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House of Lords

Thursday, 19 March 2015.

11 am

Prayers—read by the Lord Bishop of Winchester.

Introduction: Lord Kerslake

11.08 am

Sir Robert Walter Kerslake, Knight, having been created Baron Kerslake, of Endcliffe in the City of Sheffield, was introduced and made the solemn affirmation, supported by Lord Best and Lord Adonis, and signed an undertaking to abide by the Code of Conduct.

School Curriculum: PSHE


11.13 am

Asked by Baroness Massey of Darwen

To ask Her Majesty’s Government whether they have any plans to make PSHE a statutory part of the school curriculum.

The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con): My Lords, high-quality PSHE education has a vital role to play in preparing young people for life in modern Britain. However, making it statutory is not the simple answer. We believe that all schools should teach PSHE in a way that is appropriate for their pupils, and we outline this expectation in the introduction to the new national curriculum. We are working closely with the PSHE Association to quality-assess resources and establish a new charter mark for schools that demonstrates robust evidence of high-quality PSHE provision.

Baroness Massey of Darwen (Lab): I thank the Minister for his response. Does he agree that personal, social and health education is not—or should not be—a one-off topic in schools, that it is more about developing social and emotional skills, not just imparting information, and that such skills can improve behaviour and academic performance, as many schools have found?

Lord Nash: I agree entirely with the noble Baroness. As the Secretary of State said last week, high-quality PSHE should offer people a curriculum for life as a planned programme of learning that is supported by a whole-school ethos covering all the knowledge and skills that young people need to manage their lives. I do agree with the noble Baroness’s point about character, which is why we have launched a £5 million innovation fund. Under our highly successful free schools programme, we have schools majoring on character development, such as the outstanding Dixons Trinity Academy in Bradford and those in the Floreat group. I recommend that all noble Lords from across the House visit some of those schools before they jump to conclusions based on inadequate information.

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Baroness Walmsley (LD): My Lords, in the light of the fact that deaf and disabled children are three times more likely to be sexually abused, and four times more likely to be physically or emotionally abused, than other children, will the Government make sure that schools ensure that these children receive their PSHE education in an appropriate form of communication that they can understand and are not withdrawn from PSHE classes for one reason or another because it is the easiest class to take them out of?

Lord Nash: My noble friend makes a very important point about deaf and disabled pupils. I am sure that the PSHE Association is focused on this, but I undertake to her to discuss it with the association personally.

Lord Aberdare (CB): My Lords, the Government argue that schools should have the flexibility to determine their own curriculum outside core subjects, but the result is that most schools are not teaching essential skills such as first aid, which not only gives students valuable life skills and confidence but would save many lives, as shown by countries where such training is mandatory. Does the Minister not agree that making PSHE statutory, including subjects such as first aid, and indeed citizenship, would result in students emerging much better prepared for their lives as citizens?

Lord Nash: The national curriculum creates a minimum expectation for the content of a curriculum in maintained schools. Quite deliberately, it does not represent everything that a school should teach. It would not be possible to cover all that when there are so many groups wishing things to be included in the curriculum, but many schools already choose to include CPR and defibrillator awareness as part of their PSHE teaching. We will work with the British Heart Foundation to promote its call push rescue kit to schools, including through our social media channels and the summer term email.

Baroness McIntosh of Hudnall (Lab): My Lords, what work is being done with teacher educators to ensure that there is a good supply of properly qualified teachers to take this agenda forward, particularly in view of what my noble friend Lady Massey said about it being a whole-school enterprise and not a specialist subject?

Lord Nash: The noble Baroness is quite right in her observations. High-quality professional development for teachers is an essential part of raising standards in schools. The PSHE Association has some excellent resources, which we signpost for schools. They include an online CPD course, which explores assessment policy writing, creating schemes of work and SRE education. Teachers can of course benefit from the national PSHE CPD programme.

Lord Northbourne (CB): My Lords, does the Minister agree that every child, as they pass through adolescence towards the world of work and raising a family, needs to acquire what are often called the soft skills: self-confidence, an ability to communicate, character and caring about other people? Can he make it clear whether these things are to be taught, are supposed to be taught or are being taught through the PSHE

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syllabus or somewhere else in schools, and whether the Government are concerned to ensure that every school provides a learning environment in respect of soft skills?

Lord Nash: The noble Lord makes a very good point. These skills are particularly important for underprivileged children. The noble Lord, Lord Giddens, made a very good point recently: that in order to have social mobility, you need social immobility. We need to give particularly children from disadvantaged backgrounds these soft skills, which is why we have such a big focus on character education. We would expect this to be inspected by Ofsted as part of SMSC and as part of a broad and balanced curriculum.

Earl Attlee (Con): My Lords, what is Ofsted doing to ensure that schools properly cover PSHE?

Lord Nash: As with other areas of the curriculum, PSHE and citizenship are not explicitly covered in the school curriculum inspection framework. However, in reporting, inspectors must consider how the school is meeting the needs of the range of pupils and pupils’ SMSC and cultural development to help to prepare them for life in modern Britain. Inspectors will also look at how effectively schools engage with parents in the development of their SMSC policy.

Baroness Jones of Whitchurch (Lab): My Lords, the Education Select Committee, as the noble Lord will know, recently reported that PSHE requires improvement in 40% of schools, that the situation appears to have got worse over time, and that young people are consistently reporting that the sex and relationship education that they receive is inadequate. Surely the Minister is showing a large degree of complacency about this. Perhaps making PSHE statutory is, indeed, a simple answer.

Lord Nash: The noble Baroness feels very strongly about it, but the Labour Party had 13 years to make it statutory and did not do so. We are currently considering the findings of the Education Select Committee report. We have launched a communications campaign to promote the selection of high-quality resources via our social media sites. They include PSHE Association programmes of study, “Sex and Relationships Education for the 21st Century” and various other products.

The Earl of Listowel (CB): Will the Minister praise the previous Government’s success in reducing teenage pregnancy to its current low, while recognising that compared to the continent we are still well behind? Will he keep a very open mind about this issue of a statutory requirement for PSHE? After all, the Education Select Committee in the other House recently recommended in its report that there should indeed be statutory provision in this area.

Lord Nash: The noble Earl knows that I always keep an open mind when it comes to young people. One of my proudest moments during my two years in this House was working with him to put the “staying put” arrangements in place.

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Electoral Register


11.21 am

Asked by Lord Kennedy of Southwark

To ask Her Majesty’s Government what action they are taking to maximise the number of people on the electoral register before the deadline of 20 April by which people must register to vote in the General Election on 7 May.

Lord Wallace of Saltaire (LD): My Lords, the Government have invested £14 million over two financial years to support activities to maximise the number of people on the register. In 2014-15, this includes £6.8 million divided among electoral registration offices across Great Britain according to levels of underregistration. Up to £2.5 million will be used to fund wider activity, including working with national organisations to reach underrepresented groups, such as young people, students, Armed Forces personnel and overseas voters.

Lord Kennedy of Southwark (Lab): My Lords, I declare an interest as the chair of the All-Party Parliamentary Group on Voter Registration. I hope the noble Lord’s response to my Question will move beyond the “We’ve all got a role to play” response that I often get from him. My Question asks specifically what action are the Government going to take in the next month to address the 7 million of our fellow citizens who are not on the register? How can we get those people on so that they can actually vote in the general election?

Lord Wallace of Saltaire: My Lords, it is up to all of us, not just the Government, to make sure. I was with the noble Baroness, Lady Royall, and the noble Baroness, Lady Perry, at UCL the other week. We all three made the point that it was extremely important that students both register and vote, and we should all be repeating that message each time we go to a college, university or school. The noble Lord will have seen the Electoral Commission’s announcement of its pre-election campaign earlier this week. That is another dimension of this. There will be advertising online and in the media. The Government are very happy that in February a million new applications came in to register. We expect there to be a similar surge in the last few weeks before the closing date, as there was in 2010. We are not at all complacent, but as the election gets closer, we expect interest to rise and we expect the 2.7 million applications which have come in since last December to be added to by, we hope, another million.

Lord Cormack (Con): My Lords, as there are penalties for not registering, can my noble friend explain to me—he has failed to do so in the past—why we do not move towards compulsory registration?

Lord Wallace of Saltaire: My Lords, the noble Lord, Lord Maxton, has also asked me this question on a number of occasions. We would be moving towards a different relationship between the citizen and the state. In Denmark, Finland and Germany, there is a national population register. If you are on a

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national population register, you are automatically also on a voting register. It is also used for welfare, taxation and a range of other questions. That takes us down the road towards national identification numbers and national identity cards. We will have to have that debate in the next Parliament. It is not the tradition in this country.

Lord Roberts of Llandudno (LD): My Lords, I congratulate the Minister on the backing he has given for organisations such as Bite the Ballot, of which I am the honorary president. I hope that the new voters exercise their vote on 7 May. After 7 May, it will be important to have a proper analysis of exactly what went wrong with individual registration as against the previous form. I am told that many constituencies have many fewer registered voters than in the past. Whichever Government are in office, will they urge the Electoral Commission to come to grips with this question very soon?

Lord Wallace of Saltaire: My Lords, after the election, the Electoral Commission, which is an excellent organisation, will of course examine the successes and weaknesses of the transition to individual electoral registration. We have guaranteed that this will come back to Parliament—there will be a report to Parliament on how the transition to individual electoral registration has gone. I emphasise that this has not been a failure. Applications are still coming in. Two-thirds of applications since last June have been online. We are doing everything we can to ensure that more people who have not yet registered, or who are registered in the wrong place, register before 20 April.

Lord Wills (Lab): My Lords, the Electoral Commission has said that between March and December last year 920,000 people disappeared off the electoral register. This is clearly going to have an impact on the outcome of the general election. Will the Minister say what impact he thinks it will have?

Lord Wallace of Saltaire: My Lords, I have just emphasised that nearly 3 million have applied to register since December. There is movement on and off the voting register all the time, as the noble Lord well knows. We are doing everything we can to make sure that movement on in the next few weeks, as over the past three months, continues to be positive.

Lord Grocott (Lab): My Lords, since this is all about establishing the identity of people who are eligible to vote, at this stage in the Parliament, five years in, will the Minister acknowledge that one of the numerous mistakes this coalition Government have made—it would take too long to list them—was the early decision to get rid of national identity cards, which would have solved this and many other problems relating to migration and other matters about which this Government have made such a mess?

Lord Wallace of Saltaire: I thank the noble Lord for his normally generous comments. The sheer heavy weight of the Labour Government’s ID proposals seemed to me and many of my colleagues to make it an unavoidable failure. There is a debate about the

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shift to a digital relationship between the citizen and the state, which we will have to have, and about convenience against privacy, which we need to have as we move forward. My right honourable friend Francis Maude and others working on the Government Digital Service have made a good deal of progress in that regard.

Lord Lexden (Con): Does the Minister have any information about the growth in the number of 18 to 21 year-olds on the register?

Lord Wallace of Saltaire: Since 1 December, some 700,000 16 to 24 year-olds have applied to register. We do not have an exact figure on what proportion that is because the figures on how many 16 year-olds will be eligible to vote in the election are not exact because we do not have all their birthdays.

Lord Greaves (LD): My Lords, do the Government have an estimate of the extent to which the reduction in the number on the electoral register as reported last December is due to a reduction in multiple registrations?

Lord Wallace of Saltaire: My Lords, it is highly likely that that is the case, particularly with students not being registered both at home and at university. That is one of many difficulties in assessing the completeness and accuracy of the register.

Syria and Iraq: Daesh


11.28 am

Asked by Lord Avebury

To ask Her Majesty’s Government what is the strategy of the United States-led coalition for clearing the Daesh out of the territories which they currently occupy in Syria and Iraq.

The Minister of State, Foreign and Commonwealth Office (Baroness Anelay of St Johns) (Con): My Lords, we are part of a global coalition with more than 60 members committing to defeating ISIL. We support inclusive governance in Iraq and Syria, work to counter ISIL’s vile narrative, its access to finance and foreign fighters, and provide military support to Iraqi forces fighting ISIL. The UK also provides humanitarian assistance to those affected by ISIL’s brutality and will contribute to the Syrian opposition train and equip programme.

Lord Avebury (LD): My Lords, the FCO website makes reference to a global strategy for combating the global threat of ISIL, which allegedly was agreed at a meeting in Paris on 15 September last year. However, the text of the agreement is not on the FCO website, and I cannot find it anywhere else using Google. Can the Government leave a parting message in Washington before next Thursday to say that we need a mechanism to co-ordinate military strategy among the armed forces of active coalition stakeholders and with the Syrian armed forces on retaking Raqqa?

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Baroness Anelay of St Johns: My Lords, I can reassure my noble friend that there was a meeting at the beginning of this year in London at which the coalition of more than 60 countries against ISIL agreed that there should be a small working group. The strategy of the global work is now being refined into a practical system and we have agreed to the formation of five working groups: military operations, foreign fighters, counterfinance, stabilisation support, and countermessaging. The UK is represented on all groups and we are co-chairing the countermessaging group with the UAE and the US. I will be delighted to discuss the detail further with my noble friend, who is right to draw attention to the importance of activity around and in Raqqa by ISIL.

Lord Howell of Guildford (Con): My Lords, the Question refers to the “United States-led coalition”, but does my noble friend agree that this is far more than just a western issue and that the great powers such as India and the People’s Republic of China have a major interest, as do all civilised countries, in containing this barbarian infection, which threatens them all? Does she further agree that nations such as Egypt are also closely involved? Does my noble friend therefore accept that the coalition we need to build effectively to contain this horror has to be global rather than purely western? If it is purely western, there will be bad reactions, which we will have to overcome.

