Investigations requested by the Secretary of State

I beg to move amendment No. 156, in clause 37, page 26, line 6, leave out subsection (2).

With this it will be convenient to discuss the following amendments: No. 159, in clause 37, page 26, line 46, leave out subsection (7).

No. 160, in clause 37, page 27, line 7, leave out subsection (10).

This will be a relatively brief discussion, I hope. Clause 37 is confusing because, although the policy behind this part of the Bill is to give the commissioner a great deal of independence and discretion, not only is the commissioner required—we have had this discussion before—to report to the Secretary of State, who then lays the details before Parliament, but apparently the Secretary of State can give the commissioner directions. The clause does not actually use the word “directions”; it talks about consultation. Subsection (2) states:

“The Secretary of State shall consult the Commissioner before making a request under this section.”

What is the request the Secretary of State can make? Subsection (1) states?

“The Secretary of State may request the Commissioner to investigate any matter mentioned in subsection (3) or (4) which is specified in the request.”

I do not understand why the Secretary of State needs to consult the commissioner before making a request.  Why does he not simply make the request and the commissioner can consider it on its merits? However, subsection (7) states:

“It is the duty of the Commissioner to investigate any matter which is the subject of a request under this section.”

There is no independence of action, discretion or conduct there. It seems that the consultation proposed in the Bill is meaningless, and the request is not a request but an order.

Subsection (10), which is the subject of amendment No. 160—subsection (7) being the subject of amendment No. 159—states:

“Subject to any directions give to the Commissioner by the Secretary of State, it is for the Commissioner to determine the scope of, and the procedure to be applied to, an investigation under this section.”

There is the fig leaf of independence, but I am concerned that behind it are messages coming from the Secretary of State saying, “This is a ‘request’, but you are to do the following.” It seems to me that, despite the warm words that no doubt will be uttered, the commissioner is not clearly given discretion; he is not given the independence of action to look into what he wants.

That is not an entirely fanciful concern. Let us assume that a big political storm is brewing over the management of prisons. I am sure that this is completely impossible to imagine, but let us assume that there is a real mess in the prison estate. It is terribly overcrowded. The suicide rate has reached, say, 87 during the course of a year and the suicide rate for prisoners coming out of prison is very high. There is a tremendous public hue and cry about that, which is engendering a great deal of public interest.

The Secretary of State may wish to request the commissioner to investigate “any matter mentioned” and he may wish to consult the commissioner before making a request under the clause. All those behind-the-hand consultations, all those “requests” and “consultations”, are often, given the balance of power in the hierarchical system that we run, in fact orders and directions. That causes me concern. The purpose of my amendments to delete the subsections to which I have referred is to ask the Government to make it clear in the record today that the commissioner will not be told what to do, but will have total discretion to look into things that require looking into and to report as he finds.

The hon. and learned Gentleman is absolutely correct. What we are talking about is clearly not a request but a direction. It is framed in such a way that it can be interpreted only as a direction. There may be circumstances in which it is appropriate for the Secretary of State to direct, although given the independence that we have sought to achieve for the commissioner, I imagine that it would be better if it were a request. What I am not prepared to accept is subsection (10), which in effect allows the Secretary of State to limit the scope of an investigation, having requested/directed that that investigation should take place.

The subsection gives the commissioner discretion to determine the scope and the procedure, but qualifies that by saying:

“Subject to any directions given to the Commissioner by the Secretary of State”.

It cannot be right for the Secretary of State, who in this instance will be the person who is politically responsible for the department under investigation, to limit the scope of an independent investigator conducting an investigation into incidents that may have happened within the premises run by that service. It is absolutely wrong that that should be the case. I think—I hope—that it is inadvertent. If it is not, the Minister must explain why she feels that the Secretary of State should have the power to limit the scope and direct the procedure adopted by this independent commissioner in the pursuit of his or her duties. That cannot be right.

I am not sure what the copy of the Bill held by the hon. Member for Somerton and Frome says, but subsection (10) in my copy says:

“Subject to any directions given to the Commissioner by the Secretary of State, it is for the Commissioner to determine the scope of, and the procedure to be applied to, an investigation under this section.”

It is therefore not the Secretary of State who determines what the scope of any investigation should be.

