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Lord Beaumont of Whitley: My Lords, I must apologise to the House for the second time this week for having arrived late for a debate in which I was taking
 
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part. I come here by public transport, and obviously must re-examine what I thought were the already very generous margins that I allow for the time that it takes.

I am fortunate to be sandwiched in the list of speakers between the noble and learned Lord, Lord Fraser, and the noble Lord, Lord Norton. I was fascinated by what the noble and learned Lord had to say, and look forward very much to hearing the noble Lord, Lord Norton, who I think will have a lot to tell us about how we should approach the Bill.

I join noble Lords in deploring the fact that the Bill has been brought in before we have had the benefit of the committee in another place. Given the amount of legislation that we are promised, it seems unnecessary that the Bill has been given such priority. However, it has, and I have been asked to oppose it. As your Lordships know, to oppose the Bill in this House would be counterproductive, but we have to amend it very seriously and need to devote a lot of time to it.

I am persuaded by the noble Lord, Lord Goodhart, that it is right that a Minister set the terms of reference for the inquiry. Like him, however, I challenge the fact that the chair has no power to seek any alteration to the terms of reference, and that a Minister is under no obligation to consult anyone about them.

We must look very carefully at government control over access, disclosure and publication of evidence. Although the chair will have the normal powers to decide whether hearings are held in public, to order disclosure of documents and to publish material given in evidence, a Minister will also be able to tell the inquiry what to do. A Minister can issue a restriction notice at any time before or during an inquiry about any of those matters for a variety of reasons, including that he or she considers it to be,

That is a very broad term. It is true that "public interest" is to be defined or expanded in the Bill, and that is a help to us. But I am not sure that "the economic interests" of the country and "commercially sensitive information", about which I am always very dubious, should be among the items which are said to be in the public interest.

I agree that the Freedom of Information Act should definitively be applicable to the provisions of the Bill. The noble Lord, Lord Goodhart, mentioned laying the results before Parliament. I do not see why inquiries should no longer have the power to attribute civil or criminal liability, as in Clause 2. That seems to me unnecessary, and it is probably something which they should have the power to do. I do not like the Minister having the power to stop an inquiry before it has delivered a report and not having to give any reason for doing so.

I have already mentioned the proposal that it should be possible to withhold evidence from an inquiry in order to avoid the risk of damage to the economy. I find that very difficult to swallow.

I turn to the limitations on inquiries in Scotland and Wales and the fact that, on the whole, there are all kinds of things which they are not allowed to consider
 
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unless they specifically involve Scotland and Wales, the same being true of Northern Ireland. I believe that that is probably unnecessary, and we need to look at the matter in detail.

We also need to consider the danger to existing inquiries. The Minister will have the power to convert any existing inquiry involving public concern to one governed by the Inquiries Act and to alter the terms of reference. The Minister can also sack any member of the inquiry panel on a number of grounds. Thus, if a Minister does not like the way in which an inquiry is developing or how a member is acting, he or she can change it, even applying the Act retrospectively.

I believe that the Inquiries Bill is introduced at the wrong time. In conception, it is probably a good idea, but it appears to contain an enormous amount of very strong anti-public interest and anti-public access clauses, at which we need to look very carefully before we allow it to pass into law.

Lord Norton of Louth: My Lords, this is a relatively short Bill and it may appear a straightforward administrative measure. However, it is a Bill of some constitutional importance and one that requires significant attention by your Lordships' House.

I accept, as other noble Lords have done, that there is a need for a measure to replace the Tribunals of Inquiry (Evidence) Act 1921 and the other legislation that has grown up on public inquiries. I welcome particular provisions of the Bill. However, like my noble and learned friend Lord Howe of Aberavon, I have a number of concerns about it, and I shall identify what I believe to be the most salient.

