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Lord Laming: My Lords, lest there be any misunderstanding, will the Minister, and maybe the noble and learned Lord, Lord Howe, who moved the amendment, make it plain that if in future a chairman is appointed to chair an inquiry and he is accompanied by assessors, the conduct of the inquiry, and the report of the inquiry, is solely the responsibility of the chair?

Baroness Ashton of Upholland: My Lords, the noble Lord, Lord Laming, is correct. I was much taken by the statutory requirement proposed by the noble and learned Lord, Lord Donaldson, for women to determine the eligibility or intelligibility of contributions from men. I might sign up to that, if the noble and learned Lord would care to put an amendment down to that effect. I will be brief, which is
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no disrespect to the important contributions that have been made, but I might be able to deal with this quite quickly.

I say to the noble and learned Lord, Lord Howe of Aberavon, that in my statement about the Select Committee I was in no way suggesting that we should only be offered the opportunity to—the noble and learned Lord said—glance at the report. Rather, I was ensuring that as it is a committee of another place, and as I would expect the members of the committee to wish to debate in full, and rightly so, the issues as the Bill reaches them, that I would curtail the normal length of time to ensure that that could take place. I was attempting to be helpful, and I was rather sad that it was interpreted in that way—but what can I do?

This reflects much of what the noble and learned Lord, Lord Hutton, said. We should not make general rules, or presumptions, about what would work best in future. It depends on the nature of the inquiry, and I accept what the Select Committee said about the value of contributions from wingmen. I accept what the noble and learned Lord, Lord Howe of Aberavon, said about the importance of a panel operating in the appropriate circumstances. All that we are saying in the Bill is that different constitutions of panels are appropriate to different sets of circumstances. On occasion, it is right for a chairman to sit alone, and in the clauses referred to in these amendments we talk about the role of assessors.

The noble Viscount, Lord Bledisloe, made an important alternative suggestion. I am sorry that he is not in his place to hear me say this. The statement to Parliament on terms of reference would be an appropriate place to set out proposals about panel membership. Indeed, we have incorporated that idea in government Amendment No. 18, which we will debate shortly. It is important for the appropriate chairman and/or panel to be appointed; we want to retain that flexibility, and we accept much of what has been said about the value of panels, the value of assessors, and the value of wingmen. I hope that the noble Lord will feel able to withdraw his amendment.

Lord Howe of Aberavon: My Lords, I am grateful to all those Members of the House who have contributed to the debate. I shall respond first of all to the noble Lord, Lord Laming. Where a panel consists of the chairman alone, it is clear that, however many assessors he may have, the panel report is his responsibility beyond doubt. That was the case for the noble and learned Lord, Lord Hutton. I well understand the case that was made, and do not intend any disrespect by putting my proposition in a slightly different light.

However skilful the judicial approach—heaven knows that the noble and learned Lord has had a mountain of experience with which to equip himself in that way—public confidence in some cases, notwithstanding the respect for the judicial figure, may be broadened by the input of a further group of people. In a sense, that is the reason in the very special case of the input of jurors, where juries are involved. It is possible to hold all sorts of different views about that.
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The case for solitary judicial inquiries must be treated with great respect and caution. However, I take the point made by the Minister and the noble and learned Lord, Lord Hutton, about "presumption". I confess that the word was not in my original version of Amendment No. 7; this is one of alternatives. Perhaps I should have taken it out, as it requires too heavy a burden of proof in the other direction. However, I still think that there should be an inclination towards a panel-equipped chairman, be he a judge, lawyer or layman. On the whole, a broader grouping is more likely to be accepted by the wider public, and even by the media. A broader grouping is more likely to avoid the risk of reaching a conclusion that, given a little more time, might have been differently expressed. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 7 and 8 not moved.]

