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Lord Smith of Clifton: My Lords, on 1 April, responding to the Statement on the Cory report, I asked:

"Is there likely to be a future opportunity for this House to discuss the precise workings of the inquiries?".—[Official Report, 1/4/04; col. 1523.]

That question was not answered.

As other noble Lords have said, the Bill has raised many concerns, in particular the timing and the nature in which it has been introduced. Noble Lords have asked: why now, in advance of the Public Administration Committee's report? As the noble Lord, Lord Norton, said, why was there no provision for pre-legislative
 
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scrutiny, when the Bill seems eminently suitable for such treatment? His successor as chairman of the Constitution Committee, my noble friend Lord Holme of Cheltenham, wrote yesterday to the noble and learned Lord the Lord Chancellor, noting that the Bill had not had a White Paper as a precursor or any pre-legislative scrutiny. The consultation that occurred is not a substitute for either pre-legislative scrutiny or the publication of a White Paper.

The Bill is relatively short but very dense. It places an enormous concentration of power in the hands of a Minister. In her replies to the many bodies that expressed concerns, the noble Baroness, Lady Ashton, has been the model of reasonableness, as we would expect from her, but not all Ministers in future or even now, when initiating inquiries under the Bill, will necessarily display the same degree of reasonableness. The Bill is likely to last for some time, if history is to be repeated.

That concentration of powers is the major concern raised by the Bill. In the wrong ministerial hands, the Bill enables Ministers so to manipulate inquiries that more is concealed than revealed. We had an example today during Questions, when we saw the reluctance of the Ministry of Defence to be sufficiently open about the Deepcut allegations of bullying and abuse of young recruits. That reveals a much more common ministerial approach than the one adopted by the noble Baroness, Lady Ashton.

Although no one would not welcome a Bill that seeks to modernise and bring up to date the provision for inquiries to be held, it is vague in many respects. The noble Lord, Lord Maginnis, said that it was a framework Bill and a bit short on specifics. We will doubtless address those in Grand Committee, but we hear that one aspiration is to constrain the financial costs of such inquiries. The largest item in those costs is of course lawyers' fees. Can the Minister suggest how, in practice, those will be effectively contained? No one in the history of humankind has contrived a solution to that, so it is an ambitious aspiration. For example, will there be a limit on the number of days on which an inquiry can sit? Will there be a cap on legal fees, or what? That general aspiration is far too vague, and we need in Committee to consider how that will pan out.

So, as my noble friend Lord Goodhart said, we welcome the Bill in principle, but the devil is in the detail, and that we will consider in Committee. We are especially worried about the problem of transparency, on which many noble Lords have touched. As the noble and learned Lord, Lord Fraser, said, there must be a presumption of publicity rather than covert operations. As the noble Lord, Lord Laming, said, it must not be used as an excuse either to prevent the activities of central government being examined or—he put it more politely than I would—for Ministers to exempt themselves from any scrutiny. That is a particular worry for us, as is the short-circuiting of Parliament in the whole process referred to by the noble Lord, Lord Norton. That is not good enough, and it is a matter that we will also pursue.
 
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1.7 p.m.

Lord Kingsland: My Lords, I think that all your Lordships who have spoken in the debate have agreed that it is now timely to reconsider the Tribunals of Inquiry (Evidence) Act 1921.

I think that your Lordships are also agreed that it is a great shame that the Government did not wait until the Public Administration Committee in another place had reported on the matter. It has been examining the topic in depth, taking evidence and reflecting maturely on what ought to replace the 1921 Act. As several noble Lords have said, it would have been an easy step for the Government either to wait until the committee had reported or to introduce the Bill in draft form.

In any event, the Bill is only a partial response to the problem that the 1921 Act was intended to confront. The Bill, adequate or otherwise—I shall say something about that later—deals only with issues that do not involve either the principle of ministerial responsibility or, at one remove, the conduct of a ministerial department.

The core of the Bill is to shift the responsibility for establishing a public inquiry from Parliament to the Executive—a shift that is manifested in many other decisions that the Government have made during the past seven or so years. Be that as it may, how can it be appropriate for the Bill to apply where a fellow Minister in Cabinet or government has done something or not done something that justifies the establishment of an inquiry?

Under this Bill, it is the Minister who decides whether the inquiry will be established or not; it is the Minister who decides who shall sit on that inquiry; and it is the Minister who decides what the terms of reference of that inquiry shall be. How can that conceivably be appropriate where the relevant conduct is that of another Minister or even the department of the Minister in question?

There is therefore a gaping hole in this Bill because that whole topic—perhaps the most important topic of all when it comes to the establishment of public inquiries—is not addressed. There should have been an entirely separate clause in the Bill where the constitutional mechanism that was established by the 1921 Act should have remained. A resolution of both Houses of Parliament should be required for the establishment of any inquiry into the conduct of a Minister or a ministerial department.

Ministers are supposed to be accountable to Parliament. Therefore, Parliament is the appropriate forum to initiate an inquiry of that sort. As your Lordships well know, in the 19th century and the early part of the 20th century, conduct of that sort by Ministers of the Crown was habitually investigated by a committee either of another place or your Lordships' House. That procedure became discredited following the famous—or perhaps I should say notorious—Marconi inquiry just before the First World War. Indeed, it might be said that the experience gleaned from the Marconi inquiry was one of the inspirational features behind the 1921 Act.
 
