Select Committee on Public Administration Minutes of Evidence

Memorandum by the Department for Constitutional Affairs (GBI 09)

INTRODUCTION
  (i)  This Memorandum sets out the Government's response to the "Issues and Questions Paper" published by the Public Administration Select Committee on 24 February 2004, as part of its inquiry into "Government by Inquiry". The Committee asked a number of questions about inquiries established by Government Ministers to investigate particular, controversial events giving rise to public concern. The discussion in this response is confined to inquiries of that type; the Government has not considered inquiries established for other purposes, or by other individuals or organisations. In response to the specific questions below, the Government sets out a number of ideas on how the inquiries system could be improved. The Government would welcome views on these ideas, both from the Committee and more widely.

  (ii)  The UK has a long tradition of establishing formal and open inquiries, where necessary, to look into matters that have caused public concern. Ministers are not under any statutory duty to set up such inquiries, but have found them to be a useful method of dealing with matters that have warranted formal, independent investigation. The types of inquiry discussed here are not conducted by Government or by any permanent organisations, but by independent, temporary bodies set up for the purpose. These bodies may or may not have statutory powers, for example to require the production of evidence or the attendance of witnesses. Inquiries are funded through public money, and are usually asked to report their conclusions to Ministers, but during their lifetimes they are independent from Government and Parliament. A table containing some examples of notable inquiries that have taken place since 1990 is attached at Annex A.

  (iii)  In general, inquiries of this type have helped to restore public confidence through a thorough investigation of the facts and timely and effective recommendations to prevent recurrence of the matters causing concern. Many inquiries have helped to bring about valuable and welcomed improvements in public services. (Examples are discussed in response to question 20, below.) However, there have been cases where inquiries have been marred by arguments about procedure, or have taken much longer or cost more than expected. The Government believes that there is a strong case for considering what steps could be taken to make inquiry procedures faster and more effective, and to contain cost escalation.

  (iv)  As part of this work, there is a need to consider whether current legislation provides a suitable basis for appropriate and effective inquiries. There are three possible routes for the types of inquiry under discussion here:

(a)  instigated under Ministerial powers in subject-specific legislation—Ministers have statutory powers to set up inquiries in particular areas, such as health or policing. The subject-specific legislation generally gives such inquiries formal powers, such as the power to compel witnesses. For example, the Macpherson Inquiry into the death of Stephen Lawrence was done under subject-specific powers in the Police Act.

(b)  instigated by Ministers and, following resolutions of Parliament, provided with statutory powers under the Tribunals of Inquiry (Evidence) Act 1921—The 1921 Act provides a statutory basis for inquiries into matters of "urgent public importance". The Act briefly covers the taking of evidence before such inquiries, as well as providing them with formal powers, including the power to compel witnesses. The Shipman Inquiry, for example, was set up under the 1921 Act.

(c)  instigated by Ministers and conducted on a non-statutory basis—Non-statutory inquiries have no formal powers, but instead rely upon the co-operation of all those involved. They can have a greater degree of flexibility of form than some statutory inquiries, but can run into difficulties if witnesses are unwilling to co-operate. The Hutton Inquiry is an example of a recent non-statutory inquiry.

  (v)  All three routes have been used in recent years, with varying degrees of frequency. The majority of the recent examples in Annex A were conducted under route (a)—statutory powers in subject-specific legislation. Just over a third were conducted on a non-statutory basis, and four were conducted under the 1921 Act. Later in this Memorandum, the Government considers the advantages and disadvantages of each of the current statutory and non-statutory routes, explores the options for improvement and sets out the key features which should enable an inquiry to operate effectively. One option would be to create a new statutory framework for the type of inquiries discussed in this paper—that is, inquiries set up by Ministers to look into matters that have caused or have potential to cause public concern.

GENERAL

1.   Have the largely ad hoc inquiries into matters of public concern functioned adequately over recent years or is a reconsideration of their use now necessary?

  1.1  In recent years, a number of important inquiries have been conducted on an "ad hoc" basis, without statutory powers (eg Scott Inquiry into export of defence equipment to Iraq, BSE Inquiry, Hutton Inquiry). Lack of statutory powers has not significantly impeded the work of any of these, because the individuals involved have co-operated with the inquiry. This will not always be the case. Some inquiries need to be set up on a statutory basis, because they need powers to ensure the co-operation of witnesses and the production of evidence. The Government believes that it can be very helpful to have a statutory framework that allows appropriate powers to be deployed, if necessary, in support of an inquiry. Even where the legislation is not used, its existence can provide a powerful tool for ensuring co-operation with the inquiry. In the opening statement to his current inquiry, which has arisen from the Soham murders, Sir Michael Bichard said:

"The Inquiry does not have statutory powers, but if I find that that hinders me in any way in my investigation or if I believe that an individual or organisation is not co-operating fully, then I will return to the Home Secretary and ask for such statutory powers, and he has made it clear to me that they will be made available."[1]

  1.2  The legislation on inquiries that has grown up over the years does not provide a complete statutory framework for all inquiries, and the Government considers, in response to later questions, whether there could be a case for new legislation providing such a framework.

2.   In what circumstances should an inquiry be called?

  2.1  There is no standard blueprint for the type of circumstances in which an inquiry might be needed. Matters triggering inquiries are, by their nature, difficult to foresee. Past inquiries have covered matters such as accidents, deaths that should have been prevented, outbreaks of disease, or allegations of misconduct. A common theme tends to be that the subject matter of the inquiry has exposed some possible failing in systems or services, and so has shaken public confidence in these systems or services, either locally or nationally. In today's society, the public rightly expects that any possible failings or problems should be investigated thoroughly, and that action should be taken to prevent them happening again.

  2.2  Many different mechanisms exist for dealing with situations where something has gone wrong. For example:

—  many organisations have complaints procedures for establishing the causes of mistakes, and for redressing any harm they have caused;

—  organisations such as the NHS also have systems for internal investigations, to help them identify where something has gone wrong and prevent it recurring;

—  independent commissions, such as the new Commission for Healthcare Audit and Inspection (CHAI) and the new Commission for Social Care Inspection (CSCI), assess the performance of key services and carry out investigations into how they are provided;

—  special accident investigation branches have been set up to deal with air, rail and marine accidents;

—  there are regulatory bodies such as the Health and Safety Executive, which has powers to enforce health and safety at work law regulating the performance of employers and others, and professional self-regulatory bodies such as the General Medical Council, Nursing and Midwifery Council and Health Professions Council, which have powers to investigate whether practitioners remain fit to remain on the professional registers;

—  there are independent, specialised inspectors, such as company inspectors, who can be asked to carry out an investigation;

—  the Parliamentary Commissioner for Administration investigates allegations of maladministration by public bodies;

—  independent coroners inquire into deaths where the causes are unclear, and can hold inquests into suspicious deaths;

—  the civil courts resolve civil disputes and determine civil rights and responsibilities; and

—  the criminal justice system exists to maintain law and order and dispense justice.

  In most situations, one or more of these mechanisms will be sufficient to investigate the problem and learn from it.

  2.3  Ministers will call an inquiry only if there are special circumstances that call for something beyond the normal investigation procedures. For example, a problem might have very wide-ranging implications, or responsibility for investigation might be spread across several different agencies. An inquiry has the advantage of being able to address the problem as a whole, to conduct an overarching investigation and identify areas for improvement in communications. Sometimes, agreed procedures do already exist for joint investigations by different agencies, but inquiries have proved useful in the past when there have been difficulties in conducting a sufficient investigation through the agreed procedures (for example, the Victoria Climbié Inquiry, which covered the work of social services, health bodies and the police).

  2.4  Inquiries are paid for by the taxpayer. An inquiry requires a significant amount of public resources and should be set up only if it is likely to be of value. There can sometimes be substantial public pressure for an inquiry, whilst another form of investigation might in fact be sufficient to restore public confidence and to identify the action needed to prevent recurrence. In each case, Ministers have an obligation to consider whether an inquiry really is in the public interest, and is a worthwhile and justifiable use of public money, bearing in mind all the options.

  2.5  The exact cost of an inquiry will depend on many factors including length, complexity, scope and number of parties involved. The majority of the inquiries listed in Annex A have cost over £1 million, and considerably more in some cases. These costs will cover staffing, accommodation, legal advice, administrative support and IT. There will be many additional associated costs, which are not quantified in the table, ranging from travel expenses for witnesses to additional time devoted to the inquiry by support staff within the sponsoring Department. Major inquiries have the potential to be extremely expensive.

  2.6  In addition to the financial cost, it should also be borne in mind that an inquiry can be a very difficult experience for those involved. Participation in an inquiry, particularly a high-profile and widely reported one, can be extremely stressful. Inquiries do not determine civil or criminal liability, but nevertheless their conclusions, and the ensuing media coverage, can harm an individual's or organisation's reputation.

  2.7  Ministers will need to consider how much an inquiry is likely to achieve in terms of restoring public confidence and preventing recurrence. They will need to weigh the likely benefits for the public against the potential costs and the impact on those involved. In each situation, they will need to consider carefully whether an inquiry really is the most suitable and effective way of remedying the problem, given the particular circumstances.

3.   Who should take the decisions on (a) calling an inquiry (b) the form it should take (c) its terms of reference and (d) the appointment of chairmen[2] and members?

(a)  Calling an inquiry

  3.1  We should make clear first of all that there are no statutory impediments preventing anyone from establishing an inquiry. Any person or organisation can set up an "ad-hoc", non-statutory inquiry about anything, provided that they are prepared to fund it and can persuade people to participate in it. Some public bodies, such as local authorities or the Health and Safety Commission, also have statutory powers to call inquiries, and there is legislation covering the operation of those inquiries. The Government does not propose to comment on, or interfere with, the powers of bodies such as these to call inquiries into matters within their remit.

  3.2  The inquiries discussed in the "Issues and Questions Paper" and in this Memorandum are inquiries called by Government Ministers in order to "investigate particular, controversial events giving rise to public concern". The Government instigates and funds these inquiries, because they are intended to identify the causes of problems in systems or services for which it has some responsibility. Inquiries often investigate areas where the Government has direct, overall responsibility—the provision of public services, for example—but they might also investigate areas where the Government has responsibility as a regulator, or where the Government takes on a more indirect responsibility in a stewardship role, to mitigate the risks from unforeseen factors like disease or "acts of God".

  3.3  In all these areas, the Government has ultimate responsibility for investigating when things go wrong, for maintaining public confidence in services and for preventing problems from recurring. As discussed in response to question two (above), independent inquiries are part of the framework for doing this. It is right that the responsibility for setting up inquiries should lie with Government Ministers, both because they have ultimate responsibility for investigation and because they are responsible for deciding what is needed in the public interest as a result of their accountability to Parliament and the electorate. It is vital that Government Ministers can set up appropriate, independent inquiries when they are needed.

(b)  The form an inquiry should take

  3.4  Inquiries can take a variety of different forms; for example, an inquiry panel with a range of expertise was appointed to conduct the Bristol Royal Infirmary Inquiry, whereas the Dunblane Inquiry was conducted by Lord Cullen alone. The form of an inquiry—including whether the inquiry is conducted by a single chairman or by a larger inquiry panel, and whether additional assessors are appointed to assist the panel—will depend on the circumstances of the case. There are benefits and drawbacks with each possible form. A single chairman, particularly one with a strong analytical mind, can work quickly through complex issues and reach firm conclusions. In other situations, particularly where the issues are more subjective or controversial, a chairman may benefit from the support of additional panel members, who can bring to the inquiry a different perspective and perhaps provide specific experience. Panel members can also help reduce the identification of the inquiry with a single personality.

