I beg to move amendment No. 7, in clause 7, page 3, line 17, leave out

‘may, if he sees fit,’ and insert ‘must’.

With this it will be convenient to discuss amendment No. 8, in clause 7, page 3, leave out line 22.

These, too, are important amendments. We have been witnessing the Government repeatedly taking advantage of their majority in this place to gnaw away at Parliament’s influence over the Executive. There is concern that, should that pattern continue, the checks and balances underlying our very constitution could be threatened and chipped away. Unfortunately, this Bill is no exception to the trend. Earlier, my hon. Friend the Member for North-East Hertfordshire spoke eloquently of the overreaching powers of the Government that are peppered throughout the Bill. In the Inquiries Bill, the most critical appropriation of power by the Government to the detriment of Parliament relates to ministerial misconduct, which is the subject of the amendments. Public inquiries into ministerial misconduct lie at the heart of Parliament’s role of ensuring ministerial responsibility. In its report, the Treasury and Civil Service Committee noted that the system of ministerial accountability depended upon

“two vital elements: clarity about who can be held to account and held responsible when things go wrong; and confidence that Parliament is able to gain the accurate information required to hold the Executive to account and to ascertain where responsibility lies”.

Inquiries enable Parliament to obtain that essential information, which should in turn clarify who should be held to account. However, despite the clear need for parliamentary involvement, the Government seem to be shunning it at every stage.

The report of the Select Committee on Public Administration does not talk about misconduct. Instead, it recommends that the ombudsman should investigate alleged breaches of the ministerial code. The proposal is rather unfortunate because it refers to ministerial misconduct and at the   same time causes the Minister to bring the inquiry. The amendments would force the Minister to do rather more than he would otherwise. Would a Budd inquiry happen if the amendments became part of the Bill?

I will come to that report, so I ask the hon. Lady to hold on.

In the other place, the Government consistently fought against amendments to improve the constitutional balance between the two organs of state. Despite the Government’s resistance, the other place secured an amendment on Division, which allows the possibility of some parliamentary involvement. The compromise reached between the Conservative and Liberal Democrat peers provides the option for a Minister to move a motion before the relevant Parliament or Assembly, as is embodied in clause 7.

However, even the permissive, non-obligatory provision seems too restrictive for the Government. Amendment No. 32, which has not been selected, is presumably to be dealt with in the clause stand part procedure.

Mr. Leslieindicated assent.

The amendment would have deleted clause 7, removing all statutory footing for parliamentary public inquiries into ministerial misconduct. That is worrying, not only because of the lack of parliamentary involvement but also for the excessive discretionary powers entrusted to the Ministers. As Lord Kingsland noted

“Under this Bill, it is the Minister who decides whether the inquiry will be established or not; it is the Minister who decides who shall sit on that inquiry; and it is the Minister who decides what the terms of reference of that inquiry shall be. How can that conceivably be appropriate where the relevant conduct is that of another Minister or even the department of the Minister in question?”—[Official Report, House of Lords, 9 December 2004; Vol. 667, c.1008.]

Our answer must be that it will never be appropriate and must be addressed by the Committee. In a later debate, Lord Kingsland stated:

“It is plainly ludicrous . . . that a Minister should investigate his own conduct or that of any other Minister who is in the Government of the day.”

He continued:

“A Minister is highly unlikely to initiate a procedure to investigate himself; and most unlikely to initiate a procedure to investigate his Cabinet colleagues.”—[Official Report, House of Lords, 18 January 2005; Vol. 668, c. GC192–203.]

It is clear that the Minister will have a strong interest in an inquiry not going ahead. There will always be the risk of ministerial, departmental or governmental embarrassment or, as is often the case, the death of a political career. Indeed, the very existence of the inquiry would cast doubt on a Minister’s credibility and reduce public confidence. Given the extensive powers granted to the Minister in setting up, running   and concluding an inquiry, the power to cover up ministerial misdemeanours would clearly be open to abuse. However, the Government do not, or will not, recognise that risk. In the other place, Baroness Ashton made her view clear that the

“Prime Minister is the ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of those standards.”—[Official Report, House of Lords, 28 February 2005; Vol. 670, c. 17.]

The Conservative Opposition strongly believe that that will not suffice. I must refer again to Lord Kingsland, who succinctly described the defects of investigating ministerial conduct through exercising the ministerial code.

Lord Kingsland described

“a situation where inquiries into ministerial demeanours, that go to the heart of government, are subject simply to the prerogative decision of the Prime Minister of the day who sets up an inquiry which seems to him to best suit the political circumstances. These are bespoke inquiries. They do not respect any statutory or parliamentary procedure. The chairman is named, certain powers are created and the chairman gets on with what he has to get on with under those powers. In my submission, to leave the way in which a Minister is made accountable to Parliament solely to the prerogative powers of the Prime Minister of the day is wholly wrong.”—[Official Report, House of Lords, 18 January 2005; Vol. 668, c. 208.]

