Public Bodies Bill [HL]

Lord Howe of Aberavon Excerpts

Monday 28th March 2011 Lords Chamber

[Lord Howe of Aberavon]

I do not rise for brownie points, which I probably deserve in no circumstances whatever. I am rather alarmed that my contribution to this discussion, in support of what my noble friend said, is founded on my experience almost exactly half a century ago. I make no apology for that. It takes me back to the second half of the 1960s, when the electors of Bebington decided to give me four years leave from the other place, during which time I concentrated on my practice at the Bar. Two of the most important matters with which I was involved concerned the very issues that my noble friend has just talked about—issues affecting real people in the face of difficult circumstances.

For nine months I represented the colliery managers in the Aberfan tribunal inquiry, conducted by Lord Edmund-Davies and his expert wingmen. He did not consider the matter alone but with expertise to help him. Every one of those people whose actions were being criticised, or whose grievances were being represented, were represented by counsel before that administrative tribunal.

Not long after that, I was invited by Kenneth Robinson, who was then Minister for Health in the department presided over by Richard Crossman, to conduct an inquiry into alleged misconduct and mishaps at the Ely Hospital in Cardiff. That gave me some insight into the way in which administration in search of justice can get up to some very curious things. I had three advisers—one consultant psychiatrist, one hospital board member and one senior nurse. We set out by saying, “Please may we announce our existence to the public so that we can call for evidence?”. “No, no”, came the answer to that. However, we decided that we would not start our work without it, and were able to make that announcement and continue with our inquiry. We were not given any counsel to the tribunal, as such. There was no official solicitor to help us in an investigation, so I had to perform the task of being both chairman of the inquiry and interrogator and, therefore, quasi-prosecutor. It was not exactly comfortable.

At the end of our inquiry, which did not take very long, we produced a report and submitted it to the Welsh health authority for publication, as we thought. However, we were told that it would certainly not be published and we were asked whether we could make a rather different version of the report that we had first filed, confining it to facts and not judgments. Happily, I had a Cambridge acquaintance who was special adviser to Richard Crossman. Many in this House may remember him—Brian Abel-Smith. I was able to convey that strange news to where it mattered and we were then able to produce an alternative version to the one that we were compelled to produce in the first instance. Richard Crossman did not hesitate to publish the full version of that report. Anthony Howard, whose recent death we all mourned, in writing about Richard Crossman said that that publication was,

“perhaps the bravest action of his political career”.

Certainly, I like to think that it was something that made a major contribution to the consequences of our inquiry, about which I make no boasts or gestures whatever. We were doing a job and were allowed to do it, but we had to wrestle at various stages to get the framework right.

Since then, I have been involved in different ways in other comparable inquiries and have witnessed others. One in which I was involved most tenaciously for some time was that presided over by the noble and learned Lord, Lord Scott—Lord Justice Scott as he was then. Two other inquiries followed soon after that one. One was presided over by Lord Justice Phillips, now the noble and learned Lord, Lord Phillips, and the other by the noble and learned Lord, Lord Hutton. In those tribunals there were no wingmen, as I have put it, sitting on either side of the noble and learned Lords; they had to conduct the tribunals on their own. In the tribunal of the noble and learned Lord, Lord Scott, no representation was allowed on behalf of any of those people giving evidence to or being judged by the tribunal. That was notwithstanding my submissions as former Foreign Secretary on behalf of the many diplomats whose conduct was being scrutinised, or the interventions of the noble Baroness, Lady Symons, who was then in charge of the First Division Association.

As I say, I believe that Lord Justice Hutton had no legal representation, and certainly no wingmen, to help him. On the other hand, the noble and learned Lord, Lord Phillips, had the full range of expertise alongside him and full representation by lawyers throughout the case. I give those examples without wishing to criticise the principal actors in them as they illustrate the diversity of the different judgments that have to be made when deciding what kind of tribunal to set up, how to formulate it, what tasks to give it and so on. For that reason I was conscious throughout those proceedings of the opinions being offered—sometimes not soon enough—by the Administrative Justice and Tribunals Council. I subsequently wrote a piece in the Political Quarterly, from which I wish to quote. It states:

“A number of studies have now been done (or recommendations been made in individual reports) about the factors that have to be taken into account by the appointing minister (or other authority), as well as by the leader of an inquiry. And all these data have now been re-summarised and drawn together in one place within government. That will help, of course. But I am convinced that one thing more remains to be done. We need to ensure the continuous availability of a small corpus of people with experience of this work (not just in one department), who can be thoroughly consulted by those involved in shaping any fresh inquiry. For the necessary decisions often have to be taken under pressure and at speed. In such circumstances, paper-borne wisdom is no substitute for experience … It is this practically tested know-how which has to be accessible whenever it is needed”.

It is against that background that I intervene in the debate on this amendment because it seems to me that the council presided over for many years by my noble friend Lord Newton is an organisation which certainly deserves to survive in one form or another. It may be possible to change it or to shuffle it into different places but it has met a very important need and has accumulated wisdom over the years from diverse sources. The Government should proceed with the utmost caution in handling the future of this organisation. They should in particular pay attention to the submissions made by my noble friend Lord Newton of Braintree.