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.