That view is not only held by the Conservative Opposition; it has received widespread support. For example, over the past four years four reports by two separate bodies have criticised the Prime Minister’s ability to investigate under the ministerial code. Each report has been dismissed and their recommendations have been ignored by the Government.

First, in a 2001 report, the Public Administration Committee recommended, as the hon. Member for Cambridge said, that the parliamentary ombudsman should be given a policing role in relation to the ministerial code. Secondly, the Committee on Standards in Public Life recommended a new investigation mechanism for alleged breaches of the code in its ninth report of 2003. Among other things, that report recommended that two or three individuals be publicly nominated by the Prime Minister following consultation with the Leader of the Opposition. Those individuals would be available to investigate any alleged breach of the ministerial code. However, the Government rejected that proposal saying:

“it is for the Prime Minister to decide on the course of action required on a case-by-case basis”.

Thirdly, in its recent report, “Government by Inquiry”, the Public Administration Committee stated:

“In light of recent events we believe that the time is now right for the Government to reconsider its view that it would be undesirable to fetter the Prime Minister’s freedom to decide how individual cases should be handled. Accordingly we recommend that the parliamentary ombudsman should be empowered to investigate alleged breaches of the ministerial code and other allegations about the conduct of individual Ministers.”

As the Committee will be aware, the Select Committee also took that opportunity to recommend several   other proposals to address the same issues. In their response to that report, the Government repeated their claim that

“the Prime Minister needs to retain the right to decide whether an investigation is needed.”

In commenting on the recent Budd inquiry into the behaviour of the right hon. Member for Sheffield, Brightside (Mr. Blunkett), the Wicks Committee expressed its concern that no appropriate investigation mechanism existed and called for changes to the law to ensure clarity, transparency, accountability and public trust. Are the Government really so arrogant that they can ignore the overwhelming consensus of various reports, common sense and the very constitution on which our parliamentary system is based? I fear that that must be so, as the Inquiries Bill presents the perfect opportunity to revise the process for investigations into ministerial misconduct. The Government are not only ignoring that opportunity but seeking to undo the amendment secured by the other place.

In its present form, the Bill does not sufficiently address the need for parliamentary involvement, but Conservative amendments Nos. 7 and 8 would ensure that Parliament reclaimed its role and the correct balance of powers was restored. The Public Administration Committee showed similar concerns in its report, “Government by Inquiry”, in which it stated:

“We are deeply concerned that the Government’s Inquiries Bill threatens the last remaining role for Parliament in the inquiry process. Nonetheless, it also provides an opportunity to update the current provision contained in the 1921 Act to reflect our recommendations for parliamentary involvement. To achieve this we propose that clause 1 should be amended by means of an additional subclause to provide that, where the public concern relates to the conduct, actions or inactions of government ... the Minister will cause an inquiry to be called on the basis of a resolution of both Houses of Parliament.”

Unfortunately, instead of seizing that opportunity, the Government seek to undo the good work that the other place achieved on Third Reading.

I remind hon. Members that the amendment secured by the other place allows a motion to be moved, at the Minister’s discretion, if ministerial conduct is in question. We believe that the motion for a Parliamentary resolution should be moved each and every time the events relate to alleged ministerial misconduct. That is the only way of ensuring that inquiries into Ministers’ actions receive full democratic legitimacy.

There was concern in the other place that all inquiries, in some way or another, could relate to Ministerial misconduct, a question that often cannot be answered until the inquiry is up and running. However, clause 7 addresses that concern, as it only applies to those inquiries that relate “wholly or primarily” to alleged ministerial misconduct. As such, any latent ministerial involvement would not be relevant at the time the clause came into play. Once the inquiry is up and running, the Minister would have limited involvement in its processes, particularly if our earlier amendments had been accepted.

I underline the need for parliamentary involvement in public inquiries, and the absolute requirement for it when the inquiry relates to alleged Ministerial misconduct. We cannot allow the current imbalance of powers between Parliament and the Executive to shift further to the latter’s benefit. We currently have no satisfactory procedure for investigating ministerial conduct, a situation that could be abused.

My hon. Friend the Member for Orkney and Shetland and I support the amendments because the clause is central to public confidence in the Bill. As has been said, the clause has received the support of the other place as the result of cross-party anxiety that the Bill would otherwise not be sufficiently rigorous in its application.

I remind the Committee that the clause derives from the report “Government by Inquiry” by the Public Administration Committee which was published just before the Report stage in the Lords. That Committee has a Government majority and is chaired by a very distinguished parliamentarian, the hon. Member for Cannock Chase (Tony Wright), who has given a great deal of thought to these issues.