First, I am concerned that the Bill has come forward without any prior consideration. Given that it is a measure of constitutional significance and that the Government have published a consultation paper, I see no reason why the measure should not have been published in draft and have been subject to pre-legislative scrutiny. The Deputy Leader of the House of Commons has previously stated that,

and has made it clear that it is the Government's intention and policy to increase the amount of legislation that is subject to pre-legislative scrutiny. This Bill would seem an obvious candidate for such scrutiny.

Secondly, and related to the first point, like my noble and learned friend Lord Howe of Aberavon and the noble Lord, Lord Beaumont, I am worried by the fact that the Government have brought forward this measure without waiting for the report of the Public Administration Select Committee in the other place. That committee has been examining the subject for some time; indeed, it has been taking evidence this morning. Although there is a need for a Bill, I am not convinced that the need is so compelling that it should be brought in ahead of the report of that committee.
 
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Thirdly, coming to the substance of the measure, I am concerned that the Bill vests too much power in the hands of a Minister and does so at the expense of Parliament. This is an important constitutional point. As we have already heard, under the provisions of the Bill, the 1921 Act is repealed. Under the 1921 Act, a resolution of both Houses of Parliament declaring that it is expedient that a tribunal of inquiry be appointed to inquire into a matter of "urgent public importance" is necessary before Her Majesty or a Secretary of State can appoint a tribunal of inquiry with the same power to compel witnesses to give evidence as are exercised by the High Court. Under the Bill, Parliament is excluded from the process. Clause 1 vests the power to set up an inquiry solely in the hands of a Minister.

I have seen a copy of the letter from the Minister, the noble Baroness, Lady Ashton, to the British Irish Rights Watch organisation, in which she justifies the exclusion of Parliament on the grounds that inquiries under the 1921 Act are the exception rather than the rule. That point has already been touched upon by noble Lords. However, that is not an argument for excluding Parliament from the provisions of the Bill. The inquiries set up by Ministers without parliamentary sanction do not usually exercise the powers conferred under Clause 19 of the Bill. Given that, the logical read-across from the 1921 Act is to require Parliament's approval before the powers can be exercised.

Fourthly, as the noble Lord, Lord Maginnis, said, the power to cause an inquiry to be held is essentially all-encompassing. Under Clause 1, the Minister can establish an inquiry in relation to events that have, or may have, occurred and have caused, or are capable of causing, public concern. As it is difficult to think of anything that does not have the potential to cause public concern, a Minister can trigger an inquiry on anything. The Explanatory Notes state:

The topics covered in inquiries may have been diverse, but it does not follow that one cannot generate criteria that have to be met before an inquiry is called—a point that I made in evidence to the Public Administration Committee and to which I shall return.

Fifthly, the Minister's powers in respect of who is to serve on the inquiry and the powers that it may exercise are far too broad. Not only can the Minister establish an inquiry on any topic; he or she can decide who is on it, what their terms of reference are and what restrictions may be imposed on attendance and on disclosure of information. In certain and limited cases, there is a duty to consult or to have regard to particular considerations, but none of these provisions prevents a Minister proceeding in whatever way he or she wishes.

Sixthly, the Minister not only has certain powers to suspend an inquiry and to end an inquiry before it has reported but also has the power to convert existing inquiries into inquiries under the terms of this measure and to change the terms of reference. That, in effect, extends a Minister's powers and introduces a
 
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retrospective provision. The scope and retrospective element are causes for concern. The Explanatory Notes state:

That may not be the intention, but there is no prohibition under the terms of the Bill.

Seventhly, not only is the Minister empowered to set up an inquiry without any involvement of Parliament; there is also no involvement of the Council on Tribunals. Instead of the council, which is independent of the Minister, having an oversight capacity, the oversight is exercised by the Minister. Paragraph 14 of Schedule 2 to the Bill amends the Tribunals and Inquiries Act 1992 in order to bring about this result.

In short, I believe that the powers conferred on a Minister are too extensive, cutting out a role for Parliament and giving a Minister the capacity to interfere once an inquiry has been established. Neither of those elements is acceptable.

