Inquiries Bill [Lords] |
|
Mr. Carmichael: I shall not detain the Committee long. It was not my intention to speak in this part of the debate, but the Minister has raised a number of further issues. This is another area where the fundamental difference between the Government and the Opposition concerns who has the power. It seems to me that the Government, for reasons that one might understand although not necessarily approve of, are quite determined that the power will rest with them. As my hon. Friend the Member for North Cornwall said, it is appropriate that Parliament should be the forum to hold the power in this case. The Minister made an interesting point when he spoke about concern for challenges arising from the parliamentary resolution procedure. I do not see how that would necessarily be so, given that the inquiry is not invalidated by the absence of such a resolution. I cannot think of the terms in which any challenge would be framed, because the question of whether a parliamentary resolution is introduced does not seem to have any particular bearing on the matter. Mr. Leslie: It comes down to the definition of ministerial misconduct and whether, for instance, a non-statutory inquiry, going about its business, would be challenged by someone who felt that it generally concerned ministerial conduct and did not have those parliamentary resolutions, thus inhibiting the inquiry in its work. There are a number of ways in which legal challenge could be opened up by such a requirement. Mr. Carmichael: I am not sure that the Minister has covered the ground. I do not see how the presence or absence of a parliamentary resolution would be justiciable under judicial review, which would presumably be the mechanism for challenging the decision. In any event, to take the Minister’s argument at its highest, if there is merit in it, it is a very compelling argument in favour of amendments Nos. 7 and 8, because by removing the discretion, one removes the option for challenge, as the option for challenge could only be on the basis of the exercise of the discretion. The question of misconduct really is one of angels dancing on the head of a pin. I cannot imagine why we would want inquiries into ministerial conduct unless
Mrs. Campbell: In answer to an earlier question, I should like to reassure the Committee that I am not a lawyer—in fact, I am a statistician, if that makes any difference. I return to the argument about ministerial conduct and misconduct, because there are differences between those things. Ministerial conduct, which relates to personal misconduct by a Minister, should rightly be investigated under the ministerial code of conduct. It is time for the Government to reconsider their view that it is undesirable to fetter the Prime Minister’s freedom to decide how individual cases should be handled and to put such cases before the parliamentary ombudsman. However, I will not test your patience, Mr. Griffiths, because that is not what the clause is about. What Select Committee members and I mean by ministerial conduct is the direction of Government policy, which is a matter for Parliament. One reason why Parliament exists is to hold Ministers to account over their policies. I can think of several occasions in recent years when I would have wanted to question the direction of Government policy, and a parliamentary inquiry might be a way to do that. Mr. Djanogly: I am not sure where the hon. Lady is coming from when she refers to ministerial conduct or misconduct, as she has done on several occasions. If this issue is of “public importance”, presumably it would not matter whether there was ministerial conduct or misconduct, because it would be covered by her amendment. Mrs. Campbell: The Select Committee was clear that ministerial misconduct should be investigated by the ombudsman, not by a parliamentary inquiry. By using the words “public importance”, the Select Committee intended to refer to the direction and continuance of Government policy. Returning to my main objections, about which I spoke on Second Reading, the clause gives the Minister discretion on whether to hold a public inquiry into his or her own misconduct. That is a rather strange thing to ask a Minister to do. The clause does not make sense and I shall vote to revoke it. I cannot support the hon. Gentleman’s amendment. Mr. Djanogly: As the hon. Member for North Cornwall said earlier, clause 7 is important, as is the power that it gives to Parliament, and it is central to public confidence in the Bill. I have explained why we believe that the clause is necessary and I shall not run through the arguments again. Although I am obliged that Liberal Democrat Members supported the amendments, which are
3.45 pmThe Minister’s concern about legal challenges was weak. He did not explain what the “perversities” were, let alone provide for any alternative. For those reasons, I will press clause 7 stand part to a Division. However, I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Motion made, and Question put, That the clause stand part of the Bill:— The Committee divided: Ayes 3, Noes 6. [Division No. 4] AYES Carmichael, Mr. AlistairDjanogly, Mr. Jonathan Tyler, Mr. Paul
NOES Campbell, Mrs AnneHall, Mr. Mike Leslie, Mr. Christopher Pound, Mr. Stephen Prentice, Bridget Rooney, Mr. Terry Question accordingly negatived. Clause 7 disagreed to. Clause 8 Further appointments to inquiry panel Mr. Djanogly: I beg to move amendment No. 9, in clause 8, page 3, line 38, at end insert—
The amendment follows the same theme as that discussed at great length when we debated the amendments on the allocation of duties to the commissioning Minister and the inquiries chairman. As such, and as this amendment was discussed by me to some extent previously, I shall be relatively brief. The amendment would address a technical oversight. As I said, there is great inconsistency between the extent of chairman involvement when changing the composition of the inquiry panel. The Minister did not address that. To recap, under clause