Paragraph 178 of the report states:

“Accordingly we recommend that Clause 1 should be amended to provide for parliamentary resolutions where the events causing public concern which may have occurred involve the conduct of ministers. We further recommend that the procedural framework for an inquiry called under this new sub-clause which we have described should be the subject of a Parliamentary Resolution once the Bill has passed into law.”

The hon. Member for Cambridge was wrong. There was a recommendation in that report. It is very specific and I invite her to look at it again.

My point was that nowhere in the report does it refer to ministerial misconduct. It refers to ministerial conduct, which is a completely different matter when we look at how policy is conducted. It is completely different from the kind of inquiry that was conducted by Sir Alan Budd into potential ministerial misconduct, which the Select Committee firmly believes should be adjudicated on by the ombudsman and not by an inquiry.

I am full of admiration for the hon. Lady who, like me, is not trained as a lawyer. To some extent, I think that that argument is a matter of semantics. Of course, there are grey areas between good conduct and misconduct. We need some provision to deal with the specific circumstances to which the Select Committee drew attention.

I shall give a couple of examples from my own experience. I was the spokesman for agriculture and rural affairs during the last days of the Major Government. The conduct of Ministers, whether it was misconduct or misapplied judgment, became a matter of judgment itself, but it was clear that there needed to be an inquiry into the BSE disaster. Yet Ministers were able to avoid that and no inquiry took place. In the run-up to water privatisation, in my constituency in 1988, before I was elected—it might have been part of the reason for my election—the Government of the day refused an inquiry into the poisoning of 20,000   people by aluminium sulphate that had been added to the water supply in an inappropriate way at the Lowermoor water treatment works. An inquiry was not set up until the Labour Government came into power.

In both circumstances, playing games to determine whether the Government’s decision was misconduct or lacking in judgment is unimportant. The point is that there was ministerial involvement in both appalling episodes and there was not a sufficiently effective and rigorous mechanism for Parliament to be involved in the establishment of the appropriate inquiry. All clause 7, strengthened by the amendments, would do is to make such a provision in a sufficiently robust way. That was why, as a direct result of the recommendation of the Public Administration Committee report, Lord Kingsland and our noble Friend, Lord Goodhart, tabled an amendment in the other place. After debate, it was withdrawn because it was not considered to be sufficiently effective. Indeed, that might be because the specific need for amendments Nos. 7 and 8 was not anticipated.

A revised amendment was tabled on Third Reading in the other place which was again supported by the noble Lords. It received cross-party support, as well as from Cross-Bench peers. It was accepted and its provisions are set out in the Bill. The measure needs a little strengthening, which is why we support the amendments. I assume that the Minister will resist them, but I hope that he will give us a full explanation of why he wants to remove the entire clause.

It is absolutely axiomatic that, when the conduct of a Minister of the Crown is in question, Parliament plays a key role in assessing the situation. It is not good enough for a Minister simply to make a statement. He should come before Parliament, place a motion on the Order Paper and seek parliamentary approval. That would give legitimacy to the approval of the inquiry into a particular set of circumstances. Without such a provision, the Bill will be gravely weakened.

Order. It has been a bizarre experience for me as a Chairman to hear the Committee debate amendments when there will be a move to remove the clause to which they apply. Perhaps the Minister could put his arguments for clause 7 not being in the Bill, so that our proceedings are speeded up a little.

It is an excellent idea, Mr. Griffiths, and, with your permission, I shall do exactly that.

There are specific reasons to oppose amendments Nos. 7 and 8, but it will help the Committee in general if I set in context some of our worries about the clause. I understand the rationale behind it, but it would have several perverse consequences. It should be removed for many reasons, not least because it is unnecessary.

Let us consider some of the basics. My hon. Friend the Member for Cambridge referred to the difference between ministerial misconduct and ministerial conduct, and they could have extremely wide definitions. It could mean the personal, individual acts   of a Minister in his or her day-to-day work or it could include the conduct of a Minister in the smooth administration of his or her Department as a whole. We could end up in big arguments about the scope of conduct or misconduct inquiries. It could be argued that almost anything that the Government do could ultimately be classed as relating to ministerial conduct. If it was as undefined or as widely defined as that, there would be a number of problems.

I am worried, for instance, that there would be pressure to apply the resolution procedure to a far greater number of inquiries than the noble Lords intended when they amended the Bill. That could lead to false expectations. Inquiries often cover emotive and highly sensitive issues. Certain people may see the Government as wholly or primarily to blame for what has happened and may argue that Ministers have committed misconduct even though their actions have not constituted anything like what we would regard as misconduct. That might not only sour the process of getting the inquiry set up and under way, but lead to legal challenge. For instance, certain individuals might think that the parliamentary resolution procedure under the misconduct arrangements is not being properly pursued. Legal challenges through the courts because an inquiry was set up without a resolution would be undesirable, not least because of the delays and complications that they would add. That is why I am particularly worried about the amendments.

