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Lord Ackner: My Lords, I would like to stress how important the distinction is between the amendment that I have put before the House and the one that was previously voted on. The suggestion that this issue has already been decided by implication is wrong. We are concerned with the chairman's ability to maintain public confidence in the inquiry over which he and his panel are presiding.
There is no chairman who has had as long and as difficult as experience of manning an inquiry as my noble and learned friend Lord Saville. In the course he has achieved an ability to assess what the situation
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would have been in his highly sensitive inquiry if the Minister had at any stage intervened in order to control the privacy or the extent of the evidence.
Baroness Ashton of Upholland: My Lords, I am sorry to interrupt the noble and learned Lord, but I was specific that the only restriction that the Minister can have is on public access and what the public who attend can say about the evidence that they have heard. There is no ability in the Bill for the Minister to restrict what the witness says or the evidence that comes to the inquiry; it is quite the opposite.
Lord Ackner: My Lords, I am grateful to the Minister for her correction. Even with the Minister's limited ability, my noble and learned friend Lord Saville was able to say that if the Minister had used those powers in relation to his inquiry, public confidence, which he and his panel had managed to maintain, would have drained away. There is the assessment by a chairman now of vast experience as to what would happen if the Minister intervened as she Minister would wish to do.
The Minister remains like any other individual perfectly capable of making an application with regard to the form and nature of the type of restriction that he would like to see imposed. He like any other member of the public can make that application; and if discontented with the result, proceed to judicial review, as has happened in other cases in the past.
There is a world of difference between outlining at the outset the terms and extent of the inquiry and the powers of the chairman and his panel; and interfering at a later stage without defining that situation. My noble and learned friend Lord Saville would not have accepted the appointment had he known that the Minister was to have those powers. That, in my respectful submission, says everything that needs to be said. I would like to test the opinion of the House.
5.30 p.m.
The Deputy Speaker (Lord Lyell): My Lords, the Question is that Amendment No. 8 shall be agreed to. As many as are of that opinion will say, "Content". To the contrary, "Not-Content". I think that the "Contents" have it. Clear the Bar.
Tellers for the "Contents" have not been appointed pursuant to Standing Order 54. Therefore, a Division cannot take place and I declare that the "Not-Contents" have it.
Clause 20 [Further provisions about restriction notices and orders]:
[Amendments Nos. 9 to 12 not moved.]
Clause 25 [Publication of reports]:
Lord Kingsland moved Amendment No. 13:
Page 12, line 9, leave out "Minister, or the chairman if subsection (2) applies," and insert "chairman"
The noble Lord said: My Lords, I can deal with this group of amendments quite speedily. The issues have been extensively discussed in all earlier phases of the Bill. They deal with whether the Minister should have control over the publication of a report. The amendments would remove any role that a Minister might have in the publication of the report and would leave both the report's substance and the timing of its publication to the chairman.
The reason behind the amendment is exactly the same as that behind several earlier amendments concerning the balance of power in the inquiry process between a Minister and a chairman. It is wholly inappropriate that the Minister should be able to influence either the content or the timing of a report of an inquiry. I beg to move.
Baroness Ashton of Upholland: My Lords, as the noble Lord, Lord Kingsland, has said, we discussed the amendments in great detail in Committee and at Report, so I shall be brief. The clause introduces a new general obligation to publish reports. It reflects past practice by making publication generally a matter for the Minister—who will also lay the published report before Parliament under new Clause 26—but allowing for the chairman to publish it if that is more appropriate.
The person publishing the report has limited powers to withhold information, which is very important. As I have already indicated, Ministers have a duty to protect national security and the economy, and to protect individuals' rights under the European Convention on Human Rights. They have to be able to fulfil that duty.
Ministers, of course, will have access to the expertise to determine whether the disclosure of particular information is likely to cause damage. I know that noble Lords have concerns about the powers for the person publishing the report to withhold that information, but those powers are very limited Information can be withheld only if it is required by law or necessary in the public interest.
Clause 25 makes very clear that the reasons for withholding information "in the public interest" are very limited—for example, a risk of damage to national security or the economy, or a breach of a confidentiality agreement. Those risks have to be weighed against the extent to which withholding that material would inhibit the allaying of public concern.
We have introduced new subsection (7), which ensures that the powers to withhold information cannot override the requirements of the Freedom of Information Act. A person therefore could make a request under the Act for any information that had been withheld from a report, with a right of appeal to the Information Commissioner.
We believe that we have the balance right, especially with the introduction of new subsection (7). On that basis, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Kingsland: My Lords, I am most grateful to the noble Baroness, as always, for her thoughtful reply.
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She has rightly identified the kernel of our concerns in Clause 25(4)(b), where the degree of discretion that is given to the Minister to withhold material is too wide; namely,
"as the person considers to be necessary in the public interest, having regard in particular to the matters mentioned in subsection (5)".
It is true that the matters set out in subsection (5) are reasonably constraining, but they are not a conclusive list of what has to be considered. In our view, the discretion of the Minister is not sufficiently hedged about.
However, I am aware that my noble friend Lord Goodhart does not take the same view about this clause as I do. In those circumstances, I see no useful purpose served in seeking to test the opinion of your Lordships' House. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 14 to 16 not moved.]
Baroness Ashton of Upholland moved Amendment No. 17:
(a) by the inquiry panel, or
(b) "
The noble Baroness said: My Lords, on behalf of my noble and learned friend Lord Falconer, I move a minor and technical amendment. It will ensure that offences of distorting or suppressing evidence do not cover actions that are authorised by the inquiry panel. I am grateful to the noble and learned Lord, Lord Saville, for bringing the issue to my attention. For example, the amendment will ensure that it will not be an offence to conduct forensic testing of a piece of evidence where the panel has so directed. I beg to move.
On Question, amendment agreed to.
An amendment (privilege) made.
Baroness Ashton of Upholland: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Baroness Ashton of Upholland.)
On Question, Bill passed, and sent to the Commons.
Disability Discrimination Bill [HL]
5.41 p.m.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis of Heigham): My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Disability Discrimination Bill, has consented to place her Prerogative and Interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Bill read a third time.
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Clause 2 [Discrimination by public authorities]:
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