Given that the Minister is involved in every other situation relating to the composition of the inquiry panel, we can only conclude that that lacuna has been overlooked. If there is a policy reason behind it, I would appreciate hearing the Minister’s explanation, because the need for some involvement of the chairman seems to be clear. The same argument arose in relation to both the independence, and so to the credibility, of the inquiry and the ability of the chairman and his panel to work as a cohesive team. The precise extent to which the chairman should be involved in appointing a new panel member to fill a vacancy is unclear. The amendment would introduce the minimum requirement of consultation. In hindsight, we recognise some inconsistency with amendment No. 3, which proposed that the Minister must “seek the agreement of” the chairman on appointing the original members of the panel, and with clause 8(2)(b), which requires consent when making an appointment that would increase the number on the panel. Unfortunately, the debate has not clarified matters. The only thing that has become clear is that there is little consensus about whether there should be consistency, never mind at which level the chairman should influence the decisions. I appreciate that the Committee will not want to cover old ground for a second time. However, I hope that it will recognise that some chairman involvement is required to fill the loophole relating to the appointing of new members to fill vacancies on the inquiry panel. That is particularly important given that the Bill as drafted allows the Minister to cause a vacancy on the panel to come about in the first place by terminating a panel member’s appointment at any time and for any reason. There is a small drafting defect in the amendment. As it stands, the chairman would also have to be consulted on the chairman’s appointment. That is clearly unrealistic. It would be superfluous if it applied to the incoming chairman, and it may be inappropriate or impossible if it applied to the outgoing chairman. The Committee needs to debate the amendment as if the chairman were excluded from the spectrum of new panel members for whom consultation with the chairman would be required. No doubt the Government could find the appropriate wording on Report. Mr. Leslie: I understand the sentiment behind the amendment, but the advice that I have been given by my officials is that it is unnecessary, not least because it would duplicate the requirement already set out in clause 4(3), which reads:
Column Number: 62 That subsection requires the Minister to consult the chairman before appointing any member to the inquiry panel. That applies to appointments made at any time, including further future appointments to the inquiry panel under clause 8. That is our understanding of what the hon. Gentleman is trying to achieve, so the amendment is not necessary because what it seeks to do is covered in clause 4(3). Mr. Djanogly: I thank the Minister for his explanation. I think that that covers my query, but I will go away and have a look at the Bill more carefully, and perhaps his office could do the same. I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 8 ordered to stand part of the Bill. Clauses 9 and 10 ordered to stand part of the Bill. Clause 11 Appointment of judge as panel member Mr. Leslie: I beg to move amendment No. 33, in clause 11, page 4, line 31, leave out
and insert ‘first consult’. The Chairman: With this it will be convenient to discuss Government amendment No. 34. Mr. Leslie: These important amendments relate to clause 11, which is concerned with the appointment of judges as panel members and the ability of a Minister to appoint those panel members who possess the most relevant skills and experience and are most appropriate to undertake a specific inquiry. There was a lot of debate on the clause in the other place and changes were made, but the Government believe that the requirement ought to be for consultation with the Lord Chief Justice or the various serving heads of the judiciary. The matter reaches further than consideration of just the impact on the judiciary and the administration of justice because, when appointing an inquiry panel, Ministers should be able to weigh up what is in the wider public interest. That depends on many factors, including the nature of the problem and the level of public concern. To be blunt, public inquiries can be more important than the judicial business demands that apply from time to time in the courts. For instance, the appointment of Lord Phillips as chairman of the BSE inquiry is an example of a case in which the wider public interest of investigating that crisis outweighed the loss of the Lord to the courts. The role of the Lord Chief Justice, or appropriate colleague, in the appointment process is important and must be recognised, but a requirement for consultation is more appropriate than a right of veto. Although