There are perversities about clause 7 in general. Not only do these complicate the legislative structure in the Bill; it could be argued that there might be a disincentive for future Ministers to use the legislation and therefore the provision might diminish Parliament’s involvement in inquiries. To avoid the inevitable argument and confusion, future Ministers might consider it better always to set up non-statutory inquiries, outside the procedures in the legislation. That would be particularly difficult if we accepted amendments Nos. 7 and 8. There could be great difficulties if future Ministers, perhaps in another Administration, did not want to go through those parliamentary procedures and were therefore more likely to set up non-statutory inquiries.

There are other concerns. We have touched on some of the concerns expressed by the hon. Member for Huntingdon that the ministerial code of conduct is not the best framework to safeguard good ministerial conduct. We believe, however, that the code is the best framework. It sets out the standards that the Prime Minister expects Ministers to uphold, and the Prime Minister’s foreword makes it clear that he expects all Ministers to work within the letter and spirit of the code and to undertake their official duties in a way that upholds the highest standards of propriety. Section 1 of the code makes it clear that Ministers remain in office only so long as they retain the confidence of the Prime Minister. Of course, implicit in that is the confidence of Parliament too, because in theory Parliament already has the power, if it so wishes, to censure Ministers in relation to particular issues.

Hon. Members seem to have the impression that Parliament is constrained in what it can do unless something is in statute. That is not the case. With Parliament being sovereign, it has the ability to act should it wish to do so. As I said, section 1 of the ministerial code of conduct makes it clear that Ministers remain in office only as long as they retain the confidence of the Prime Minister, who is the ultimate judge of the standards of behaviour expected of a Minister. It is for the Prime Minister to investigate and decide on misconduct. It is not, in the first instance, for Parliament to do so, although there is nothing preventing Parliament from doing so if it so wishes, because ultimately all Ministers, as I know, are routinely and rigorously held to account in Parliament.

It follows that it is for the Prime Minister to decide whether an allegation relating to ministerial misconduct under the code needs to be investigated, and the means by which any such investigation should be conducted. He would need to be able to act swiftly and to take quick decisions on ministerial misconduct. The public would expect the Prime Minister to do that. He needs the ability to act quickly but not necessarily to have this parliamentary process in front of him.

I think that the Prime Minister’s oversight is best, and that view has been supported by others. In April 2003, the Committee on Standards in Public Life agreed in its ninth report that it should continue to be for the Prime Minister to decide whether an investigation is needed. The Government continue to believe that that is right and is the best approach. To accept the amendments would lead to a blurring of the lines of accountability between Parliament and the Executive. Parliament is, of course, supreme, but the Executive must be able to act and the Prime Minister must be able to take swift action in relation to the conduct of his or her Ministers.

There is another worry about the parliamentary resolution process occurring before an inquiry into ministerial conduct is set up. In practice, we know what would happen; there would be a lot of prejudgment of what did or did not happen even before the inquiry established the facts of the case. In addition, there are other reasons why we need to worry about clause 7 as it stands.

There are dangers in amendments Nos. 7 and 8; in particular, they could set precedents for inquiries that will always be on the borders of whether they concern ministerial conduct. For example, many would argue that the handling of the foot and mouth and BSE outbreaks were about ministerial misconduct. If there were a statutory requirement for resolutions, Ministers would come under considerable pressure to use that for inquiries, even if it was not, strictly speaking, required. Each inquiry would then set a precedent and would increase the pressure for Ministers to seek resolutions on similar inquiries in   future. One can therefore see that the set of inquiries covered by the clause would grow wider and wider. We would then move away from the concept of ministerial inquiry, which I believe to be the proper purpose of the Bill.

Although I understand what many have argued for in clause 7, it has perverse consequences, it is unnecessary because Parliament already has a number of other powers, and it has a number of undesirable aspects, as I have mentioned. I hope that the Committee will resist amendments Nos. 7 and 8 and clause 7, so that it will not stand part of the Bill.

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.

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.

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   there was prima facie misconduct. However, there may be something there that clever people have thought of and I have missed.

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.

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.

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.

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   necessary to improve the clause, I shall not request a Division, because we now face the much more serious issue, which has arisen from the Government amendments, of the Minister wishing to strike out the entire clause. I shall ask for a Division on clause 7 stand part. After having listened to the Minister, I am even more concerned that not only do the Government intend to strike out the compromise offered by the noble Lords, they are not offering any alternative—the one proposed by the Public Administration Committee or any other.

The 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.

NOES

Question accordingly negatived.

Clause 7 disagreed to.