Motion to Take Note
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 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 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 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.
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 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.
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 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 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.
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 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 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.
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 2006 and 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 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 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 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.
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.
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.
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 Minister 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.
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.
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 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. Alun 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.
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.
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.
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 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.
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.
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”.
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 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. 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 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 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.
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— 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 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, by Section 17 provided that, subject to the Act and to rules made under Section 41, the procedure and conduct of an inquiry is 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”—the word used by Mr Jay—delay and expense from a conscientious and thorough application of such rules. It, moreover, has suffered the additional disadvantage of having no counsel to the 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 in substitution for Rules 13 to 15 would provide precisely the flexibility required to enable chairmen in future to ensure fairness in the particular circumstances 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.
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 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 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.
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.
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”.
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”,
“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 ensuring transparency, accountability, truth finding and catharsis, and that our recommendations deserved a more thoughtful and intelligent response than they received.
My Lords, I join with other noble and 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”.
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.
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.
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.
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.
My Lords, I thank my noble friend Lord Shutt for initiating this debate to discuss the Select Committee’s report on the Inquiries Act 2005, and in particular the Government’s much criticised response to its recommendations. I also thank all other noble Lords who have contributed to this debate. If it is to be my last appearance at the Dispatch Box—I am most grateful to the noble Lord, Lord Beecham, for his remarks in that respect—it is a great privilege not only to be involved in a debate of this quality with so many participants of enormous experience, but also to be present on the occasion of the valedictory speech of the noble Viscount, Lord Tenby. I have not had the privilege of knowing him well; I wish I had known him better. I do know, however, that he was the assistant to no fewer than five Convenors of the Cross Benches. Perhaps I could dare this observation: I suspect that that might well have been quite a challenging occupation on some occasions.
Before finally turning to the debate itself, perhaps I may reciprocate the comments of the noble Lord, Lord Beecham. He has been a formidable opponent—not to say a thorn in my side—during the time that I have been standing at the Dispatch Box. He has held the Government to account with tremendous ferocity accompanied at the same time by great wit. I pay tribute to him for that.
The report of the noble Lord, Lord Shutt, received a response from the Government. The noble Lord, Lord Soley, suggested that in the welcome expressed by my ministerial colleague, Simon Hughes, there was a subtext that the Government did not in fact welcome the report. I am here to disabuse him on that particular matter: the Government do indeed welcome the report and know that the committee invested a considerable amount of time and effort in understanding the operation of inquiries both under the Act and otherwise. The committee’s work has undoubtedly prompted a lively and constructive debate today.
I am grateful to all those who have given evidence to the inquiry—both written evidence and in person—including former chairs, panel members, inquiry legal and administrative teams, and others with involvement in inquiries, who provided invaluable knowledge, experience and insight into how inquiry processes and procedures might be improved.
I assure the noble Lord, Lord Shutt, and his committee that their report was well received across government and that careful consideration was given to the recommendations. It is worth making clear to the House that the response submitted by my right honourable friend Simon Hughes, the Minister of State for Justice and Civil Liberties, who has responsibility for this policy area at the Ministry of Justice, reflected opinion across the whole of Whitehall, not just that of our department. As my noble friend Lord King pointed out, the possible need for these inquiries can confront Ministers in different departments with different levels of experience. It is important that there should be—this is very much the burden of one of the recommendations—a degree of sharing of knowledge and experience to enable a proper response to be given by Ministers in different departments to the call, as there often is, for a public inquiry.
For the benefit of those who are not familiar with this aspect of government, the Ministry of Justice works closely with the Cabinet Office in the operation of inquiries. My department has responsibility for the Inquiries Act 2005 and the Inquiry Rules 2006, which underpin the Act. It provides advice on the application of the Act and the rules. The Cabinet Office has responsibility within government for providing guidance on how to establish and conduct inquiries, and provides the main liaison between lead departments and the centre of government.
Regardless of how they are constituted—whether they are statutory or not—and as a number of noble Lords quite rightly said, public inquiries perform an important role in today’s society of holding public bodies to account, as well as bringing to light, and providing answers to, issues and events that cause public concern. Setting up a major public inquiry is a process that of course the Government take extremely seriously. There is a clear requirement in the Ministerial Code reflecting the importance that is attached to major inquiries of this nature. It states that:
“The Prime Minister must be consulted in good time about any proposal to set up … Major public inquiries under the Inquiries Act 2005”.
I know that the noble Lord, Lord Shutt, and his committee colleagues may feel that the Government took a long time to respond to their recommendations. However, as I have alluded to already, the Ministry of Justice consulted widely to make sure that the response was as comprehensive as possible. Some government departments had little experience of running an inquiry while others had much to offer. As it was, and simply for the sake of the record, the committee’s report was published on 11 March and the Government’s response was published on 30 June.
