Inquiries Act 2005 (Select Committee Report)

Lord Morris of Aberavon Excerpts

Thursday 19th March 2015 Lords Chamber

[Lord Morris of Aberavon (Lab)]

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.