  3.5  Decisions about the form of an inquiry will need to be taken right at the beginning of the process. It is currently within Ministers' discretion to determine the most appropriate form for the inquiry panel, and the Government believes that it is most appropriate for initial decisions about process and form to remain with Ministers. Once appointed, the chairman may wish to make recommendations about the form of the inquiry and the appointment of other panel members. Once the inquiry has been established and any preliminary decisions about its form have been made, Ministers relinquish much of their decision-making role. Subsequent decisions about the way in which the inquiry will be conducted will generally be for the chairman and panel, who should have flexibility to conduct the inquiry in the most appropriate manner (see questions 10-12).

  3.6  That said, an inquiry will need a form that is appropriate to its powers and procedures. This form may therefore depend on its statutory basis (or lack of statutory basis). The statutory bases for inquiries are discussed in detail in response to questions 8 and 9.

  3.7  Parliament can also be asked to play a role in determining the form of an inquiry, by passing resolutions to the effect that the provisions of the 1921 Act should apply to the inquiry. The 1921 Act was intended for matters of the greatest public importance, and 1921 Act tribunals are therefore invested with some of the powers of the High Court. The 1966 Royal Commission on Tribunals of Inquiry (chaired by Lord Justice Salmon and referred to hereafter as the "Salmon Commission"), which examined the operation of the 1921 Act, considered that such tribunals should be set up as sparingly as possible. The Commission noted in its report (Report of the Royal Commission on Tribunals of Inquiry 1966 (Cmnd. 3121), hereafter referred to as the "Salmon Report") that the great advantage of the resolution procedure was that it "affords some safeguard against this [1921 Act inquiry] procedure being too readily invoked[3]".

  3.8  Today, the use of inquiries has evolved beyond the 1921 Act, and inquiries of different forms are used more frequently as a mechanism for dealing with matters of public concern. (This point is discussed in detail in response to question 9). With the majority of inquiries held under subject-specific legislation (which does not require a resolution of Parliament) or on a non-statutory basis, Parliament is not routinely asked to determine the form of inquiries. The Government would have concerns about introducing into any new legislation a requirement for Parliamentary resolutions, akin to that in the 1921 Act, because such legislation would be used for a far greater range of inquiries. Some might be set up into local incidents, under delegated powers with no direct Ministerial involvement. It would be inappropriate, and a waste of valuable Parliamentary time, to require a vote of both Houses of Parliament to sanction the establishment of a wide range of inquiries. Where a matter does generate substantial and widespread public concern, and Parliament is sitting, it is likely to be raised there, and the decision to hold an inquiry is likely, as now, to be announced in a way which allows Parliamentary discussion.

  3.9  It is not possible to lay down general rules about the form that an inquiry should take, because inquiries may cover such a wide range of different circumstances. All that could be said about the composition of an inquiry panel is that:

—  there will always be a chairman, and

—  there may be additional panel members and assessors.

  Beyond that, the Government believes that flexibility of form is important in enabling the inquiry to adapt to meet the needs of the particular circumstances.

(c)  The terms of reference

  3.10  Ministers decide to set up an inquiry in order to investigate particular events or circumstances, in response to a specific need. When they set up an inquiry, they need to say what exactly they are asking it to investigate, and to set out any areas where they would like the inquiry to make recommendations for improvements. They do this through the terms of reference, which set the direction and focus of an inquiry. The setting of the terms of reference is very closely linked with the initial decision to hold an inquiry, and the Minister responsible for setting up the inquiry should also take responsibility for its terms of reference. Terms of reference are a crucial factor in determining its ambit, length, complexity, cost and, ultimately, its success.

  3.11  Very careful thought must be given to setting the terms of reference that will best enable the inquiry to achieve its aims of establishing the facts and making valuable recommendations to prevent or deal with recurrence. In its advice[4] to the Lord Chancellor on inquiry procedures in 1996, the Council on Tribunals noted the importance of well-defined terms of reference in ensuring the efficiency of the inquiry:

". . . care should be taken to ensure that the terms of reference go no wider than is necessary to fulfil the specific need which the Minister has in mind when setting up the inquiry. If the terms of reference are too wide, this may result in unnecessary cost and delay, and may introduce questions which merely confuse the essential issues."

  3.12  The terms of reference should set out exactly what events and actions the inquiry is seeking to investigate and should indicate how far it will examine related circumstances. They should make clear, explicitly where possible, which agencies will come under scrutiny from the inquiry, and which functions in particular the inquiry will investigate. Any specific requirements of the circumstances, such as a target date for completion, should be included in the terms of reference, or agreed and announced at the outset.

  3.13  There may well be pressure to announce as much information as possible about an inquiry straight away, including the name of the chairman and the terms of reference. However, it is not always easy to establish at the outset exactly what the remit of the inquiry should be. Sometimes, the appropriate focus for an inquiry may become apparent only after the conclusions of an initial technical or internal investigation, or even from a preliminary meeting of the inquiry. The announcement of the terms of reference should then only come after full and proper consideration, and should be informed by any initial investigation that has taken place. The chairman should have a chance to make recommendations, where appropriate. If the matter is one of serious public concern, time may need to be made for Parliamentary discussion, as mentioned at 3.8 above.

  3.14  Those involved in the events triggering the inquiry will inevitably have views on the terms of reference, and so may other observers. In a recent article[5] about his experiences as chairman of the Victoria Climbieé Inquiry, Lord Laming wrote:

"From the outset it is essential to set clear terms of reference which, as far as possible, limit the possibility of misunderstanding or confusion. But in every inquiry with which I am familiar these terms have been considered a disappointment or a failure to address `the real issues' by some observers."

  3.15  The Government can see that there could be a case for announcing the final terms of reference after a set period, perhaps of a few weeks, to allow for discussion and preliminary investigation, and to enable individuals or organisations with an interest to make representations to the Minister setting up the inquiry. However, the final decision on the terms of reference must rest with the Minister.

  3.16  The benefits of having such a "cooling-off" period must be weighed against the public desire and need for the inquiry to take place swiftly, and there will be occasions when the purpose is clear and the terms can be defined simply and immediately. In many other cases it will be desirable to announce draft terms of reference at the time when the chairman is appointed, to provide a basis for representations and debate, and to enable the initial process of setting up the inquiry to proceed with a reasonable indication of its likely focus. In this way, the establishment of the inquiry would not be delayed.

  3.17  The Government believes it is important that the terms of reference are not changed during the course of an inquiry—this would have the effect of "moving the goalposts" and could threaten the work done up until that point. It is therefore vital to get the terms of reference right at the beginning and a change should not be made unless it is absolutely necessary.

(d)  Appointment of inquiry chairmen and members

  3.18  Once it has been decided that an inquiry is needed, the first administrative step in establishing it is to appoint people to conduct it. It is clearly important that those conducting the inquiry should be, and should be seen as, independent and qualified to conduct the inquiry, both during its process and subsequently. Bearing in mind the range of subjects that inquiries cover, it is not possible to lay down in advance any specific criteria to determine the suitability of the chairman. However, the Minister setting up an inquiry will always need to ensure the suitability and independence of the chairman, and this could be made a statutory requirement.

  3.19  The Government believes that the Minister setting up the inquiry is in the best position to select a chairman and should take responsibility for this selection. Chairing an inquiry is an arduous job, and candidates tend to be invited rather than to apply. The need to get inquiries underway quickly generally means that there is no time for advertised recruitment campaigns, which can be quite lengthy. Ministers have the resources to identify suitable candidates: if a judge or legal officer is needed then Ministers may ask the Lord Chief Justice to recommend a candidate; the Cabinet Office Public Appointments Unit can advise on non-legal appointments; and potential candidates can also be identified by experts in particular policy areas. The Ministerial Code currently contains a requirement for Ministers to consult the Lord Chancellor about any proposals to appoint a judge to chair an inquiry; this function will now be transferred to the Lord Chief Justice as part of the transfer of functions from the Lord Chancellor. Once candidates are identified, civil servants can deal with arrangements for pay and terms of employment. Importantly, Ministers are able to identify and appoint a chairman quickly, which can help to give the proposed inquiry an immediate public focus and build up momentum.

  3.20  In considering alternative options to selection by the Minister, the Government has noted that any alternative method would have to quickly identify and select suitable candidates who:

(a)  have relevant knowledge or experience; and

(b)  are, and are seen to be, both independent and disinterested with respect to the matters under investigation.

  3.21  The most obvious alternative option is the delegation of the selection process to some alternative body. However, inquiries can cover a wide range of areas and very few non-Government bodies have a sufficiently wide remit to appoint, or ratify the appointment of, both judicial and non-judicial chairmen in all subject areas. The Government has considered whether different bodies (such as professional or regulatory bodies) could be asked to appoint panels for inquiries in different subject areas. However, appropriate bodies would not exist in all areas, and those that do exist are likely to have a significant interest in the outcome of inquiries in their area.

  3.22  Parliament (or a Standing Committee thereof) does have a sufficiently wide remit to consider the appointment of chairmen in all subject areas. However, the involvement of Parliament could raise similar questions about independence, since it would introduce political and partisan elements into the inquiry process, which, as Lord Justice Salmon pointed out, the current statutory system was designed specifically to avoid.[6] As he also pointed out, many potential candidates would be strongly deterred from allowing their names to go forward if this required them to appear before confirmation hearings in which their suitability might be questioned (with possible implications for their reputation separately from their putative role in the inquiry). And it is quite possible that any chairman eventually appointed as the best candidate available would, through any doubts publicly expressed about him during the selection process, have his authority impaired.

  3.23  For all these reasons the Government is clear that Parliamentary involvement in the selection of chairmen and other people to conduct inquiries instigated by Ministers is not appropriate. Another option would be to appoint a permanent panel (perhaps including a variety of public figures) for the purpose of selecting independent inquiry chairman. However, the same questions would arise about independence of the panel and the potential to deter prospective chairmen. If the Government were to select the panel, it could still be argued that Ministers were influencing the selection of the chairman. It is likely that, in any case, the civil service would need to advise on potential candidates and to provide administrative support, so it might be difficult to demonstrate that the process was independent from Government. It would also be reasonable to ask whether the cost of maintaining a permanent appointments panel would really be justified, if the number of inquiries was fairly low.

  3.24  After careful consideration, the Government has concluded that the present system for selection of chairmen by Ministers is the most practical and most appropriate. A statutory requirement to ensure independence and suitability, outlined in 3.18 above, could provide a safeguard. Ministers will, of course, remain free to seek advice from, for example, professional or regulatory bodies in the appropriate field. If the subject matter is of particular relevance to any minority group, it will be good practice for the Minister to consult bodies representing the interests of that group, to ensure that he chooses a chairman in whom they will have confidence.

4.   Should there always be a single, all encompassing inquiry into an issue or is it inevitable that other "side" inquiries will need to be conducted on certain specific aspects eg into professional conduct?