Baroness Anelay of St Johns: I entirely agree with my noble friend. That is the very nature that underlines the formation of the five working groups, where non-western countries not only co-chair groups but are prominent members of them.

Lord West of Spithead (Lab): My Lords, does the Minister not agree that finally to defeat Daesh—to take it out—we would have to have forces on the ground in Iraq and Syria, which I hope will be Iraqi, Kurdish and local forces? One can understand, militarily, how that can be done in Iraq, but going into Syria means that we would have to look at our relationship with Assad. Without stamping out Daesh on the ground in Syria, we will not achieve success.

Baroness Anelay of St Johns: My Lords, there are three points there. First, with regard to Iraq, it is clear that the Government of Iraq have said that they do not wish to have our forces on the ground in Iraq, but they welcome the use of surveillance and airstrikes. With regard to Syria, we are of course assisting the moderate opposition, but let us be clear about Assad’s record. He responded to peaceful protests with violence, used chemical weapons against his own people, and continues to conduct air attacks on defenceless civilians. We must not fall into the trap of thinking and accepting what Assad wants to believe—that he is the only alternative to extremists and terrorists. He is not.

Baroness Warsi (Con): My Lords, do the Government have a cross-government agreement on how they refer to Daesh? If they do not, would they consider that? I suggest that they seriously consider using the word “Daesh”.

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Baroness Anelay of St Johns: I sympathise entirely with my noble friend. I am aware from when I talk to my Foreign Minister counterparts throughout the region that they find it puzzling that in this country the media and therefore the Government continue to use the term “ISIL”. They prefer “Daesh”, and I understand the significance of that. However, at the moment we find that if we talk about Daesh the media become puzzled. I take my noble friend’s point, and we will indeed consider how we can discuss that further.

The Lord Bishop of Winchester: My Lords, even if the current operations to clear Daesh prove successful, the ancient religious and ethnic minority communities in Iraq have an uncertain future. Does the Minister agree with the statement recently submitted by the Holy See to the United Nations Human Rights Council? It said that a future without these communities in Iraq and the Middle East risks,

“new forms of violence, exclusion, and the absence of peace and development”.

Therefore, what steps are being taken to secure the future of those communities, and in particular, their human right to religious freedom?

Baroness Anelay of St Johns: I can respond first by saying that the motion before the Human Rights Council was presented by the Vatican jointly with Russia. We are a signatory to that and fully support it. The work that we are doing with regard to humanitarian aid and our work with the International Committee of the Red Cross is fully aimed at supporting all minorities. The Christian church is clearly an important part of that. I pay tribute to those who use the £800 million of aid we provide in Syria to provide support to keep communities safe in the future and to keep them able to stay there. But it is bleak at present.

Lord Bach (Lab): My Lords, does the Minister agree that whatever happens after ISIL is defeated in Iraq—let us hope that it is soon—it will be for the Government of Iraq to take the lead on the necessary measures? Does she agree—I am sure that she will—that those measures should or might include more power sharing, encourage tolerance, and work towards a free, open and unsectarian society?

Baroness Anelay of St Johns: I agree entirely with the noble Lord, Lord Bach. Those views underpinned all the work I did when I was at the Human Rights Council in having bilaterals with other Ministers. I am sure that the Government of Iraq will be pleased to hear his comments and my support for them.

Burma: Policing of Demonstrations


11.36 am

Asked by Baroness Kinnock of Holyhead

To ask Her Majesty’s Government what assessment they have made of the recent actions by police in Burma in response to student demonstrations in Letpadan.

The Minister of State, Foreign and Commonwealth Office (Baroness Anelay of St Johns) (Con): My Lords, we are deeply concerned by the use of force by police

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in Letpadan on 10 March, and by the use of irregular security groups in Rangoon on 5 March. These incidents undermined an otherwise disciplined approach to policing student protests and demonstrate the need for further policing reform. We support the EU’s call for a full investigation and call on the Government of Burma to release all the remaining demonstrators.

Baroness Kinnock of Holyhead (Lab): I thank the Minister for her reply and ask her whether, in the light of the violent attacks and arrests of students in Burma last week—and, I have to say, other abuses of human rights in that country—we can now anticipate that the British Government will thoroughly review the support and assistance they currently provide to the Government in Burma. Otherwise, how can we be sure that the UK financial and technical assistance is not now actually supporting the institutions of an authoritarian regime that has made no real progress towards the civilised objectives that the people of Burma and the international community were promised?

Baroness Anelay of St Johns: My Lords, we continue, of course, to review how our work is undertaken with the Government of Burma. The noble Baroness will be aware that our contribution with regard to police training was via the EU instrument of a stability-funded project in support of police reform, following a request from not only the Burmese Government but Aung San Suu Kyi. That contribution remains under review. However, it is important to mark the fact that the Government of Burma have made progress, although they have a long way to go. We are always happy to discuss these matters with noble Lords and MPs. We have offered such meetings across both Houses to individuals with an interest in these matters and have had quite a lot of uptake. I understand that at the moment the noble Baroness, Lady Kinnock, has not accepted the invitation to meet our most senior official on this matter. I warmly offer that invitation again, and hope that she may accept it.

Baroness Cox (CB): My Lords, is the Minister aware that I recently visited remote hill tribe areas in Chin state, where I am pleased to report that local people appreciate some significant reforms, including improvements in relationships with the army and police, cessation of forced labour, and investment in infrastructure? However, we of course remain deeply concerned by the Burmese Government’s violations of human rights and military offensives against the Rohingya, Shan and Kachin peoples. How are Her Majesty’s Government achieving an effective balance in encouraging genuine reforms by the Burmese Government, while applying appropriate pressure to end gross violations of human rights in other areas?

Baroness Anelay of St Johns: My Lords, I pay tribute to the work of the noble Baroness, Lady Cox, and her courage over so many years in the work that she has done in Burma. It is a balance, whereby one needs, as she said in her report, to recognise progress but to be ever cautious about the huge amount of work yet to be done. I read her report with interest. The stories of the community health workers were very touching indeed.

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The Burmese Government have released political prisoners, discharged child soldiers—not all of them—ratified the Biological Weapons Convention and endorsed the declaration to end sexual violence in conflict, but we have seen an increase in the number of political prisoners, conflict in Kachin and in Shan, arrests of journalists and continued discrimination in Rakhine state. I shall be discussing these immediately after Questions with the United Nations special rapporteur, Yanghee Lee.

Baroness Falkner of Margravine (LD): My Lords, as recently as November when I met Daw Aung San Suu Kyi, her main point for the West was that we must not become complacent that the constitutional reform process is sufficient. With elections coming up in November, she is extremely concerned that there is a regression on the part of the military. That is what we have seen, in terms of the Question asked by the noble Baroness, Lady Kinnock. Could the Minister tell the House what meetings the Government are having with the military Government to press them to bring about constitutional reform—it was meant to be announced but has not been yet—so that they can embed that before the election period begins?

Baroness Anelay of St Johns: My Lords, my right honourable friend Hugo Swire visited Burma last year. He has met representatives of the Burmese Government and discussed the range of progress that the Burmese Government need to make. As my noble friend said, the elections this year are critical for Burma. It is the first time that Burma has had the opportunity to have democratic elections and make real progress. It must not let that slip.

Lord McConnell of Glenscorrodale (Lab): My Lords, the long-term solutions to the conflicts between the central authorities in Myanmar and the ethnic armed groups active in many parts of the country will undoubtedly be assisted if the work of ASEAN—the Association of Southeast Asian Nations—to become more involved in peace and security across the region is supported by the international community. Will that work by ASEAN and those sorts of regional initiatives be a priority for the new stabilisation fund that comes into place in April?

Baroness Anelay of St Johns: The noble Lord makes an important point. I will look very carefully to see what kind of stress has been put on that. I would like to consider that and see whether it has been properly reflected.

Baroness Berridge (Con): My Lords, although the Rohingya Muslims remain one of the most persecuted people on the face of the planet—I declare an interest as chair of the All-Party Group on International Freedom of Religion or Belief—they had a vote in the first national elections. At that point in time, temporary ID cards were sufficient to give you a vote. In fact, they elected Mr Shwe Maung, who I think is the only Rohingya Muslim member of the Parliament there. Could my noble friend the Minister outline what representations Her Majesty’s Government have made to the President of Burma following his executive

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order on 11 February this year, which basically invalidates those temporary ID cards and will deprive the Rohingya Muslims of their vote in November’s elections?

Baroness Anelay of St Johns: My Lords, representations have been made with regard not only to that but to the method by which information is collected in that state about one’s ethnicity. As I understand it, one is forced to put down that one is Bengali, rather than one’s real ethnicity. These are matters that must continue to be discussed.

Barts Health NHS Trust


11.43 am

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, I will now repeat in the form of a Statement an Answer to an Urgent Question tabled in another place and given by my honourable friend the Minister for Public Health on the subject of Barts Health NHS Trust. The Statement is as follows:

“The NHS Trust Development Authority announced on Tuesday 17 March that Barts Health would be placed into special measures. This followed a report by the Care Quality Commission that rated services at the Barts Health site at Whipps Cross as ‘inadequate’. As a result of this decision, the trust will receive a package of tailored support to help it to rapidly make the necessary improvements for patients. This will include the appointment of an improvement director and the opportunity to partner with a high-performing trust.

The Chief Inspector of Hospitals has highlighted the scale of the challenge ahead and this is an opportunity to ensure that the trust has the extra support it needs to meet this challenge. Barts Health has already announced that it has begun to strengthen management arrangements at Whipps Cross, in response to concerns raised by the CQC.

We make no apology that, under the new rigorous inspection regime led by the Chief Inspector of Hospitals, if a hospital is not performing as it should, the public will be told. If a hospital is providing inadequate care and we do not have confidence in the ability of its leadership to make the required improvements without intensive support, it will be put into special measures. It will remain in special measures until it is able it to reach the quality standards that patients rightly expect.

While the trust is in special measures, it will receive increased support and intensive oversight to help it address its specific failings. This process is publicly transparent so that patients and the public can see and track for themselves, online through the NHS Choices website, the progress that their trusts are making. Any changes or additional support required for the trust leadership are put in place early on in the improvement process, as has already taken place at Barts Health.

The expectation is that an NHS trust or foundation trust will be reinspected by the CQC within 12 months of being placed in special measures. It is the job of the Chief Inspector of Hospitals to recommend when a

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trust is ready to exit special measures. The NHS Trust Development Authority or Monitor will then formally decide to take the trust out of special measures when they consider that the trust is able to sustain the quality of care at the level that patients expect.

A total of 21 trusts have been put into special measures over the past 20 months as a result of this new approach to poor care. Six trusts have exited the regime and there has been progress at nearly all the others. The willingness to recognise poor care has been critical in starting a journey to improvement and we make no apology for upholding the high standards of care that are rightly expected of the NHS”.

My Lords, that concludes the Statement.

11.46 am

Lord Hunt of Kings Heath (Lab): My Lords, I am sure that the House is grateful to the noble Earl, Lord Howe, for repeating that. It is a worrying report about the largest trust in England, which is directly managed by his department through the NHS Trust Development Authority. Why have these problems been allowed to get worse over the past two years. Does he agree that the report has identified that the root cause of the problem was the reorganisation of the trust in 2013? Can he say why Ministers overruled the Co-operation and Competition Panel, which advised against the proposed merger and warned of the adverse consequences for patients?

Earl Howe: The decision to create Barts Health was taken following a report that analysed the options open to the department at that time. As the noble Lord knows, there was, effectively, a merger of several trusts to create Barts Health. The advice received by the Secretary of State at the time was that none of the three trusts subject to the merger with Barts was sustainable as a stand-alone organisation. The appraisal of the options identified the three-way merger as the most beneficial and strategic solution for the system as a whole, taking into account a wide range of clinical, financial and government issues.

Baroness Finlay of Llandaff (CB): My Lords, in looking at the non-viability, I have been concerned that the PFI deals that Barts Health is saddled with amount to £115 million a year. I wonder whether the other trusts that went into special measures have also had this albatross of PFI deals around their necks that has pulled them down over the years. Why have the Government been unable to address the problem of the burden of previous PFI deals?

Earl Howe: Early on in the Government’s term of office, we analysed all the trusts that were subject to PFI liabilities. The worst affected trusts were singled out to be given ongoing financial support by the Department of Health. Barts has a very large PFI debt of about £1 billion, and I have asked whether it is considered that this in itself has proved to be a deciding factor in the trust’s financial stresses. The advice I have been given is that it is not seen as a particular cause of the difficulties now being experienced.

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Baroness Donaghy (Lab): My Lords, I want to ask a question about a trade union representative who was dismissed from the authority two years ago for raising some of these very issues. She was a member of UNISON, and I declare an interest as a former member. I wonder whether, in working closely with trade unions, a better step would be to look after the interests of all the staff and to be not afraid to listen to some of the difficulties. The authority fought that case tooth and nail. She won at an employment tribunal but did not get reinstatement. Can the Minister give us a reassurance that in future there will be a more constructive relationship with the trade unions?

Earl Howe: My Lords, I cannot disagree with the philosophy expounded by the noble Baroness. It is very important that not just the trade unions but members of staff generally feel involved and have a sense of ownership of the organisation for which they work. I hope it is of some reassurance to the noble Baroness that staff and health partners will be fully involved in the development and implementation of the improvement programme and that a staff representative will be a member of a new improvement board at Whipps Cross.

Baroness Masham of Ilton (CB): My Lords, it was stated in the press that there had been bullying at Whipps Cross and that people had been denied food and fluid for far too long. What is being done about those people who bullied patients?

Earl Howe: The noble Baroness is right. The CQC found that there was a culture of bullying at Whipps Cross. They had concerns about whether enough was being done to encourage a culture of openness and transparency—something on which, as she knows, we place great emphasis in the light of the report on Mid Staffordshire NHS Foundation Trust. I can only say to the noble Baroness that this is one of the issues that will be top of the list for the new improvement director at Whipps Cross.

