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Lord Goodhart: My Lords, as the noble Lord, Lord Kingsland, said, my name is also on the amendment.

We would welcome the principle of parliamentary involvement in the setting up of an inquiry into ministerial misconduct. We would certainly welcome some procedure by which an inquiry could be set up by Parliament without it being initiated by the Government. Possibly the best solution would be for a Select Committee of either House to conduct such inquiries on its own initiative. That would not require statutory authority and is, therefore, not appropriate for inclusion in the Bill. Also, it must be said that a forensic inquiry of such a kind would need to be conducted by counsel for the committee and not under the normal procedure, with each member of the committee asking questions in turn. That would be unworkable. Unfortunately, it seems that the chairmen of the Select Committees in the other place are not particularly receptive to that idea.

On Report, we supported the draft amendment annexed to the report of the Public Administration Select Committee. However, on further consideration of it—it was published only 24 hours before we had to table the amendment—I concluded that there were serious defects in it. First, if a parliamentary procedure were mandatory for an inquiry involving ministerial misconduct, it would be necessary to draw a line between inquiries according to whether they did or did not involve ministerial misconduct. That could be difficult. It could well turn out that, during the course of an inquiry that was not originally thought to involve ministerial misconduct, it did in fact involve such misconduct.

Secondly, the PASC amendment would lead to the Government using the non-statutory inquiry whenever the occasion arose, in order to avoid having to use the parliamentary procedure. The new version of this amendment, by making it optional for the Government to use the parliamentary procedure in misconduct cases, would avoid both these defects.

A government might well think it appropriate to use the parliamentary procedure in high-profile cases, to meet public concerns about the independence of the inquiry. They would not be tied down by any requirement to use that procedure in any particular case. This seems something that ought to be welcomed by the Government, since it would give it a degree of flexibility that it does not have under the present Bill. We are, therefore, happy to support this amendment.

Lord Borrie: My Lords, the noble Lords, Lord Kingsland and Lord Goodhart, have at various stages of the Bill proposed—up to now, separately—different amendments to try and involve the two Houses of Parliament in some way in the setting up of an inquiry.
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They referred to the Tribunals of Inquiry (Evidence) Act 1921, which involved resolutions of both Houses of Parliament.

What is before us today is, to some extent, without being unduly rude, a watered-down version of amendments that have been proposed by the two noble Lords at previous stages of this Bill. On Report, they were fortified—certainly I thought that the noble Lord, Lord Kingsland, felt he was fortified—by the report of the Select Committee on Public Administration favouring a parliamentary inquiry, or parliamentary involvement, or a parliamentary commission, as the Select Committee referred to it. The noble Lord, Lord Kingsland, liberally quoted from that report.

In this amendment the noble Lords, Lord Kingsland and Lord Goodhart, are not directly pursuing the idea of a parliamentary inquiry, though from what the noble Lord, Lord Kingsland, said, he was perhaps indicating an element of encouragement to the other House to insert something appropriate along those lines, as and when they get the Bill. As has been said previously, at any stage either House of Parliament is free to call for and arrange an inquiry—for example, into ministerial conduct—without a Minister necessarily being the prime mover.

In this amendment the noble Lords, Lord Kingsland and Lord Goodhart, want a resolution of Parliament approving a ministerial proposal to hold an inquiry whenever the terms of reference "relate wholly or partially" to events involving "alleged ministerial misconduct". I notice that the Minister is given a discretion. The amendment says that he may act "if he sees fit"—presumably sometimes he may not see fit to move such a resolution. The amendment expressly states that the

It strikes me, subject only to the element of encouragement to the other House when it gets this Bill, that there is not much left of what the noble Lords have been putting to the House at various stages of this Bill about getting Parliament involved. We have a somewhat inchoate resolution that may or may not be passed and, whether it is or is not, it does not make any difference to the ministerial determination to have an inquiry.

Therefore, whatever view one takes about the need for parliamentary involvement in setting up an inquiry when ministerial conduct is involved, I am not sure of the value of the amendment. I am not sure that this does much either for the arguments that I have heard noble Lords opposite giving at earlier stages or otherwise.

Lord Laming: My Lords, I briefly support the noble Lord, Lord Borrie, in his well argued concerns about this amendment.

As indicated, we have discussed these matters at earlier stages, seeking a way to improve on the current position. We need to be cautious about moving away from what I would consider the basic principles: that the appointment of a Minister is in the gift of the Prime Minister. Ministers have to perform to the satisfaction
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of the Prime Minister, but also within the established ministerial code. Of course, a Minister can be removed by the Prime Minister at any time.

When it comes to ministerial misconduct, we need to exercise some caution against cutting across the machinery already in place in another place to deal with concerns about ministerial conduct or indeed the conduct of any other Member of the House. I would suggest that this amendment does not add anything that is not already in place in the other place.