  4.1  An inquiry's terms of reference will set out its remit. If there are several closely linked issues which need to be dealt with through formal, independent inquiries, it will be usually be more efficient to bring them together within the terms of reference of a single inquiry, rather than to set up and fund separate inquiries. However, this question also raises some wider questions about the types of issues that inquiries can be expected to deal with. Matters that trigger inquiries can be extremely complex. Some, such as accidents, can require specialised technical investigation. Some may involve allegations of criminal behaviour. There may be grounds for civil or disciplinary proceedings. The mechanisms for dealing with these matters will need to cope with such complexity. A wide range of bodies may need to carry out investigations, including the police, accident investigation branches and regulatory inspectors. Various types of court proceedings may be pending.

  4.2  Each set of circumstances will be different, but in this section the Government sets out some broad principles about what inquiries can seek to achieve, when other proceedings will also be needed, and how inquiries should interact with these other proceedings.

Inquiries and investigations

  4.3  In most cases it is sensible for any technical, professional, internal disciplinary, other internal or criminal investigation to take place before an inquiry, and for the outcome of that investigation to determine whether a full inquiry is needed and what its focus should be. The information gathered during that investigation can be used to inform any subsequent inquiry or legal proceedings.

  4.4  It would not be practical or appropriate for an inquiry to replace a technical or criminal investigation. An inquiry is an inquisitorial body that attempts to establish the facts through hearing evidence from primary sources. If a criminal investigation is needed, that investigation must be carried out by the police, or by appropriate regulatory bodies such as the Health and Safety Executive; others do not have the necessary powers or the expertise. Nor are most inquiries well equipped to carry out first-hand technical investigations; those conducting inquiries may have considerable expertise in dealing with technical evidence, but it is not their job to gather that evidence in the first instance. In cases of accidents, in particular, there are legal requirements[7] for the technical investigation to be carried out in a particular way, and it would not be easy for an inquiry to attempt to fulfil these requirements.

Relationship between inquiries and other proceedings

  4.5  The question then arises of the relationship between inquiries and other proceedings, including civil or disciplinary proceedings and criminal trials. It can seem wasteful and inefficient for several different sets of proceedings to rake over the same set of events. However, these processes are all designed to perform different functions. Legal proceedings, particularly criminal trials, have important safeguards built into them to protect the rights of all the individuals involved. An inquiry, which does not seek to apportion guilt, has far more flexibility to take the form that will best enable it to establish the facts of the case.

  4.6  A criminal trial may, through establishing guilt and imposing punishment, be successful in preventing recurrence and may also help to restore public confidence. However, it approaches the case with the primary objective of bringing the guilty to account, whereas the primary purpose of an inquiry is to prevent recurrence. An inquiry identifies ways of preventing recurrence through a thorough exploration of the circumstances of the cases, which it can often do more efficiently and quickly than a criminal trial because it has far greater freedom—it can take an inquisitorial, not adversarial form; lengthy cross-examinations can be avoided, because the evidence is being tested thoroughly by the chairman; it has discretion to admit a wide range of evidence. This freedom is justified precisely because an inquiry does not seek to determine guilt, and must never attempt to do so. An inquiry is not a court. Its findings have no legal effect.

  4.7  Other jurisdictions have certainly taken this stance. For example, the Irish Supreme Court stated (in a case[8] concerning documents requested by an inquiry constituted under a statute based on our 1921 Act):

"A tribunal so established is not conducting a trial: it is merely conducting an inquiry. It follows that findings, rulings and decisions made by the tribunal acting pursuant to the resolutions by which it was established and within the statutory framework by which its proceedings are governed do not constitute the administration of justice. . ."

  4.8  Sir Roy Beldam conducted a "Review of Inquiries and Overlapping Proceedings" in 2002. He raised a number of points for further consideration, some of which are addressed in this Memorandum.[9] His report, which has not previously been published, is at Annex B. He considered the options for integrating criminal or civil proceedings into an inquiry, with the aim of increasing efficiency and avoiding duplication, but he came to the conclusion that an integrated approach would be impractical, and could be unfair to the individuals involved. He wrote:

"Any combined process would have to satisfy the provisions of Article six of the ECHR, the evidential requirements of a criminal trial, the right of the accused to elect trial by jury in serious cases and the need to guard against prejudice."

  The Government agrees with Sir Roy's conclusions on this question, and does not believe that any attempt should be made to integrate inquiries with other proceedings.

  4.9  The question of timing then arises—can inquiries run concurrently with other proceedings? The answer will depend on the circumstances, but in the vast majority of cases parallel proceedings could cause some serious problems. In particular, if an inquiry were to run in parallel with, or before, a prosecution, there could be a risk that the inquiry would prejudice the fair conduct of that prosecution or even render the prosecution process as a whole completely impossible. In response to question 12, below, the Government discusses the possibility of holding an inquiry partly in private, which might go some way towards mitigating these risks.

Expectations from an inquiry

  4.10  The presence or absence of any other proceedings should not make any difference to the aim of the inquiry. However, if other proceedings have taken place, their outcome may affect the remit of the inquiry. If no other proceedings are planned, it is important that there is no attempt to expand the role of the inquiry to fill their place. There may be considerable pressure for this, since those affected by what has happened may well perceive the inquiry as having a wider purpose: to apportion guilt or to provide a basis for claims for compensation. The outcome of an inquiry can help those affected, by satisfying them that an effective investigation has been carried out and that the truth has been established. However, there is also a danger that they may expect more than is within the remit of the inquiry in terms of punishment or retribution, which can lead to a feeling that they have been cheated or disregarded. For the sakes of those involved, it is important to be clear from the outset about the role and remit of the inquiry, including its limitations.

  4.11  In summary, the Government believes that a single inquiry should be sufficient to fulfil the aims of establishing the facts and preventing recurrence. However, an inquiry should not attempt to establish civil liability, or to deal with allegations of professional misconduct or criminal activity. If needed, other mechanisms must be used to deal with these issues.

MEMBERSHIP

5.   Is it appropriate for judges to chair inquiries? If not should the subject of the inquiry determine the characteristics of the chair? What qualities should they have?

  5.1  There is no formal requirement for inquiries to have a judicial chairman. The chairmen of 1921 Act inquiries tend to be senior judges, because 1921 Act inquiries are invested with some of the powers of the High Court. Judges and experienced lawyers have sometimes been appointed to chair some other types of inquiry, but many inquiries have had non-legal chairmen. The table at Annex A shows the composition of some notable recent inquiries.

  5.2  The Government believes that it can be appropriate for judges to chair inquiries, because their experience and position make them particularly well suited to the role. The judiciary has a great deal of experience in analysing evidence, determining facts and reaching conclusions, albeit in an adversarial rather than inquisitorial context. The judiciary also has a long tradition of independence from politics, and judges are widely accepted to be free from any party political bias. The Secretary of State for Constitutional Affairs set out the importance of a detached and dispassionate examination of the issues during the Parliamentary debate[10] on the Hutton Report:

"The reason why . . . judges of the eminence and calibre of the noble and learned Lord, Lord Hutton, are appointed to look into such issues is because dispassionately—away from politics, from trying to establish the point of view of a particular political persuasion, from trying to damage the political party in power or to score political points—it is possible to come to a firm and final conclusion about what happened."

  5.3  However, judges are not the only individuals who can undertake an independent analysis of the evidence. A number of recent and current inquiries have been conducted by independent and well-respected figures who are not judges. For example, Sir Michael Bichard, who is currently conducting an inquiry into child protection procedures in the police in light of the Soham murders, is a non-judicial chairman with a distinguished career in the public sector.

  5.4  There are also clear advantages in appointing a chairman with expertise in the particular subject matter of the inquiry, provided that he is seen as sufficiently independent from all of the parties involved in the inquiry. The chairman of the Bristol Royal Infirmary Inquiry, for example, was Professor (now Sir) Ian Kennedy, Professor of Health Law, Ethics and Policy at the School of Public Policy, University College, London, who has a wide range of relevant experience in the field of medical ethics.

  5.5  The Government believes that the most important criteria for a chairman are independence and skills or experience appropriate to the task. In some circumstances, this may call for a judge or senior lawyer. In others, it may be more appropriate to appoint a non-judicial chairman who has relevant experience or particular expertise in the subject area.

  5.6  The question of whether the chairman should sit alone or be accompanied by an inquiry panel has been addressed in paragraphs 3.4—3.9 of this Memorandum.

6.   Is the use of expert assessors necessary for every inquiry? Should inquiries always ensure lay participation? If so what form should it take?

  6.1  Whether expert assessors or lay participation is necessary will depend on the circumstances of the case. While lay participants may not be needed for every inquiry, they can often help to bring the public perspective as a balance to expert views. Assessors can provide assistance on specific aspects of an inquiry, particularly in relation to technical or specialist knowledge. Assessors are not usually full members of the inquiry, but they can give advice to the chairman and panel. The inquiry will usually have to deal with a large number of pieces of evidence, often on a wide range of topics, and assessors can provide invaluable help with this. The BSE inquiry, whose final report ran to several volumes and included large amount of scientific evidence, benefited from using assessors.

  6.2  In some cases, however, expert assessors will not be necessary, either because the issues do not require a great deal of technical knowledge, or because the panel already has the knowledge and resources to deal with all the evidence. For example, the chairman of the Royal Liverpool Children's Hospital Inquiry was Michael Redfern QC. He was joined on the inquiry panel by a Consultant Paediatric Pathologist (Dr Jean Keeling) and a Chief Officer of a Community Health Council (Mrs Elizabeth Powell). The panel's expertise meant that they did not need to have expert assessors on hand to act as advisers, but they did take expert medical opinions and they attended expert seminars on issues such as Human Rights and Medical Ethics. The panel also asked for assistance from the Office of National Statistics in comparing written and oral evidence. This type of assistance from experts can be very valuable, even if full assessors are not needed.

  6.3  The chairman, once appointed, may wish to make recommendations to the Minister concerning the other appointments, such as the appointment of assessors. There should also be scope for some flexibility, so that the inquiry can be composed in the most appropriate way as the inquiry progresses. For example, at the BSE inquiry Lord Phillips asked that the assessors became full members of the inquiry panel and the Government agreed to his request.

7.   Is there value in having a trained panel from which members of an inquiry can be drawn when necessary?

  7.1  Considering the range of subjects that inquiries cover, it seems impractical to have a trained panel of prospective inquiry panel members, who would be qualified to conduct all potential inquiries. A trained panel would speed up the process of appointing a chairman but it could be costly to maintain in relation to the number of inquiries that are established. However, the Government does see some value in the idea of having a few trained panels specifically for particular subject areas where there tend to be a higher volume of inquiries.

  7.2  The Government is also aware of the importance of ensuring appropriate legal and administrative support arrangements are in place for an inquiry. Alongside the chairman and inquiry members, an inquiry secretary will be needed, and a solicitor to the inquiry and counsel to the inquiry may also be appointed. In some cases, it may not be necessary to have all three roles. An inquiry secretary can usually be appointed on secondment from a sponsoring Department. The inquiry solicitor is usually a member of the Government Legal Service, also appointed on secondment from one of the sponsoring Departments, although there have been cases where private firms of solicitors have been instructed. The inquiry solicitor will instruct counsel, who may be a barrister in chambers. Whether they are appointed from the civil service or from private practice, the secretary, solicitor and counsel will all work impartially for the inquiry for the duration of their appointment.