The noble Lord, Lord Shutt, referred, by way of comparison, to the report of the noble and learned Lord, Lord Hardie—another essay in post-legislative consideration—on the Mental Capacity Act. I was the Minister who responded to that debate. Lest it be thought that the Government are serial offenders in late responses, I should correct one slight misunderstanding that my noble friend may have in that respect. We did in fact respond to that report well within time. The letter that I wrote, and which was referred to in the debate, was a response to the noble Lord, Lord Beecham, simply to update the House as to what had been done to implement the various recommendations—I am glad to see the noble Lord nodding to affirm this. It enabled the debate to be much shorter because the House was made aware of the up to date position. The point that my noble friend makes is a valuable one, but it is not an appropriate criticism of the Government in that respect.
Here, the Select Committee’s report reflected a number of concerns about the use and operation of the 2005 Act and contained 33 recommendations. There were three broad areas of concern that my noble friend Lord Shutt focused on. First, the Committee believed that, when considering what form an inquiry should take, it should be Ministers’ practice to start from a presumption that the 2005 Act should be used—a point made forcefully in the course of our debate by the noble Lord, Lord Richard, who referred to the evidence given by my ministerial colleague Shailesh Vara.
The word “presumption” does not appear in the Act. It is an expression familiar to lawyers and it may be that, on many occasions, Ministers would be well advised to look at the 2005 Act first. However, it would be wrong to superimpose some rule of law, from whatever origin, that there is a presumption that the 2005 Act should be used. Whether it is wise, of course, is a matter of opinion, and this particular Act does not contain any mandatory obligation on the part of a Minister to employ the Act.
Secondly, the Committee felt that it would be useful to have a standing central inquiries unit to give practical support to the chair and secretary of inquiries. Thirdly, the committee made a number of recommendations to increase the accountability of government Ministers and limit their powers to act without the consent of the inquiry chair.
I am sorry that the committee did not feel that the Government’s response addressed these points to their satisfaction. The Government accepted over half of its recommendations—19, in fact, although I understand there is slight carping over the mathematics—and we believe that these included the most important recommendations, as I will explain in a moment.
As noted in the Government’s response, the Select Committee’s report was very much welcomed. My department had carried out post-legislative scrutiny of the Act in 2010, in line with the then new regime of departments scrutinising their legislation between three and five years after implementation. The 2010 scrutiny concluded that the Act was working well but that the 2006 rules presented a number of concerns. The work of the committee was therefore timely. When it reported in March last year, four years had elapsed since that post-legislative scrutiny. At that point, 17 inquiries, under the Act or otherwise, had reported since the implementation. Since the scrutiny, three further inquiries have either been set up under the 2005 Act or been converted to run under the Act. This includes the most recent independent inquiry into child sex abuse, to be chaired by Justice Lowell Goddard.
At the end of October, as he told the House, my noble friend Lord Shutt and members of the committee met my colleague the Minister of State for Justice and Civil Liberties. I understand that many of the committee’s concerns were addressed. There were, however, a few points on which the Government committed to respond—around the role of the Cabinet Office, as I understand it. Perhaps I may take this opportunity to apologise to the noble Lord and his colleagues for the delay in responding to those points. In response to the committee’s report, and to further helpful discussion with committee members, we have looked again at the guidance available and the role that the Cabinet Office can play in supporting departments. I will say a little more about that in due course.
As to the question of whether to establish an inquiry under the 2005 Act, the government response looked in some detail at how Ministers decide what kind of inquiry to establish. At the October meeting, my ministerial colleague addressed the committee’s concerns about the consideration given by government departments to establishing inquiries under the Act. However, for the benefit of the House, I will explain that Ministers will in fact always consider the suitability of the 2005 Act when deciding to establish a public inquiry—it will always be the starting point.
Ministers will, however, also want to consider whether another vehicle would be more appropriate and effective, bearing in mind time and cost. This could be a non-statutory inquiry—I note that the noble and learned Lord, Lord Morris, drew on his experience of non-statutory inquiries and said that they could be useful; an independent review; a parliamentary inquiry; an inquiry of privy counsellors; an investigation with a public hearings element overseen by a judge or QC; an independent review with a public hearings element; or, in a very limited number of cases, an inquiry established under other legislation, such as the Financial Services Act 2012 or the Merchant Shipping Act 1995.
Across government there was consensus that Ministers must retain the option of deciding whether or not to use the Act. It is essential to adopt what is the right approach under all circumstances. It should also be noted—some noble Lords might already be aware of this—that Section 1(1) of the Act gives Ministers discretion to decide whether or not to use the Act. This clearly indicates that Parliament was mindful of the potential of other, non-statutory, approaches.