It might help the Committee if I explain the circumstances in which we envisage use of this element of the remit and the type of case in which it has been used in the past. In some cases, a swift investigation by an existing body with proven technical expertise into a set of circumstances that requires urgent independent scrutiny might be a very useful method—indeed, the best method—of getting to the bottom of what has happened. That is the purpose of having the powers set out in the clause in the Bill at all.

For example, in 2004, the prisons and probation ombudsman investigated a major fire and disturbance at Yarl’s Wood immigration removal centre that happened suddenly one night. It obviously caused a lot of concern and needed a swift, independent look at what had happened. Other examples of what the ombudsman has been asked to investigate include attempted suicides in prison that resulted in serious injury short of death. The purpose of the clause is to continue the current practice— which is not set on a statutory basis—of the prisons and probation ombudsman that he can be asked to investigate an incident of concern on request by the Secretary of State. We are merely replicating that in the statutory provisions.

Investigations under clause 37 will, by definition, be special commissions from the Secretary of State. That is why it provides for the Secretary of State to give the commissioner directions as to the matters to be investigated—the terms of reference or the overall remit. “Will you go and have a look at what happened at Yarl’s Wood last night?” is the sort of direction that we anticipate the Secretary of State will give. It would then be for the commissioner to decide precisely the scope of the his action and how he does what he does.

That is not what the clause says.

That is what it says in subsection (10).

However, we recognise that it will be important for the commissioner to be consulted by the Secretary of State before commissioning an investigation. Obviously,  the Secretary of State will want to hear whether the commissioner thinks that he can do something that suddenly comes up. We would not want to ask him to do something without being clear whether he can carry out the commission. That is why the provision makes reference to the commissioner being consulted by the Secretary of State. It is clear that the commissioner can determine the scope of and procedure to be applied in the investigation that he then undertakes. We believe that that will give an appropriate balance of powers and form the basis of a viable relationship between the Secretary of State and the commissioner for the purposes of the clause.

The amendments tabled by the hon. and learned Member for Harborough would remove the duty on the commissioner to carry out an investigation requested under the clause. The result would be that the commissioner would, in effect, carry out the commissions by agreement and could, if minded to do so, refuse to carry out a particular investigation. I do not understand how that would have helped in respect of Yarl’s Wood, where an investigation was needed. The commissioner could just say, “Well, I am not going to do it.” Clearly, the commissioner has a great deal of independence, but the whole point of the powers under the clause is to give the Secretary of State the capacity to have an ad hoc, swift, independent but expert investigation into a matter that cannot perhaps be easily anticipated.

I do not think that I heard the hon. Lady say this—I hope that I did not—but is she suggesting that the ombudsman needed to be directed by the Secretary of State to look into Yarl’s Wood, or that he was utterly reluctant to do so?

The ombudsman was asked to investigate on an ad hoc basis. I am not absolutely sure that his remit at the time extended to immigration removal centres.

On that basis, the example is not terribly useful.

The point of the example and the clause is to make it clear that, occasionally, it is in the public interest and necessary for the Secretary of State to be able to respond to an incident, which was unforeseen and presents great public concern, with a swift sending in of independent expertise that can report on what has happened within a short time.

Clearly, the generality of the clause is about giving the commissioner the power that the current prisons and probation ombudsman has to investigate complaints and deaths. Perhaps a better example than Yarl’s Wood, where deaths did occur, is a case involving a near-death. There have been several cases of people attempting suicide, not dying and not necessarily making a complaint—Indeed, some might not have recovered consciousness and could not make a complaint. The ombudsman can only investigate complaints from individuals within the custody setting, and deaths. There are circumstances in which the Secretary of State might want to ask him to investigate matters that are not technically within his remit, but which he has the expertise to investigate and on which  he could produce a good, swift, independent report. The arrangements already exist; we are just putting them into statute. There is no question in this part of the remit of the Secretary of State telling the commissioner what to say or what not to look at, because the commissioner will be determining the scope and the way in which he carries out the investigation into what he has been asked to investigate.

The issue here is about matters that are partially out of the commissioner’s remit—that do not involve deaths or complaints—that the Secretary of State would like him to look at. The Secretary of State will consult him first and then ask him to take a look. He will be able to get on with his usual job, independently and will himself determine how to proceed. He will then write a report, which will be published. The sinister interpretation made by Opposition Members is not the intention or the import of the Bill. I hope that the hon. Member for Somerton and Frome accepts that.

