| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Baroness Ashton of Upholland moved Amendment No. 42:
"( ) Before exercising that power the Minister must consult the chairman."
The noble Baroness said: My Lords, in Grand Committee, the noble Lord, Lord Kingsland, raised several issues relating to Clauses 14 and 15. I promised to give them further consideration. As noble Lords will recall, the clauses deal with the conversion of inquiries.
Amendment No. 42 will require the Minister to consult the existing inquiry chairman about the proposed conversion. I think that I said in Committee that we would expect that to happen in practice in any event.
Amendments Nos. 46 and 47 will, I hope, deal with a concern expressed by the noble Lord, Lord Kingsland, in Grand Committee about the power of the Minister to remove panel members on conversion. Amendment No. 47 will remove the power of the Minister to terminate the appointments of the original panel at the same time as he converts the inquiry. Amendment No. 46 will ensure that a panel member cannot be removed from the panel later on for having an interest or association that the Minister was aware of at the time of conversion.
8 Feb 2005 : Column 699
In essence, the amendments protect the panel from being removed as a result of conversion. If the Minister takes a decision to convert an inquiry, he must be satisfied that the panel can continue as it stands. I beg to move.
Lord Kingsland: My Lords, I am most grateful to the noble Baroness for responding in the way that she has to the discussion that we had in Committee about Clauses 14 and 15. The noble Baroness will recall that we had two concerns about the powers contained in the clauses.
The first concern was one of principle. The Bill seemed to us to contemplate retrospectiveness in the management of existing inquiries. After the Bill became an Act, it would give a power to the Minister, in effect, to close down ongoing inquiries and replace them with inquiries under the Bill. That would give rise to two issues, one of which is far more important than the other.
The first is that it would provide a new procedure to an ongoing inquiry. We could see the force of doing that, if formal procedures were not proving to be satisfactory in dealing with the matter under review. Our other concern was that an inquiry might be closed down and replaced in order to get rid of members who were saying and doing inconvenient things and replace them with placemen. It is on that issue that the noble Baroness has been helpful, not only in the wording of the amendment but in the reassuring things that she said about them. In those circumstances, I simply want to thank her for tabling the amendments.
On Question, amendment agreed to.
Baroness Ashton of Upholland moved Amendment No. 43:
"(6) The Minister may at any time after setting out the terms of reference under this section amend them if he considers that the public interest so requires.
(7) The Minister must consult the chairman before—
(a) setting out terms of reference that are different from those of the original inquiry, or
(b) amending the terms of reference under subsection (6)."
On Question, amendment agreed to.
Baroness Ashton of Upholland moved Amendment No. 44:
"(8) Section (Minister's duty to inform Parliament or Assembly) applies, with any necessary modifications, in relation to—
(a) converting an inquiry under this section, or
(b) amending an inquiry's terms of reference under subsection (5),
as it applies in relation to causing an inquiry to be held, or amending an inquiry's terms of reference under section 5(2A)."
On Question, amendment agreed to.
8 Feb 2005 : Column 700
Clause 15 [Inquiries converted under section 14]:
Baroness Ashton of Upholland moved Amendment No. 46:
Page 6, line 39, at end insert ", and for the purposes of section 11(5) is treated as made by the Minister on the date of conversion"
On Question, amendment agreed to.
Baroness Ashton of Upholland moved Amendment No. 47:
On Question, amendment agreed to.
Clause 16 [Evidence and procedure]:
Lord Howe of Aberavon moved Amendment No. 49:
The noble and learned Lord said: My Lords, I apologise for the fact that the legislative train that has been steaming so rapidly along the last stretches of line will now move a little more slowly for a time. I shall try to avoid the risk of simple repetition of the helpful debate that we had in Grand Committee on the points raised in Amendments Nos. 49, 50 and 51.
I draw attention in particular to the extent to which there is a significant difference between Amendment No. 50 and Amendment No. 51. That is a result of my consideration of what was said in Grand Committee, of subsequent discussions with a number of people, and of a study of the Public Administration Committee of the other place, to which I have already paid tribute.
