Inquiries Act 2005 (Select Committee Report)

Lord Beecham Excerpts

Thursday 19th March 2015 Lords Chamber

[Lord Beecham (Lab)]

My Lords, I add the thanks of the Opposition Front Bench to the noble Viscount, Lord Tenby, for his many years of distinguished service in this House, to which others have referred. My father did not know Lloyd George, but as it happens he was a constituent of the noble Viscount’s father when he was a Member of Parliament for Newcastle North. The by-election that followed the first Viscount’s elevation to this place remains in my memory as the first by-election that I can recall as a very young supporter of the party of which the noble Viscount’s father was not a member.

I also add my tribute to the noble Lord, Lord Shutt, and the members of the committee, 10 of whom have spoken in today’s debate. It is a matter of regret, as he gently hinted, that the report has enjoyed its first birthday before making an appearance in this House for a debate. As I said last week in connection with another long-delayed report, although perhaps with less force in that case, the House needs to look at how it deals with post-legislative scrutiny, because it becomes extremely post if, once reports are published, they do not reach the Chamber for discussion.

Last week I chanced upon my copy of a book which I last consulted 50 years ago, as I, among others, including the noble Baroness, Lady Deech, who is not in her place today, was preparing for the final examinations for my Oxford law degree. The title of the book was Administrative Law and its author was the eminent legal academic, the Professor of English Law at Oxford, HWR Wade. In those days administrative law could be said to have been in its infancy. Indeed, the Lord Chancellor would be delighted to know that the words “judicial review” do not appear in the index or, indeed, in any other part of the book.

However, there is a chapter on statutory inquiries, which makes instructive reading. Of its 29 pages, 26 are essentially confined to planning inquiries, two to accident inquiries and one to what Professor Wade described as, “a type of public enquiry which from time to time attracts much attention: the special inquiry which Parliament may at any time constitute under the Tribunals of Inquiry (Evidence) Act”. He cited, as examples of the latter, premature disclosures of Budget details by Ministers, allegations that a change in bank rate was prematurely divulged, accusations of brutality by the police and other matters of public importance.

In the first 40 years of the Tribunals of Inquiry (Evidence) Act 1921 only 14 inquiries were established by a vote of both Houses to investigate such matters of urgent public importance, and the following 44 years saw only another 10. It is this Act that was replaced by the 2005 Act, which is the subject of the Select Committee report. Any discussion of inquiries has long since seen matters of urgent public importance overtake planning inquiries and the like as a subject of concern and debate.

Very often, of course, the demands for the establishment of a statutory inquiry arise from questions about the conduct of the Executive in one or other of its various manifestations. It is the role of Ministers in any Government in setting up inquiries, appointing the chair, controlling the disclosure of evidence and publication that not surprisingly provokes scepticism about the process.

It is striking that most of the 2005 Act inquiries arose from deaths in which the role of the police, military or health services came under scrutiny, in addition to the Leveson inquiry and some others. There are others, such as the inquiry into undercover policing, where the inquiry is a 2005 Act inquiry, but as the noble Lord, Lord Shutt, elucidated in a Question last year, the inquiry into the so-called “on the runs” in Northern Ireland is not. That was described as “an administrative review”, despite the issue stemming from a political decision, albeit one that many would say—I would be one of them—was the right one in the circumstances and which contributed to the successful outcome of the protracted negotiations that brought peace to Northern Ireland.

The indefatigable noble Lord, Lord Shutt, who Ministers, one senses, might have wished to have lived up to his name, was told in answer to another Question concerning the inquiry into the death of young people in prison—being conducted, I am absolutely confident, in exemplary fashion by my noble friend Lord Harris of Haringey—that the terms of the 2005 Act did not apply. Yet, as I have indicated, deaths in prisons and hospitals were the subject of 2005 Act inquiries. There are, as we have heard, crucial differences between 2005 Act and other inquiries, especially about such matters as the compellability of witnesses, the production of documents, and the public nature of the proceedings being subject to restrictions on grounds specified in the Act. But it is difficult to understand the decision-making processes that lead, for example in the case of the Hillsborough tragedy, to there being one inquest, followed by a major inquiry conducted by the late and much lamented Lord Taylor of Gosforth, and then a second inquest, on the face of it now being properly conducted, as opposed to the first. My noble friend Lord Soley referred to some misgivings, which many would perhaps share, about the way the Litvinenko matter has been handled—first possibly by an inquiry and now by an inquest.