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It is time that Parliament reposed confidence in itself again to set up inquiries to investigate alleged ministerial misdemeanours. I suggest that your Lordships' House is an ideal part of Parliament to conduct such inquiries because it has the great merit of having a substantial Cross-Bench ingredient. Therefore, any investigatory inquiry conducted by your Lordships' House with a majority of Members from the Cross Benches would not fall foul of the criticisms rightly levelled at the Marconi inquiry.

What better way to establish the authority of Parliament than to have another clause in the Inquiries Bill requiring investigations of ministerial misdemeanours in future to be conducted in the parliamentary context. Of course, it may be that Parliament would not always consider one of its own committees appropriate to conduct such an inquiry; in which case it could delegate that authority to an outside committee, even perhaps headed by someone who was not a parliamentarian.

Not to pursue that approach would have two consequences. First, it would further undermine the confidence of the public in the role that Parliament is pre-eminently supposed to play, which is making the Executive accountable. Secondly, it leaves the Prime Minister of the day open to exercise his prerogative in the time-honoured way and set up the particular sort of inquiry that suits him or her whenever one or other of his Ministers is alleged to have committed a misdemeanour or another sort of wrong.

I hope that in the course of debate on the Bill your Lordships will grapple with the crucial issue of how ministerial conduct of that sort should be investigated. There is absolutely nothing whatever in the Bill that is relevant to that aspect of the inquiry system.

I turn briefly to the Bill itself. Just as, constitutionally, the Bill reflects a shift from Parliament to the Executive, so within the framework of the Bill we see a massive shift of power away from the person who chairs the inquiry towards the Minister. The Bill, as so many of your Lordships have said, is riddled with new discretionary powers for Ministers to override or overreach the decisions that traditionally are—or ought to be—made by the chairman of the inquiry.

There are legion examples in the various clauses of this, as the noble Lord, Lord Smith of Clifton, rightly described it, dense Bill. But one can just refer to a few clauses to remind your Lordships of how this shift is occurring.

It is clear from Clause 5(1) and (3) that the Minister has complete control over the terms of reference of the inquiry. I was somewhat surprised to see that because in the Department for Constitutional Affairs consultation paper, it appeared from the text that the Government were encouraging us to think that the Bill would require the Minister to initiate a period of some weeks where those who had an interest in the content of an inquiry could make suggestions about what its terms of reference should be. But that idea seems to have been abandoned in the final draft of the Bill.
 
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There is a particularly worrying aspect that flows from the Minister's determination of the terms of reference. Any matter considered in the course of the inquiry by the chairman, which falls outside the initial terms of reference, will not qualify for any form of financial support whatever. So even if, in the course of the inquiry, new evidence emerges which makes it essential for the proper continuation of the analysis by the chairman to stray beyond the Minister's terms of reference, the structure of the Bill prohibits the chairman from doing so.

As your Lordships are also aware, under Clause 17 the Minister will retain iron control over all matters concerned with the disclosure and publication of evidence. For example, under Clause 17(2)(b), the Minister can issue a restriction notice at any time, before or during an inquiry, as to whether the hearing should continue to be held in public, whether material advanced and adduced in evidence should be published, and on a whole range of other matters, as long as he considers it to be necessary in the public interest. That is a draconian power where the Minister can second-guess the judgment and discretion of the man on the spot who is the chairman of the inquiry.

Under Clause 23, the Minister will control all aspects of the publication of the final report. In principle, all reports are to be published in full. But under Clause 23(2), the Minister will have the power to retain control over the publication process. Under Clause 23(4)(b), he can withhold from publication anything in the report if it is in the public interest to do so. These powers, in my submission, are wholly inappropriate for the Minister to retain in the course of the inquiry.

This morning we have been considering the big, set-piece public inquiries. But, of course, there are a mass of public inquiries that are set up and take place under a variety of individual statutes which are also affected by the Bill.

The individual statutes to be repealed are set out in Schedule 2 and the procedures enshrined in each individual statute replaced by the procedures in the Bill. They cover a wide range of activities: mental health, agriculture, transport, travel and traffic, the environment, children, the elderly, the vulnerable, those in care, aspects of higher and further education, the Regulation of Investigatory Powers Act 2000, and health and safety. Many of these inquiries take place out of the eye of the public and the newspapers and have been conducted satisfactorily for many years. The procedures are now about to be abandoned. Can the Minister tell us what consultations the Government have had with those affected by the procedures under those individual Acts? If consultations have taken place, can she indicate their outcome? How do those individuals likely to be affected by the new Inquiries Bill feel about the fact that all these procedures are to be replaced?

The Minister is shaking her head. If I have misunderstood the purpose of the Bill and the fact that it will replace these procedures individually, I am glad to hear it. But my understanding is that it will replace
 
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them. Moreover, the Bill provides a power to intervene in any other inquiry being undertaken and require it to be conducted under the new rules. That will be so even if those inquiries have already been set up. In that respect, it seems that the Bill will be retrospective.

In principle, we want to see a much better inquiry procedure; but in our submission the Bill does not cover the most important aspects of inquiries and, in the Bill itself, the balance between the chairman and the Minister is entirely wrong.

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