Amendment No. 50 was the original amendment. It was based on the rather wide-ranging advice given by the noble and learned Lord, Lord Phillips of Worth Matravers, before the BSE inquiry. It can be said to be very subjective and wide-ranging and to raise a presumption. Having considered that, I propose to replace it with Amendment No. 51, which is manifestly more objective and restrained and more related to proportionality. It says:
"the extent to which any person or organisation who may be the subject of criticism in course of, or as a result of, the proceedings may, as a matter of fairness, require legal representation".
That is a more restricted proposition.
I understand the need that has been made clear to be concerned, when considering the management of inquiries, about the need for economy as well as expedition. I have great sympathy with the amendment proposed by my noble friend Lord Goschen, with the speech that he made in Grand Committee and with the speech made by the noble Lord, Lord Lester of Herne Hill. From Crown Agents to Bloody Sunday, the need for economy is overwhelmingly established. It is not just mentioned in the Bill but stressed—rightly so. However, the other aspect that is, at the very least, equally important is the need for justice in the management of the inquiry or, to put it another way, the need to avoid injustice and the need for fairness.
8 Feb 2005 : Column 701
At the heart of my case for the amendments is my conviction that it would be a grave mistake to omit from the primary legislation that is intended to set the framework for inquiries in general for years to come any reference to that aspect of the matter and leave it to regulations for the whole field. Expenditure and justice must both be mentioned in the same tone of voice in the legislation.
There is a misapprehension that continues in the mind of some people, and I can understand why. It is that lawyers inevitably, irresistibly, inescapably add to the cost and burden of an inquiry.
Lord Howe of Aberavon: My Lords, I am delighted by that support from my noble friend.
The fact is that lawyers can and do save money, as well as time. For an example of an inquiry that was prolonged by their absence, one need only refer again to the inquiry conducted under the noble and learned Lord, Lord Scott of Foscote. I was struck by one aspect of it, and I re-examined it over the weekend. It is the amount of time devoted in that inquiry to the question of the legality of public interest immunity certificates, at the time when those certificates were given on the advice of the then Attorney-General, Sir Nicholas Lyell. In that area, the noble and learned Lord, Lord Scott of Foscote, held that the then Attorney-General had acted on a mistaken basis of law.
When the report was debated in this House two years later, the law had been changed by the legal system, by the judges. All the Law Lords who spoke on the topic in the House agreed that Sir Nicholas Lyell's advice was absolutely right, as the law had been in 1992, when he gave the advice. More decisively, Lord Williams of Mostyn conceded as much in the debate. So, one had the proposition that was at the heart of the finding of error on the part of the Attorney-General not having been argued by advocates before the inquiry but only argued so far as the Attorney-General was able to do it in his role as a witness. It had a great deal of time devoted to it. That is a very good example of the proposition of waste of time in justice and the matters about which I am complaining.
5.30 p.m.
To illustrate the extent to which lawyers can be helpful and sensibly managed, I should like to remind noble Lords again of the wide-ranging instructions given by the noble and learned Lord, Lord Phillips, at the setting up of his inquiry into BSE. He gave great encouragement to the role that lawyers can play. He said:
"In many cases the assistance of lawyers in identifying and preparing the evidence will be essential . . . I would hope that those Departments or other bodies which played a major part in the story will instruct Counsel to attend the hearing, or at least those parts of the hearing with which they are particularly concerned, in order to assist with the presentation of evidence, or any other way that may appear desirable".
Beyond that, he continued, in respect of matters which,
"deserve further urgent investigation . . . it will be very desirable to have legal representatives present to whom we can turn for assistance".
At that stage, that may conjure up the prospect of the inquiry being riddled with lawyers waiting to pounce at every point. In fact, as the noble and learned Lord, Lord Phillips, explained in a speech given on 5 December 2001 in the City of London, what happened was different from what might have been feared. He said:
"Most witnesses who had played leading roles in the story had legal representation. We made it plain that they were welcome to have their lawyers sitting beside them but that lawyers were expected to play a backseat role at the hearing. A short opening statement and a little re-examination was acceptable, but in essence, the proceedings were to be inquisitorial not adversarial".
The point is that the lawyers were there. They were ready, able and willing to speak, if invited to do so or if the need arose. They helped the noble and learned Lord, Lord Phillips, substantially in completing the inquiry more expeditiously rather than less.