  7.3  The Government believes that there may be more advantage in maintaining a small, dedicated Inquiries Unit, which can co-ordinate the setting-up and running of new inquiries. The Unit could advise on possible candidates to chair inquiries, and could also provide assistance with the tasks involved in setting up an inquiry, including:

—  getting an appropriate secretary in place as soon as possible;

—  liaising as soon as possible with Treasury Solicitor's Department and the Attorney General's Department about the appointment of counsel and solicitor to the inquiry (if appropriate);

—  ensuring the terms of reference are clearly drafted and correctly focused;

—  ensuring suitable hearing accommodation, information technology, and security arrangements are put in place quickly; and

—  dealing with the high level of media interest that might surround an inquiry.

  7.4  The Unit could also take on a wider role in ensuring that lessons are learnt from the conduct and procedures of previous inquiries. It could work together with sponsor Departments and the Treasury Solicitors to develop and maintain general guidance for the use of inquiry members and staff, covering a wide range of issues from inquiry procedures to budgetary systems and effective records management. It could keep abreast of best practice and, following each inquiry, could take the views of inquiry members and staff on what they had found worked well and what lessons they had learnt. It could set up an advice network, and put new inquiry secretaries in touch with people who had previously served in this role and were ready to give the benefit of their experience.

PROCEDURES

8.   Should the Tribunals of Inquiry (Evidence) Act 1921 (or other specific legislation) invariably form the basis for Ministers calling such inquiries or is there a continuing need for non-statutory, ad hoc inquiries?

  8.1  Any Government Minister (or indeed any other individual or organisation with sufficient funding) can set up a non-statutory inquiry with no underpinning legislation. The Government believes that these inquiries can work well when all parties co-operate and when there is general agreement or likelihood that their conclusions will be accepted. They provide an option of great flexibility, which is vital considering the vast and unpredictable selection of issues that inquiries might need to cover in the future. In particular, many smaller or more localised inquiries are held on a non-statutory basis. Such inquiries can take a more streamlined form, involving less or no legal representation, and can be conducted more speedily and at less expense than inquiries with formal powers of compulsion. The Government would have serious concerns about placing these smaller inquiries on a statutory basis, which could impose an unnecessary administrative and procedural burden on them and could drive up costs.

  8.2  Inquiries can also be conducted under implied powers in other pieces of legislation. This can give them a statutory basis, without imposing the full formality of the 1921 Act or other subject-specific legislation. The Department of Health, for example, conducts some inquiries under section 2 of the National Health Service Act 1977, which is a general power for the Secretary of State for Health to take action which will facilitate, or is conducive or incidental to, the discharge of his duties under the Act.

  8.3  If suitable legislation is available, a non-statutory inquiry or one set up under implied powers may be able to take on statutory powers, if it becomes necessary. This would only be possible if subject-specific legislation provides a suitable statutory basis for the inquiry. For example, three recent inquiries listed in Annex A (Ayling, Neale and Kerr/Haslam) were originally set up under section 2 of the NHS Act 1977, but were subsequently reconstituted under s84 of the Act when it became apparent that formal powers would be necessary. If an inquiry needed statutory powers but there was no appropriate subject-specific legislation to provide such powers, and if the matter was one of "urgent public importance", then the only option at present would be to reconstitute the inquiry under the 1921 Act.

9.   Is the Tribunals of Inquiry (Evidence) Act 1921 effectively redundant? If so are there any of its features, such as use of the oath or powers to the power to compel witnesses to appear, which should be retained for the conduct of inquiries?

  9.1  The 1921 Act has been used four times in recent years as the legislative basis for inquiries (Shipman, Bloody Sunday, North Wales Child Abuse, Dunblane). However, the Government believes that the legislative basis provided by the Act is less than ideal to meet the needs of all of today's inquiries. The 1921 Act is intended only for the most substantial inquiries—those into matters of "urgent public importance". As its name suggests, the Act covers only powers for taking evidence, the criteria for holding certain proceedings in private, and rights of audience. In 1966, the Salmon Report identified a number of shortcomings in the Act, and in 1973 the then Government published a White Paper, proposing to amend the Act when a suitable opportunity arose. The amendments were never made.

  9.2  Since 1973, the legislative framework for inquiries has been further supplemented in a piecemeal fashion by subject-specific powers of the form described in (iv)(a) in the introduction to this paper. As the examples in Annex A demonstrate, there has been an increasing tendency in recent years to set up inquiries under subject-specific legislation, where appropriate legislation exists. However, subject-specific legislation does not cover all areas where inquiries might be needed. Recent inquiries have not always fitted easily into the range of statutory options offered by the subject-specific legislation—in some cases, because there is no legislation covering the particular subject of the inquiry, in others, because the inquiry ranges across more than one subject or Government Departmental remit. This last point is particularly important; the increasing complexities of modern society do mean that the interaction and communication amongst different activities and services is an area where there is a risk that things can be perceived as going wrong. Although combinations of different pieces of subject-specific legislation have been used successfully as a basis for some past inquiries[11], difficulties may well arise with such an approach in the future. The Government considers that subject-specific legislation will not always provide a full and suitable basis for inquiries.

  9.3  Recent commentators have expressed the need for a more modern, coherent and comprehensive basis for statutory inquiries altogether. In his final report of the Thames Safety Inquiry[12], Lord Justice Clarke wrote:

". . . the time has come when it would be desirable to set up a statutory framework for inquiries generally. There is at present no generally applicable statute which covers public inquiries. The 1921 Act has been shown over the years to be much too restricted and cumbersome. In my view a statute should be enacted to give power to the appropriate Secretary of State to order a public inquiry. The statute should also set out the powers of the inquiry, which to my mind should be as flexible as possible."

  He went on to outline briefly the powers that should be given to such inquiries; these powers are covered in later chapters. He believed that:

"such an approach should save both time and money".

  9.4  With all this in mind, the Government can see arguments for revising the legislative framework for inquiries, possibly through replacing the 1921 Act with legislation that would provide a wider framework for inquiries. Some provisions in subject-specific legislation could also be replaced, if they would be rendered unnecessary by any new legislative powers. However, it might still be appropriate to have specific provisions on inquiries in some subject areas, to cover any special features that inquiries might need in those areas.

Powers of compulsion and sanctions for non-compliance

  9.5  There is a strong case for replicating in the new legislation some of the formal powers provided in the 1921 Act and subject-specific legislation. One of the key advantages to conducting an inquiry within a statutory framework is that the inquiry is generally invested with certain formal powers. For example, the 1921 Act empowers an inquiry to summon witnesses and compel the production of evidence, amongst other things, with penalties for non-compliance. A number of pieces of subject-specific legislation invest inquiries with similar powers, often drawing on those set out in s250 of the Local Government Act 1972 (the LGA). These powers are essentially what gives the inquiry "teeth"; without them, there would be no way to ensure the co-operation of the individuals and organisations involved.

  9.6  An inquiry will not necessarily use its powers; often, witnesses and parties to the inquiry are prepared to co-operate fully. However, statutory powers provide a useful sanction against obstructing or misleading the inquiry. Although this sanction is only to be used in the last resort, there is strong evidence that its existence contributes to the effectiveness of the inquiry. No witness examined by the Salmon Commission doubted the need for such powers. More recent commentators have also supported the need for such powers. The inquiry panel who conducted the Bristol Royal Infirmary Inquiry (held under the NHS Act) noted the usefulness of such powers in their final report[13]:

"We had the power, if necessary, to compel witnesses to attend hearings and require that documents be produced, powers which we only used once (although on two further occasions we had to remind witnesses that we could and would use them). Secondly, we had the power to take evidence on oath or affirmation. We found these powers, particularly the former, essential (if only to be held in reserve). Their existence assured us of compliance, without our having to use them."

  9.7  In addition, some people or organisations may be reluctant to provide the inquiry with documents or other evidence that is held in confidence. In these cases, valuable time may be taken by seeking permission of individuals for the use of information provided by them; and sometimes the individuals will not be traceable. In these and similar cases, powers to require that documents be produced will enable the person or body to comply without fear of criticism for having done so.

  9.8  The Government believes that the key powers that should be provided for inquiries are:

—  power to enforce the attendance of witnesses;

—  power examine witnesses on oath or affirmation; and

—  power to compel the production of documents.

  The Government would be interested in views on whether there is still a need for the final power in s.1 of the 1921 Act—the issuing of a commission or request to examine witnesses abroad. Modern technology has made this unnecessary in many situations. The BSE Inquiry, for example, used video links to examine expert witnesses who were overseas. However, it is possible that situations may arise in which video links are not appropriate or available.

  9.9  If an inquiry has formal powers set out in statute, there must also be statutory sanctions for non-compliance. The 1921 Act achieves this through a provision allowing the chairman of an inquiry to certify the offence to the High Court, which can then deal with the matter as if it were contempt of court. Subject-specific legislation takes a different approach. Under s250 of the LGA, failure to attend, to give evidence or to produce documents is a summary offence punishable by fine or imprisonment for up to six months. The Government inclines to the view that prosecution is a more appropriate sanction for refusal to comply with future inquiries than contempt proceedings, given that the chairman may not be a judge and that inquiries are moving further away from the court-based model in the 1921 Act. In the interests of efficiency, it is desirable that any obstruction to the inquiry can be dealt with speedily. Both criminal proceedings and contempt proceedings have the potential to disrupt or slow down the inquiry. This is unfortunate but unavoidable, and it is to be hoped that in most cases any sanction for non-compliance should act as a deterrent, as it has done successfully in the past, and should only very rarely need to be used.

Contempt and destruction of evidence

  9.10  The 1921 Act also creates a wider offence parallel to contempt of court (section 2(c)). If an individual does any thing which, had the inquiry been a court, would have amounted to contempt of court, the chairman can certify the offence to the High Court. In 1969, three years after the Salmon Report, a Committee (hereafter referred to as the Committee on Contempt), also chaired by Lord Justice Salmon, produced an additional report on the application of the law of contempt to inquiries[14], in response to concerns that had arisen about the press coverage of the inquiry into the Aberfan disaster. The recommendations were covered in the 1973 White Paper. In brief, the Committee recommended that the law on contempt should apply to inquiries in a narrower form than to courts. It felt that there was a need for contempt laws, to protect the parties to an inquiry who could be adversely affected if the inquiry made wrong findings, but it was adamant that public discussion of the details of the inquiry should not be restricted.

  9.11  Contempt is a formal concept that is specific to the courtroom, and the Government believes that it is not appropriate to apply the law on contempt to today's inquiries, which are designed to achieve a different purpose to court proceedings.

  9.12  However, the contempt provision in the 1921 Act does serve an important purpose in backing up the inquiry's power to compel the production of evidence. As well as the explicit sanction for refusal to produce documents in s2(b) of the 1921 Act, the contempt provision in s2(c) provides a sanction for the deliberate destruction or suppression of evidence. The Committee on Contempt recognised the importance of this, and proposed that an explicit provision be added to the 1921 Act which would prevent the alteration, distortion, destruction or suppression of evidence (recommendation 3). The LGA also contains a provision forbidding the deliberate alteration, suppression, concealment or destruction of any book or other document which a person is required, or is liable to be required, to produce for the purposes of the inquiry. Failure to comply with this provision is not a contempt but a summary offence.