The House should not lose sight, either, of the fact that there is always the option to convert an inquest or other form of inquiry, investigation or review, into a 2005 Act inquiry in the event that powers under the Act—such as those to compel witnesses—are felt to be required. Very often, witnesses do not need compelling, but recently this has been the case in the investigation into the death of Alexander Litvinenko. On 22 July 2014, the Home Secretary announced that the inquest would be converted into an inquiry—the noble Lord, Lord Soley, referred to this—under the 2005 Act to give the chair the power he needs to consider sensitive material.
On the point about a central inquiries unit and guidance—an important part of the report—I fully understand the concerns behind the committee’s recommendation that a central inquiries unit should be established within central government. Government departments considering establishing an inquiry—as well as potential inquiry chairs and teams, both administrative and legal—will want to be assured that there is resource and experience available to them, rather than having to reinvent the wheel, to use the terminology employed by the committee, with every new inquiry. However, as the Government’s response sets out, we do not accept the need to create a new standing team. The MoJ and Cabinet Office already work closely with departments to provide guidance and assistance at various stages of inquiries, from the point at which Ministers consider whether an inquiry is required, through set-up and on to the final publication of reports, to closing down inquiries and learning lessons.
We absolutely accept that more can be done to improve this service, and to ensure that we learn lessons from inquiries. However, it is essential that any central resource provided for inquiries work is proportionate to the number of inquiries and reflects the need from departments. In this vein, and since the Government’s response last June, the Cabinet Office revisited its approach in this area and identified dedicated resource to build the nature and profile of support available. The Cabinet Office also revisited the draft guidance to departments on establishing an inquiry, taking account of the views of the committee and feedback from departments. This will be a more streamlined document, providing the necessary signposts for those involved in inquiries and ensuring that there is complete clarity around additional sources of information and support.
The guidance will take account of the recommendations made by the noble Lord and his committee, of what has been said in today’s debate and also of the recently published guidance by the Centre for Effective Dispute Resolution—with which I know the noble and learned Lord, Lord Woolf, has been involved—on setting up and running a public inquiry. It will also take account of lessons learnt from inquiries that have completed or are underway, including the recent data loss from the Robert Hamill and Azelle Rodney inquiries. The Cabinet Office official responsible for this area of work instructed me to say that she would be very willing to meet my noble friend Lord Shutt to discuss this ongoing work before it is finalised.
Alongside this, the Cabinet Office is engaging with key officials across Whitehall to ensure that the cross-Whitehall officials group on inquiries operates as effectively as possible. In addition, we are establishing a network of former inquiry secretaries to provide a further repository of expertise and experience. We absolutely accept the committee’s concerns regarding the completion of lessons learnt exercises, and the Cabinet Office will ensure that these are completed with greater consistency than they have been to date, and that the lessons arising are cascaded appropriately and are used to continue to inform guidance to departments.
Like my department’s post-legislative review in 2010, the committee concluded that, generally speaking—and notwithstanding its various recommendations—the 2005 Act continues to work pretty well. However, the committee also agreed that there is a need to improve the rules. The committee recommended four amendments to the rules, of which the Government accepted three. Unfortunately, we have been unable to make these amendments in the current parliamentary Session. However, work is in hand to progress these changes at the earliest opportunity under the new Parliament. The changes are in no way controversial.
I now come to what is much more controversial: the question why Her Majesty’s Government rejected the committee’s recommendation that Rules 13 to 15 on warning letters should be revoked and substituted with a rule giving chairs greater discretion. Of course, on warning letters, a 2005 Act inquiry cannot apportion civil or criminal liability—although I note the observation of the noble and learned Lord, Lord Woolf, that more use might be made of the findings of inquiries in civil proceedings. The warning letter provides a mechanism to inform someone of the fact that they have been or may be criticised during the course of the inquiry. Rule 13 contains a discretion to send warning letters. The warning letter also provides that individual or body with the opportunity to respond to the inquiry chairman and provide any additional information. To that extent, warning letters can—as acknowledged in the debate—assist in the effectiveness of inquiries by encouraging engagement and allowing the inquiry to consider any response from that individual before reporting.
The next paragraph I will share with the House reflects the letter to my noble friend Lady Buscombe but contains a further comment. Her Majesty’s Government consider that Rule 13 strikes the right balance, affording individuals the opportunity to take legal advice and, if necessary, to respond to criticism. A departure from the current approach could lead to a loss of that opportunity with a corresponding impact on the involvement of witnesses.
During the course of this very helpful debate, there have been useful observations from the noble and learned Lords, Lord Woolf, Lord Cullen and Lord Morris, and the noble Lord, Lord Pannick. In the helpful comments of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, he provided the useful quotation from Sir Richard Scott—as he then was—stressing the need for flexibility and how so often this process has got out of hand. I can tell the House, notwithstanding the official response, that the Government—although considering, on the face of it, that there should be sufficient discretion for chairmen to avoid some of the undesirable features of the Salmonisation or Maxwellisation process so helpfully identified in this debate—are none the less much impressed by the strength of the argument today and consider that it may well be necessary to reconsider these particular rules to give greater clarity to chairmen so as to avoid some of those undesirable features. The House will realise that I cannot go further than that but I hope that that will provide some comfort to those who participated in the debate.