Perhaps I may say that I had much the same experience in the Ely hospital inquiry, which, on the face of it, was a formidable operation. We had 52 witnesses. We wrote, as it were, "Salmon" letters to 44 members of hospital staff and 254 letters to relatives or friends of patients. Representing the different parties before me were three members of the Bar, two trade union officials and one solicitor.
One advantage of the modesty with which we conducted the proceedings was that, of the junior members of the Bar, one of them went on to become—25 years later—the Attorney-General, about whom I have just been speaking, and one of the others is now Lord Justice Potter who is in the Court of Appeal. They were then young, very competent, seedling lawyers. I remember to this day that the closing address made by Nicholas Lyell, as he then was, decisively shifted the judgment that we gave in respect of his client, the chief male nurse.
However, more importantly, we completed that inquiry with only 15 hearing days for the taking of evidence. So it is possible to show that lawyers assist the expedition as well as increase the fairness of an inquiry. Perhaps I may say without undue immodesty that a lot depends on the experience and performance of the panel of the inquiry and on the extent to which it gets guidance from the accumulated wisdom of departments.
That is why the Government's proposal to establish a unit in the centre of government, which is not attached to any department, where the collective wisdom of government of the kind that has been gathered in the Public Administration Committee report, is such a valuable one. It would enable lawyers to be available when they should be available, but to be guided by the inquiry in a sensible and productive fashion.
All of those arguments were underlying the central discussion that took place in Grand Committee when a number of colleagues were less than enthusiastic about
8 Feb 2005 : Column 703
the amendment that I had put forward. However, almost all of them laid more than a seed of hope for my central argument. The noble Lord, Lord Goodhart, said:
He referred to the mounting expense. I am not sure why it is inevitable for there to be such mounting expense. I shall return to that point later on. The noble Lord went on courteously to say:
"So I cannot say that I disagree with what the noble and learned Lord, Lord Howe, said. He undoubtedly has a very strong point to make. But one has to look at these issues with proportionality in mind".
That is the lesson that I would draw from that discussion. He continued:
"I do not think that the chairman should be invited to start with any presumption for or against the giving of legal representation. It depends on the circumstances of each case".—[Official Report, 19/1/05; GC 272.]
That was echoed by virtually all the speakers. The noble Lord, Lord Lester, after we had discussed our client relationship, made the same point in a different way. He said that,
"fairness requires anyone who is in serious risk of pains and penalties to be legally represented. I also agree that there are serious cases where the right to cross-examination should be allowed . . . I thought that what happened in the Scott inquiry was not fair".
"So I am entirely sympathetic with the object of the amendment".—[Official Report, 19/1/05; GC 273–274.]
The noble Viscount, Lord Bledisloe, who, perhaps I may say is never knowingly understated with regard to his impressive style of advocacy, expressed the fear without prescribing a legal fiesta. He delivered the other phrase that impressed me so much, which was,
"to raise, as I fear the noble Lord's amendment does, an almost irrebuttable presumption that if anyone may have cause to apprehend the possibility of criticism and may reasonably wish to be legally represented, he is allowed to do so, is to perpetuate the present system which the public see as an abuse and a gross waste of money".—[Official Report, 19/1/05; GC 274–275.]
I understand that reasoning, which is why I have changed the drafting substantially to avoid any longer raising a presumption of that kind. Hence, there is balance in Amendment No. 51. It is objective, proportionality is at the heart of it and there is no presumption. The overriding test is contained in the words,
That is not my phrase. It was used by the noble and learned Lord, Lord Cullen, which he was unable to recall when I spoke to him last night about it. It came not from any evidence submitted by him, but from his instructions for the Piper Alpha inquiry. Paragraph 15 of the paper distributed by the noble Baroness before Christmas stated that,
"Lord Cullen allowed people to be parties 'if they were able to show an interest, in some aspect of the subject matter of the inquiry which as a matter of fairness required protection by such [legal] representation'".
That is the right approach.
8 Feb 2005 : Column 704
A clear reference to the need for the inquiry to address itself directly to that factor as much as it does to the avoidance of undue expenditure is an essential provision that should appear in the Bill, without any presumption either way. I say "without any presumption either way": I have withdrawn my presumption.