  9.13  The Government believes it is important that there should be a sanction for actions that might destroy or distort the evidence before an inquiry and prevent it from reaching the truth. The Committee on Contempt gave careful consideration to how such actions could be defined and put forward some very helpful wording. Although, the Government does not believe that such actions should be treated and tried as contempt, the Committee's wording could be used in any future legislative sanctions. It could be a summary offence:

"for any person to say or do anything or to cause anything to be said or done, in relation to any evidence relevant to the subject matter of the inquiry which is intended or obviously likely to alter, distort, destroy or withhold such evidence from the inquiry".

  9.14  It will be important to make clear to all those involved in the inquiry exactly what type of documentary evidence will be required of them. The solicitor to the inquiry has a key part to play in this process, since he generally writes to all those involved at the beginning of the inquiry and sets out what type of documents they must keep and may be asked to produce. This activity is crucial, since it would be unreasonable to try to enforce sanctions for destruction or suppression of evidence if there were confusion about the nature of evidence required by the inquiry. These provisions can, of course, only apply to actions taken once an inquiry has been announced.

Protection for witnesses

  9.15  If witnesses are to be compelled to answer questions at an inquiry, it is important that they also have the appropriate protection. S3 of the 1921 Act provides a witness with the same immunities and privileges as if he were a witness before the High Court. In effect, this means that he cannot be sued for anything he says in evidence. This is an important protection; it would be unfair if a witness were forced to testify against another person and then subsequently sued by that person for defamation. Any new legislation could give witnesses before inquiries statutory protection from having civil proceedings brought against them as a result of their evidence.

  9.16  It has been suggested that witnesses would speak more freely if they were given an undertaking that their evidence would not be used against them in subsequent civil or criminal proceedings (except proceedings in which they are charged with giving false evidence to the inquiry). Such protection would not prevent them from being prosecuted on the basis of other evidence, including evidence from any other witness to the inquiry. The Salmon Report suggested that such protection should routinely be given to witnesses before inquiries. None of the current legislation does so. Of course, witnesses involved in non-statutory inquiries do not receive such protection.

  9.17  The Government believes that witnesses before an inquiry should have the right to refuse to answer a question or disclose a document on the grounds that it would incriminate them or their spouses (see 9.18 below). However, the Government is concerned that any blanket undertaking that witnesses' evidence would not be used against them in subsequent criminal proceedings could serve to hinder criminal proceedings in cases where a prosecution would clearly be in the public interest. Instead the Government advocates retaining the existing system. This involves the Attorney General in the exercise of his discretion determining whether it is appropriate to give an undertaking in particular cases. In some recent inquiries[15] the Attorney-General, in response to a request from the inquiry chairman, has given formal undertakings in the following terms:

"To undertake in respect of any person who provides evidence to the inquiry that no evidence he or she may give before the inquiry, whether orally or by written statement, nor any written statement made preparatory to giving evidence nor any document produced by that person to the inquiry will be used in evidence against him or her in any criminal proceedings, except in proceedings where he or she is charged with having given false evidence in the course of this inquiry or having conspired with or procured others to do so."

Witness privileges

  9.18  The powers of compulsion are also balanced by certain privileges. Witnesses before a 1921 Act inquiry are also afforded the same privileges as witnesses before the High Court. These privileges are:

(i)  the right to refuse to answer a question or disclose a document on the grounds that it may incriminate him or his spouse[16];

(ii)  legal professional privilege between him and his legal adviser[17]; and

(iii)  the right to refuse to disclose what has taken place in Parliament.

  9.19  The Government believes that privileges of this type would need to apply to inquiries. (i) is particularly important: it would be very unfair to compel a witness to testify in an inquiry, in which he has none of the protections that he would have in a criminal trial, and then to use that evidence to prosecute him. However, the Government notes that a witness would lose privilege (i) if the Attorney General had given an undertaking of the sort described in 9.17. The Government would be interested in views on whether privilege (iii) ought to be retained.

Immunity for the panel

  9.20  Witnesses are not the only people who will speak during the course of an inquiry. The members of the inquiry itself, and any assessors who assist them, will inevitably have to express views and draw conclusions, both during the inquiry and in their report. The counsel and solicitor to the inquiry have no protection under the current legislation for what they may say during the course of the inquiry. Nor do the inquiry secretariat. If the inquiry is to function effectively, it is vital that all those involved are able to play their parts effectively, without fear of litigation afterwards. The Salmon Report pointed out that the 1921 Act fails to provide immunity for the panel members and legal advisers. Any new legislation could specify that some level of immunity from civil proceedings for the inquiry panel, counsel to the inquiry, solicitor to the inquiry and inquiry secretariat. The Government would be interested to hear views on whether such immunity should cover only certain types of proceedings (eg defamation, negligence) or whether it should extend to all civil proceedings.

10.   Should inquiries be investigatory or is there scope for an adversarial element in the procedures?

  10.1  Inquiries are designed to establish facts through an inquisitorial, investigatory process. As discussed in responding to question 4, inquiries are not courts and are not designed to determine criminal or civil liability or to settle disputes between parties. They are free to take an inquisitorial form, which is one of their great strengths. The Panel of the Bristol Royal Infirmary Inquiry noted in its final report[18]:

"Whatever the merit of adversariness in courts of law, we were convinced it would be an entirely unhelpful approach for us to adopt. There were no parties before us. There would be no winners nor losers. We had no need for the theatre of confrontation. Indeed, we felt strongly that we, and those who followed the Inquiry, would gain much more understanding of what went on in Bristol if we were able to give those who gave written evidence and those who came to speak to us the opportunity to do so in as calm and unintimidating an environment as we could establish."

  10.2  The Government strongly believes that inquiries should be investigatory. The introduction of adversarial elements into the inquiry process, which are likely to increase costs and have potential to cause delays, should be avoided wherever possible. Adversarial elements should not be a significant feature of a process in which the main aim is to learn lessons, not apportion blame.

  10.3  The way in which 1921 Act inquiries are conducted has been greatly influenced by the 1966 Salmon Report. In addition to proposals for legislation on a number of shortcomings in the Act, the report laid down a set of general principles to be followed, known as the "Salmon Principles", which were designed mainly to safeguard the interests of witnesses and parties to the inquiry. The Principles are attached at Annex C. They ensure that any person involved in the inquiry is informed in advance of any possible criticisms that might be levelled at him, and is given a full opportunity of testing any evidence that affects him. Those principles laid down in 1966 have been widely adopted since, not only in 1921 Act inquiries but also in non-statutory inquiries and inquiries under subject-specific legislation. The exact approach adopted has rightly varied from inquiry to inquiry, depending on its circumstances. For example, some inquiry chairmen have sent "Salmon letters" addressed to witnesses in confidence and giving them advance warning of emerging conclusions which could be regarded as criticisms and giving them the opportunity to make further submissions. In a few cases, extracts from the final report have been shown to witnesses in confidence—a procedure known as "Maxwellisation", which is more often used in investigations under the Companies Acts[19]. In other inquiries, neither of these procedures has been thought necessary to achieve the underlying purpose of the Salmon Principles.

  10.4  There have also been suggestions that the principles, designed nearly 40 years ago specifically for 1921 Act inquiries, may not provide the most efficient approach for today's broad and varied inquiry system. For example, in his report on the export of defence equipment and dual use goods to Iraq, Sir Richard Scott said:

"In my view, care should be taken lest by an indiscriminate adoption and application of the six `cardinal principles' the Inquiry's inquisitorial procedures become hampered by an unnecessary involvement of adversarial techniques and lawyers acting for witnesses and others whose interests may lie in delay and obfuscation."

  He went on to make a number of recommendations concerning the interpretation of the Salmon principles, on which the then Lord Chancellor asked the Council on Tribunals to advise. Their view was that the differences between the principles and Sir Richard's recommendations were largely of terminology and emphasis; both addressed issues of fairness which those responsible for establishing and conducting inquiries would wish to consider whilst at the same time having regard to the needs of effectiveness, speed and economy.

  10.5  In recent years, inquiry chairmen have sought to re-interpret the Salmon Principles in such a way as preserves their underlying aims without introducing unnecessarily adversarial or costly procedures. For example, in her opening statement of the Shipman Inquiry, Dame Janet Smith said:

"More recent Inquiries, such as the Scott Inquiry on the Export of Arms to Iraq and the Phillips Inquiry into BSE, have sought to refine the Salmon principles. I hope to draw on the experience gained in those Inquiries. The over-riding principles will be fairness and openness but the Inquiry must not pursue procedures which impose an undue burden on the interested parties, the Inquiry team or the public purse."

  10.6  Sir Roy Beldam's recent review (report at Annex B) found that the Salmon Principles have tended to be interpreted in the most liberal manner possible. He wrote:

"this inevitably introduces adversarial elements into a public inquiry which add significantly to delay and expense . . . The same issues are explored in lengthy cross-examination several times over and it becomes increasingly difficult for the chairman to confine the ambit of the inquiry to the core issues[20]."

  It is certainly questionable whether such a detailed and lengthy process of cross-examination is really necessary in inquiries, since these are devoid of legal effect.

  10.7  In many recent inquiries, procedures have been developed to preserve the underlying aim of fairness without introducing adversarial elements. The Panel of the Bristol Royal Infirmary Inquiry described in detail, in chapter 2 of its Final Report, a procedure whereby questioning of witnesses was carried out by Counsel to the Inquiry, who liaised with other counsel to ensure that all lines of examination were pursued. The opportunity for cross-examination did exist, but the questioning procedure worked so well that cross-examination was never needed.

  10.8  The Government believes that the aim of the Salmon Principles—to minimise the risk of injustice to individuals involved in the inquiry—is an important one. As discussed in the response to question 11, it will be appropriate for some individuals to have legal representation. However, the interests of individuals must always be balanced against the wider interest of the public in ensuring that an inquiry can meet its aims quickly and effectively. In a non-adversarial process where the aim is not to apportion blame, but to look forward and prevent recurrence, the role of lawyers should be limited to what is needed to ensure fairness, and the collective aim of all those involved in the inquiry should be to establish the facts as efficiently as possible. Lessons should be learnt from the procedures used in previous inquiries. If a dedicated Inquiries Unit is set up within Government, as suggested in response to question 7, the Unit could ensure that procedures that have proved effective are incorporated into guidance for future inquiry chairmen.

11.   What are the main elements necessary for the conduct of an effective inquiry, for example access to witnesses and documents? Is the implementation of the Freedom of Information Act likely to affect this?

  11.1  The formal powers necessary for an effective inquiry have been covered above, in response to question 9. In the section below, the Government sets out the main procedural elements necessary for the inquiry to meet its aims swiftly and effectively.