Baroness Manzoor (LD): My Lords, the culture within the NHS appears to be changing, and not for the better. Is the Department of Health looking at that, as well as at the issue of PFI across the NHS, and is it doing so not in a piecemeal fashion whereby things are identified only when they go wrong?

Earl Howe: It is precisely because we have wanted to confront the issue across the NHS that so much has been done following the report of Sir Robert Francis into Mid Staffordshire NHS Foundation Trust. All the recommendations flowing from that report should resonate with every part of the NHS. The recent work done by Sir Robert on whistleblowing can be put into the same category. There are lessons and messages for the NHS as a whole, and I believe that progress is being made, as it needs to be in particular quarters.

Lord Campbell-Savours (Lab): My Lords, I declare an interest as a financial sponsor of research into cancer at St Bartholomew’s Hospital in central London.

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Can we be given an assurance that the work done at St Bartholomew’s is in no way under criticism in the Statement made by the Minister?

Earl Howe: The Statement related to Whipps Cross specifically, but the Trust Development Authority took the decision to place the entire trust into special measures. That was a slightly unusual step to take but I think that it reflected the concern that it felt about the management of the trust generally. However, the TDA also singled out some areas at Barts for particular praise. It is important to stress that patients will receive the good care that they have known about at Barts in the future.

Inquiries Act 2005 (Select Committee Report)

Motion to Take Note

11.55 am

Moved by Lord Shutt of Greetland

That this House takes note of the report of the Select Committee on the Inquiries Act 2005 (Session 2013–14, HL Paper 143).

Lord Shutt of Greetland (LD): My Lords, I invite the House to take note of the report of the Select Committee on the Inquiries Act 2005. I received several wry smiles while undertaking the chairmanship of the committee, when people asked what I was doing in the House of Lords and I said I was inquiring into the Inquiries Act. I believe it has been a useful piece of work to do.

We are privileged in this debate today to hear the noble Viscount, Lord Tenby, give his valedictory speech. We will all be able to say that we were present when the last Lloyd George—for the present, at any rate—concludes service in Parliament. We look forward to his contribution and wish him well in his new life.

I thank my colleagues who served with me on the committee. We had members who have set up inquiries and members who have chaired inquiries as well as those who have been scarred by inquiries. But we also had an abundance of lawyers. We have been well served by our clerk, Michael Collon, assisted by Emily Greenwood and our special adviser, Professor Carol Harlow. I also thank the witnesses who have given their time and talents, both in written and in oral form, to assist in our work.

I believe that the committee has produced a thorough piece of work, based on much evidence. We have also had the benefit of our own visit to the only inquiry that was taking place at that time—the Al-Sweady inquiry. We were concerned to take evidence and meet not only people who had chaired inquiries and had been counsel or panel members but also secretaries, solicitors and assessors, co-participants, academics, legal specialists, interest groups and others. We endeavoured to look at all participants in the inquiry process.

Inquiries are usually set up because of an overwhelming concern at an event, or a series of events, in the public domain that has gone wrong and something serious

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must be done for confidence in that area of work to return. One of our witnesses, Robert Francis QC, now Sir Robert, set out his summary of the reasons for holding a public inquiry. He concluded that the reasons include:

“establishing the facts leading up to a matter of concern; determining the explanations for and causes of things which have gone wrong; identifying those responsible for deficiencies or performance failures; establishing the lessons to be learned from what has happened; making recommendations intended to correct the deficiencies for the future”.

In our post-legislative scrutiny of the Act we have tried to see how objectives such as those can be achieved.

Our report contains 33 recommendations which come very much from our consideration of the evidence. These recommendations follow the sequence of the report, and, of course, some are more vital than others. I want to highlight three of the main recommendations.

The first is that, although we recommend some improvements, the Inquiries Act 2005 is a good Act and should be used. We were surprised to find that, on so many occasions, Ministers had set up inquiries other than under the Act. All our evidence was that, except in circumstances concerning security matters, the Act should be used. We note that since we reported back in March 2014, two new inquiries have been announced under the Act. Perhaps a lesson has been learnt a little, but we hope to learn more about that.

The second of our recommendations that I would like to speak about is recommendation 12, where we recommend the setting up of a unit. We suggested that it should be under Her Majesty’s Courts and Tribunals Service and serve as the centre of excellence and expertise for all the practical details of setting up an inquiry. It is the existence of the unit that is important; it may be appropriate to put it somewhere else in government, but we suggested that particular department. The unit would be responsible for making clear the location of premises that could be used for inquiries, their infrastructure and the necessary IT. We heard many stories of inappropriate IT procurement and cost. The unit should also look at staffing and work closely with the chairman and the secretary of each inquiry. We heard much evidence from people responsible for setting up the administration of inquiries. They said that when they had started, it was a matter of reinventing the wheel, as if there had never been an inquiry before. We also believe that the unit should be a place where lessons-learnt papers should be placed so that best practice can be distilled and updated. Indeed, the unit could retain vital contacts for future involvement. We were shocked that that information, which is supposed to be kept somewhere, was just not kept.

Recommendation 25, which is the third matter that I want to raise, relates to warning letters. The evidence led us to recommend that inquiry Rules 13 to 15 of the Inquiry Rules 2006 should be withdrawn. Several chairmen raised this issue with us and we became aware that the use of these rules prolonged inquiries by several months, with the consequent delay in publication of the inquiry report. We must always remember that when we have inquiries, people are desperate to learn their results

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and do not want to wait and wait. I am sure that other members—and I am delighted that nine of the 12 of us are listed to speak today—will highlight other elements of the report that they believe are particularly important.

The report was published on 11 March 2014, now over 12 months ago. I understand that the government response was due within two months. I was asked if the Government could have more time to respond. Being of a somewhat generous disposition, I acquiesced to that request. The response was published on 30 June but, sadly, we found it somewhat disappointing. In his foreword to the report, the right honourable Simon Hughes, the Minister of State for Justice and Civil Liberties, said:

“The Inquiries Act potentially touches upon every department of state, and the Government has given careful consideration to the Select Committee’s 33 recommendations, agreeing with the majority of them. We will implement changes as soon as practicable and, where primary legislation is needed, when parliamentary time allows”.

That was not correct arithmetically. I reckon that 10 recommendations were accepted; four were “accepted, but”; 14 were rejected; and five were “rejected, but”. However, we should really look at the weight in terms of importance, and the weight was very much on the rejection side.

With the good will of the by then former members of the committee and our clerk, the committee met again and sought a meeting with Simon Hughes, which was readily agreed to. We met on 29 October and had a full and frank discussion. The Minister asked that he be given a month to see what he could do about our concerns, particularly the three issues I raised earlier. We have been waiting. Very many inquiries have been made. I was told on one occasion that the Ministry of Justice had concluded its work and matters rested with the Cabinet Office. If there is a government turf war, that is very sad. The latest inquiry, made yesterday, brought news that the noble Lord, Lord Faulks, will be addressing concerns today. We look forward to his response. It occurs to me that I am right to ask the noble Lord, Lord Faulks, in the circumstances we find ourselves in, if he will provide a supplementary written response after today.

I have one further thing that I think it is important to raise, not necessarily for the Minister, but for the Chairman of Committees and the Liaison Committee. Our experience leads me to suggest that once a Select Committee has produced its report, as we did in March 2014, the committee should not be laid down but retained in light dormancy in order to respond to further developments and, indeed, not completely laid down before a final meeting after the report has been debated. I have been reading the Hansard report of a debate I witnessed a week ago on the report of the committee of the noble and learned Lord, Lord Hardie, on the Mental Capacity Act 2005. It seems that that committee faced very similar circumstances. It did better than us in that it got a written response from the Minister the day before the debate. Again, it was the noble Lord, Lord Faulks, and he said that the Government were taking a slightly different view—a better view as

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far as the committee was concerned—from that taken in the government response which had been published earlier.

It has been a privilege to do this work and I commend the report to the House. I beg to move.

12.07 pm

Lord Trefgarne (Con): My Lords, I had the privilege of being a member of the committee which the noble Lord, Lord Shutt, chaired and I pay tribute to him for his chairmanship and, above all, for his patience, not only with the members, who, no doubt, irritated him from time to time, but, of course, with the response from government departments, which, while not malevolent, was lethargic to say the least. It was disappointing that it was not possible to get more positive observations from the Government, as my noble friend has described. I, too, am looking forward to the valedictory speech of the noble Viscount, Lord Tenby. I am jolly sorry that he has decided to leave the House. I have known him for as many years as he has been here, I think, and will miss him, as we all will, very much.

I agreed with virtually all of the committee’s report and all the conclusions which my noble friend described, but if noble Lords look at paragraph 234, they will see that there is reference to one member of the committee who disagreed on one matter. That one member was me and I shall tell noble Lords where my concerns arose. It related to the representation of witnesses by counsel when they appear before a public inquiry. I spoke from a little experience. I was one of the witnesses before the Scott inquiry, 20-odd years ago now, chaired by the then Sir Richard Scott, who is now, of course, the noble and learned Lord, Lord Scott. That inquiry had a counsel for the inquiry called Presiley Baxendale, who became pretty famous in her time, and who adopted a very confrontational attitude with the witnesses. She was, of course, trying to get the best information she could for the benefit of the noble and learned Lord, Lord Scott, or Sir Richard as he was then, in reaching his conclusions, but she did choose to be very aggressive.

I was, I think, the only witness before that inquiry who was represented by counsel. Most of the witnesses were still civil servants or serving Ministers. I had just left the Government at the time and actually said that I would not appear unless I was represented by counsel because that inquiry did not have the power to summon witnesses by order, so to speak. I was represented by the then Sir Patrick Neill, who is now of course the noble Lord, Lord Neill of Bladen. In fact, I was treated entirely courteously and I hope that my evidence was of some benefit to Sir Richard, as he then was, in reaching his conclusions.

However, some of the witnesses before the Scott inquiry were scarred, as my noble friend has described, by the examination and cross-examination to which they were subjected by Presiley Baxendale. That, I think, is regrettable. By scarring witnesses and treating them in that way, you do not get better evidence. The witnesses are not there to be tried for some offence; they are there to give the best information they can. I believe that Ms Baxendale did not serve the inquiry

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well by treating some of the witnesses as she did, and who turned out to be permanently scarred. At least one or two of them retired from their work shortly afterwards and, frankly, that was not satisfactory. I must say to the noble and learned Lord, who is sitting in his place, that he should have intervened to stop some of that, and I and the rest of us regret very much that he did not. I believe firmly that that did not improve the evidence he was given and is very much to be regretted.

That is really the main point I want to make. I think that witnesses who are compelled to appear before a public inquiry ought to be entitled to have counsel that is paid for by the inquiry, if they so wish. That would enable them to be protected in a way that some witnesses on other occasions have not been protected, and I hope that it can be further considered on some future occasion.

The inquiry we are now discussing, chaired by my noble friend Lord Shutt, did a good job. I was proud and pleased to be a member of the committee. We were well chaired by the noble Lord, if I may say so, and well served by the officials, led by Michael Collon, who also attended upon us. I am grateful to them for that, and I support the report which has been submitted for your Lordships’ consideration today.

12.12 pm

Lord Richard (Lab): My Lords, it was indeed a privilege to have been a member of the committee. The whole issue of public inquiries is now very much coming more to the fore in this country. Day by day we read of someone demanding an inquiry or an inquiry being set up, either a total inquiry into a particular issue or a partial one. It is a topic that is certainly current and of interest to a large number of people in this country. The Inquiries Act 2005 clearly needed post-legislative scrutiny to ascertain how it has been working and what amendments, if any, should be made to its operation. The committee heard a variety of evidence and came to some stern conclusions.

If I may say so, it was as good a committee as I have served on. I echo the tributes that have been paid to the chairman, the noble Lord, Lord Shutt, who chaired the committee with determination and good humour. He kept us at it and in the end we produced a unanimous report, save for the one slight qualification which the noble Lord who preceded me has referred to. It is a good report. We were extremely well served by Michael Collon and his staff, and by our special adviser, Professor Carol Harlow.

One has only to look at the list of witnesses who came before the committee to see the quality of the evidence that they gave. I do not propose to read the list out because it is set out in the report, but if any Member looks at it, he will see included in it a number of people of distinguished lineage and great experience who have either set up inquiries, or participated in them, written about them, dealt with them, have been subject to them or have given evidence to them. It is an impressive list.

Before I turn to the recommendations made by the committee, given that background, I must say a word or two about the attitude of the Government. It has

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been contemptuous and peremptory, and is indeed a good example of how Governments should not behave when faced with a powerful parliamentary committee report. It would be difficult, I think, to find a better instance of that. I would not wish to divert this debate into consideration of the Government’s behaviour, but it really was deplorable. Despite our efforts, and particularly those of our clerk, we were unable to obtain the attendance of a senior Minister. The Minister who actually gave evidence, Mr Shailesh Vara MP, the Parliamentary Under-Secretary of State for Justice, had, to put it kindly, only a nodding acquaintance with the subject. I make no great criticism of him and he did his very best to assist us with what we were trying to do in our inquiry, but he really was not the right person for the Government to have fielded on an issue of this importance before a committee of this sort.

The government response to our report, which was presented to Parliament in June last year by Mr Simon Hughes, was extraordinarily negative and unhelpful. Clearly, whoever was responsible for that response could not have properly read the evidence that was given to the committee. The response was, quite frankly, so dissociated from the mass of evidence that the committee received that it was difficult to see how they could have come to the conclusions that they did. Such was the feeling of the committee that, although it had formally ceased to exist, we asked for a further meeting with Mr Hughes, which, as Lord Shutt has told us, took place on 29 October. After listening, he undertook to review the Government’s position and let us have a written response by the end of November. That response has never been received.

