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The noble Lord said: My Lords, the Minister sent me a letter about this amendment which I have read but not clearly understood. I continue to adhere to the view that my amendment would have no effect on the substance of the matter. It is no more nor less than a more elegant way of expression. I beg to move.
Baroness Ashton of Upholland: My Lords, I am desperately sorry that my letter to the noble Lord did
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not do the trick. In our discussions around Clause 17, we are looking at when a chairman or Minister is considering issuing a restriction notice balancing up different factors. The factor that will usually weigh heavily in favour of disclosure is the one affected by this amendment:
I will not repeat everything that I said in Grand Committee. I appreciate that the provision is not the most elegant of phrases, but I believe that it is the most appropriate. Of course, as the noble Lord would expect, I have gone back and checked his amendment to see whether it would have the same effect or whether there was a more elegant way of describing the provision. My deliberations have resulted in my view that we have indeed got the right phrase.
As I said in my letter to the noble Lord, what we are seeking to do with an inquiry is to allay public concern. Whatever the event that has triggered the particular need for an inquiry, our objective is to allay public concern. There may be other objectives, but that is the central concern. Therefore, if one looks at the factors that weigh around the disclosure, one must consider that a restriction on attendance would inhibit the allaying of that public concern. So it links back to the purpose of an inquiry, which is precisely to allay that concern. If withholding material or issuing a restriction will inhibit that process, that is a good argument for not imposing it. That is why we believe that the wording in the clause is more appropriate.
With regard to Amendment No. 58, when deciding whether it is in the public interest to issue a restriction notice or order, it makes sense for the Minister or chairman to have regard to any risk of harm or damage that could be caused if the information was made public. The effect of the amendment proposed by the noble Lord, Lord Kingsland, would be to remove the requirement for the Minister or chairman to have regard to the risks caused by disclosure, and instead to introduce a new requirement to have regard to the risk of harm that could be caused by not publishing the information. Given the definition of "harm or damage" in subsection (5), we do not believe that that would make a lot of sense in most cases.
We have seen from past experience that some inquiries can proceed most effectively, and ultimately allay public concern, with some restrictions on public access. We do not want to force inquiries to abandon the types of effective and legitimate semi-private models that have been developed by the Department of Health, for example, when those models have proved to work well. So Clause 17 allows those types of procedures to be followed, if they can be justified. The starting point is always that there should be full public access but, at the end of the day, if the inquiry will be faster, more effective or even less costly in private, and will still deliver a valuable and widely accepted report, we should not rule out that option.
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Clause 17 provides that the Minister or chairman should consider the extent to which a restriction would improve the efficiency or effectiveness of the inquiry or reduce costs. The amendment proposed by the noble Lord, Lord Kingsland, would remove that option. I would be concerned that such a change could hamper the ability of the Minister or chairman to ensure that an inquiry takes the most effective form. For that reason, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Kingsland: My Lords, as I said, I do not agree that my amendment would have the effect that the Minister claims. I believe that it would simply more felicitously express what the Minister seeks to express herself. Since the matter does not go to the substance of the clause, I beg leave to withdraw the amendment.
"My notes state that I accept that the presumption would be even more apparent if we started with subsection (6) and then followed it with subsections on restrictions, but it does not say in my notes that I shall therefore go away and rewrite the clause. I shall reconsider the matter but the amendment does no more than is already in the Bill".[Official Report, 19/1/05; col. GC 290.]
The Minister was kind enough to say that she would reconsider the matter. She accepts that the presumption would be even more apparent if the clause had started with subsection (6). I note that the Government have not tabled an amendment at this stage on the matter. Does that mean that the Minister is not prepared to move on the issue at all? I beg to move.
Baroness Ashton of Upholland: My Lords, I agree with the noble Lord, as I did in Committee, that the starting point for inquiries must be full public access. What I thought to do with Amendment No. 52, which has been accepted, was to draw out the parts of Clause 17 on public access and put them in a separate clause beforehand to make it even clearer that public access is the starting point. I hoped that in doing that I had kept my promise about making the matter even clearer. Perhaps I may ask the noble Lord to reflect on that fact and tell me if he feels that I have failed. But it was partly to keep the promise to him that I have done what I did and inserted the new clause after Clause 16, in Amendment No. 52. I hope that he will feel able to withdraw his amendment on that basis.
Lord Kingsland: My Lords, I am most grateful to the Minister for drawing our attention to that amendment, which of course I have seen. I must say that it did not immediately strike me as having the
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effect that she says it has, but I shall go away and reflect and if necessary return to the matter on Third Reading. Meanwhile, I beg leave to withdraw the amendment.
This group of amendments raises another freedom of information issue. Under the Bill as it is now drafted, restrictions on the release of information under a restriction order or notice remain in force for 30 years from the end of the inquiry unless revoked in the interval by the Minister. Our amendments would bring the restriction order or notice to an end at the end of the inquiry so that disclosure thereafter is governed by the Freedom of Information Act 2000 and remove those parts of Clause 18 that apply only after the end of the inquiry.
Government Amendment No. 67, to a considerable though not complete extent, achieves that result. But that amendment, unlike ours, does not remove subsection (5), which provides that restrictions may continue in force indefinitely. It seems therefore that a restriction order may apply to an individual witness after the end of an inquiry, even though it does not apply to a public authority, because of Amendment No. 67.
Could, therefore, a restriction order be applied to prevent a witness repeating to the media his own evidence to the inquiry? What would be the justification for that if the Official Secrets Act 1989 did not apply? Can an indefinite restriction order be justified under Article 10 of the ECHR? Should some provision be made, short of judicial review, for a person subject to a restriction order or notice to challenge it? I am sorry if my questions have caused some consternation. I beg to move.
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