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Baroness Ashton of Upholland moved Amendment No. 93:

On Question, amendment agreed to.

Clause 29 [Joint inquiries]:

Baroness Ashton of Upholland moved Amendment No. 94:

The noble Baroness said: My Lords, this is a minor amendment relating to joint inquiries. It ensures that when there is a change of responsibility for an inquiry under Clause 31 that results in two or more Ministers being responsible, the inquiry is recognised as a joint inquiry. I beg to move.

On Question, amendment agreed to.

Clause 32 [Offences]:

Baroness Ashton of Upholland moved Amendments Nos. 95 to 97:

On Question, amendments agreed to.

7.15 p.m.

Clause 33 [Enforcement by High Court or Court of Session]:

Lord Borrie moved Amendment No. 98:


(c) does any other thing which would, if the inquiry had been a court of law having power to commit for contempt, have been contempt of that court,"

The noble Lord said: My Lords, the purpose of the amendment is to replicate what appears currently in Section 1 of the Tribunals of Inquiry (Evidence) Act 1921. Amendment No. 99 is intended to replicate Section 20 of the Contempt of Court Act 1981. Both are amendments to Clause 33, which is concerned with the enforcement of earlier Clauses 17 and 19, which empower the chairman of the inquiry to require by notice someone to attend and give evidence or to produce documents of the inquiry, and to impose restrictions on attendance at the inquiry or restrictions on disclosure of evidence or documents.

The means of enforcement provided by Clause 33 are to enable the chairman to certify a failure to comply with the requirements to the High Court, or the Court of Session in Scotland. The court then has
 
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power, after hearing evidence or representations, to order enforcement as if the matter had arisen in court proceedings.

The 1921 Act contained similar provisions, but they were broader than what is currently in Clause 33 of the Bill. Indeed, the 1921 Act covered anything that would amount to contempt of court if the tribunal inquiry had been a court of law. My amendment would replicate that broad provision of the 1921 Act and bring it into the Bill. As it stands the Bill does not cover the whole gamut of conduct that may distort or inhibit the ability of the inquiry to do its job, which is to get at the truth of the matter being inquired into. That is just as important for an inquiry held in future under the Bill as it is for any court of law proceedings.

I note that Clause 32(2) covers another specific kind of conduct that would amount to contempt if it related to legal proceedings—doing something intended or believed likely to have the effect of,

or preventing evidence being given. I suppose that that would cover the intimidation of witnesses so that relevant evidence may be withheld from the inquiry. It also no doubt covers bribery of witnesses so that evidence may be withheld, made up or tailored to suit the interests of the provider of the bribe. I should be glad if my noble friend would give me reassurance on that.

I am not sure whether Clause 32(2) or any other provision of the Bill would cover a newspaper article or television documentary that might unduly influence witnesses at the inquiry or, indeed, members of the inquiry, so disabling it from getting at the truth.

I recall that that was a problem for the Edmund Davies inquiry into the Aberfan disaster. Lord Salmon said in 1969 that the law of contempt should apply, albeit in a modified form, to inquiries. The trouble is that potential witnesses may have previously been cross-examined by expert interviewers—say, on television—and become committed to a version of the story that they then told, and perhaps were paid for telling, before the official inquiry even began.

The Bill picks selectively on only some aspects of the law of contempt to apply to inquiries. As it does not apply more comprehensively it seems clear that if abuse or, more seriously, missiles are thrown at the inquiry panel, or if one of the panel is assaulted, such contempt—which would be contempt in a court—is not covered. Sadly, I do not think that the potentiality for violence in public bodies has lessened since 1921, as demonstrated by the attack a few years ago—a precedent when it occurred—on a woman judge at the Old Bailey. Many additional security provisions have now had to be made for courts of law. I do not think that inquiry panels are immune in this day and age from some attack.
 
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Of course, there is always the possibility of a prosecution or a civil action by a member of the inquiry panel for a common assault. But the possibility of a finding of contempt, which has a particular resonance, is a better deterrent.

Inquiries under the Bill, rather than more informal inquiries which we have discussed, will be instituted only when there is public concern. That is right at the beginning of the Bill. Setting up an inquiry will not be an everyday occurrence. Inquiries need to be as free from interference as a court of law. Certainly they are not courts of law, as has been said many times in our debates. They are not adversarial but investigative. If they are worth setting up to look into a matter of public concern, their proceedings should be as well protected as those of courts of law, irrespective of whether the chairman of the tribunal or the inquiry is a judge, a legal figure or someone else. That seems to be irrelevant to the need to protect the inquiry and its integrity.

There is nothing automatic about Clause 33 either as it stands or as I propose.

The chairman is given discretionary powers. If he certifies that a matter should go to the High Court because it is sufficiently serious, that court also has discretion as to the powers of enforcement.

In relation to Amendment No. 99, which is grouped with Amendment No. 98, I have already said that this in effect replicates Section 20 of the Contempt of Court Act 1981, applying the 1981 Act to tribunals of inquiry. The 1981 Act in general imposes a strict liability involving a fine or imprisonment—up to two years' maximum—in respect of publications which create a substantial risk of serious prejudice to the ability of a court, or of course an inquiry, to do its job.

General discussion of the subject matter of an inquiry is not contempt under the Tribunals of Inquiry (Evidence) Act, if the risk of impediment or prejudice is merely incidental to that general discussion. The purpose of the two amendments is to enable inquiries set up under the Bill to be as free from dangerous interference with their proceedings as possible. I beg to move.

Baroness Ashton of Upholland: My Lords, I am very grateful to my noble friend for tabling these amendments and for the time that he has given me and my officials in talking through the issues. This is an issue that we gave significant consideration to when preparing the Bill. I understand why my noble friend has suggested it, but I do not believe that the changes are appropriate.

Contempt is a concept associated with the courtroom. Inquiries are not courts, which I know my noble friend accepts, but in recent times inquiries have moved away from a court-based model.

My noble friend will recall that in bringing forward the Bill we incorporated legislation from different areas in order to create a new comprehensive Bill. In doing so, we were conscious that the 1921 Act is exceptional in that it incorporates the law on contempt. Most modern inquiry legislation draws on the provisions of Section 250 of the
 
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Local Government Act 1972, which does not include any provisions on contempt. Instead, Section 250 makes it a summary offence to fail to comply with an inquiry or to destroy or tamper with evidence. We opted for that approach in Clause 32(2).

The Bill has been influenced, as my noble friend pointed out, by the findings of the Salmon committee on contempt in 1969, which recommended that the law on contempt should apply in a narrower form to courts. While not replicating the concept of contempt, we have incorporated the committee's recommendations into the offences in Clause 32.

The committee felt that it was very important not to curtail media comment about the inquiry. However, it considered—and my noble friend was concerned about this area—whether some media interviews or articles could be intended or likely to prejudice the inquiry. The wording in Clause 32(2), which is similar to the Salmon committee's recommendation 4, is aimed at covering such situations. Inquiries therefore will still have the powers and protections they need to operate effectively without applying the law of contempt. My noble friend will probably be aware that there is a further problem with the amendment as a result of the different references to the "course of justice" and the "administration of justice" in the Contempt of Court Act. These are concepts which are key for court proceedings, but which do not make much sense in the context of inquiries which, as we have said many times in the passage of the Bill, are all about public confidence.

I hope on that basis that my noble friend will feel able to withdraw his amendment.


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