Indeed, as members of the committee know, on 18 March this year the Ministry of Justice responded, saying that,

“the Ministry of Justice and Cabinet Office are working together”—

that is nice to know—

“on the points you and Lord Shutt have raised, and they will be addressed by Lord Faulks in Thursday’s debate”.

Frankly, this is farcical. If the Government have changed their view, we will not be in a position to comment upon it because the noble Lord, Lord Faulks, will be speaking at the end of the debate. The Government have elevated obfuscation to an art form in the way in which they have dealt with this report.

On the merits of the report, I would draw the particular attention of the House to paragraphs 81 and 82. If I may, I will read them:

“We recommend that inquiries into issues of public concern should normally be held under the Act. This is essential where Article 2 of the ECHR is engaged. No inquiry should be set up without the power to compel the attendance of witnesses unless ministers are confident that all potential witnesses will attend”.

In the next paragraph, we said:

“We would not however remove the possibility of an inquiry being held otherwise than under the Act, for example where security issues are involved, or other sensitive issues which require evidence to be heard in secret. Ministers should give reasons for any decision to hold an inquiry otherwise than under the Act”.

I also draw the attention of the House to the evidence given by Mr Vara. He was asked whether

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there should be at least a presumption that, if an inquiry was being set up, it should be under the Act. Mr Vara replied:

“I see no reason for not having that presumption … certainly the Act is there and it is there to be used … it is a first port of call”.

I was very content with that answer. Unfortunately, he subsequently went back on it in further evidence, telling the Committee that:

“To the extent that I may have led the Committee to believe that there is a presumption, I am saying that I do not know the answer. I am not aware of the word ‘presumption’ being used in the Guidance”.

I find this evidence extraordinarily disappointing. The 2005 Act was passed after very considerable parliamentary scrutiny. That there are some aspects of its operation which need amending is undoubtedly true but, by and large, and particularly if it were to be altered in accordance with our recommendations, the Act should stand as the normal way in which public inquiries are conducted. The fact is that the powers of compulsion under the Act are always helpful. Even if rarely used, they act as a useful weapon to persuade witnesses to attend and give truthful evidence. I can see no reason why that presumption should not be accepted by the Government. Of course there are the exceptions that I just referred to but, prima facie, if a public inquiry is to be set up, then it ought to be set up under the Act that Parliament passed dealing with the issue of public inquiries and which we have now inquired into.

We pointed out various amendments that should be made to the Act. I do not propose to refer to those in detail today, but they are set out from page 89 and Members of the House can read them if they wish to. Suffice it for me to say that they provide a comprehensive analysis of the terms of the Act and of the ways in which it could be improved. One defect we pointed out, which has already been referred to by the noble Lord, Lord Shutt, was in relation to the rules, particularly on warning letters. We pointed out that if that could be dealt with, it would make the operation of inquiries under the Act quicker and less stressful for those carrying them out. We recommended that rules 13 to 15 should be revoked and a rule substituted giving the chairman discretion as to the circumstances in which a warning letter should be sent.

Finally, I believe that this report is a significant analysis of the way in which the 2005 Act operates. It was a serious piece of work, taken seriously by all those who took part in the committee, and deserved better treatment than it has received from the Government.

12.22 pm

Lord Woolf (CB): My Lords, I begin by disclosing the matters in the register, particularly those with regard to my having conducted inquiries. I also echo as warmly as I can the comments made about my noble friend Lord Tenby. Both when I was Lord Chief Justice and made only very occasional visits to this House, and since I have retired and so have been able to spend more time here, I have found him a great source of wise advice. I always found him willing and generous with his time to give that advice. I know how

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many of the Members of the House, like me, will miss him as a result of his retirement. I would like publicly to give him my very best wishes.

I also join in the things said about our Chairman in respect of this inquiry, which was a rewarding experience to be part of. As the register shows, I was previously involved in another inquiry into inquiries. This recent inquiry was a model of its sort. The first inquiry in which I was involved is coming up to its 25th birthday on 1 April. That was the Strangeways inquiry, which is perhaps worth mentioning only to the extent that it involved prisoners and prison staff from six prisons across the country—indicating the sort of problems that can arise in an inquiry—and the fact that inquiries are of very great importance to satisfy public concerns. They may not always get it right but they are certainly a way in which the public can be involved in the process of achieving justice, which enables many people to feel that justice has been done.

If we are to continue to perform that process, it is very important indeed that the process continually evolves. It is very easy for an inquiry to go wrong on the process—the way in which the matter is handled. That is why I particularly recommend that we pay the closest attention to the idea of having a specialist unit within the Courts and Tribunals Service that will be a repository of the critical information that one inquiry can provide for later inquiries. I can say only that I would have valued that in the Strangeways inquiry. Irrespective of what has happened since, I do not believe that any proper machinery has yet been devised to perform that purpose which has been put into practice by any Government.

The important thing about the proposal in the report in that regard is that it would enable the running of inquiries to appear to be separate from government. Many inquiries involve government, and the difficulty with the Cabinet Office being the repository is, first, that the functioning of the Inquiries Act is a matter of very small importance to the Cabinet Office, although I suggest that it should be high in a table of significance, and, secondly, it means that the inquiry has a link in its management to something absolutely at the heart of government: the Cabinet Office. That differs, of course, from the decision whether there should be an inquiry, which is a matter I fully accept that the Government must be involved in, but the running and management of inquiries is a different matter.

The quality of the Courts and Tribunals Service is that it is used to being attached to an independent body, which is a separate part of government: namely, the Courts Service. The Courts Service is a peculiar service within the Civil Service. We should build on the advantage that we have in having it as a possible repository. Because of that, the noble Lord, Lord Shutt, appropriately inquired whether the courts would be happy to take on that responsibility. Subject, of course, to their being properly financed to do so, they recognised that that is something that they should do. With respect, I say that that is a matter that the Government, or a Government, should look at again, because it would help to give credibility to the inquiry.

I do not want to take up too long a time, but I would like to touch on one or two other recommendations. From my experience, I regard counsel to an inquiry as

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critical. The great thing about counsel to the inquiry is that he can help to shorten the process. I know of at least one inquiry taking place at this time where the absence of counsel to the inquiry may be very significant in the delays that have occurred.

I should also like to say a word about Salmon letters. One of the witnesses from whom we heard with regard to Salmon letters made it clear that they have a place to play in inquiries, but we do not want rigid rules that they have to be served in all circumstances. In many situations, it is an unnecessary additional procedure to impose upon inquiries to have Salmon letters. Where they help to achieve justice, they have to be served, but where there is no special reason for serving them, in the ordinary process of legal proceedings we do not have Salmon letters, and I can see no reason why we should have them in inquiries unless, if they were not sent, there would be an injustice in relation to a particular witness. Otherwise, we are just prolonging the process of the inquiry.

There is also a danger of not taking advantage of the full use that inquiries can provide to future legal proceedings. There is a recommendation in the report that the evidence at an inquiry and its inclusion should in effect be admissible in subsequent legal proceedings. I confess that it is a great advantage to be followed later by the noble and learned Lord, Lord Cullen of Whitekirk, who probably has the most unique experience of conducting inquiries. He gave evidence before us on that matter and I suggest that he can speak to that matter as well.

Finally, the way we use inquiries in this jurisdiction is exceptional. Other common-law jurisdictions are nervous about the deployment of the judiciary, because that seems to be outside their normal process. We should recognise that our approach, which has worked so well in the past, is going through a particularly difficult period at the moment, but that the value of inquiries is immense and that we should continue to build on what we have learnt already.

12.32 pm

Lord Trimble (Con): My Lords, I was also a member of the Select Committee which produced this report. Like other Members, I want to thank the noble Lord, Lord Shutt, for his chairmanship of the report and in particular for the way in which he has followed matters up in the interval since we made our report. I will come back to that later.

I had intended to start by quoting paragraph 14 of the report, in which we express our disappointment at the contribution that we had from the Government, but the noble Lord, Lord Richard, has done that in pungent terms and I merely endorse what he said.

I then thought of referring to paragraph 19, in which we challenged the Government. I will be interested to hear what the noble Lord, Lord Faulks, says about this when he replies. In that paragraph, we refer to how we recommend in the report a number of amendments to the Inquiry Rules 2006and point out that the power exists to make those amendments by order. We suggest that this is so simple a procedure that there is no reason why the Government cannot make these amendments to the Inquiry Rules “within

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three months”. The Government’s response accepts the recommended changes in the rules but I am not aware of any order coming forward to implement them.

A lot turns on the question of the type of inquiry that one has. I want to touch on that for a moment, first, by referring to the Royal Commission on Tribunals of Inquiry back in the 1960s. It made a number of important recommendations, the sixth of which was:

“No Government should in future set up a tribunal of the type adopted in the Profumo case to investigate any matter causing nation-wide public concern”.

That inquiry was not established under the 1921 Act. It was a non-statutory inquiry and the judge conducted it entirely in private. Witnesses were not permitted to hear the evidence of other witnesses and there was no opportunity for any witness to test the evidence of another witness. Naturally, we described this in our report as unsatisfactory but I much prefer the terms of the royal commission in saying that no such tribunal should be set up in future. I wish that that had been before the Northern Ireland Office when, a few months ago, it decided to establish a private inquiry into the on-the-runs letters. The description of the Profumo inquiry fits pretty well the way in which that inquiry was conducted, which was unfortunate.

However, the main issue is whether the Act should be used or non-statutory inquiries should take place. The starting point here should really be: what was the intention of the 2005 Act? The genesis of the 2005 Act appears to have been in a recommendation made by Sir Anthony Clarke—now the noble and learned Lord, Lord Clarke—in the Thames safety inquiry in 2000. He commented:

“The time has in my opinion come to set up a statutory framework for inquiries generally to replace the various statutes which govern them at present”.

That language was echoed in the Explanatory Notes to the 2005 Bill, which said that the object was,

“to provide a comprehensive statutory framework for inquiries”,

and the Minister introducing the Bill virtually repeated those words. That language points to the Act being used for inquiries generally. It does not say that the Act is optional. It does not say, “We have enacted this Act and you don’t have to pay any attention to it. You can ignore it if you like”. That would be a rather novel proposition for legislation. I know that the practice has developed of non-statutory inquiries and it is perhaps late in the day to challenge that now. However, I suggest that it is not really within the original intention of the Act, which is why we made the recommendations we did in the terms that have been mentioned.

Another issue is perhaps more significant. It is the question of the compliance of the inquiries with the requirements of Article 2 of the European Convention on Human Rights. It is fairly clear that non-statutory inquiries are not compliant with the ECHR. I will refer to what we said in paragraphs 69, 70 and 74. I will not go through them in detail but the Edwards case is mentioned, as is a subsequent case in which the court directed the setting-up of a number of inquiries and went on to say that steps would have to be taken to ensure that the persons conducting those inquiries

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had the powers to compel witnesses and the disclosure of documents. I am not quite clear as to how that has happened in practice and whether anything has been done. Again, perhaps the Minister might enlighten us when he replies.

On this matter, the Government say in paragraph 32 of their response that inquests are,

“the main way in which the Government fulfils its responsibilities under Article 2”.

Three comments come to mind with regard to that. First, Article 2 goes wider than inquests. It is not just a matter of unlawful killing but of ill treatment and unlawful killing, so you cannot say that you regard inquests as meeting the requirements of Article 2 when it goes wider than the subject matter of inquests. Secondly, inquests are limited compared to inquiries. I will not go into detail on that. We set that out in paragraph 83 of the report, which shows that it may not be desirable to use inquests to fulfil the requirement of Article 2.

However, there is a more general point to be made because while we have the particular terminology of Article 2 in the ECHR, the general principle nowadays goes further. The second report of the Turkel commission, which I was attached to as an international observer, said:

“The general principles for an ‘effective investigation’ can be found in various international human rights law sources, including binding conventions (such as the Convention against Torture); interpretations of the International Covenant on Civil and Political Rights by the Human Rights Committee and its decisions in specific cases; and resolutions adopted by the General Assembly of the United Nations”.

It then goes on to refer to the ECHR. If this has migrated into a general obligation on human rights law, it reinforces the point that inquiries should be done on the basis of the statute and with the powers that the statute gives.

In chapter 6 of the report, we deal with another aspect, namely the independence of inquiries. We refer there to the reservations that the Joint Committee on Human Rights had with regard to the various powers that the Government have to influence the conduct of the inquiry, which led the Joint Committee to think that those powers in themselves rendered the inquiries not in compliance with the convention.

We make a number of recommendations in paragraphs 206 to 210. I notice that the Government accept one of those recommendations but reject three of them, particularly the power that they have, as it were, to close down the inquiry. I notice that in their response, the Government say in paragraph 72 that they wish to “retain the flexibility” given by this provision. I think that “flexibility” is not the right word. The word that should have been used is “power” and the power should not be utilised in the way that the existing legislation permits.

My last statement is by way of a digression. I referred to the commission to which I was attached as an international observer. Following the example of the noble Lord, Lord Shutt, in following up matters, he might be interested to know that some months after he took that initiative here, I got together with the other international observer who is domiciled in Australia

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but who comes to this part of the world from time to time. We both went back to his room to raise the issue with the Israeli Government as to whether they were implementing those recommendations. I suspect, though, that I will have to go back again.

12.42 pm

Lord Cullen of Whitekirk (CB): My Lords, the committee’s report is sound, thorough and constructive. I have an interest in the subject matter of the report in the sense that I have chaired a number of public inquiries, the first being the inquiry into the Piper Alpha disaster, and I gave evidence to the committee.