Participants, other witnesses and legal representatives

  11.2  An inquiry will need to identify those individuals or organisations who have a significant interest in its proceedings and its outcome, as opposed to those who are simply called to give evidence, and it will need to determine how those with an interest are to be treated during the proceedings. It is important to the success of the inquiry that those closely involved with its subject matter can feel that they have been able to participate as fully as possible. Often, these people are referred to as "parties" to an inquiry, but they are not the same as parties to court proceedings, because they have no case to promote. Their role is primarily to assist the inquiry in establishing the facts, whatever hopes they might have about the outcome of the inquiry. Some recent inquiries have used the term "participant" instead of "party" to avoid confusion. Neither the 1921 Act nor the subject-specific legislation contains any provisions concerning the definition of a party or participant to the inquiry; as with non-statutory inquiries, this is left to the discretion of the chairman. In the public inquiry into the Piper Alpha disaster[21], Lord Cullen permitted persons to be parties to the inquiry "if they were able to show an interest, in some aspect of the subject matter of the inquiry which as a matter of fairness required protection by such [legal] representation".

  11.3  In practice, the chairman of a major inquiry generally holds at least one preliminary meeting at which he sets out:

(i)  which people have witness status;

(ii)  which of the witnesses have party/participant status;

(iii)  of those, who will be granted legal representation;

(iv)  of those, who will be granted funding for their legal assistance or representation.

  11.4  There is no statutory right to legal representation before an inquiry. Under the 1921 Act, the tribunal has discretion as to whether to authorise or refuse legal representation for any person appearing before the inquiry. Most subject-specific legislation makes no direct mention of legal representation, although some pieces of legislation contain provisions about costs incurred by witnesses. The Salmon Commission recommended that any person appearing before an inquiry under the 1921 Act should have a right to legal representation, and that this representation should generally be paid for out of public funds unless there were good reasons to the contrary.

  11.5  In recent inquiries there have been demands from numerous potential participants to be granted legal representation, generally at public expense. Of course, those involved may wish to seek legal advice in preparing for the inquiry, but it may well be unnecessary for them to have full representation at the hearing. An automatic right to such representation for all participants could potentially lead to enormous expense, and could lengthen the process considerably. The inquiry needs to be able to exercise its discretion in controlling the grant of representation, whilst ensuring that all participants are treated fairly. The Government believes it is important that inquiries should be able to ensure the most efficient use of representation, so that, for example:

—  participants with similar interests should have joint representation unless there are strong reasons why they should not do so; and

—  representation should generally be limited to those persons who need it in order to assist the inquiry, or whose conduct is likely to be the subject of criticism by the inquiry. (Coverage of inquiries can be high profile and criticism can have a significant impact on the career or personal lives of individuals involved.)

  11.6  Although the Salmon Report's recommendations were never incorporated into statute, the recommendation about publicly funded legal representation has been adopted in practice. On 29 January 1990, in answer to a Parliamentary question, the then Attorney General set out the basis upon which the Government would exercise its discretion to pay costs:

"So far as the costs of legal representation of parties to any inquiry are concerned, where the Government have a discretion they always take careful account of the recommendations on costs of the tribunal or inquiry concerned. In general, the Government accept the need to pay out of public funds the reasonable costs of any necessary party to the inquiry who would be prejudiced in seeking representation were he in any doubt about funds becoming available. The Government do not accept that the costs of substantial bodies should be met from public funds unless there are special circumstances."

  This policy has operated successfully in many inquiries, and the Government believes that it should continue.

  11.7  The inquiry solicitor has a particular role in managing applications for legal funding and deciding on the appropriate levels where such funding is approved. In practice, decisions about funding are taken by the inquiry chairman, following agreement from Ministers. The representation is paid for through a grant from the appropriate Department. Witnesses or participants in an inquiry are not normally eligible for public funding through the Community Legal Service (commonly known as "legal aid"). However, the Government can see benefits in putting arrangements for funding on a more formal basis, to ensure that mechanisms are in place to control costs. The cost-assessment procedure is discussed in 11.8 (below). If any statutory rules on inquiry procedures were introduced, as discussed later in this section (11.19 onwards), it could be helpful for those rules to cover arrangements for funding of legal assistance and representation.

Assessment of costs

  11.8  In most cases, the inquiry and the legal representatives involved should be able to reach agreement on costs, without the need for external assessment. However, if it is not possible to reach agreement, a costs judge may need to be asked to assess the bills, with the inquiry and claiming party agreeing to accept the judge's decision. Costs judges have judicial immunity when they assess costs in court proceedings, but not when they assess costs in inquiries. This can cause delays while indemnities are negotiated with sponsoring Departments. Any new legislation could put this formal costs-assessment procedure on a statutory basis, so that there would be judicial immunity for a costs judge who is asked to assess the bills after a statutory inquiry.

Evidence

  11.9  Usually, the chairman of an inquiry sets out arrangements at the beginning of the inquiry for the form and submission of evidence. Clarity about these arrangements from the earliest possible moment can help all those involved in preparing for the inquiry, and can help to speed up the process.

  11.10  Sir Roy Beldam suggested measures to reduce delay and expense during the evidence-taking stages of an inquiry. He said:

"Consideration should be given to re-examining the nature of an interest justifying participation in an inquiry at public expense. A person seeking to take part in the hearing should be required to state clearly, and in writing, the basis of his interest.

Consideration should be given to the greater use of written submissions generally[22]."

  The Government agrees that the use of written evidence, where appropriate, could help to speed up the inquiry process and also to limit the strain on some witnesses. It will not be necessary for every witness who gives evidence to the inquiry to be examined by counsel. If a witness's evidence is unlikely to be contentious, consideration should be given to whether it should be submitted in the form of a written statement instead. If the inquiry chairman believes that a witness's oral evidence will not be of sufficient relevance to the inquiry to justify the public expense, he should be able to order that the evidence be given in the form of a written submission instead.

Disclosure of previous convictions

  11.11  The Salmon report recommended that criminal records of persons involved in an inquiry should be made available to the tribunal, which could choose whether to disclose them. However, there is now a far greater convention that evidence be disclosed and the Government is concerned that there would be a great deal of pressure on inquiry chairmen to disclose details of criminal records, if they were made available. This could be very unfair to individuals involved if their previous convictions had no relevance to the inquiry, particularly in high profile cases with a great deal of publicity. However, the Government recognises that there might be strong arguments for details of previous convictions to be made known to the chairman and inquiry panel in exceptional cases when such convictions could call the honesty of the witness into doubt or are otherwise relevant to the subject-matter of the inquiry. The Government would be interested in views on how such situations should best be addressed.

Media coverage of inquiries

  11.12  There are few statutory restrictions on the reporting of inquiry proceedings in the media. Obviously, proceedings held in private are not reported because the media are not admitted (see response to question 12, below). However, there will be occasions upon which inquiry chairmen will ask the media not to print certain information from public proceedings, to safeguard the privacy of witnesses. In the past, such requests have been respected and complied with. For example, during the Waterhouse Inquiry into child abuse in North Wales, the Inquiry issued a statement[23] asking the media not to publish or broadcast information identifying alleged perpetrators or victims of abuse. Many of the potential witnesses to the inquiry had asked to remain anonymous, as far as possible. The Inquiry was held in public, and the identity of the individuals was known to all those who attended the hearings, but the Inquiry considered that wider publication of material identifying those involved could prejudice the proceedings, not least because it would deter potential witnesses from stepping forward. The Government believes that a discretionary system, whereby the chairman asks the media not to print or broadcast certain information, has worked well in the past. The Government would be interested in views on this.

Filming and broadcasting of inquiries

  11.13  Inquiry chairmen should have discretion to allow or refuse the filming and broadcasting of all or part of inquiry proceedings that are public. The chairman will make a decision about what is appropriate, given the particular circumstances of the case, and taking into account any representations from those involved in the inquiry. This is currently the case for most inquiries, but the legal position is complicated by the fact that 1921 Act inquiries are covered by s.9 of the Contempt of Court Act 1981, which places restrictions on sound recording. If the 1921 Act were replaced with new legislation, this complication could be removed.

  11.14  That said, it should be borne in mind that it will not usually be appropriate to broadcast most inquiry proceedings. Giving evidence before an inquiry can be distressing for witnesses, particularly if the subject matter is sensitive or emotive. The broadcasting of proceedings can place an additional and unnecessary strain on witnesses. For example, during the Shipman Inquiry, Dame Janet Smith chose to restrict filming during the phases when relatives were giving evidence about the deaths of their loved ones. Whatever the subject matter, questions will arise about whether the broadcasting of proceedings would interfere with witnesses' human rights, and, in particular, with Article 8 of the European Convention on Human Rights (ECHR), and inquiry chairmen will need to give careful thought to whether it would be justifiable to allow broadcasting. Arguments relating to Article 10 of the ECHR (the right to impart and receive information) have also been raised in previous discussions relating to the filming and broadcasting of inquiries. What is required will depend upon the circumstances, but the Government notes that publishing information on the Internet, for example, will be sufficient in most cases to ensure public access to information.

Freedom of information and data protection

  11.15  The Data Protection Act applies to inquiries, and inquiry solicitors will need to consider in detail how to comply. It is important to be careful to ensure that those who are the subject of "personal data" held by the inquiry are aware of the fact that such data is being held.

  11.16  The Freedom of Information Act, which governs the disclosure of information held by public authorities and will be implemented fully by 1 January 2005, does not apply to statutory inquiries. An inquiry is not a public authority for the purposes of the Freedom of Information Act and therefore falls outside its scope.

Judicial review

  11.17  Inquiry chairman have a great deal of discretion to make decisions on the procedural aspects of an inquiry, including those described above. Sir Roy Beldam noted that:

"Another cause for delay in recent public inquiries has been the increasing tendency for decisions connected with the Inquiry to be challenged by application for Judicial Review[24]."

  Judicial reviews must be brought within a three-month timetable, but they can considerably hinder the progress of the inquiry, particularly if a number of different challenges are brought. It is important to ensure that inquiry procedures are fair and reasonable, but, at the same time, the Government is concerned about the potential for delays and increased costs when procedural decisions are challenged in the courts.

  11.18 The introduction of statutory procedure rules (discussed in detail below) could help to reduce the potential for delay by clarifying inquiry procedures, removing some of the need for decisions by the chairman and making clear where he had discretion to make decisions.

Is there a need for statutory rules of procedure?

  11.19  There has been some discussion in the past over whether or not there should be statutory rules of procedure for inquiries. The 1921 Act contains no provision for procedure rules, but some subject-specific legislation contains a rule-making power for the Secretary of State[25]. Rule-making powers tend to exist in areas where an inquiry is likely to have to deal with complex and technical evidence, such as transport accidents or health and safety issues.

  11.20  Sir Roy Beldam's discussions with inquiry experts have suggested that rules could potentially be of great assistance to inquiry chairmen[26]. This may be particularly true where an inquiry's ambit is wide-ranging, where there is likely to be complex evidence, or where there are many parties whose interests will need to be protected. Procedure rules on the taking of oral and written evidence, participation, and representation could help the chairman to control and focus the inquiry. As mentioned in 11.7 above, rules could also govern the grant and funding of legal representation, helping to control costs. Rules could outline factors to be taken into account in making decisions, and could help to prevent delay by allocating timescales to key stages in the inquiry. They could also provide greater certainty for witnesses about what will be expected of them during the course of the inquiry, enabling them to prepare better (with their legal advisers, if appropriate) and thus helping to make the inquiry more effective.