We do not seek to enable the Secretary of State to fetter what the commissioner would say in these circumstances. Rather, there will be a proper consultation about the technical possibility of doing an investigation that the Secretary of State might, on an ad hoc basis, wish the commissioner to look at. That would be done swiftly, and the commissioner would then get on and do the job. There is no more to it that that. I hope that that persuades the hon. Gentleman—we will find out soon whether it does.

This is one of those Humpty-Dumpty moments where we are invited by a Minister to look at words that are written on the paper, and construe them in the opposite way to how any other person would understand them. I return to subsection (10). How can the words:

“Subject to any directions given to the Commissioner by the Secretary of State”,

be construed in any way other than as a potential—I must say potential—limit to the commissioner’s discretion to determine the scope of and the procedure to be applied to an investigation and a decision? Had it said,

“following a direction from the Secretary of State”,

I might have been able to understand the Minister’s point, but it says,

“Subject to any directions...by the Secretary of State”.

Despite the hon. Lady’s suggestion that I am incapable of reading the clause in front of me, those words cannot be interpreted as being anything other than an overlying control of the discretion on the part of the Secretary of State. If it is her intention to state the wide discretion available to the commissioner, she would be better off leaving those 10 words out altogether. In that way everybody would be clear that a direction would be given by the Secretary of State, and that once it had been given it would be for the commissioner to determine the scope and nature of the investigation. I invite the hon. Lady to consider that before Report.

I thought that the debate would be quite clear, but it has become rather more muddled as we have moved along. There will not be any reluctance  on the part of the commissioner—certainly not the commissioner or ombudsman who gave evidence at the evidence session—to investigate matters that are within its remit. In the same way, there has been no reluctance on the part of prisons inspectors—Her Majesty’s chief inspector of prisons, the chief inspector of the constabulary or of the probation service, or all the other senior inspecting officials—to investigate matters within their remit. The only reluctance comes from Ministers. This is not a party political point. I am sure that in the last Conservative Government there were occasions when my colleagues would have preferred things not to have come out and when they did come out, preferred them not be investigated, but that is not the point. The point is that when things go wrong and offices are created to investigate things that go wrong, they should jolly well get on and investigate them and not feel in the least bit inhibited. There is a confusion: the Bill will give the commissioner the powers of a High Court judge to summon people and documents. Whether he can summon the Secretary of State or summon documents from his Department it will be interesting to find out in due course, when he sends a request to the Secretary of State using the powers given him in the Bill.

The Minister seems to be saying that clause 37 is essentially about ad hoc investigation. If the Government want to use the office holder to carry out a particular function on an ad hoc basis, they are appointing the man and not the office holder. We must distinguish between the office of the commissioner and the individual office holder, who may or may not be requested to hold an inquiry, in the same way that a judge or a chairman of a statutory inquiry might be requested to do so by the Government. When we have a train disaster, the Government often set up either a judicial or other statutory inquiry, but that does not affect the position of the coroner as an office holder. In the clause, the Government are saying that there may be circumstances in which they want particular investigations to take place. I am not suggesting that the Government should not be enabled to cause particular people to carry out particular investigations, but it is not apt to do so under clause 37.

My suspicion, which has not been allayed by the arguments put forward by the hon. Lady either in response to me or the hon. Member for Somerton and Frome, is that the Government want the Secretary of State to have some form of direction, a power of control, over matters that the commissioner should look into. I do not think that that is right; either we have an independent commissioner or we do not, and on the face of the Bill we do not.

I shall not press the amendment to a Division, but I urge the Government to be clear in their thinking. To elide functions and to allow confusion to exist, either because the Government want that to happen or because they have not thought about it, is not a sensible way to make legislation. As I am happy to tell the Minister of State, this a plum-duff of a Bill. It is a complete meccano set of lots of different things bolted together; it is an ugly Bill and a badly-designed one. We should be even more careful when we have a Bill of this nature not to make mistakes and not to allow the Government to put things in that they have not properly thought about.

As a condition of my withdrawal of the amendment, I ask the Government to think a little more carefully before we have to deal with this sort of measure in future.

I am happy to undertake to do that.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 37 ordered to stand part of the Bill.