I welcome the Government’s acceptance of the committee’s recommendation that the Inquiries Act should be amended so that a Minister who wishes to appoint a serving judge should first obtain the consent of, and not merely consult with, the appropriate senior member of the judiciary. I recall that some 10 years ago, during the passage of the Inquiries Bill, the noble and learned Lord, Lord Woolf, and I were the senior judges of our respective jurisdictions at that time and we spoke in favour of such an amendment. However, it was not to be. It was opposed by the then Government and did not become part of the Act.

The committee’s recommendation on this point is supported by a number of important considerations. It is surely a matter for the senior judge in each jurisdiction to decide, for example, whether a judge should be deployed from the available resources, whether a particular judge is in fact suitable for the task and, perhaps most important of all, whether the subject of the inquiry is one for which the involvement of a judge is appropriate. Where the subject is sensitive in political terms, there is a risk of damage to the high regard in which judges are held and, in particular, their reputation for independence and impartiality. A judge who is invited to take an inquiry but has good reasons for declining, despite his sense of public duty, should know that he can have the backing of the senior judge in his jurisdiction. I trust that, whatever the complexion of the next Government, they will support the amendment proposed and recommended by the committee.

I now turn to other matters. I am less than happy with the Government’s treatment of other recommendations by the committee and propose to mention two of them. The first concerns the appointment of counsel to the inquiry—an appointment which is likely to be needed in almost every inquiry under the Act. The role of counsel to the inquiry is of crucial importance: overseeing and preparing evidence; questioning witnesses, if necessary robustly; advising the inquiry; and potentially representing it in the event of its being challenged. In my experience, it is essential for counsel not only to be competent for the job but to have a close working relationship with the chairman, interpreting and fulfilling his aims and enjoying his respect and confidence. This is even more important today when counsel to the inquiry has an increasing influence on the scope of the questioning of witnesses and hence on how the inquiry is perceived. I also agree with what the noble and learned Lord, Lord Woolf, has said about the important assistance which counsel can give to the parties.

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The rules define counsel to the inquiry as,

“the qualified lawyer or lawyers, if any, appointed by the chairman to act as counsel”.

The committee considered that it should be put beyond doubt that the Minister had no say in the appointment, so it recommended that solely the chairman should appoint counsel to the inquiry. The Government rejected that recommendation, because,

“Ministers will want to retain control of such issues which affect departmental budgets and the terms of reference of an inquiry”.

What does this exactly entail? Does it mean that, where the chairman and the Minister are not in agreement about an appointment, the Minister should have the right to override the chairman and direct him as to who should be appointed, or at any rate veto the chairman’s choice? Either way, that is a poor foundation for what should be a confident and productive relationship. If the Government are concerned about the cost of leaving the choice of counsel to the chairman, one has to bear in mind that, under Section 17(3) of the Act, the chairman has to act with regard to avoiding any unnecessary cost. It was also one of the committee’s recommendations that the chairman should consult the Treasury Solicitor in order to ensure that counsel is appointed on terms which give good value for money. As for the Government’s reference to the terms of reference of the inquiry, I find their relevance to the choice of counsel obscure and, in any event, unconvincing.

Secondly, I turn to warning letters. One might expect that the chairman of an inquiry should judge what warning should be given, as a matter of fairness, to a person—that includes a body corporate or incorporate—that is liable be criticised in the report of the inquiry. Nevertheless, the Inquiry Rules prescribe what must be done. To put it briefly, rule 13 states that the report must not include any “explicit or significant criticism” of a person without sending that person a warning letter and giving the recipient the opportunity to respond. The rule has to be read along with rule 15 which prescribes the content: it must state the criticism; the facts which substantiate it; and the evidence supporting those facts. Since my inquiries were before the Act came into force, I have not had any direct experience of working under these rules. But I can readily envisage the difficulties, which were clearly illustrated during the course of the evidence given to the committee.

First, the rules take no account of the considerable differences in the nature of various inquiries and the events or conduct with which they may be concerned. It has often been said that every inquiry has to adapt the procedure to meet its own circumstances. No doubt there are some cases in which there is a need for a detailed warning, for example in the case of a person who is faced with very serious allegations, or a person who has not been represented at the inquiry. However, at the other end of the spectrum, the position may be entirely different. Parties who are represented throughout the proceedings will have heard the evidence and the submissions, and will also have taken steps to challenge them. They are already aware of the issues—as it were, they know the score. Yet rules 13 and 15 require the inquiry to issue detailed warning letters, as defined, and to take into account responses which may simply repeat, or seek to embellish, what they have already said during the inquiry proceedings.

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Secondly, literal compliance with the rules and the handling of responses can prove so complex, demanding and time-consuming as to add greatly to the time taken by the inquiry to produce the report. It would be a mistake to think that a warning letter would set out what was required in a few pages. I understand that a warning letter and its response can amount to hundreds of pages. No doubt an inquiry team would be anxious to avoid overlooking what could be a “significant” criticism, but where should it draw the line? Sir Robert Francis, whose name has been mentioned already and who chaired the inquiry into the Mid Staffordshire NHS Foundation Trust, gave evidence that in his experience warning letters could cause quite unnecessary alarm and a lot of time was spent on people responding to things that were not in fact on the mind of the chairman. He said that the process of warning letters and responses to them extended his inquiry by at least six months.

I also see from the committee’s report that Sir Brian Leveson explained to it that, in his inquiry into the conduct of the press, the prescription set out in rule 15 led to his adopting a different approach in which he ventilated possible criticism by means of a generic letter. He said that, had he sought to comply in terms with the requirements of rule 15,

“I need never have finished because they were all very specific”.

Even so, his leading counsel Robert Jay, now Sir Robert Jay, spoke of that rule causing,

“huge grief and a huge amount of work and incurring of public expense”.

The committee’s recommendation with regard to these rules has been mentioned in earlier speeches. I am not saying that what the committee recommends is a perfect solution. Others have suggested that it might be practicable to modify the rules to set out what should generally be done, giving the inquiry chairman some discretion, without courting the risk of judicial review.

The Government’s response to the committee’s recommendation was to reject it. Having referred to the structure of rule 13, it merely stated,

“The Treasury Solicitor's Department has advised that the drafting of rule 13 is not defective”.

It said nothing about rule 15. It did not address the committee’s concerns as expressed in its report in the light of the evidence before it. I urge the Minster the noble Lord, Lord Faulks, and his colleagues to think again and to give serious consideration to introducing flexibility and proportionality to the rules so that fairness can be achieved without loss of common sense.

12.52 pm

Lord Morris of Aberavon (Lab): My Lords, I note that the noble Viscount, Lord Tenby, will speak after me in a valedictory speech. I have been privileged to be associated with many members of his distinguished family for a very long time—in fact, for more than 50 years. During our service with the Royal Welch Fusiliers, I shared a tent with the noble Viscount. We were guarding the shores of Pembrokeshire. I came to no harm, and neither did he. His friendship and his contribution to this House will be greatly missed.

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The Select Committee did an effective, workmanlike job under the wise guidance of the noble Lord, Lord Shutt, who deserves our warm thanks, as do the staff. Before I express my disappointment with some of the Government’s responses to the committee’s recommendations, I will mention one matter that with hindsight we might have spent some time discussing. Because of the very nature of the independence of an inquiry, there is a real danger that an inquiry can get out of control. I was involved as Attorney when the Londonderry inquiry under the noble and learned Lord, Lord Saville, was set up. No one ever dreamt that it would get so out of control that it could have bankrupted any non-government organisation carrying out a similar investigation into facts. I hope the figures will be better as far as Chilcot is concerned, but again the delay is disgraceful and shameful. It seems that that inquiry is master of its own procedures and that there is no power in the land to get it to publish its report. Six years and more after the event, it may have lost many of its original purposes.

I suggest that Parliament should have another look at this aspect of public inquiries. The first question is: how is the independence of an inquiry to be safeguarded without imperilling proportionality in the time it takes to report and its cost to the public purse? Secondly, should a Minister who finds himself powerless not report to Parliament to reconsider its consent to the setting up of the inquiry and its terms of reference and perhaps to put a ceiling on costs? In short, should considering pulling the plug be out of bounds?

All the inquiries I have been ministerially involved in have been non-statutory inquiries. I will not go through them. I went along with the committee in its preference, now that we have an Inquiries Act, for a statutory inquiry rather than a non-statutory inquiry, with a degree of reluctance. From my experience, a non-statutory inquiry can be a very effective tool. I would therefore not quarrel with the Government in their response on this aspect. Although the evidence of the junior Minister from the Ministry of Justice did not have a great deal of depth, he was doing his best with a very bad brief. Perhaps, as the noble Lord, Lord Richard, indicated, the Government should have fielded a more senior and more experienced Minister.

There are two issues where the Government’s responses are particularly unpersuasive. The first is to our recommendation 12:

“that the Government should make resources available to create a unit within Her Majesty’s Courts and Tribunals Service which will be responsible for all the practical details of setting up an inquiry, whether statutory or non-statutory, including but not limited to assistance with premises, infrastructure, IT, procurement and staffing. The unit should work to the chairman and secretary of the inquiry”.

While agreeing with the spirit of the recommendation, the Government go on to reject it completely and prefer the status quo of leaving it in the hands of the propriety and ethics team of the Cabinet Office to continue to co-ordinate matters, despite the fact that these arrangements have manifestly failed so far. The Government provide no evidence to support their rejection of our recommendation. When a Minister and his officials have to respond to the clamour for a public inquiry, as I have, they have no effective body

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with any sense of continuity behind it to turn to for advice and guidance on how to proceed.

The committee was able to parade a string of most telling evidence that something must be done. It heard significant evidence of the difficulties faced by each new inquiry team in setting up an inquiry from scratch, despite the numerous inquiries held before. It was apparent that despite current government policy, lessons learnt from previous inquiries had not been requested or retained. The witnesses proved beyond question that lessons had not been learnt.

The evidence of the Hamill inquiry finance officer and of secretaries Lee Hughes and Alun Evans was impressive, as were the recommendations of Michael Collins, Judi Kemish and Ashley Underwood QC, who thought that,

“a dedicated sponsoring department for inquiries would be invaluable”.

Alun Evans and Lee Hughes were between them secretaries to five inquiries. Alan Evans talked of trying to,

“prevent having to re-create the wheel at the start of each inquiry”.

Lee Hughes said that,

“it is very dispiriting two or three years down the line to do another inquiry and find that everything you set up before has been dismantled and you have to do it all again”.

The Government propose instead the strengthening of the existing machinery in view of the infrequency of setting up inquiries and the diversity of the departments concerned. With six Permanent Secretaries in the Cabinet Office at the last count—when I sat on the Constitution Committee—it would be a show of some willingness to take the criticism seriously if the existing machinery was made directly answerable to one Permanent Secretary as part of his published duties.

My second point concerns Rules 13 to 15, which have already been referred to, regarding the sending of warning letters to those who might be criticised. Of course there must be fairness in what is now called Maxwellisation, but the requirement in the regulations, as opposed to discretion, can result in a shocking waste of time. Robert Francis QC, as he then was, told us on this aspect that,

“in practice I think my inquiry was extended by at least six months”.

Robert Jay, as he then was, also said:

“Rule 15 caused us huge grief and a huge amount of work and incurring of public expense. I think literally thousands of hours of work went into the generic letter”.

In paragraph 251 of our report we take the criticisms on board, recommending that Rules 13 to 15 should be revoked and suggesting a simplified substitution without the shackles of the existing rules. The Government have rejected that recommendation on the grounds that it was the pre-2005 practice to send warning letters, and therefore that because it was the practice before the Act, it must be right. That is the best justification that they can muster. It appears that Francis and Jay spoke in vain.

I invite the Government to think again about the regulation and to reconsider our recommendations in the light of the evidence. The remarkable thing is that the Government’s responses on both these recommendations are not evidence-based.

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1.02 pm

Viscount Tenby (CB) (Valedictory Speech): My Lords, I thank noble Lords for the many generous remarks made this morning about someone I do not recognise. As a Welshman and a Lloyd George, I find myself almost lost for words—which, I think noble Lords will agree, is a pretty kettle of fish.

I begin by apologising to the noble Lord, Lord Shutt, and to the Minister for gate-crashing an important debate on the Inquiries Act. In an ill informed bow to the subject of this most important Select Committee report, I merely observe that with the ever-increasing need for inquiries, it must make sense to have some central body or “unit”—to quote the noble Lord, Lord Shutt—to oversee all the issues; and, without being too restrictive, a set of generally agreed requirements which would make such inquiries more cost-effective and less time-consuming.

I imagine that intruders into the parliamentary timetable are no more welcome than gate-crashers at a teenager’s birthday party—but, in their wisdom, and with some sensitivity, the authorities have decided that such a privilege should be available. Indeed, Lord Jenkin of Roding, who has served his country with such distinction in both Houses, memorably took the plunge last December. As an inadequate token of appreciation, I will undertake not to take too much of the House’s time. In other words, I will not repeat two of my pet aversions over the years: a long Second Reading speech on Report, or starting by saying, “I had not intended to speak in this debate”, before making a beautifully crafted speech lasting at least 10 minutes.

After I made my maiden speech some 26 years ago on alternatives to custodial sentencing, I thought, “Well, that’s one terrifying experience I won’t have to go through again”—but how wrong I was. It has been an immense pleasure to have participated in the work of the House over these past years. During that time I have been both proud and privileged to have served five outstanding Convenors of the Cross Benches, who happily are all now with us save for the much missed late Lord Weatherill, with whom, in a junior role of course, I was able to play some small part in the first stage of Lords reform. I pay tribute and give thanks to all of them, and to my fellow colleagues and friends.