Lord Goodhart moved Amendment No. 9:

(1) An inquiry panel is not a public authority for the purposes of the Freedom of Information Act 2000 (c. 36).
(2) But at the end of an inquiry all recorded information given to or created by the inquiry shall be transferred to and kept by the Minister and shall be subject to the right to information under that Act.
(3) Section 32 of the Freedom of Information Act 2000 (court records etc.) is amended as follows.
(4) In subsection (2) omit the words "inquiry or" in each place.
(5) In subsection (4) omit paragraph (c)."

The noble Lord said: My Lords, in speaking to Amendment No. 9, I shall speak also to Amendments Nos. 80 and 87. This important group of amendments deals with some, though not all, of the freedom of information issues raised by the Bill. I have to say that the Bill appears to have been originally drafted in apparent ignorance of the existence of the Freedom of Information Act.

Our original amendment proposed that the inquiry panel be treated as a public authority for the purposes of that Act. I was persuaded by the Government's argument in Grand Committee that the inquiry panel should not be treated as a public authority, because it was said to be inappropriate for the panel—a small body set up for a particular purpose—to have to deal with requests for information under the Act while the inquiry was continuing; I agree. Instead, we now propose in Amendment No. 9 that recorded information be handed over to a Minister at the end of the inquiry and be accessible under the Act, subject of course to the exemptions contained in it. Amendment No. 9 also proposes that Section 32 of the Freedom of Information Act, which gives absolute exemption to inquiry documents, be disapplied.

I am glad to say that the Government have responded helpfully to the amendments that we moved in Grand Committee. In Amendment No. 107, they have provided for rules to be made about dealing with
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documents given to or created by an inquiry. I understand that the provision is intended to provide for the inquiry documents to be handed over to the sponsoring department—if I can call it that—which will be a public authority, of course. I hope that the Minister will confirm that.

Subsections (3) and (4) of government Amendment No. 52 disapplies Section 32(2) of the Freedom of Information Act to documents which are handed over to the sponsoring department. The result will be that the documents will be accessible under the Freedom of Information Act subject to the exemptions in that Act, other than those in Section 32(2). That is a satisfactory result.

A similar problem which arose under the Bill as drafted was the publication of inquiry reports. Clause 23(4) gives power to a person whose duty it is to publish the report—either the Minister or the chairman—to withhold such material as the publisher considers necessary in the public interest. The decision to withhold as now in the Bill could be challenged by judicial review, but otherwise it is a matter of discretion for the publisher. It could be interpreted, as it now stands, as overriding the Freedom of Information Act. Our Amendments Nos. 80 and 87 provide that information cannot be withheld from a report if it is information which could be accessible under the Freedom of Information Act.

The Government have responded with their Amendment No. 86, which makes it clear that the power to withhold material from the report does not override the Freedom of Information Act. Again, this appears to us to be acceptable and if material is withheld from the report, the media, individuals or political parties can probe for that material. If exemption is claimed, the decision whether it should be withheld is taken by the Information Commissioner or the Information Tribunal and not by the Minister or chairman.

We are grateful to the Government for listening to our arguments. We accept their amendments in this group. I beg to move Amendment No. 9 but I shall not press our other amendments in the group.

Lord Dubs: My Lords, I broadly welcome Amendment No. 52 relating to public access to inquiry proceedings and information. It represents a step forward, although I am concerned that it is constrained by Section 17, some of whose provisions can be applied onerously and broadly. However, it depends on the spirit within which these things happen.

I notice in the much-quoted House of Commons Public Administration Select Committee report at paragraph 99:

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Possibly the Select Committee report preceded Amendment No. 52 tabled by the Government. Can my noble friend clarify that point?

Be that as it may, there must be concern about whether the effect of Clause 17 would not to some extent negate the presumption of openness in government Amendment No. 52. It depends on how the Government do it. I am aware that there are concerns in Northern Ireland about the Finucane inquiry and clearly it would be helpful if the Government—perhaps not today but at some point—made clear how open such inquiries would be. If the Government act in the spirit of subsections (1)(a) and (b) of Amendment No. 52, that will be fine. If they seek to allow the more restrictive parts of Clause 17 to have too much effect, that will not be fine. However, the government amendment represents progress and I welcome it.

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