The Lord Chief Justice, or his equivalent, might express opposition to the appointment of a judge for several reasons, all of which have been mentioned in debates in the other place. He might, for instance, regard the impact of a judge’s absence from his regular duties for a prolonged period as leaving insufficient judicial resources to fulfil the work load; he might regard the individual judge selected as unsuitable for the task; he might feel that the judge should sit with other panel members rather than alone; or he might even regard the nature of the inquiry as unsuitable for any serving judge. All of those are, of course, important objections that no one would want to deny and they would, no doubt, be spelled out by the member of the senior judiciary concerned. The Minister would have to do his or her best to meet those concerns and would have to consider the alternatives very carefully indeed. If the Minister nevertheless decided to go ahead with the appointment, he or she would have to give very good reasons to justify making that decision. It is important that the Minister should ultimately have the power to make such a decision if it is really necessary. That is the key issue. In future, there may well occur an event of such seriousness, causing such widespread public concern, that there is an overwhelming public interest in appointing a judge to investigate it. Such overwhelming public interest can sometimes outweigh all other factors. No one should have a veto on an individual judge’s view. The Government believe that, as currently drafted, the clause might work against a judge’s right to remain truly independent. It should be for the individual judge to say yes or no to an appointment, not the Lord Chief Justice or the Minister. It would be odd to give a veto to the head of the judicial profession only and not to others. If one considers the clause in the wider context, that particular requirement on the Lord Chief Justice would look somewhat strange. Judges are certainly not the only people who could chair inquiries. As the hon. Member for North-East Hertfordshire said just this morning, an inquiry chairman could well be a member of a professional body responsible for the standards and reputation of the profession, such as an eminent doctor, engineer or academic figure, yet the Bill would not allow the heads of those professions formally to veto the offer of an appointment before it has been made. We recognise the importance of taking the views of the Lord Chief Justice or another senior judge on
Mr. Djanogly: We regret that the Government felt inclined to table the amendment, which will undo the good work achieved in the other place. I remind the Committee that the original draft of the Bill required consultation with the Lord Chief Justice or another relevant leading judge only when a Minister required a judge to serve on an inquiry panel. On Report, Lord Cullen and Lord Chief Justice Woolf spoke eloquently in support of amendments tabled by Lord Kingsland and Lord Goodhart to require the consent of the Lord Chief Justice. The Minister, Baroness Ashton, refused to accept the Lords’ convincing arguments, but the other place divided on the matter, and was in favour of the amendment. The Conservative Opposition still stand strongly opposed to Government amendments Nos. 33 and 34. The Minister will tell me if I am wrong, I am sure, but he seemed a little circumspect in his proposal of them. Clause 11 should stay as it stands for four main reasons. First, inquiries are inherently political, and the Minister could use his influence to place a judge in a position that could jeopardise the judge’s independence and further the former’s interests. Indeed, the hypocrisy of this Government is interesting. They argue for the abolition of the Lord Chancellor in order to ensure the separation of powers, while giving the Executive carte blanche over the involvement of judges in inquiries. Lord Woolf recognised an extension to this issue. He stated:
Secondly, the Government’s amendments are not consistent with the concordat agreed between the Secretary of State for Constitutional Affairs—the Lord Chancellor—and the Lord Chief Justice. The Minister said that it would be unusual to give a veto to the head of the legal profession, but that is not reflected in the deal that his Government have just arranged with the judiciary. The concordat, of course, is now reflected in the Constitutional Reform Bill. The concordat states:
Column Number: 65 Given the extensive powers given to governmental officers in the context of inquiries under this Bill, it is at least arguable that an inquiry is a
As such, the concordat should apply to the posting of judges to inquiry panels, and the Lord Chief Justice should be able to consent or object to the use of a judge in that way. 4 pmThirdly, each judge may be aware of his personal schedule, but he will not be informed of the resources and business needs of the court system as a whole. Only the Lord Chief Justice will be in a position to see the possible appointment of a judge to an inquiry panel in the context of the working of the court system as a whole and its effects on the administration of justice. Finally, the tradition and culture of this country’s judiciary is such that it may be difficult to turn down a ministerial request to join an inquiry panel. Lord Fraser said that
The Conservative Opposition’s view is shared by the Public Administration Committee. The conclusion of its recent report “Government by Inquiry” stated:
We ask the Committee to resist the Government’s amendments and ensure that the Lord Chief Justice, or other relevant leading judge, will have the final say on whether his judges may be used in a ministerial inquiry. Mr. Carmichael: The hon. Gentleman is correct to say that there is an issue about the separation of powers. He referred to the passage from the Public Affairs Committee report that I originally intended to bring to the Committee’s attention. I would like the Minister to give us a good reason why he disagrees with the terms of the Public Affairs Committee report. I will not rehearse what the hon. Member for Huntingdon said, but the Minister’s argument about why a senior judge might not necessarily want to release a judge was on the basis of the weight of business given to the part of the judiciary for which he was responsible. I can envisage situations in which it would be desirable to appoint an English judge to head an inquiry in Scotland or, as has happened in the past, a Scottish judge to investigate a matter in England—the obvious example is Lord Cullen, who headed the Paddington rail crash inquiry. That would certainly be possible under the Bill. In a situation closely associated