My retirement will bring to an end—almost to the day—125 years of continuous parliamentary representation in my immediate family. Perhaps due to family interest in the subject, I was a member of what may well have been in recent times the earliest committee to turn its attention to Lords reform back in 1995, and I like to think that some of our commentaries and suggestions then have stood the test of time. I have been fortunate in being able to continue that interest, not least as a long-serving member of the campaign for an effective second Chamber—I see certain distinguished members of that group in their seats today. We seek to bring clarity and common sense to the discussions on the future composition of this vital revising Chamber, which does not make laws and which—rightly, in a democracy—gives way to the elected Chamber.

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As a personal experience, I will say how rewarding it was to be a member of a House that helped to bring in legal and criminal justice Bills—it seems like every year; I think it was—while at the same time being able to judge their efficacy as chairman of a Bench of over 100 magistrates. It should be noted, in any future composition of a second Chamber, that election is not necessarily an all-embracing panacea. I hope that any future House will contain a large number of Members appointed for their knowledge and experience, so that the close examination of legislation may continue to be professional and thorough.

However, the principal reason I welcome the chance to speak here today is that it enables me to thank most warmly the very many splendid servants of this remarkable place: secretaries, officials, clerks, officers, attendants, the post room, the Printed Paper Office, all the catering and banqueting staff, the Library, accounts, the information office, police and security—I could go on and on, and I apologise to those I have inadvertently omitted. Together, ladies and gentlemen, you are the life-blood which makes this House what it is, and I thank you one and all, most sincerely, for your unstinting help over the years.

In my early days here, I enjoyed the friendship and advice of a noble Lord now sadly long-departed—the late Lord Allen of Abbeydale, for whom the evocative phrase “Civil Service luminary” might well have been coined. Often, if I was making a set-piece speech, I would go to him for advice. In his later years, when ill health prevented him from attending the House, he would ring up to find out how the day had gone. I would always give him the same reply: “Well, at least my trousers didn’t fall down”—which invariably seemed to satisfy him. Fortunately, mine still seem to be in place today, so, without wishing to press my luck to destruction, I wish your Lordships the greatest good fortune and constitutional success in the years to come. I thank you one and all. I have enjoyed my time here immensely.

Noble Lords: Hear, hear.

1.08 pm

Lord Pannick (CB): My Lords, on behalf of all noble Lords I thank the noble Viscount, Lord Tenby, for his distinguished service to this House since 1983. We wish him a very happy retirement. Noble Lords will know that his grandfather, David Lloyd George, famously described this House as,

“a body of 500 men chosen at random from amongst the unemployed”.

I cannot believe that the noble Viscount has ever not been employed on some worthwhile task. It is especially appropriate that he has played so valuable a role in the discussions on the role of this House and how to move this House—now composed of rather more than 500 men and women—to the next stage of reform.

Unlike the noble and learned Lord, Lord Morris of Aberavon, I have never had the pleasure of sharing a tent with the noble Viscount, but I am one of many noble Lords who have benefited enormously from his advice about matters relating to this House. That advice has been valued by all of us because it has been

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based on knowledge, wisdom, kindness—a much underrated quality—and humility, as your Lordships have again heard today. The noble Viscount, Lord Tenby, will be much missed on these Benches and around the House.

I join other noble Lords in welcoming this impressive and stimulating report. I want to focus, as other noble Lords have done, on paragraphs 243 to 251 of the report, which address warning letters. As the noble and learned Lords, Lord Cullen, Lord Woolf and Lord Morris of Aberavon, have mentioned, those paragraphs address the need under the current rules to send letters to those who are the subject of criticism in a draft report, giving them an opportunity to comment before the final report is drawn up and published—an obligation that adds a very substantial amount of work for an inquiry, and a very substantial delay before publication. The committee is correct at paragraph 251 to recommend that these rules need to be replaced by a discretion for the chairman as to whether to give a person who is to be criticised in a report an opportunity to respond. Given that the Inquiry Rules do not apply, as we have heard, to many inquiries, including Chilcot, the practice needs to change as well.

This issue requires consideration of a little history and a little law. The noble Lord, Lord Trimble, mentioned the Profumo inquiry. When Lord Denning inquired into the Profumo case in 1963, he acted, as he said in his report, as,

“detective, inquisitor, advocate and judge”,

hearing all the evidence in secret. This led to the 1966 Royal Commission on Tribunals of Inquiry, chaired by Lord Justice Salmon, as he then was. He understandably concluded that future inquiries should do more to ensure justice for those involved. That led to the practice of witnesses being given a “Salmon letter”, setting out before they give evidence matters of interest and concern. The process has become increasingly legalistic in the worst sense of that word. Some advocates even argued on behalf of their clients that one party to the inquiry should be able to issue a Salmon letter to another party, seeking to transfer culpability—a practice that became known as a “smoked Salmon letter”.

The practice also developed whereby if an inquiry intends to criticise an individual in the final report, that individual has to be given the relevant sections of the draft report in order that he or she can comment before publication. This process is known as Maxwellisation, and is now enshrined in Rules 13 to 15 of the Inquiry Rules. It is ironic indeed that the law and practice so commemorates Robert Maxwell because he brought a case against Department of Trade inspectors in 1974, complaining about a report critical of his business practices. The complaint was that he had not been shown the draft report before publication. The Court of Appeal rejected that complaint: Lord Denning, sitting with others, said that Maxwell was not entitled to see the draft report. Why not? It was because he had been fairly treated during the inquiry. He had had a proper opportunity to comment during the inquiry on the allegations in the case, so fairness did not require yet another opportunity at the end of the process.

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This general legal principle was also stated by Lord Diplock in the Appellate Committee of this House, also in 1974, in the case of Hoffmann-La Roche. Lord Diplock pointed out—this point was made today by the noble and learned Lord, Lord Woolf—that even in a court of law, once a fair hearing has been given to the witnesses, the rules of natural justice do not require the judge to present a draft judgment on which the parties are then entitled to comment before the judge hands down the final decision. If that is right in a court of law, it is all the more so when we are talking about the report of an inquiry—which, however important, imposes no criminal or civil liability on anyone. So it must be right, as the noble and learned Lords, Lord Woolf, Lord Cullen and Lord Morris, have all suggested, that Rules 13 to 15 must go. They are far too absolute, and there should be a discretion for the inquiry chairman because exceptionally there may be cases where fairness indeed demands that at the end of the process the chairman goes back to a specific witness on a specific point—because, for example, a significant new piece of evidence has emerged or the witness had not previously had an opportunity to comment. However, subject to that, fairness during the hearing suffices.

There is one other matter. The noble Lord, Lord Trefgarne, complained in his speech that at the Scott inquiry, counsel to the inquiry, Presiley Baxendale QC “permanently scarred”—the noble Lord’s words—witnesses by the ferocity of her cross-examination. I know Miss Baxendale well. She was, before her retirement, a member of my chambers, Blackstone Chambers. A more polite and more reasonable person it would be difficult to find. I have to say to the noble Lord, Lord Trefgarne, that an inquiry is there to find the facts. To do so depends on counsel to the inquiry fearlessly and without favour asking difficult questions of witnesses who may be reluctant, for a variety of reasons, to tell the full story. It is undoubtedly not a pleasant experience to be cross-examined, but Miss Baxendale was not there to make friends. She did her job. So did this Select Committee. The House is very grateful to the noble Lord, Lord Shutt, and the other members of the committee.

1.18 pm

Baroness Buscombe (Con): My Lords, I join other noble Lords in congratulating the noble Viscount, Lord Tenby, on a wonderful valedictory speech. All I can say is: some gatecrasher! He will be sorely missed.

As a member of the committee I begin by saying that we had an excellent chairman in the noble Lord, Lord Shutt, and a wonderful clerk to the committee, Michael Collon, together with his team and special adviser. It is a good report and we have been right to express concerns, given the Government’s response to it. That said, the Government have accepted some of our recommendations, although I do not propose to spend any time on those today.

While our primary focus has been to concentrate on the Inquiries Act 2005, our terms of reference went considerably wider and required us to consider more generally,

“the law and practice relating to inquiries into matters of public concern, in particular the Inquiries Act 2005”.

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We therefore used the Act as a basis for a broader and more topical inquiry. I believe that this approach allowed us to benefit in our thinking and assisted us with regard to taking evidence from a broad spectrum of individuals with different experiences concerning inquiries over many years. Indeed, as noble Lords have already said, the quality of the evidence given by those who attended our committee was exceptional.

I can attest to the committee arguing and debating at considerable length, ably chaired, as I have said, by my noble friend Lord Shutt, before making our recommendations. I shall follow other noble Lords in focusing on two areas: the task of setting up inquiries—as it turned out, we learnt, from scratch—and warning letters. I may have something to say on progress on that issue.

We were very clear that for an inquiry to proceed expeditiously, expediently and effectively, focusing on the terms of reference and ensuring the best questions were asked to elicit the truth—paramount for having an inquiry in the first place—from the right witnesses in a timely manner, it would be necessary to have, and to some degree we assumed that there would be, experience to draw from, and expertise and officials, when setting up an inquiry. Unfortunately, we quickly learnt that inquiries do not in large part follow an established system. There is no memory bank. The new chairman and team must essentially start from first base, without the benefit of the experience of others who have been through the process before, beyond, as our committee discovered, a dusty draft guidance held by the Cabinet Office and some notes written by a chairman following just one inquiry, offering some advice to future inquiry administrations. That is a shocking revelation, in my view and that of the committee, that obviously contributes to a waste of time and of public money.

Witnesses giving evidence to our committee spoke of the difficulties in commencing an inquiry without experience, reference to proper financial oversight and ongoing assessments of whether the terms of reference were being adhered to, or whether those terms of reference might in practice be proving too broad and thereby ineffectual. In response to numerous witnesses expressing real concern about a lack of sensible experience to draw from when setting up an inquiry, which affects the due process and possibly the outcome, we made a recommendation to set up a small dedicated unit—a central inquiries unit—to be responsible for all the practical details of the inquiry, whether statutory or non-statutory, including assistance with premises, infrastructure, IT, procurement and staffing. Indeed, I personally would extend that role to continuing objective oversight of whether the inquiry is on track to serve its purpose.

It is important to keep in mind in considering our recommendations the extraordinary timescales involved and the sometimes frankly incredible sums of money that are spent in conducting these inquiries. As I kept thinking through our deliberations, in almost all cases these inquiries cost many people’s lifetime contribution to the tax system—whether any of this is proportionate to the purpose. I have to say I think the Government’s

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response to this recommendation for a small, bespoke unit does not appear properly to consider the enormity of the task.

We have heard from other noble Lords the committee’s concern regarding warning letters and of the meeting held with Simon Hughes MP. The Minister asked me to write to him with a very personal experience. Here I declare that I gave evidence to the Leveson inquiry; indeed, I was the subject of a warning letter. The Minister asked me to write to him following the meeting about my experience and why it had led me to believe strongly that an amendment to Rule 13 should be seriously considered to clarify intent and thereby remove any inference that warning letters are a mandatory part of the process. As the noble and learned Lord, Lord Woolf, said, we do not want rigid rules.

I will not delay the House by reading out the whole contents of my letter, but in effect I made reference to my personal experience but also made clear, I thought, what we were asking for. I will read a short extract from that first letter:

“In the course of obtaining evidence during our consideration of the Inquiries Act, several witnesses, including Sir Robert Francis, Sir Brian Leveson and Sir Robert Jay, all explained that they thought there was a mandatory requirement for an Inquiry Chairman to send out Warning Letters, however unnecessary, expensive and time-consuming this might be. This led our Committee to unanimously agree that the drafting of Rule 13 might not be defective, as the Government’s response said, however, the content was”.

I waited some time for a reply, which, I have to say, I found most unsatisfactory. Indeed, I went as far as responding to the right honourable Simon Hughes:

“I was disappointed by your response to my letter dated 9th November 2014 and frankly do not believe that you wrote it!”.

Why should I be surprised? What I went on to do was explain again why the committee felt that it was important to address this point, so I explained:

“Perhaps I need to spell it out in more detail: if you read beyond paragraph (1) of Rule 13 which begins: ‘The Chairman may send a warning letter to any person’ you would then find in paragraph (3): ‘The inquiry panel must not include any explicit or significant criticism of a person in the report, or in any interim report, unless … the Chairman has sent that person a Warning Letter and … the person has been given a reasonable opportunity to respond to the warning letter.’

So, in the event a Chairman, when drafting his Report, might wish to make any reference to a witness which could be construed as a criticism, there is no discretion; the Chairman must first send a warning letter. A Chairman may, when drafting his Report, develop his thinking and be inclined to mention many individuals in which case, he may be compromised in so doing, if he hasn’t first issued a warning letter in case a ‘mention’ of a witness is construed as a criticism by someone. How can that make sense?”.

So, we suggested,

“surely a simple amendment to clarify intention to make it clear that warning letters should be issued to witnesses at the discretion of the Chairman of the Inquiry would be simple to do and the effect would be to make an enormous difference in terms of cost and upset”—

which is incredibly important—

“to all concerned. Would that not be progress?”.

I sent that letter on 9 December. Until 11.22 am precisely, I had not received a reply, which I have now received from the right honourable Simon Hughes MP.

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It was given to me just as the debate began by my noble friend. I should add that I sent a chaser email at the beginning of this week, which perhaps helped. I think it would be helpful to the House if I were to read out the letter, dated today’s date:

“Dear Lady Buscombe,

Thank you for your further email of 9 December in response to mine of 26 November following my suggestion that you provide me with details of for your experience in relation to Inquiry warning letters. I am sorry that you were disappointed with my response and apologise for the delay in responding.

