it without the safeguards that those people would have if they were forced to come before a court. I think that there is a difference and I should like to see introduced into the Bill some safeguards.
Can the Minister assure us that inquiries will be able to be as independent as we would like them to be? We know that if we were appointing a judicial figure, as in the case of the Hutton inquiry, we would be very likely to find someone who would not be swayed by
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supposition, conjecture or media speculation, but in the type of inquiry as is envisaged, it is possible that that would happen. We need reassurance on that.
I am unhappy with that as I am with many other issues. I am unhappy mostly that this Government seem determined to bring forward Bills that are not complete and do not give us a reasonable basis for amending them in the first place.
Lord Fraser of Carmyllie: My Lords, while I share some of the reservations which my noble and learned friend Lord Howe has expressed, it would be churlish of me not to say that I welcome this Bill. If I have a grumble about it, I would have preferred it to have been in place some years ago, when I had cause to want to have some of the powers that are included in it.
That the public have preferred discretionary inquiries in the past seems a perverse reaction. As soon as one decides that a statutory inquiry is required, for perverse reasons, the public do not like it. I shall come to a particular example of that. So I am pleased to see this Bill before us and I hope to participate in Grand Committee as it passes through this House.
Until relatively recently, I was engaged in an inquiry in Scotland, appointed by the First Minister of Scotland and the Presiding Officer, into the cost overrun of the new Parliament building at Holyrood, which went from a mere £50 million to £431 million, and it was running three years late. In such circumstances, I was appointed on a non-statutory basis. I do not criticise the Scottish First Minister for that. I did not want to have powers under the Tribunals of Inquiry (Evidence) Act because I feared that I was likely to have something like nine Silks in front of me. The cost of that to the public purse would have been very considerable indeed. Particularly as it was an inquiry that was looking into the cost of things, it seemed to be incumbent on me to attempt to keep costs down to the minimum.
But I encountered a problem. It came to my notice that the BBC had a film of the late Donald Dewar and the late Senor Morales, who was architectthe two key players in the building of this new Parliament. Although the BBC had this film, it refused to let me have access to it or any details of it. I could not compel it to hand it over to me because I did not have powers under the 1921 Act.
If I had been asking the BBC to give me the name and address of, let us say, a cameraman in Northern Ireland who had had the occasion to film a riot, I would have desisted immediately, but the BBC want these films and interviews to show to the great British public this month or next month. It seemed to be positively obstructive in such circumstances to deprive me and my inquiry of access to film where the two people involved were both dead and I had no opportunity otherwise of discovering what they might have said. So I welcome the way in which the Bill is structured and the opportunity that it would have given to someone like me to have gone back to the Minister and said, "Will you give me powers to compel
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witnesses or compel the production of evidence, because I haven't got it and it might be vital? I don't know".
As a rather peculiar consequence, I finished up by reporting to the Scottish Parliament in great detail, but had to say to it, "I have not concluded my report, because I cannot properly do so, in terms of my remit, until I have seen these films on the BBC this month or next month". I do not believe that the film is going to reveal anything new that I did not know, but I have to be cautious about it and take the step of keeping the inquiry open until that happens.
One aspect that seems to have been understated in this debate thus far is the extraordinary issue of cost. The Saville inquiry, when it concludes, is going to be probably the most expensive inquiry of modern times. Whether that level of cost was justified is a very real question.
The Bill is a little wobbly about that. It says that the chairman of the inquiry has to have regard to the costs to all partiesso far, so goodbut a later provision indicates that the Minister might have to pay costs of those who appear. As I understand it, it is the cost not only of witnesses but of representation. I suppose that, if anything, I would like the presumption that costs should not be imposed on the taxpayer to be more clearly stated somewhere in the Bill. Lord Salmon said in his report that, where parties are brought before the inquiry or have to come before it to look after their own interests, the taxpayer will pick up the tab.
That has led to some extraordinary costs. I remember with some disbelief one inquiry when an eminent Silk in Scotland took half an hour to establish that the M8 ran on an east-west axis between Edinburgh and Glasgow. It took an immense cross-examination to achieve that, particularly in view of the fact that we had all come along that road that morning to the inquiry. The taxpayer has to pick up such costs day after day, in terms of various inquiries, which is undesirable. Although I am not in favour of stealing bread from the mouths of lawyers, the House should look very carefully at the costs of inquiries.
Of course the 1921 Act has been there, but recent modern history will establish that it has been exceptionally difficult to get Ministers of any persuasion to accept that the very wide powers given under that Act should be granted to them. It has almost passed from being a practical way of dealing with inquiries, which has led to the proliferation of non-statutory inquiries over the years.
I have a couple of points that I would specifically like to raise. We went off the rails from the time of the Salmon report. Procedures under the Tribunal of Inquiry (Evidence) Act became so formalised and so like legal proceedings that they were effectively indistinguishable. I am not confident that that really helped us get to the truth on a number of matters. Once we have examination, cross-examination and rights of representation, it is inevitable that matters are less effectively examined.
I want to see a number of points examined in Committee. I do not ask the Minister to answer them now, but I shall give her warning of them. The
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presumption should be clearly stated in favour of publicity for everything. The clause should not deal with restrictions, but at least start with the presumption in favour of publicity. If there are to be restrictionsthere will be circumstances when they are necessarythat should be secondary. If I may say soI had no difficulty with itthe presumption should be in favour of broadcasting. I am rather surprised to see in the notes attached to the Bill the weight given to Article 8 of the European convention. If someone can sit at the back of an inquiry, it seems undesirable that the greater public should not be able to watch it at home in the evening on television. I would like some movement that way.
Again, I do not ask the Minister for consideration of a broader issue now, but she said that part of the Bill included a sort of codification of best practice. Clause 8 is an indication of that. If it is not a codification, it seems completely unnecessary. Of course the chairman of an inquiry has to act impartially; of course, if something comes to his or her attention subsequent to that, he will have to say to the Minister, "You will have to disqualify me from heading this inquiry". Effectively, that seems a codification of existing practice and judicial decisions.
Am I to assume that, if something is not codified in the Bill, it is abandoned? I would not be at all upset to see one issue abandoned, and some of those who have headed inquiries hold the same view. That is the dreadful Salmon letters that have to be sent to anyone who might be the subject of criticism in the report. Nothing causes more time and delay than the requirement to put out those letters. Effectively, I had to finish my report, go through it to see who might be criticised, refer to particular passages of evidence in the report, and send them out. Without mentioning any names, another colleague of mine in the law recently had very grave difficulties over his Salmon letters. I hope that we can examine that broader issue carefully.
Will the Minister explain very briefly the fate of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976? It provides for both mandatory and discretionary inquiries, and the relationship to it is not clear. I cannot find any reference to it. It is not entirely a non-issue; it was my problem when we had to look at the Lockerbie disaster. The inquiry was mandatory because the flight crew and cabin crew were killed during the course of their employment, but so far as the other people were concerned the inquiry was discretionary. The relatives of those killed on the flight wanted a much broader inquiry than was possible to be undertaken under that Act.
With those observations and, I hope, some experience of what has happened in the past, I take on board the reservations expressed but look forward to participating in the passage of the Bill.
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