How are these matters to be addressed? I shall deal, first, with the issue of process. In the recent report from the Constitution Committee entitled Parliament and the Legislative Process, the committee, which I chaired, recommends that at some stage during its passage, each Bill should normally be considered by a committee empowered to take evidence. Given that this Bill has not been subject to pre-legislative scrutiny, perhaps the Minister can explain what plans the Government have to ensure that the Bill is properly considered by an evidence-taking committee. It will also be helpful to hear from the Minister why the Bill has been brought in ahead of the report of the Public Administration Select Committee in the other place.

I come to the contents of the Bill. I believe that it needs to be reworked so that two basic principles can be met: first, that the basis on which an inquiry can be called is clearly stipulated; and, secondly, that an inquiry, once appointed, shall be independent of the Minister.

In my evidence to the Public Administration Select Committee, I argued that there should be a checklist for determining whether an inquiry is the most appropriate mechanism for considering a matter of public concern. The checklist, I suggested, could cover questions such as the following. Is the problem clearly defined? Does it have clear implications for public policy? Is the level of public concern sufficient to justify triggering a public inquiry? Is there an established alternative available? Have other possible avenues been exhausted? Do the potential benefits of an inquiry justify the costs? I use those as illustrative questions, but I attach particular importance to the last two.

There are sometimes problems with Ministers declining to set up inquiries despite considerable pressure to do so. However, there is also the danger of a Minister establishing an inquiry as a means of circumventing parliamentary investigation. The conditions under which an inquiry of the sort envisaged in the Bill can be held
 
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must be stipulated more precisely, with the Minister required at least to satisfy certain criteria before establishing an inquiry.

In order to ensure the independence of the Minister, I believe that there must be more involvement of others in the appointment of the members of an inquiry and that, once appointed, it must be a matter for the inquiry as to how it sets about fulfilling its terms of reference. Those provisions giving the Minister power to remove members, to terminate the inquiry, and to issue restriction notices covering such matters as access and disclosure, should be amended or stripped out of the Bill. An inquiry must be independent and, crucial for the purpose of public confidence, must be seen to be independent. The provisions of the Bill do not ensure that this basic requirement is seen to be met. Given the powers vested in a Minister, one has to wonder who would accept appointment to serve on an inquiry if independence were not guaranteed.

I would thus remove the provisions giving a Minister power over an inquiry once it has been appointed. In my evidence to the Public Administration Select Committee, I endorsed the idea of an inquiries unit being set up within government. Given the provisions of this Bill, I believe that there is a case for maintaining and, if necessary, extending the role of the Council on Tribunals. At present, the council must be consulted before procedural rules are made for any tribunal specified in Schedule 1 to the 1992 Act, it must be consulted before any exemption is granted from the requirement in Section 10 of that Act to give reasons for decisions, and it may make general recommendations to Ministers about appointments to membership of scheduled tribunals. Given the nature, composition and experience of the council, not only should its oversight role be retained, but it should also have a statutory role to be consulted before a Minister may set up an inquiry.

On other provisions of the Bill, I believe that an inquiry should normally comprise a panel of three or more members. Although there have been some excellent reports emanating from inquiries undertaken by individuals, there is the danger that an individual may miss a particular point or may not have sufficient grounding in all aspects of the subject to be able to assess the evidence appropriately. Although drawing on an eminent person may invest a report with some authority, it may serve also to detract attention from the substance of the report or encourage critics to level criticisms at the individual rather than at the reasoning of the report. As the Constitution Select Committee noted in its report on the regulatory state, the practice in terms of establishing regulatory bodies is to appoint boards, rather than individuals, and the same approach should be adopted for public inquiries.

There are other provisions that require attention, including those governing the appointment of judges to chair inquiries. However, I think my comments, like those of other noble Lords, are sufficient to identify the limitations of the Bill. It is clearly a measure that would have benefited from pre-legislative scrutiny. I fail to see why it is being brought forward now. If it is to be proceeded with, it requires the most detailed scrutiny and, I fear, considerable amendment.
 
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12.44 p.m.

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