  11.21  That said, it is important that procedure rules do not introduce unnecessary formality, or increase the administrative burden on inquiries. Consideration would need to be given to how they could be applied effectively to the different types of inquiries that will occur. Procedure rules would need sufficient flexibility to allow the chairman discretion to conduct the inquiry effectively, whatever its size, form and content.

  11.22  The Government would be interested in views on whether the introduction of procedural rules would improve the effectiveness of inquiries. Rules could cover a wide range of areas, some of which have been discussed in this section, including:

—  grant of party or witness status;

—  legal representation;

—  funding for legal assistance or representation;

—  arrangements for payment of costs and processes to manage costs;

—  taking of evidence, including any arrangements for cross-examination;

—  private hearings (discussed in more detail in response to question 12, below);

—  broadcasting; and

—  appointment of any additional assessors or experts.

  The Government would also be grateful for views on any other areas where rules might be of assistance to the chairman.

  11.23  It might be an option to lay down a statutory route for appeals against procedural decisions of the chairman, with appropriate time limits, so as to reduce delays and increase certainty about inquiry proceedings. For example the Civil Procedure Rules have been successful in reducing the number of appeals in the course of proceedings. Only 70 applications to appeal on a CPR matter were received in the Civil Appeals Office in the year leading up to September 2001, compared to 520 interim appeals in 1998[27]. Alternatively, delays and uncertainty could be reduced by decreasing the time limit within which a judicial review of an interim decision could be brought. During an inquiry, the individuals and organisations involved will quickly be made aware of decisions that affect them, and it may be reasonable to require them to bring any challenges within a shorter time scale than the usual three month time limit. The Government would welcome views on these options.

Costs of Inquiries

  11.24  An inquiry should have sufficient funding to ensure that its conclusions are robust, and that its recommendations are valuable and based on an in-depth analysis of the issues involved. However, it should always be borne in mind that inquiries are funded ultimately by the taxpayer. There will be reasonable limits to how long an inquiry should last and how much the process should cost.

  11.25  The cost of an inquiry is invariably linked to the length of time it takes—put simply, lengthy inquiries are more expensive. An inquiry that is unnecessarily long and costly not only wastes money, it also considerably weakens its outcome. The cost should always be proportionate to the problem being addressed. If the public can see that the procedures of an inquiry are inefficient and wasteful, or that the cost of an inquiry seems unreasonably high in comparison to the problem being investigated, they are unlikely to trust the conclusions, or to have confidence that the recommendations will prevent recurrence.

  11.26  The cost of an inquiry will vary according to a number of factors, including the complexity of the case and the length of time that has elapsed between the event that is being investigated and the beginning of the inquiry. Inquiries that require a lot of technical evidence or involve several parties may take longer and incur greater expense. These factors need to be taken into account at the outset, as the chairman plans how the inquiry will be conducted. Any new legislation could include a statutory requirement for the chairman to have regard to cost in planning and conducting the inquiry. Such a requirement could strengthen the chairman's ability to limit possible costly elements in the inquiry.

  11.27  There is currently no statutory obligation to publish the final costs of an inquiry, although it has become recent practice to do so. Any new legislation could provide for a formal requirement to publish total costs. The Government would be interested in views as to whether such a requirement could help improve public confidence in the transparency of the inquiry process.

  11.28  In addition to the costs of the inquiry process, the recommendations of an inquiry may well cost money to implement. The value of the recommendations will be determined not only by whether they are effective in preventing recurrence, but also by whether they are practicable and proportionate. While the inquiry members cannot be expected to undertake a detailed cost-assessment of their recommendations, their recommendations will be most useful if they consider, as far as they can, whether what they propose is a reasonable use of public money.

  11.29  There are no references to cost in the 1921 Act. However, under s250 of the Local Government Act, the Ministers have the ability to recover costs of inquiries from local authorities or from any party to the inquiry. In most cases, inquiries will be funded by the sponsor Department, but it could be argued that that Government should be able to recover some or all of this public money in some limited cases. Such a power would rarely be exercised, but might it might occasionally be appropriate to recover some costs from an organisation or agency, particularly when it has pressed for the inquiry to be held or has accepted some degree of blame for the events that were investigated by the inquiry. The Government envisages that such power should never be exercised to recover costs from an individual. The Government would welcome views on whether it could sometimes be appropriate to recover some of the costs of inquiries from organisations involved and, if so, in what circumstances.

12.   Should inquiries always sit in public or are there circumstances when it is right to conduct an investigation in private?

  12.1  Since inquiries are designed to restore public confidence, in many cases they will benefit from being held in public and their reports being published in full. In particular, when the failure of a system has resulted in much public or media concern, it is helpful if people's fears can be allayed by a full and open exploration of the circumstances and clear recommendations to prevent recurrence, which can be publicly understood and seen to be implemented.

  12.2  However, there is no general rule that an inquiry must be held in public to achieve these aims. An inquiry should take the form that best enables it to achieve its aims effectively. For example, if its focus is mainly on learning lessons for the future, this might best be achieved in a closed environment, where witnesses would feel more able to express their opinions and offer constructive suggestions, as well as giving factual evidence.

  12.3  It is also important to note that there are different degrees of public or private treatment, which might be appropriate in different situations. For example, an inquiry might admit people to its hearings if they have an interest (for example, relatives of any people who died as a result of the events being investigated) but, for various reasons, might not admit the general public or the media. A chairman might also choose to draw distinctions between different stages of an inquiry, and to hold some parts in private.

  12.4  When an inquiry is set up, a decision will need to be made on whether a public or private form is most appropriate, given the particular circumstances. The benefits that may arise from greater openness if an inquiry is held in public will always need to be weighed against the advantages of simpler and more streamlined procedures that can be operated in private or partially-private inquiries. The Ministers setting up the inquiry and the chairman will also always need to consider carefully any harm that could arise from full public disclosure of the evidence and proceedings, which could be as serious as damage to national security or threats to life. Several past inquiries amongst those listed in the table at Annex A have been conducted partially or wholly in private.

Statutory provisions on public and private inquiries

  12.5  The 1921 Act makes some limited provisions for private treatment, stating that an inquiry must be held in public "unless it is in the public interest expedient to [hold it in private] for reasons connected with the subject matter of the inquiry or the evidence to be given". The then Parliament intended this provision to be given a very narrow interpretation, and in fact amended the original Bill to impose a greater obligation on inquiries to conduct their proceedings in public. 28 The Act was designed only for inquiries into matters of urgent public importance—which Salmon interpreted as matters causing "a nation-wide crisis of confidence." With this in mind, it is easy to see why the Act was drafted in this way.

  12.6  However, today there exists a [28]far greater range of inquiries, in which the arguments for public treatment may not be so compelling. Most subject-specific legislation makes no provision about whether inquiries should be held in public or private. Some, for example the Children Act 1989, gives Ministers and inquiry chairmen specific powers to direct that an inquiry be held in private where they think it appropriate.

Reasons for Holding an Inquiry in Private

  12.7  In recent inquiries, Ministers and inquiry chairman have used their discretion to determine how much of an inquiry should be held in public, and to modify inquiries so that they best meet the needs of those involved. There can be a number of reasons why a private or partially-private inquiry may be appropriate. Some examples are explored below.

National security

  12.8  It is very important that evidence should not be made public if it might threaten national security. The Minister setting up the inquiry has a duty to ensure that national security arrangements are not undermined by publication of material during the inquiry, and may need to direct that some or all of the inquiry be held in private for this reason. Inquiry chairmen must also be able to hold hearings in private if issues emerge with ramifications for national security. The current Butler Inquiry into weapons in Iraq, for example, is being conducted in private.

Statutory Barriers to Disclosure and Legal and Commercial Confidentiality

  12.9  Inquiries will have regard to the need to protect privileged or confidential information. For example, the Equitable Life Inquiry, which was a non-statutory inquiry conducted by Lord Penrose, has covered information that is confidential, some of which is protected by provisions of the Insurance Companies Act 1982, the Financial Services Act 1986 and the Financial Services and Markets Act 2000. It was necessary for the Inquiry to be held in private due to legal and commercial confidentiality issues. Nevertheless, the Treasury was able to publish the report in full.

Personal Privacy, Unnecessary Intrusion or Distress to Witnesses

  12.10  Inquiries are by their nature intrusive, but if a matter is sufficiently serious to warrant an inquiry then it is assumed that some degree of intrusion is justified. However, there may be extreme cases where a public hearing of particular evidence would involve an unjustifiable degree of intrusion into the privacy of an individual. The Government believes that the chairman should have discretion to judge, possibly following representations from witnesses, whether part of the proceedings should be held in private for such reasons.

Simpler, faster procedures

  12.11  Inquiries held in private have the notable advantage that witnesses are less likely to be subjected to media criticism, although they could, of course, still be criticised by the chairman and inquiry members in the report. Most inquiry witnesses are not used to being in the public spotlight and may well feel trepidation at the prospect of giving evidence, having seen the level of media criticism of witnesses in past inquiries. Private hearings can help them to feel more secure, can encourage them to give views and constructive suggestions as well as giving evidence on the facts, and can reduce their demands for additional legal representation and adversarial cross-examination. Of course, this consideration would carry far less weight for any witnesses who are already public figures and have voluntarily chosen a career or lifestyle that would expose them to media scrutiny.

  12.12  Private inquiries can operate more streamlined procedures and may be able to reach their conclusions more quickly and at lesser cost. In his judgment on Howard and Wright-Hogeland (see below), Mr Justice Scott Baker noted:

"Public hearings tend to become more formal and adversarial. There is an expectation of greater lawyer involvement. Where a witness would feel sufficiently confident to go ahead in private without asking for legal representation that would not necessarily be so in public. The obligations of fairness tend to be more stringent when the inquiry is in public and this necessitates a greater protection for witnesses."

  He echoed a comment made by Sir Thomas Bingham MR in an earlier judgment[29]:

"It is an undoubted truth that a statutory Inquiry conducted in public would last longer and cost more and the money so spent would of course otherwise be available for the care of patients. This was pre-eminently a matter for the judgment of the Secretary of State."

  12.13  Speed and efficiency can be very important considerations for those closely involved in an inquiry, as well as for the Government. The Royal Liverpool Children's Inquiry investigated the practices associated with the removal of body parts following post mortem at Alder Hey Hospital. Before the inquiry, there was a lengthy debate about whether it should be held in public or in private. The parents voted and a majority was in favour of a private inquiry. The most important factor for them was that the issues should be investigated and resolved quickly—and a private inquiry could be faster.

The "modified-private" model

  12.14  It is important that a private inquiry can still meet the needs of those with a close interest in its findings, as far as possible. The Department of Health has developed an inquiry procedure conducted on "modified-private" lines, which could be used as a model for other inquiries. In modified-private inquiries, parties with a close interest in the proceedings, such as bereaved relatives, still attend all the hearings. The chairman decides the procedures for cross-examination of witnesses by counsel. No written evidence is made public and not all is communicated to other witnesses, but a report may be published at the end. There is nothing to prevent those who have attended the hearings from speaking to the press or passing on the information if they wish to. Such forms of inquiry have been judged by our domestic courts not to raise issues under the ECHR (see discussion below).