I draw attention, as I think I did in Grand Committee, to one of the closing sentences of paragraph 15, which states:
"To mitigate concerns that rules will lead to more claims for representation there could be a presumption against legal representation unless the chairman is satisfied certain circumstances apply".
That illustrates how easy it would be for the chairman to put the burden of proof in relation to the right to legal representation on the applicant for such benefit. The paragraph continues:
"The Inquiries Bill places the chairman under an obligation to have regard to costs in his running of the inquiry so the chairman must consider cost implications of permitting legal involvement".
I would not disagree with that. The obligation in that respect is right and "must" is not too strong. But the same burden, the same duty, should rest upon the chairman to consider the question of legal representation, without any presumption, in the light of the circumstances of the inquiry and as a matter of proportionality.
The Minister said—one so easily lapses into sexist metaphors—with her beguiling charm, how much we could rely upon the regulations that are yet to be born, as they are entitled to be, as a result of the Bill. But if one looks at the phraseology adopted in paragraph 15 one sees—in the words of one cynical lawyer or another—that, even in an affidavit, the truth will out. Here one finds paragraph 15 revealing the way in which the department might think about it, unguided, if there is not a proposition of the kind for which I ask on the face of the Bill.
I am prepared to concede that as long as the Minister is there she may well put her weight against such a fearful presumption as now appears in the text—but, who knows, when Cathy goes, might Clarke be far behind, or whatever? One cannot make any presumptions about the benignity of future holders of the office, even in the event of a change of government, for which we all devoutly pray.
I turn now to the report of the Public Administration Committee of the other place. It is a very impressive and comprehensive document. I draw attention to paragraph 101, where it is said:
"Only Lord Howe, sharply critical of the Scott inquiry, argued for retention of the full Salmon principles".
I may have been "over-Salmonised". I have never argued for their retention in full. The last sentence of the paragraph of my own evidence which is quoted states:
In paragraph 104, the Committee sums up in this way:
"The Inquiries Bill is in some ways an attempt to redress the worst excesses of the Salmon principles which have reached their nadir in the Saville Inquiry. The time has clearly come to reformulate the Salmon principles".
I do not quarrel with that. But "reformulate" does not mean discard or disregard.
"We recommend that the procedures followed by inquiries in the last ten years should be reviewed. In particular there should be a re-evaluation of how to ensure fairness within the inquisitorial process while minimising the adversarial, legalistic element of inquiries".
Those, too, are well-chosen words which refer to the need to ensure fairness. The emphasis attached to the need for fairness is very well judged.
are also well chosen. Minimising but not eliminating is the burden of the argument that I have sought to deploy before your Lordships. That is fortified by the much wider guidance given in the document produced as a result of the request made in 1996 by the noble and learned Lord, Lord Mackay of Clashfern, to the Council on Tribunals to offer its advice in the light of the recommendations of the noble and learned Lord, Lord Scott, because those recommendations clearly avoid the trap of a presumption one way or another.
Paragraph 7.15 of the Council on Tribunals report of 1996—I do not propose to read it again—describes well enough the extent to which the Salmon principles could be over-applied. On the other hand, it indicates many ways in which the chairman can and should make use of and control the way in which lawyers perform in the services of the inquiry.
Paragraph 7.14 demonstrates that lawyers can be useful for opening statements, oral testimony, evidence-in-chief, and sometimes cross-examination and re-examination. It concludes by stating,
"and the inquiry should prevent any abuse of the opportunity to be heard, it may be counterproductive to start from the position that legal representatives will only be heard exceptionally. The inquiry should be ready to exercise its discretion in favour of hearing legal representatives and oral testimony and allowing cross-examination whenever it seems appropriate".
It is that balanced approach which I urge upon your Lordships.
The closing paragraph of this over-lengthy presentation is drawn from paragraph 2.9 of the 1996 report, which states that,
"the objectives of effectiveness and fairness should not, as a matter of principle, be sacrificed to the interests of speed and economy".
They should not as a matter of principle, in my submission, be omitted from this Bill. This is a topic on which Parliament is rightly exercising its duty to insist on the inclusion of that matter. I beg to move.
8 Feb 2005 : Column 706
5.45 p.m.
| Next Section | Back to Table of Contents | Lords Hansard Home Page |