APPENDIX 2: LETTER FROM BARONESS ASHTON
OF UPHOLLAND, PARLIAMENTARY UNDER-SECRETARY OF STATE FOR CONSTITUTIONAL
AFFAIRS, IN RESPONSE TO LETTER FROM THE CLERK OF THE COMMITTEE
TO THE LORD CHANCELLOR
I am writing as Bill Minister for the Inquiries Bill
in response to Ian Mackley's letter of 8 December to the Lord
Chancellor. I am very sorry that you were not able to take part
in the Second Reading debate to discuss the issues that you asked
Mr Mackley to write about. As you will be aware, we had an interesting
debate and I look forward to your participation in later debates.
Our decision to introduce the Bill now reflects the
growing feeling in recent years that inquiries legislation needed
to be re-examined and the concerns that have been raised about
the cost and duration of some inquiries. The Public Administration
Select Committee's inquiry, "Government by Inquiry"
was very timely since it seemed from their "Issues and Questions
Paper" published 24 February, that many areas which PASC
wished to examine overlapped with the work Government was already
doing. It therefore seemed appropriate to respond to the PASC
paper with a detailed Memorandum and (with the permission of the
Committee) to use that as a basis of a paper for public consultation.
We published this paper on 6 May.
The consultation set out Government's broad thinking
in a number of areas and invited comment. During the three-month
consultation period we held three discussion group seminars in
order to learn from those with direct experience of carrying out
inquiries. About thirty people, including former inquiry chairmen,
counsel, solicitors and secretaries, took part, and the views
expressed in these groups were reflected in the response to the
Consultation Paper.
The responses to the Consultation Paper confirmed
the Government's view that new legislation on inquiries, to replace
the Tribunals of Inquiry (Evidence) Act 1921 and many of the provisions
on inquiries in subject specific legislation (for example, section
49 of the Police Act 1996 and section 84 of the NHS Act 1977),
could improve the conduct and effectiveness of inquiries. Responses
also showed general support for the Government's detailed thinking
about what new legislation should contain as set out in the Consultation
Paper. A summary of responses was published on 28 September.
The drafting of the Bill reflects the very clear
views that came out of the Consultation and were set out in the
Summary of Responses. The only significant exception is that the
provisions on inquiries by devolved administrations were not covered
in the consultation. Those provisions were the subject of detailed
discussion with the devolved administrations. I was pleased that
Lord Fraser, who has recent experience of conducting a major inquiry
for a devolved administration, was supportive of the Bill at its
Second Reading.
Thus we considered we have a well thought out policy
which has been the subject of consultation with a wide range of
people who have had involvement or interest in inquiries. The
Bill was ready, and the Government felt it was time to bring it
forward.
I agree it would have been helpful to have had the
views of the Public Administration Select Committee prior to introduction.
We understood originally that the Committee was aiming to report
last July. This proved not to be the case and I understand that
the report is now expected by early February, so its conclusions
will be to hand for Commons consideration, and any subsequent
Lords consideration necessary. We certainly intend to consider
PASC's conclusions very carefully. I wrote to the Chairman of
the Committee on the day of the Queen's speech to let him know
that the Bill was included in it and was likely to be introduced
in the Lords soon afterwards, and I am meeting him to discuss
it.
I confess I had not seen this Bill as one of substantial
constitutional significance. It is very much a consolidation measure.
It does not introduce any new constitutional ideas, but is designed
to provide a single, UK wide framework that would be suitable
for any future statutory inquiry into events that have caused
public concern. It draws together and simplifies the complex collection
of current legislation on inquiries, filling in some gaps in areas
where no suitable legislation currently exists. It reflects both
the direction the case law relating to inquiries has taken and
a lot of good practice that has grown up over the years
in the conduct of both statutory and non-statutory inquiries.
The Bill is concerned with the tools needed by inquiries to do
a successful job.
I wonder if you could elaborate on which aspects
of the Bill particularly concern you, so that I can address your
concerns more fully. I suspect that one of the issues of concern
to you is the repeal of the 1921 Act, which requires resolutions
of both Houses to give an inquiry which has been set up by a Minister
or the monarch statutory powers. The 1921 Act is unusual in that
it is the only legislation on inquiries to require such resolutions.
This requirement was originally included in the Act because the
Parliament of the day was concerned that the Government might
try to set up too many inquiries under the 1921 Act and thought
that a Parliamentary veto was needed. In practice, this has not
been the case. Since 1990, there have been over 30 notable inquiries
set up but only four of those were established under the 1921
Act. In three of those cases, the resolutions were passed as a
formality, without debate, the exception was the Shipman Inquiry
which was set up under the 1921 Act, rather than the NHS Act following
a successful judicial review of an earlier decision to set it
up in a different manner.
The Bill could be used for a wide range of different
inquiries. While the subject matter of some might raise national
concern, others may be concerned with more localised issues. The
Government does not feel it would be appropriate to require the
sanction of Parliament for every inquiry set up by a Minister,
as this is not required currently for most cases. The need for
resolutions in all cases could delay the process of setting up
an inquiry, particularly when Parliament was not sitting.
It has been the practice of Ministers in the present
Government, as well as its predecessors, to explain to Parliament
the reason for setting up a major inquiry, whether a 1921 Act
inquiry or not. I would expect this practice to continue. I gave
an undertaking at Second Reading that I would be happy to consider
whether the practice needs to be strengthened in any way during
the deliberations on the Bill when it goes to Grand Committee
in January.
I would be very happy to meet to explore your concerns
further, if that would be helpful.
I am copying this letter to the leaders of the principal
parties in the House, the Convenor of the Cross Bench peers, the
Chairman of the Public Administration Select Committee, the Chairman
of the Constitutional Affairs Select Committee and members of
the Select Committee on the Constitution.
17 December 2004
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