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Lord Lester of Herne Hill: My Lords, before the noble and learned Lord sits down, would he be content if the Bill made clear that there had to be fair procedures? If that was written into the primary legislation would that meet his point?

Lord Howe of Aberavon: My Lords, I am grateful to the noble Lord for intervening because that is the point that I have encapsulated in my latest amendment. It is a phrase drawn from the noble and learned Lord, Lord Cullen. I have no special attachment to the precise nuances of the burden of proof—I share everyone's lack of enthusiasm for presumptions either way. But I do think that attention should be directed to this.

I hope that the noble Baroness will be beguiled by the provisional concession made by the noble Lord, Lord Lester. He must have remembered a phrase that we share with each other. It is a quotation from the American judge, Learned Hand:

I am grateful to him as well as to the noble Baroness. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 50 and 51 not moved.]

The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton) moved Amendment No. 52:

"Public access to inquiry proceedings and information
(1) Subject to any restrictions imposed by a notice or order under section 17, the chairman must take such steps as he considers reasonable to secure that members of the public (including reporters) are able—
(a) to attend the inquiry or to see and hear a simultaneous transmission of proceedings at the inquiry;
(b) to obtain or to view a record of evidence and documents given, produced or provided to the inquiry or inquiry panel.
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(2) No recording or broadcast of proceedings at an inquiry may be made except—
(a) at the request of the chairman, or
(b) with the permission of the chairman and in accordance with any terms on which permission is given.
Any such request or permission must be framed so as not to enable a person to see or hear by means of a recording or broadcast anything that he is prohibited by a notice under section 17 from seeing or hearing.
(3) Section 32(2) of the Freedom of Information Act 2000 (c. 36) (certain inquiry records etc exempt from obligations under that Act) does not apply in relation to information contained in documents that, in pursuance of rules under section 38(1)(aa) below, have been passed to and are held by a public authority.
(4) Section 37(1)(b) of the Freedom of Information (Scotland) Act 2002 (asp 13) (certain inquiry records etc exempt from obligations under that Act) does not apply in relation to information contained in documents that, in pursuance of rules under section 38(1)(aa) below, have been passed to and are held by a Scottish public authority."

On Question, amendment agreed to.

Clause 17 [Restrictions on public access etc]:

Lord Kingsland moved Amendment No. 53:

The noble Lord said: My Lords, we debated this amendment at length at Committee stage. In those circumstances I can be telegraphic in my presentation. The Minister will recall that one of the themes of the debate that we had at Committee stage was the imbalance of power between the Minister on the one hand and the chairman of the committee on the other.

Clause 17 is perhaps the locus classicus of that phenomenon. This clause gives the Minister the power, through a restriction notice, to prevent the public from attending the proceedings and to prevent evidence given in the proceedings and documentary evidence from becoming public. I accept that it is proper that the chairman of the inquiry should have this power. The chairman of the inquiry is often asked to balance the interests of the individuals, who might be adversely affected by the proceedings, on the one hand, against the interests of national security, for example, on the other. The chairman will normally have his feet well under the table before he has to make these balancing judgments.

By contrast, having set up the inquiry, the Minister should then stand back and leave its running to the chairman. It is, in my submission, wholly inappropriate for him to intervene, suddenly, on day 20, for example, and say, "There is an important consideration of national security here. I have exercised my balancing power and in those circumstances, prohibit this piece of evidence from being made public." The Minister is simply not in a position to make that judgment. He cannot be in a position to balance the interests of the individuals who are likely to be adversely affected by the inquiry against the public interest.
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The restriction order, which is a power given to the chairman in the Bill, is wholly adequate protection for all the interests which are of concern to the Government in casting this clause. The Minister is aware of my opinions as I have expressed them at Second Reading and Committee stage. I do not intend to delay your Lordships' proceedings any further. I beg to move.

Lord Lester of Herne Hill: My Lords, I am grateful to the Minister and her officials for having met me to discuss my concerns about Clause 17. I would like to explain such concerns and seek something on the record to meet them.

I have in mind the powers under Clause 17 and a similar power under Clause 23(4). As the noble Lord, Lord Kingsland, has pointed out they are powers to restrict the free flow of information in relation to inquiries. They relate to whether it is accepted that the Minister or the chairman, as public authorities within the meaning of the Human Rights Act, are under a duty in exercising the restraining powers to do so in a way which is compatible with the right to free expression in Article 10 of the European human rights convention.

If that is the position, the Minister or the chairman has to act reasonably and proportionately in an objective sense and would have to justify the scope and effect of any restriction in terms of the case law under Article 10 of the convention read with the Human Rights Act. There is the separate question about public access to inquiries. I am satisfied that there is no obligation to hold a public inquiry in relation to Article 10. What I seek from the Minister is an assurance that it is accepted that Ministers and chairmen of inquiries must exercise their prior restraint powers compatibly with Article 10 and the right to free speech.

Lord Goodhart: My Lords, I am grateful to my noble friend for raising the point about Article 10, which I fully support. I wait with interest to hear what the Minister says.

As regards amendments moved by the noble Lord, Lord Kingsland, we certainly took the view in Grand Committee that there was a good deal of force in them. Our position has been considerably affected by the fact that government Amendment No. 67, which we have not yet reached, will mean that a restriction order or restriction notice will apply only up to the date at which the inquiry comes to an end. After that, any material in the hands of the Minister, which is accessible under the Freedom of Information Act, will be disclosed on request, subject to the exemptions.

Everybody recognises that there are some circumstances in which part or all of some inquiries are more appropriately held in private than in public. In those circumstances there may be some occasions on which it is more appropriate for that decision to be taken by a Minister who is accountable to Parliament
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than by a chairman of the inquiry panel who is not so accountable. In those circumstances, we do not feel that we are able to support the amendments moved by the noble Lord, Lord Kingsland.

Viscount Bledisloe: My Lords, while I see force in what the noble Lord, Lord Kingsland, is proposing, is he not going too far in the opposite direction? I can understand why he says that at day 20 of an inquiry, when the chairman is fully in the saddle, it is for the chairman and not the Minister to decide what to control. But when setting up an inquiry or before an inquiry has got under way, why should a Minister not say, "I am setting up this inquiry but I should like to make it plain from the start that information in the following categories will not be disclosed and will not be disclosable"? Alternatively, he could say, "Certain parts of the inquiry, relating to x and y, shall be held in private". It would then be open to the proposed chairman to say, "I don't want to embark on an inquiry on that limited basis. If you're going to restrict it as much as that, you won't get me".

Surely, at that stage when the Minister knows all the details from the chairman, he should be allowed to impose restrictions on the inquiry. People can then say that they do or do not want an inquiry on that basis.

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