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): My Lords, I begin by saying to the noble Lords, Lord Kingsland and Lord Goodhart, that I am grateful for their taking on board some of the issues that I raised when we previously discussed the principle behind this amendment and for the time that they gave me last week when we discussed outside your Lordships' House the issues that are raised here. Like other noble Lords, I intend to be reasonably brief, because we have dealt with the issues during the passage of the Bill.

The Government cannot accept this amendment. There are a number of reasons that I wish to allude to briefly in describing why, some of which have been mentioned by my noble friend Lord Borrie and others by the noble Lord, Lord Laming.

The first is, as the noble Lord, Lord Laming, said, that the ministerial code sets out the standards that the Prime Minister expects Ministers to uphold. The Prime Minister's foreword to that code makes clear that he expects all Ministers to work with the letter and the spirit of the code, to undertake their official duties in a way that upholds the highest standards of propriety. The Prime Minister is the ultimate judge of the standards of behaviour expected of a Minister and of the appropriate consequences of a breach of those standards.

Secondly, although we recognise that this is an optional amendment, we believe that, if it were part of the Bill, there would be enormous pressure if it were not used on every occasion somehow making the inquiry substandard. There is a genuine political point there. The reality, as the noble Lords must be aware, is that the Prime Minister and others would always be expected to use it.

That brings us to the real concern that I have about the definition of "misconduct".

Lord Goodhart: My Lords, does the Minister agree that although the Tribunal of Inquiry Act procedure is available now, it has rarely been used in cases of ministerial conduct? Many cases, such as the Hutton inquiry or the Hammond inquiry, have been conducted by non-statutory inquiries.

Baroness Ashton of Upholland: My Lords, of course the noble Lord is correct. However, I contend that, if this amendment were to go through, there would be political pressure for the Prime Minister to seek a vote in both Houses on all occasions in issues of misconduct. That is a reality. I accept that the current position may be different, just as I accept that there are
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already powers within Parliament to do other things, as I will come on to. None the less, it would be there to give the Minister or Prime Minister a greater ability to set up an inquiry in a particular way and to give those parties, whether they are inside or outside your Lordships' House or another place, the opportunity to push for that, to give credence to the inquiry. I do not believe that we can get away from that—it is political life, and we have to accept it.

That brings me on to the issue of defining misconduct, which we have discussed. When one reads the report from the Public Administration Committee, Sir Michael Bichard in his the evidence talked about the continuum. The difficulty is in defining ministerial misconduct. The noble Lords who tabled the amendment will, I am sure, have a clear picture in their own minds of what they would include in that. The Bill is about events of real importance; it is designed to deal with the kind of inquiries that we have seen on the Victoria Climbié tragedy, Alder Hey, Bristol hospital and so on. That is really its prime purpose. There is a real concern that you can look at any inquiry and find, if you wish, an issue of ministerial misconduct—whether because, if funding had been better in a particular aspect of public life, the tragedy might not have happened, or whatever. So there is a problem in defining when ministerial misconduct has taken place.

Although noble Lords and Members of another place may feel very clear about what they or we mean, I would argue that outside the Houses of Parliament those who are victims of a tragedy may say, "Actually, the government are at fault here—we believe this is a real issue of misconduct in the government, because these events would not have taken place if the government hadn't acted in that way". So I have a real difficulty in drawing the line on ministerial misconduct. Although noble Lords may have a very clear view in their own minds, many people outside your Lordships' House would feel very passionately that issues such as funding would come under the term, and pressure would result from that.

Above anything else, this Bill is about the need to ensure that when we conduct inquiries into matters of real public concern, there is confidence in the system. Anything that we do that undermines that confidence in any way is to the detriment of our society. I would argue that if we included in the Bill something that said that in certain circumstances it was a very good idea for the Prime Minister to put this forward and then said that it would not matter if he did not—and then have victims of the tragedy saying that in their view, the matter was absolutely about misconduct, even if the noble Lords, Lord Kingsland and Lord Goodhart, and I would say that it was not—we would undermine public confidence. I am very reluctant to do that.

I, too, have had the privilege of discussing the issues with the chairman of the Public Administration Committee and I, too, have put lots of ideas to him. I recognise that there is a genuine desire to discuss the
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issues. Of course, as it was a committee appointed by another place, my ambition was that there would be a full debate in another place—hence my halving that time available in the timetable to reply to the Public Administration Committee, so that by Second Reading our response would be out and there could be a full and proper debate in another place. As I pointed out, and as noble Lords know, the Select Committee process could be a means of dealing with these issues. Indeed, there is nothing to prevent Parliament deciding on a procedure.

I do not deny the need for a debate, but in the end I believe that this is the wrong amendment. As the Minister responsible for this Bill, it is not my contention that we should send this Bill to the Commons with such a proposal attached to it, for the reasons that I have given. I really hope that noble Lords will accept that we want a full and proper debate on the committee report in another place, on the basis of what I have said about the issues, and that they will have the benefit of that debate in their deliberations if the Bill comes back to this House. I hope that noble Lords will feel able to withdraw their amendments, to ensure that public confidence is at the heart of this Bill.

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