Surely the Minister would accept that if a Minister at Westminster is to call on a judge from Scotland, he should have the consent of the Lord President before making that appointment. Merely to consult him is not sufficient. Mr. Leslie indicated dissent. Mr. Carmichael: The Minister shakes his head; he mouths “Why?” It is because no Minister in Whitehall can possibly be aware of the full extent of the business that is before a judge in Scotland. He has no ministerial responsibility for the administration of the business that is normally carried out by a judge in those circumstances. He does not know the background, which would be a barrier, and he has no direct control over that judge. If we were simply dealing with English Ministers appointing English judges and Scottish Ministers appointing Scottish judges, I might have more sympathy for the Minister’s argument. However, that is not so. There is potential for intra-jurisdiction transfer and in such circumstances it is necessary to have more than consultation. The head of the judiciary in whichever part of the United Kingdom happens to be affected ought to be prepared to give consent. There needs to be more than mere consultation. Mr. Leslie: I hear what hon. Members on the Opposition Benches have said. There is no presumption of a judicial chair of an inquiry across the board, but the amendments relate to circumstances where it is felt that a judge would be better placed to chair a particular inquiry. As for Westminster Ministers not knowing or being aware about the business needs in the Scottish legal jurisdiction—or, in depth, in England or Northern Ireland—I reiterate the point that I made before, which is that public inquiries, by the nature of their importance to the public interest, sometimes overrule the individual business need issues in the day-to-day running of the courts. I know that that is a difficult judgment to make, but it is important to underline the fact that sometimes having the right person to chair a public inquiry comes first. Mr. Carmichael: I accept the Minister’s point about the wider public interest, but if there is a conversation between a Minister at Westminster and the Lord Chief Justice, and the Lord Chief Justice says, “I can’t afford to release that judge”, the Minister in Whitehall can say, “We will provide you with money to employ so many other temporary judges”, or whatever the equivalent is, south of the border. If the Minister is having a conversation with the Lord President in Scotland, and the Lord President makes the same objection, what does he say? He does not fund the Lord President’s Department. Column Number: 67 Mr. Leslie: This is dancing on the head of a pin. Ministers, such as the Advocate-General and others, have an interest in that area, and we have relations with the Scottish Executive as well, so there are ways round that. Indeed, the hon. Gentleman’s point about having a veto is not proven. The necessary consultative process would reveal whether there was a problem with the business needs in the judiciary in either jurisdiction, and that might enable Ministers to react through the consultative process by providing a solution to the business needs while a judge was used on invitation to chair an inquiry. It is important to emphasise that we are talking about inviting a judge to chair an inquiry, not forcing them. The sense that Ministers are somehow able to undermine the independence of a judge is slightly peculiar, to say the least. All our judges are of the highest standing and repute and would not take on inquiries if they felt that they were being used, as some would suggest. Judges will be able to decide for themselves whether to chair inquiries and neither the Lord Chief Justice nor the Minister should be able to force a judge to do so or have a veto on a judge’s involvement. The hon. Member for Huntingdon mentioned that the Lord Chief Justice made various comments on the concordat during the progress of the Bill in the other place, but I emphasise that the appointment of judges to inquiry panels did not form part of the discussions with the Lord Chief Justice that led to the concordat. We do not believe that the concordat was intended to cover inquiry panel appointment issues. There are plenty of safeguards for protecting judicial independence. The notion that we would want to undermine the independence of the judiciary is wrong. It would be up to a judge to make the choice. We know that the Constitutional Reform Bill, quite separately, places an unqualified duty not just on the Lord Chancellor but on all other Ministers to uphold the continued independence of the judiciary and to place a specific duty on the Lord Chancellor to consider the need to defend that independence in everything that he or she does. That demonstrates in new ways the Government’s commitment to preserving judicial independence and the need to defend that independence. For those reasons, because there are other safeguards outside the Bill and because a veto is not necessary in this judicial field, I hope that the Government amendment will be accepted. Question put, That the amendment be made:— The Committee divided: Ayes 6, Noes 3. [Division No. 5] AYES Campbell, Mrs AnneHall, Mr. Mike Leslie, Mr. Christopher Pound, Mr. Stephen Prentice, Bridget Rooney, Mr. Terry
NOES Carmichael, Mr. AlistairDjanogly, Mr. Jonathan Tyler, Mr. Paul Column Number: 68 Question accordingly agreed to Amendment made: No. 34, in clause 11, page 4, line 33, leave out
and insert ‘to be consulted’—[Mr. Leslie.] Clause 11 ordered to stand part of the Bill. |
| |
| ©Parliamentary copyright 2005 | Prepared 23 March 2005 |