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Lord Lester of Herne Hill: My Lords, I shall not repeat anything that I said in Grand Committee. While I entirely agree with the closing words of the noble and learned Lord, Lord Howe of Aberavon, about fairness being the overriding principle, I shall briefly seek to explain why I do not feel able to give wholehearted support to his watered-down, diluted amendment which now creates no presumption either way.

My starting point is Clause 16(1) which states;

I take it—I am sure the Minister can confirm this—that, in acting under Clause 16 and all the other provisions, there is an overriding common law duty for the chairman to act fairly. In making rules under the rule-making power, I also have no doubt that the Minister will be able to confirm that the rules must ensure the overriding objective of fairness in the procedures to be adopted by an inquiry.

If that were not the case, there is no doubt that the administrative court would be able to give effective relief by way of judicial review if any inquiry were to act unfairly in the procedures that were followed. That would apply whether a person faced criticism of any kind or for any other reason. Whatever the position may be about a court of law, it is quite clear under the public law of the United Kingdom that any body or public authority charged with the responsibility of carrying out an inquiry under statutory powers must act fairly.

One element in fairness is, obviously, the need for there to be effective legal representation in circumstances where it would be unfair for that not to apply. One characteristic example of that is where a person is in jeopardy not of the possibility of "any" criticism, as the amendment of the noble and learned Lord, Lord Howe, would put it, but of the possibility of criticism seriously damaging to that person's reputation. In that case, a chairman would be well advised to have regard to the needs of fairness in ensuring that there should be legal representation.

We do not have the proposed rules to be made under Clause 38, but it is in those rules that one would expect procedural fairness to be spelled out by the Lord Chancellor in order to ensure that all inquiries are, as far as possible, conducted fairly. I ask myself what is added in the amendment of the noble and learned Lord, Lord Howe of Aberavon, that is not in common law and is not, therefore, redundant.

The chair is to have regard to,

Were any chair not to do that on an application by such a person, there would again be the possibility of judicial review, not only on grounds of fairness but also on grounds of irrationality, because the chair would not be having regard to a relevant factor. So I do not feel that putting this into primary legislation is necessary.
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Doing so singles out one aspect only, the aspect about which the noble and learned Lord, Lord Howe, feels most strongly. If I may say so, jokingly, he pursues it like Captain Ahab pursuing Moby Dick. I understand why, but the zeal that he has shown, which is commendable, has now reached the point where the amendment does not serve a practical, useful purpose. Fairness should be spelled out in the rules, the common law and the protection given by the common law.

Finally, what the report of the Public Administration Select Committee, Government by Inquiry—in the passage significantly headed "Fair Play" which begins at paragraph 100—had to say about this is important and persuasive, as anyone who has read the report will see. After taking evidence, the committee was worried about the trap of legalism and about lawyers taking over inquiries and turning them into expensive, dilatory and protracted proceedings. The committee explained why and recommended that procedures should be reviewed. In particular, it recommended that there should be a re-evaluation of how to ensure fairness within the inquisitorial process, while minimising the adversarial, legalistic element of inquiries. It suggested that good practice should be codified, possibly though the rule-making powers contained in the Inquiries Bill.

I think that that is the way forward. I hope that we will have sight of the draft rules at an early stage and will have an opportunity to debate them. For those reasons, and also because there is now to be no presumption either way, I would not regard the amendment as necessary or desirable.

Lord Mackay of Clashfern: My Lords, before the noble Lord sits down, can he help me with a question that is troubling me a little? Would it be possible in the procedural rules to determine that lawyers should not be allowed in these inquiries at all as a matter of general provision?

Lord Lester of Herne Hill: My Lords, I would say that it would not be possible. To exclude the right of legal representation or the opportunity for it where a person is facing serious pains and penalties in the course of an inquiry would be so unfair that, if it were to be put forward as a rule-making provision, the Lord Chancellor would face a serious risk of a successful judicial review.

Baroness Ashton of Upholland: My Lords, I am grateful for the contributions that have been made. I intend to be extremely brief. I am sorry that my beguiling charm completely failed to work on the noble and learned Lord, Lord Howe, but I am very grateful to him for returning to what I know is a very important issue to him. I understand that in his revised amendment he is seeking to achieve a balance between fairness and economy. The noble Lord, Lord Lester, is right in everything he said, especially about the inquiry's common-law duty.

At present, I remain not against the spirit of the amendment but, because this is a complex issue, we believe that this is much better dealt with in the procedural rules after proper, detailed consultation,
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including with noble Lords. I could also refer to various passages in the Public Administration Select Committee report to back up my argument. We need to look at the rules, not least to see how they can assist the chairman in decisions on legal involvement throughout an inquiry, so that representation contributes to the objective of a fair inquiry without having any adverse effects on the length and cost of the proceedings.

As the noble and learned Lord, Lord Howe, has said, this is one of the topics put forward in the document that I placed in the Library before Christmas. We will consult properly on the rules and I shall be very grateful for the input that I hope will be given by noble Lords, not least the noble and learned Lord, Lord Howe. I intend to ensure that we have detailed conversation with him.

There is no question that legal representation can play an important part in helping inquiries to establish the facts and in ensuring that witnesses and those with a direct interest in the inquiry are treated fairly. But inquiries are not trials. It has been the practice of many recent inquiries to keep legal representation, in particular, the cross-examination of witnesses by the legal representatives of other witnesses, to a minimum. That is the direction in which inquiries are going.

I have said to the noble and learned Lord that I shall do two things. I have made a commitment that there will be full and proper consultation on the rules, and I intend to ensure that it happens. As I have already indicated to the noble and learned Lord outside your Lordships' House, I shall look again to see whether there is anything that I can do within the Bill that does not breach the principle that I have already outlined. I shall continue the dialogue with the noble and learned Lord between now and Third Reading. My brevity is very deliberate. It is not meant to be disrespectful. In that spirit, I hope that the noble and learned Lord will continue his conversations with me and we will continue to explore how best to meet his legitimate concerns.

Lord Howe of Aberavon: My Lords, I am most grateful for the way in which the Minister has presented her position, beguiling as it is. I am delighted to be beguiled. I hope that she will forgive me if I conclude by recapping the central point.

Everything that she said about what can be dealt with in the regulations is right. Some very helpful advice is given in the report from the other place on the Irish approach. It breaks down the different kinds of representation that could be allowed, and so on. I am more than happy to take part in consultation about the regulations.

However, I use the strongest language that I can to urge her to analyse the logic of what has been said by the noble Lord, Lord Lester. If, in fact, the need for fairness is so obvious in and central to the common law—which indeed it is—and if, as he said, any well conducted chairman should immediately say to himself, "That chap is in jeopardy, so I must be fair", why is it redundant to put that in the Bill? I am passionately devoted to the inclusion in the Bill of the
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need to avoid undue public expenditure. I devoted years of my life to trying to achieve that objective. I cannot see why it is unacceptable to the noble Lord to include the other factor. The two have to be balanced, just in case the rule-makers are not as instinctively responsive to the common law as he is, and just in case a stray chairman, from time to time, fails to respond to them in advance.

The extent to which it is said that judicial review can be the answer to this worries me. If the risk is to be avoided at the cost of the added expenditure of judicial review as the only escape, I beg the Minister to consider the wisdom, common sense and acceptability of including this proposition alongside expenditure. What harm would it do? What evil could come of it? The details could be filled in with regulations on all these points. There is a risk that this opportunity for Parliament to draw the attention of the rule-makers to this principle could be overlooked for no good reason.

6 p.m.

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