I assure the noble Lord, Lord Shutt, and his colleagues that, since the Government published their response, the Ministry of Justice and the Cabinet Office have worked closely together, and will continue to do so, to make sure that the committee’s recommendations are implemented. As I said, work has progressed on the support provided to those considering establishing an inquiry. The Cabinet Office is currently working with departments to ensure that this guidance reflects their needs, and will of course take account of all that has been said.
I was asked to deal specifically with a number of matters. I will do so very briefly given the time that has already elapsed in my response—although I was asked by my noble friend Lord King to give a full response, and I am endeavouring to do so.
The noble Lord, Lord Trefgarne, was concerned about the need for representation. Of course, he will be aware that it is provided for by Section 40 of the Act that the chair can award reasonable costs, but he was right to draw attention to the fact that he departed somewhat from the rest of the committee given his particular experience, having been before the Scott inquiry.
The noble and learned Lord, Lord Cullen, referred to the appointment of counsel. He will be aware that the cost of legal teams is one of the biggest cost drivers in inquiries, so it is right, in the Government’s view, that—important though the role of counsel is, for the reasons that he gave——Ministers should protect the power to be involved in the appointment of counsel. In the Government’s view, that should not be for the chairman alone, although one imagines that the chairman often has considerable influence in the identification of appropriate counsel.
My noble friend Lord Trimble referred to the question of inquests—whether there were inquests rather than inquiries, in a reference to Article 2 of the European convention. There is a slight difference. Of course, there has to be an inquest as a matter of law in certain circumstances but there is always discretion whether to call an inquiry. As he will know, all inquests have to comply with Article 2. I understand that the inquest system in Northern Ireland is somewhat different, and inquests there have been held by the ECHR not to comply with Article 2 of the European convention. He also referred to the on-the-runs inquiry. He said that that was a private inquiry. I am instructed that in fact it was not private, but was an independent review under the chairmanship of Lady Justice Hallett. No public evidence sessions were held, given the nature of the issues—of which my noble friend will be well aware—but a full report was published on 17 July 2014.
In conclusion, I hope that the House will be assured from my remarks today that the committee’s recommendations were well received and that work is progressing—perhaps not at the pace that the committee would like but at a pace that is realistic given the many other pressures, especially now as we approach the end of the Parliament.
The noble Lords, Lord Soley and Lord Richard, and the noble Baroness, Lady Stern, all rightly emphasised the importance that public inquiries exercise in the public mind as a reassurance when, sometimes, confidence in politicians is not quite what it might be. The noble Baronesses, Lady Stern and Lady O’Loan, emphasised the absolute need for the paramountcy of independence where inquiries are concerned. I entirely agree.
I think that the noble Lord, Lord Shutt, and his committee colleagues have accepted that given the nature of public inquiries there needs to be a degree of flexibility. One size plainly will not fit all. As we know, every time that an issue arises, there is a call for an inquiry. Consideration must be given to the most suitable approach that will deliver the answers and limit the possibility of the event happening again, but in a cost-efficient and timely manner.
The report, and this debate, have been an extremely valuable contribution to what is and will remain a very important topic. I thank all who have taken part very much.
My Lords, I thank the noble Lord, Lord Faulks, for his response. He said that the Government had welcomed our report, and perhaps they have, although it did not seem like it at the time. I am delighted that he said today that in looking at inquiries under the Act, the Act will always be considered: it is on the agenda of the Minister bringing in an inquiry. Secondly, whether it is a central inquiries unit or a discrete department of the Cabinet Office, it sounds to me as though we are going down the right track. That is also helpful.
We will see what happens. There will be a Ministry of Justice Bill at some point in a subsequent Parliament. Amendments may well arise in connection with such a Bill. I thank the Minister for his work during this period in government.
I also thank everyone who has taken part in this debate and I am grateful for the very kind remarks that have been made. It is quite splendid that 10 of the 12 members of the committee have spoken today. That says to me that there has been a real weight of support for what we did and the recommendations that we made. We will read Hansard to take in the debate further, and there may be supplementary information, but as for the inquiry rules in connection with warning letters, not only did the committee hear witnesses and take a view, that has been enhanced by the debate today. It has been further embraced by serious, solid, senior lawyers—amazingly to me—that there can be a real saving in time and money. I should have thought that that was something to be grabbed by government. I hope that what the Minister said will be embraced in a supplementary report or is dealt with later. I thank everyone for taking part today.