I recognise that Rule 13, as currently drafted, has led inquiry chairs to treat the issue of warning letters as an obligation and I agree with your observations on how that leads to increased inquiry costs and the potential to cause concern for some witnesses. However, I believe that Rule 13 strikes the right balance, affording individuals every opportunity to take legal advice and, if they consider it necessary, to respond to criticism. A departure from the current approach, giving more discretion to inquiry chairs, could either lead to a loss of that opportunity with a corresponding impact on the involvement of witnesses, or as indicated in the Government’s response result in no change to the practice of sending Salmon letters almost universally adopted by inquiry chairs.

Although I do not propose to take this issue further, I look forward to the implementation of a number of the Committee’s recommendations by HMG when parliamentary time allows”.

Of course, we do not have very long.

So we have another reply—a response that I am still not convinced answers the question. We are not saying that there should be no rule; we are saying that the rule should be discretionary. There is a suggestion in the letter that,

“giving more discretion to inquiry chairs, could … lead to a loss of that opportunity”.

I think that noble Lords who have already spoken might argue that that is not necessarily the case, and, indeed, that it would be beneficial for there to be an amendment to ensure that there is discretion. I urge my noble friend the Minister—given the Government’s belief that Rule 13, in principle, strikes the right balance—to reconsider the question of making it explicit in the rule that this should be discretionary and that in no way should this compromise the position of the witnesses concerned.

We have learnt that the extraordinary, unexplained delay in publishing the Chilcot report relates to the ongoing receipt of information by the inquiry panel following the issuance of warning letters. If that is true, surely it is a prime example of a lack of clarity in the rules pursuant to the Inquiries Act, leading—I have no doubt—to a considerable increase in costs, time wasted and frustration on the part of all concerned and, worse still, to a loss of public trust in the process. Will anyone believe the report when it is published? That leads to my final point.

In this excellent report there are several references to public trust in inquiries. On reflection, I must declare that at the outset of our committee’s inquiry, I did not believe that the public trust or value inquiries very much at all, and nothing has happened since to change that belief. That is not to say that I do not believe in the value of public inquiries, but I am concerned about public trust. Any value is probably upfront; one witness said that the value is all upfront when an inquiry is a catharsis that something is being

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done. Other witnesses expressed the view that expectations are raised and, sadly, all too often wane when outcomes—we now have the latest example of that with the Al-Sweady inquiry—bring the whole process into very expensive disrepute. It is to the Government’s credit that the lawyers involved will be subject to legal action. This kind of scenario, relating directly to the Al-Sweady inquiry, was not one considered during our deliberations.

This is a very good and worthwhile report. I urge my noble friend the Minister that the recommendations which have been accepted by the Government in their response should remain in the pending tray, along with the question of Rule 13, to be actioned—we hope—by the next Government.

1.34 pm

Lord Brown of Eaton-under-Heywood (CB): My Lords, I begin by joining in the tributes rightly paid today to the noble Viscount, Lord Tenby. Where in this House, I wonder, will we find the wisdom that we shall be losing by his departure?

I, too, respectfully congratulate all those concerned with this impressive report, in which I played absolutely no part. Like others, I want to focus on recommendation 25, for the revoking of inquiry Rules 13 to 15 and substituting for them the single rule for flexibility set out in paragraph 251 of the report. It is, I hope, a sufficient qualification for me to speak today that Lord Salmon of Sandwich was a close kinsman and indeed largely responsible for my going to the Bar half a century or more ago. It was he, as Lord Justice Salmon, who in 1966 chaired the Royal Commission on Tribunals of Inquiry and articulated the six cardinal principles designed to secure fairness in future inquiries which, of course, by their nature are inquisitorial and not adversarial. It is the second Salmon principle that is here in point. It provides:

“Before any person who is involved in an inquiry is called as a witness, he should be informed of any allegations which are made against him and the substance of the evidence in support of them”.

Five years later there followed the Maxwell saga—the Board of Trade’s inquiry into Maxwell’s running of Pergamon Press—which prompted a series of spurious legal challenges to the inspectors’ conduct of that inquiry. The noble Lord, Lord Pannick, has shot most of my foxes, but this part of the history is worth emphasising. Maxwell’s complaint, that he had not been sent a draft of the inspectors’ proposed conclusions and given an opportunity for a last-minute comment on them—the process that has come to be known as Maxwellisation—was roundly rejected by the Court of Appeal, presided over by Lord Denning, as the noble Lord, Lord Pannick, explained. The inspectors—the one most severely criticised being my erstwhile pupil master, Owen Stable, Queen’s Counsel—were totally vindicated. Lord Denning’s judgment has been cited, but it is worth quoting a short passage from Lord Justice Lawton’s judgment—[1974] Q.B. 523, page 541. It puts it neatly thus:

“The researches of counsel have not produced any other case which has suggested that at the end of an inquiry those likely to be criticised in a report should be given an opportunity of refuting the tentative conclusions of whoever is making it. Those who conduct inquiries have to base their … findings … on the

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evidence. In my judgment they are no more bound to tell a witness likely to be criticised in their report what they have in mind to say about him than has a judge sitting alone who has to decide which of two conflicting witnesses is telling the truth. The judge must ensure that the witness whose credibility is suspected has a fair opportunity of correcting or contradicting the substance of what other witnesses have said or are expected to say which is in conflict with his testimony. Inspectors should do the same but I can see no reason why they should do any more”.

It is somewhat surprising that, in those circumstances and in the light of those judgments, the process of Maxwellisation nevertheless began to gain currency. It was adopted, apparently, by Lord Bingham in the inquiry that he chaired into the collapse of BCCI and, to some extent, by my noble and learned friend Lord Scott of Foscote in his arms to Iraq inquiry. Speaking some 20 years ago, just before the publication of his report, my noble and learned friend Lord Scott put it thus:

“The golden rule, in my opinion, is that there should be procedural flexibility, with procedures to achieve fairness tailored to suit the circumstances of each Inquiry”.

Ten years later came the Inquiries Act 2005, which, as your Lordships know, in Section 17 provided, subject to the Act and to rules made under Section 41, the procedure and conduct of an inquiry for the chairman. The following year, the Lord Chancellor made the Inquiry Rules 2006, and there are to be found Rules 13 to 15, providing, as they do, for an extreme and inflexible Maxwellisation process in all statutory inquiries.

Although, as the Government’s response to this recommendation observes, the power to send a Rule 13(1) letter is discretionary, Rule 13(3) prohibits an inquiry report criticising anyone unless they have been sent a warning letter—mandatorily, it has to contain all the detailed information set out in Rule 15—and given an opportunity to respond to it. My noble and learned friend Lord Cullen has already explained what that can amount to.

I will not repeat what my noble and learned friends Lord Cullen and Lord Morris of Aberavon have reminded us is to be found in the committee’s report about the experience of Mr—as he then was—Robert Francis on the Mid Staffordshire inquiry or indeed what was said by Lord Justice Leveson and his counsel to the inquiry, Mr Robert Jay QC, who, more than 30 years ago, was my pupil and is now Mr Justice Jay. The Chilcot inquiry, apparently treating itself as bound by these rules, although not in fact being conducted under the 2005 Act, has clearly been suffering from no less, and indeed almost certainly more, by way of “grief”—a word used by Mr Jay—delay and expense from a conscientious and thorough application of such rules. Those involved, moreover, have suffered the additional disadvantage of having no counsel to their inquiry.

In short, the Government’s bland rejection of this recommendation is surely to be regarded as deeply unsatisfactory and indeed somewhat disingenuous. Nothing could be more obviously calculated to result in future inquiries needlessly suffering the same problems of delay and expense. I say “needlessly” because the rule proposed to substitute for Rules 13 to 15 would provide precisely the flexibility required to enable chairmen in future to ensure fairness in the particular circumstances

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of each case. The recommendation makes obvious good sense and should be accepted and implemented without further delay.

If I am allowed the briefest footnote, it is this. The Salmon principles themselves remain essentially sound. I respectfully suggest that, to some extent at least, they might with advantage be adopted by certain parliamentary committees—not, I hasten to say, in this House but in the other place.

1.43 pm

Lord Soley (Lab): My Lords, I begin by saying that it was a pleasure to be here when the noble Viscount, Lord Tenby, made his valedictory speech. I was very interested to hear that his first speech in this place was on non-custodial sentences. That led me to think to myself that he then went on to do 26 years of what might be described as a semi-custodial sentence. However, he has done it with great distinction and he will be missed.

I also congratulate the noble Lord, Lord Shutt, as well as all the staff of the committee, who often do not get the recognition they deserve. As a member of that committee, I can say that it was very informative, very well run and a pleasure to be on.

I echo what a number of speakers have said about the inadequacy of the Government’s response, which initially I thought was just down to Ministers’ incompetence and arrogance. I have come to the conclusion that it is actually more complicated than that: it is almost certainly about interdepartmental struggles over what to change and what not to change. No one can really believe that there is not a problem, not least in relation to the length and cost of inquiries. People often quote the Saville inquiry, which lasted 12 years at a cost of £191 million, but in fact others have overrun and been very costly. Therefore, there is a problem there.

However, I ask the Minister to put this matter in a wider perspective. My view—and this was said to us by a number of people giving evidence—is that inquiries are becoming increasingly important in winning the confidence of the public in our political and judicial systems. That point was made a number of times and I cannot stress it enough. At a time when we politicians are struggling to re-engage effectively with the public, and when that is very complicated because society is so much more complicated, these inquiries give the public a chance to have their voice heard, and not only in special circumstances if they are directly involved. They also enable the wider public to recognise that there are ways in which very complex topics can be explored in more detail, with good recommendations being made.

I entered the House of Commons back in 1979. When the riots started in 1981, I had in mind the Coldbath Fields riots of the 1830s. Then, the House of Commons set up a committee of inquiry composed of Members of Parliament, who took only two or three months to make their recommendations, including very major ones such as preventing the police being agents provocateurs. I thought that that was a very good system because it changed things after the Coldbath

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Fields riots, so why can we not do that again? However, when you saw the complexity of the inner-city riots and the Scarman inquiry began, you realised that it was too complex and too party-political to do it within the parliamentary system. Indeed, when I was at the Meadow Well Estate near Newcastle, where the riots had taken place, it occurred to me that the whole approach taken by Scarman was very impressive and needed to be taken forward. Since those days, we have had more and more inquiries in very appropriate circumstances.

What amazes me about this report is that one of the central recommendations—that we should presume to use the 2005 Act—is rejected in the government response through a list of statements, which do not give any clear reason why we should not do so. They could best be described as a painful elaboration of an attempt to find a field with very long grass into which to kick the recommendation. My noble friend Lord Richard made the point, as did others, that there will obviously be cases where, understandably, people will not want to use the 2005 Act, and security may well be one. I want to return to that in a moment. However, by and large, why is there not a presumption that the 2005 Act will be used? Although it received criticism, nobody said that it was a really bad Act.

Why is another of our recommendations—that a Minister should be expected to come before Parliament and say why they are not going to use the Act—rejected? In most cases, they would be able to do that. In cases which are difficult for security reasons, I have never generally found Ministers or MPs so shy or bashful that they cannot find a way of dealing with that. The Litvinenko affair was a classic example of where there was a need for an inquiry. However, for very real reasons—not just security reasons but reasons of relationships with a major power, Russia—it could not be done. Now, because relations with Russia are so much worse, the inquiry is taking place. However, initially it was resisted. If that is why the Government are reluctant to accept the recommendation of an assumption of using the 2005 Act, I say that that is not good enough. Reasons can be given in Parliament as to why they do not want to use the Act.

All the other points that have been made, which I do not wish to repeat in great detail, are absolutely right. It is absurd that we take so much time on insisting on letters being sent out with a warning when the chairman of the inquiry does not think it is necessary. Clearly, we have to give a considerable degree of leeway to the chairmen of inquiries in these circumstances. I also think that there are other points that we need to emphasise, such as the importance of involving the judiciary in the selection of the judge, if it is a judge-led inquiry, and issues of that kind.

Going through the report, the noble Lord, Lord Shutt, spelt out how many had been accepted, how many rejected and how many were conditional. The reality of reading the report in the round is that it is generally a case of avoidance. It is saying, “This is difficult; I can’t really do that; that’s too problematic; we’ll look at this again”, and so on. Reading the introduction by Simon Hughes MP, where he says that he welcomes the report, I thought that it would

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have been more accurate to say that he did not welcome the report and would rather it had never been written.

That is the thrust of the Government’s response. This is an important issue. If we look at recent public inquiries—the one on the hospital and the arguments around the inquiry that will take place on child sexual abuse—they are incredibly important to the public. They help to restore confidence in our political and judicial system, which has received some heavy knocks in recent years. We need to deal with that. It may be a bit late in the day, but perhaps not too late, to say to the Government that a bit of creative thinking would be useful. If the Government had approached their response to the report by picking up the evidence that a number of people have made about how important these inquiries are—Leveson is a classic example of one that attracted enormous interest—why are they so reluctant to make sure that they are well developed? The noble Baroness, Lady Buscombe, made the point about the importance of some central unit that keeps the processes under review to ensure that we do not spend lots of money on reinventing the wheel.

Inquiries are important for the public. They give the public greater confidence in the administrative system of the UK and that our constitutional structures are working well. They are becoming, in my judgment, a very important tool with which to re-engage with the public. That is how the Government should have approached this, and I am very sorry that they did not. They have underestimated their opportunity to engage better with the public by using public inquiries, and at the same time recognising that many of the things that have been mentioned today could be done not only to make them work better but to save an awful lot of money. It would not take too many more Savilles—I hope there will not be any—for the public to begin to lose support for them when they know the costs and timescales. That undermines public confidence. What the report is trying to do is to give structure to the system so that people continue to find inquiries useful and interesting, and that people have confidence in the administration of the UK and its constitution.