The lack of a consistent approach is surely a matter of concern. It lends force to the Select Committee’s suggestion of central support for inquiries based in Her Majesty’s Courts and Tribunals Service, although in my view there might be other options for its location. However, the principle of having such a unit seems to be very appropriate. The Government’s response, relying on the roles of the Ministry of Justice and, heaven help us, the Cabinet Office, is not very appealing, particularly when it proclaims that the latter,

“offers advice and acts as a conduit for any interaction between the inquiry and Parliament”.

The response goes on to state that:

“In our experience, inquiry chairs and ministers have worked well together in agreeing the details of how an inquiry is to be established”.

It might be thought that the views of the parties to an inquiry, for example, or an independent source would offer more reassurance than this exercise in self-assessment and self-approval. Then there is the equally complacent, if not to say patronising, assertion, which the noble Baroness, Lady Stern, referred to, that:

“Ministers are best placed to understand the full significance of considerations such as national security and international relations and they make decisions accordingly in a way which cannot be expected of the inquiry chair”.

Of course such considerations have to be given due weight, but would it not be possible to involve others in the process, perhaps from the judiciary or Parliament?

It is disappointing that the Government have rejected out of hand recommendation 11 to give interested parties, particularly victims or their families, an opportunity to comment on the terms of reference for an inquiry, although perhaps such a procedure should be qualified by the words “wherever practical”; it may not be practical in all cases. However, there may well be some where it would be.

The Government have also rejected recommendation 19: that a notice,

“restricting access to an inquiry, should be abrogated”,

leaving that decision to the chair, and recommendation 20, giving,

“only the chair … the power to withhold material from publication”.

Again, if there is some doubt in the Government’s mind, could there not be recourse to some third-party involvement, at the very least on a trial basis?

I also have difficulty with the response to recommendation 23, referred to by the noble and learned Lord, Lord Cullen, that “only the chair” may appoint counsel to the inquiry because—I repeat his quotation:

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

Those are legitimate considerations, no doubt, but again is there not at the very least scope for some third-party involvement in the appointment of counsel, perhaps from the judiciary in this instance?

The noble Lord, Lord Shutt, explained the delay in bringing the committee’s report to the House when he asked a Question of the Leader in January saying that the delay was occasioned by the unsatisfactory nature of the response, about which we have heard a good deal in the debate today. Perhaps in replying to the debate the Minister will refer to the attempts made to secure a better response, which do not appear to have been startlingly successful, if I heard the noble Lord correctly. Why have the Government remained, as it would appear, pretty obdurate in respect of some of the recommendations and requests for a further and better response? Perhaps the Minister, not least in the light of the child abuse inquiry fiasco, could indicate whether any thought is being given to an enhanced role for Parliament in this whole area.

Another issue has been raised with me by the eminent QC, Stephen Hockman: namely, the responsibility for writing the report to be published by the inquiry. This is not covered by the rules or the committee report. I understand that Lord Leveson delegated the drafting of much of his landmark report to counsel to the inquiry, now Sir Robert Jay, whereas the noble and learned Lord, Lord Saville, wrote the entire report on Bloody Sunday himself after a prolonged 12-year inquiry. Another approach was apparently adopted by the noble and learned Lord, Phillips of Worth Matravers, who in the course of conducting the BSE inquiry published online a section of his report after each week of evidence. That is an interesting technique, and I am not saying for a moment that it would apply to all cases, but perhaps it is worth considering.

Is there not a case for providing inquiries with professional assistance in report drafting and a framework within which a draft report can be submitted for comment by interested parties on a more systematic basis than appears to be present at this time? After all, we are dealing with matters of great public interest in which it is vital to sustain public confidence in the independence of the process and its capacity to discover the truth, uncomfortable though that will sometimes be. Governments must go further if the public are to be reassured of the integrity and capacity of the system to meet these objectives, and they should recognise the role of Parliament as an indispensable element in the system.

Finally, I will conclude, if I may, by saying a word or two about the Minister. He and I have had the pleasure of confronting each other across the Dispatch Box for the last 15 months. I have always found him to be an extremely courteous and effective debater, and somebody who has done a valiant job in defending the Government—pursuing my ancestral career of making bricks without straw—but doing so with great charm and to great effect. Who knows what the forthcoming election will bring about in terms of our respective positions on the Front Benches or elsewhere in the Chamber, but I would like to put on the record something which I believe many members of the committee would share: our gratitude to the noble Lord for the way he responds to debates both in the Chamber and outside. I wish him well, whatever the outcome of the election and wherever that leads or leaves him.

[Noble Lords]

Hear, hear!