1.53 pm

Baroness Stern (CB): I begin, if I may, with a word about the noble Viscount, Lord Tenby. He may remember that when I arrived here 16 years ago I felt totally bewildered and utterly overwhelmed by it all. It is absolutely thanks to the noble Viscount and how he looked after me that I found my feet—I think I found my feet—and I have never forgotten his kindness and understanding.

I felt very privileged to have been a member of this Select Committee; it contained a vast wealth of wisdom and we have heard much of that today. The staff were hugely impressive and we had a chairman who held it all together, kept us in order, made us laugh, and got out of us what I feel is a very important report. We say in our summary:

“Inquiries into matters of major public concern are now an integral feature of the governance of this country”.

Indeed, they are a very important part of the arrangements we make to respond to and to resolve wrongs, disasters and failures. I appreciate the remarks of the noble Lord, Lord Soley, which spelt that out in some detail.

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In my remarks I want to concentrate on the significance of inquiries to good governance in relation to their role in giving satisfaction to injured parties, helping to lay matters to rest so that they do not fester for years, and giving to people who have suffered a sense that justice has been done. The word “justice” can be used in different ways. It can mean that someone is convicted and punished or blamed and shamed. It can also mean that injured parties find out the truth of what happened. I am sure that some noble Lords heard on the BBC a woman whose son had died at Hillsborough talking about the effect on her of hearing the truth that came out at the inquest about what really happened on 15 April 1989. After all those years of waiting it was very forceful.

We explored this aspect with most of our witnesses and we conclude in paragraph 9 that one of the purposes of having public inquiries is “catharsis”, which we define as,

“an opportunity for reconciliation between those affected by an event and those whose action caused it or whose inaction failed to prevent it”.

We heard much interesting evidence on this theme. Liberty told us:

“Inquiries provide a means for the truth about an event or series of events to be reached by an independent and authoritative body, but in a manner which is more inclusive and restorative than litigation”.

The words, “inclusive” and “restorative” are significant in this context.

Ashley Underwood QC told us that if you did not have the cathartic element you were likely to fail. You simply will not have allayed the public concern if you do not get reconciliation and do not have people thinking they have had their voices heard. Robert Francis QC, now Sir Robert, told us that the cathartic effect of being heard is a very important part of the inquiry. Hazel Shaw of Inquest said that the standing of the victims or bereaved families in an inquiry was very important. She said that often they are asking some of the most searching and difficult questions and performing a function in the wider public interest. That point is worth stressing. Although the victims—those who have suffered wrong—are at the centre or core of an inquiry, which is why we call them “core participants”, the outcome is of much wider importance for the public as a whole.

I want to thank those who gave evidence who have suffered some grievous wrong, and were prepared to put effort and commitment into making a success of the inquiry that looked into what had happened to them. I think, for example, of Christopher Jefferies who had been vilified by the press, mistakenly as a murder suspect—he gave evidence to the Leveson inquiry—and Julie Bailey who was such a leading figure in the Mid Staffordshire inquiry. We considered in some depth how such core participants were dealt with in the inquiry process, and whether it was appropriate. We heard about good practice from the noble and learned Lord, Lord Cullen, who spoke earlier and who, as an inquiry chairman, had meetings with the bereaved before the inquiry started,

“so they have a chance to see what I am like”.

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The noble Lord, Lord Gill, who also chaired an inquiry told us that he met the core participants in advance. He said:

“You have to make it clear to them at the outset that everything is coming out in the open, that nothing is being held back”.

These are very useful examples of good practice.

The committee recommended that interested parties, particularly victims and victims’ families, should be given an opportunity to make representations about the final terms of reference. The Government, in their response—that most unfortunate document that we have been talking about for much of the time throughout this debate—accepted that recommendation very half-heartedly. The response states that it is,

“accepted to the extent that it may be helpful in certain instances”.

One of the elements of the inquiry that is important for public confidence and for core participants in particular so that they feel that they will be treated fairly and nothing will be swept under the carpet, is independence. Our committee made recommendations about independence from government. The noble Lord, Lord Trimble, referred to those, as did the noble and learned Lord, Lord Cullen. For example, we recommended that the Minister should appoint a panel member only with the consent of the chairman. That was rejected. The Government response rejected that recommendation because,

“there may be occasions when the minister and chair have different views”.

We recommended that the Minister should get the consent of the chairman to appoint assessors. That was rejected. We recommended that,

“the Act should be amended so that the consent of the chair is needed before the minister can set or amend the terms of reference”.

That was also rejected because,

“ministers will wish to retain control of the details”.

Recommendation 19, which is that,

“the power of the minister to issue a restriction notice under section 19, restricting public access to an inquiry, should be abrogated”,

was also rejected. The Government said that Ministers must keep this power because:

“They will understand the nature of national security and other sensitive material”.

We must draw from that the unavoidable conclusion that, in the view of the Government, a learned judge chairing a public inquiry will not understand such matters.

Recommendation 21 was that,

“where the minister wishes to terminate the appointment of a panel member other than the chair”,

the Act,

“should be amended to require the chair’s consent”.

That was rejected.

In light of the rejection of these recommendations and particularly in light of the reasoning given, I hope that the Minister will affirm the Government’s commitment to the independence of public inquiries. I hope that this debate will convince your Lordships’ House and the wider public who follow our proceedings that public inquiries are of considerable importance in

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ensuring transparency, accountability, truth finding and catharsis, and that our recommendations deserved a more thoughtful and intelligent response than they received.

2.02 pm

Baroness O'Loan (CB): My Lords, I join with other nobleand noble and learned Lords in congratulating the noble Viscount, Lord Tenby. When I came into this House five years ago, I, too, benefited very much not only from his gentle courtesy, but from his profound wisdom and I would like to thank him for all that he has done in this House.

I am grateful to the noble Lord, Lord Shutt, and the members of his committee for the excellent report that they produced on the Inquiries Act. This debate affords an important opportunity for the Government to review their position in relation to their response to the report.

I declare an interest. I am chairing the Daniel Morgan independent panel. It is not an inquiry under the Act; it is a Hillsborough-type independent panel, which was set up to examine the murder of Daniel Morgan in London in 1987, allegations of police involvement in his murder and of police and media corruption affecting the investigation. The issues that we have discussed are therefore of significant interest to me.

The genesis of this Act goes back, among other things, to 2003, when the European Court held that there had not been sufficiently effective and independent investigation for the purposes of Article 2 of the European Convention on Human Rights into the circumstances of the death of Belfast solicitor Patrick Finucane. He was murdered, it was subsequently established, as a consequence of,

“a series of positive actions by employees of the State”,


“actively furthered and facilitated his murder and … in the aftermath of the murder”,

we are told,

“there was a relentless attempt to defeat the ends of justice”.

The Select Committee in its report was very clear that the Act does not as a whole require radical surgery, but it sets out clearly the deficiencies in respect of which evidence was received. The recommendations for amendment have already been referred to by a number of noble Lords and are summarised on page 89 of the report. Many of the deficiencies identified by the report go to the independence of the inquiry process. That is vital to public confidence in the Act, in the inquiry process and in governance. In responding, as the noble Baroness, Lady Stern, and others have said, the Government rejected the call to amend the most important of these provisions—the ministerial powers to amend the terms of reference, appoint members and, most particularly, the use of restriction notices.

As the noble Baroness, Lady Stern, said, in paragraphs 69 to 72 of their response, Her Majesty’s Government state that Ministers,

“will understand the nature of national security and other sensitive material”.

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I have no doubt that we need to protect our national security. Having been the victim of a bomb explosion and having had other terrorist-related experiences, I am very clear about that. There are many threats to national security, as we know. But there is an imperative to learn from our past, not just on the terrorist front but as we now contemplate even just the number of inquiries currently being established into historic child sexual abuse and its alleged cover-up. Lord Acton, in one of his letters in January 1861, famously wrote:

“Everything secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity”.

There is a temptation in any organisation to cover up its wrongdoing. We have seen it across so many professions and institutions. Governments will not be immune to that temptation and those who have advised them and their successors may seek to cover up past wrongdoing to protect what they perceive to be the stability of the present. But when we build on the shifting sands of noble cause corruption, we do so at our peril. We do not need to think back very far to identify situations in which a dishonest response, and a quick calculated inquiry, such as that which resulted in the Widgery report on Bloody Sunday, resulted in serious damage. They say in Northern Ireland that the Bloody Sunday shootings were one of the best recruiting agents for the IRA. We heard reference to the Saville report and to its cost, but I remind noble Lords and Her Majesty’s Government that a lot of the costs of that inquiry resulted from challenges by the Government and their agents to the inquiry itself. We must remember that.

I do not say this to offend; I say it because there is a duty on those who conduct these inquiries to do so using every tool at their disposal to uncover the truth. The power of the Minister to restrict attendances and block access to and disclosure of documentation, as the noble Lord, Lord Saville, is reported to have said in the report made,

“a very serious inroad into the independence of any inquiry; and is likely to damage or destroy public confidence in the inquiry and its findings”.

That view was also clearly articulated by the Joint Committee on Human Rights and the House of Lords Select Committee, stating that the power to make such notice compromises the Article 2 compliance of an inquiry by curtailing its independence and restricting the ability of the next of kin effectively to engage with an inquiry so as to enable it to lead to an accurate determination of responsibility.

A way forward in this dilemma was identified in the Baha Mousa inquiry, the chair of which was able to maintain his independence by insisting on a protocol that allowed him to maintain control over disclosure. However, placing the burden to stand up for independence on the chair is not right and does not ensure that, in the future, every inquiry will be independent and effective. The reality is that an inquiry that is deeply immersed in what might be millions of pages of documents is much better placed to assess the relevance of documentation and capable of protecting that which requires to be kept secret than the Government and their advisers.

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The Finucane family, whose tragic loss has been the subject of so many limited inquiries, firmly believe that the whole truth about what was happening in Northern Ireland at the time, which led not just to the death of Patrick Finucane but to that of Adam Lambert, has not been told. It is now common knowledge that many other people died at the hands of terrorists because of the involvement of state agents in one way or another in these murders and the protection of those who committed them. I have seen the pattern of activity involving the state and paramilitary organisations, republican and loyalist. That is why they continue to call for a public inquiry, as, indeed, do other victims of atrocities.

Such inquiries must have proper independence. It is 27 years since Patrick Finucane was murdered and 13 years since the then Secretary of State declared that there would have to be an inquiry, but the terms of the Inquiries Act are such that the family cannot be sure of the initial and ongoing independence of any inquiry. The arguments not to have inquiries into atrocities such as the deaths of Mr Finucane and the Ballymurphy and Omagh victims are not even persuasive, let alone convincing, as we look at inquiries which have been established under the Inquiries Act.

It is not in the interests of national security that we protect those who did wrong, yet this Act, as currently framed, makes it much more possible for this to happen. I know that those seeking to protect vital national interests have, on occasion, been badly advised, but we all know that not every document marked “Secret” merits that mark and not every confidential document is in any way confidential. Each document should be capable of being examined on its merits by an independent inquiry. Chairmen and inquiry members should be cleared to the necessary level and can be briefed by the same people as Ministers. They surely have as much intellectual capacity as Ministers and hence will be competent to understand the nature of any briefing or explanations. Judges and others routinely work in areas of national security. They do not come new to it when they assume the role of chair of an inquiry.

As several noble Lords have said, Her Majesty’s Government’s arguments and their response to the Select Committee report are not convincing. There is significant risk of reputational damage to the UK as a consequence of the way the Inquiries Act was drafted and is playing out. As I have said, I am completely convinced of the need to protect national security, but I ask the Minister to look again at these provisions. I also urge any new Government to consider seriously the implications of the ongoing lack of trust which is to some degree perpetuated and even aggravated by the current state of the law. As we fight our current anti-terrorist battles, it is profoundly important that we do not, through our legislative and administrative activities, demonstrate that we are not capable of learning the lessons of the past. For 10 years there has been consistent criticism of this Act by parliamentary committees, by many noble and learned Lords and by other very distinguished academics. It is beyond time for change.

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2.13 pm

Lord King of Bridgwater (Con): My Lords, I speak very briefly in the gap to congratulate my noble friend Lord Shutt on his chairmanship of this committee. I think that 90% of the committee have now contributed to this debate. I apologise to colleagues on the committee that I was unavoidably absent in the middle of this debate. I very strongly agree with the comments of my noble friend and the noble Lord, Lord Richard. I say to the Minister that while we talk in the report about lessons that might be learnt in the conduct of various inquiries, I think that there are lessons to be learnt, also, in how the Government should respond to Select Committee inquiries.

I was very interested indeed to serve on this committee and I think it was a sign of the contribution that the House of Lords can make. Looking at the membership of the committee, we had a former Lord Chief Justice, a former Attorney-General, a former Leader of this House, a number of Ministers who had to grapple with these sorts of problems and a number of people who take an interest in these issues and made contributions. Undoubted evidence was established in the course of that inquiry of actions that could be taken. In the current climate, with issues of public expenditure, we saw shocking illustrations of the considerable waste of public expenditure when people embarked on inquiries without proper preparation or knowing what was involved. Costs and time were wasted. If ever there was a case for a central store of evidence, this is it.

Like the noble Baroness, Lady O’Loan, I have faced requests for public inquiries of more than one kind, as she knows very well. The truth is that in many cases one never knows where a public inquiry is going to hit, which department it will be in or whether the Minister or the officials have ever had any previous relevant experience. There is a need for a central clearing arrangement so that people can learn lessons, not just in order to save money but in the chance of a prompt setting up of inquiries, which is in the interests of all concerned and is very important.

We are in a difficult position. I do not have a clue what the Minister is going to say, but I hope that it will be a very adequate and full response, reflecting, at last, some important points made by people who genuinely contribute to a very important discussion of this issue. I hope that he will be able to respond in a very full and helpful way in the interests of the better conduct of inquiries in the future.