  12.15  The Secretary of State for Health's decisions to hold inquiries in private were challenged in two judicial reviews: R(on the application of Howard) v Secretary of State for Health and R(on the application of Wright-Hogeland) v Secretary of State for Health[30]. Both applications concerned inquiries into the serious misbehaviour of doctors. Summarising his judgement on both cases, Mr Justice Scott Baker wrote:

"There was no general principle that inquiries into circumstances surrounding the serious misbehaviour of a doctor should be in public . . . No two inquiries would be identical and each would need to be tailor made to suit the particular circumstances."

  He considered that it was legitimate for the Secretary of State to take into account, and make evaluative judgements on, a wide range of factors in his decision on whether to hold an inquiry in public, including the resource implications and the effect on NHS recruitment and morale.

  12.16  Mr Justice Scott Baker also considered arguments that the failure to hold an inquiry in public had interfered with the claimants' right of freedom to impart and receive information under Article 10 of the ECHR. He wrote:

"There is no free standing right to a public inquiry under Article 10.

. . . Where a public authority decides to hold a private inquiry there is no interference with the individual's freedom of expression."

  12.17  The question of whether an inquiry will be able to operate more effectively in private will, of course, depend on its aims and its subject matter. The type of inquiries described above were intended to establish the facts of the situations, for the benefit of the Secretary of State and the families involved, and to enable the Secretary of State to make improvements to the NHS aimed at preventing such incidents recurring. "Modified-private" inquiries were suitable to meet these aims and were the most effective way of dealing with the situation. However, it would be far harder to justify a private hearing on efficiency grounds if the lack of full, public disclosure would clearly compromise the ability of the inquiry to restore public confidence. For example, it would have been impossible to justify holding the Hutton Inquiry in private on efficiency grounds, because the need for a full public exploration of the facts was so high.

  12.18  In summary, the Government believes that there are circumstances in which it is right to conduct an inquiry partially or wholly in private, and anticipates that any legislation on inquiries would need to cover this. Sometimes, a Minister will need to decide at the outset that an inquiry should be held in private. In other situations, it will be for the chairman to decide whether to conduct hearings in private. Whenever proceedings are held in private, it is important that clear reasons are given for doing so and the inquiry is conducted in accordance with essential requirements of fairness. If procedure rules were introduced, as discussed in response to question 11, they could cover arrangements for private inquiries.

PARLIAMENTARY ACCOUNTABILITY

13.   Are independent inquiries an appropriate investigatory device within a parliamentary democracy? Do they undermine the principle of ministerial accountability to Parliament?

  13.1  The Government believes that inquiries set up by Ministers are an appropriate and useful device for dealing with matters that have caused public concern. Inquiries do not undermine the principle of Ministerial accountability to Parliament, because they do not usually investigate broad Government policy or Executive decisions. While Parliament scrutinises Government policies and decisions, inquiries tend to be set up in order to establish the facts in one particular situation, usually when there is reason to believe that something has gone wrong. Inquiries can assist Parliament, because their findings can be used to inform any wider Parliamentary debate or scrutiny of the relevant policy area.

14.   Should there be greater parliamentary involvement in the setting up of such inquiries? If so what form should this take? For example should it be a "minimalist" approach involving use of parliamentary resolutions to agree terms of reference, membership and procedures or a more "maximalist" option which could see parliamentary committees undertaking inquiries of this nature themselves?

15.   If the maximalist approach were to be pursued what should be done to address the limitations which many believe are inherent in select committees taking forward such inquiries?

16.   Would the use of privy counsellors or senior parliamentarians, and the use of counsel or other experts suffice or is a more permanent machinery such as a parliamentary commission or perhaps extended powers for the Ombudsman more appropriate and effective?

17.   What powers should such a committee of inquiry or parliamentary commission have in relation to witnesses and papers which select committees do not already enjoy?

18.   What considerations, if any, arise concerning parliamentary privilege in the event of potential criminal, civil or disciplinary proceedings which might result from the evidence?

  14.1  Parliamentary involvement in setting up inquiries instigated by Ministers is discussed above, in response to question 3. The "maximalist" option is a matter for Parliament to consider. The Government will be interested to hear the results of the Committee's consideration on this idea.

  14.2  The Government notes that select committees do already enjoy powers to send for persons, papers and records relevant to their terms of reference, subject to some exceptions, to appoint advisers, and to hold proceedings in private.

  14.3  Inquiries conducted by privy counsellors do not have formal powers. Two notable examples of such inquiries—the current Butler Inquiry and the 1982 Franks Inquiry[31]—have enjoyed the full co-operation of the Government and all those involved. The nature of these types of inquiry means that they will not usually need formal powers. However, the Government notes that it might be possible to apply the powers in some current or possible future legislation on inquiries to such inquiries conducted by privy counsellors, if necessary, since they are commissioned by Ministers.

VALUE OF AN INQUIRY

19.   How should the publication of the eventual report be handled? Who should be responsible for this?

  19.1  The publication of the report is generally a matter for the chairman. It may be appropriate for a report to be published as a Command Paper or a Parliamentary Paper. The Government notes that some of the considerations about holding an inquiry in private, discussed in response to question 12, may also apply to the publication of the report. It may not always be possible to publish the full report that is given to the commissioning Minister. However, the aim should be to publish as much of the report as possible.

20.   Has the conduct of inquiries over the years ensured that lessons giving rise to the matter under investigation have been learnt?

21.   Has the outcome of inquiries made any discernible difference to the conduct of public life?

  20.1  It is appropriate to take these two questions together. Obviously, the lessons learnt from inquiries and the impact that they have on the conduct of public life will vary from case to case. Some inquiries have made a positive and very noticeable impact on the systems that they have investigated and on the conduct of public bodies. For example, it is fair to say that the current reforms to the children's services, now before Parliament, would not have been proposed if it were not for the Victoria Climbieé Inquiry. The Stephen Lawrence Inquiry, which was a watershed for the police service, has had a significant impact on police operational practices, training, and police personnel issues.

22.   Should there be a formal system for following up the recommendations of inquiries and their impact? If so what should this system take and who should be responsible for it?

  22.1  An inquiry is asked to make recommendations to the Minister who commissioned it. When the Minister receives these recommendations, it will be for him to determine how they should be addressed. In some cases, implementation of the recommendations will be sufficient to address fully the problem that the inquiry was looking into. In others, there may be a need for wider action or for more sustained follow-up work, particularly if the inquiry has generated concern about any wider issues. It may be appropriate to set up a particular group to see this action through.

  22.2  For example, soon after the publication of the report of the Stephen Lawrence Inquiry, the then Home Secretary published an action plan setting out how the Government proposed that the report's 70 recommendations would be taken forward. Every year, the Home Secretary publishes a report on progress against this plan. The then Home Secretary also established a Lawrence Steering Group, comprising members from the police, criminal justice organisations and independent members including representatives of minority ethnic communities. The Group's task was to ensure the implementation of the recommendations and then to evaluate their impact and assess what remains to be done.

  22.3  The Government believes that the systems for following up the recommendations of inquiries will necessarily vary from one inquiry to another, and it would not be appropriate to put in place a single formal system.

23.   Is there anything for the UK to learn from other countries about the conduct of investigatory inquiries?

  23.1  The Government is currently undertaking an exploration of the systems used for inquiries in other countries, and would be happy to share its conclusions with the Committee in due course.

SUMMARY AND REQUEST FOR VIEWS

  The Government would welcome views, from the Committee and more widely, on all the issues discussed in this paper. In particular:

  (1)  The Government would be grateful for views on areas which might be considered for future legislation. A summary is given below.

  Power for Ministers to set up inquiries (question 3a) into matters that have caused, or have potential to cause, public concern.

  Provisions on appointment of chairman and panel, possibly including a statutory obligation to ensure independence and suitability (questions 3b and 3d).

  Formal powers for inquiries to compel the attendance of witnesses and the production of evidence, and to take evidence under oath (question 9).

  Possibly, a power to issue a commission or request to examine witnesses abroad (question 9).

  Sanction for non-compliance with an order of the inquiry under these powers (question 9).

  Sanction for destruction, suppression or distortion of evidence (question 9)

  Statutory protection and privileges for witnesses (question 9):

—  immunity from civil proceedings arising from their evidence;

—  privilege to refuse to answer on grounds of self-incrimination, lawyer-client privilege, privilege to refuse to disclose what has taken place in Parliament.

  Statutory protection for inquiry panel, solicitor to the inquiry, counsel to the inquiry, inquiry secretariat (question 9)

  Possible provisions on disclosure of criminal records (question 9)

  Statutory immunity for a costs judge to assess the bills (question 11)

  a power for the Secretary of State to make statutory rules of procedure (question 11) covering issues such as:

—  grant of party or witness status

—  legal representation

—  funding for legal representation

—  arrangements for payment of costs and processes to manage costs

—  taking of evidence, including any arrangements for cross-examination

—  private hearings

—  broadcasting

—  appointment of any additional assessors or experts

  an obligation on the chairman to have regard to cost in conducting the inquiry (question 11)

  an obligation on the Minister to publish the final costs of the inquiry (question 11)

  a limited power to recover some costs from organisations (question 11)

  a power for the Minister setting up the inquiry, or for the chairman, to direct that all or part of the inquiry be held in private, where appropriate (question 12)

  (2)  The Government would be grateful for views on whether legislation would be helpful to deal with any other issues.

  (3)  The Government would be grateful for views on the suggestions that would not require legislation, including:

(a)  the advantages of a "cooling off" period in some cases before the announcement of final terms of reference; and

(b)  the establishment of a dedicated Inquiries Unit (paragraph 7.3), and the functions that such a Unit should take on.

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1   Statutory powers are available for the Bichard Inquiry under the Police Act 1996. However, if the Inquiry looks into any wider implications for social services and education, powers might have to come from a range of pieces of legislation. Back

2   Where the male version of a noun (for example "chairman") or a male pronoun is used, but where the word does not refer to a particular individual, the reference should be taken to include members of both sexes. Back

3   Para 71, Salmon Report. Back

4   Annual report of the Council on Tribunals for 1995-96 (HC114), Appendix A. Back

5   Article by Lord Laming published in The Guardian, Media Section, Monday 2 February 2004 Back

6   Paragraph 13, Salmon Report. Back

7   For example: legislation implementing Council Directive 94/56/EC on civil aviation accidents and incidents; and the Railways Transport and Safety Act 2003. The Health and Safety at Work etc Act 1974 sets out statutory requirements regarding the role of the Health and Safety Commission and its Executive. Back

8   Murphy v. Flood [1999] IESC 60; [2000] 2 ILRM 112 (22 July 1999). Back

9   This Memorandum is intended to answer the questions raised by the Public Administration Select Committee, and is not intended to constitute a full response to Sir Roy's report. The Government believes that the report will be a helpful addition to the evidence before the PASC, but this Memorandum does not address all the issues that Sir Roy raised for further consideration. Back

10   Hansard 4 Feb 2004: Column 786. Back

11   For example, the Victoria Climbie« Inquiry was conducted under the Children Act 1989, the NHS Act 1977 and the Police Act 1996. Back

12   Cmnd 4558 (2000). Back

13   Published July 2001, Cm 5207(I), ISBN 0-10-152073-5. Back

14   Report of the Interdepartmental Committee on the Law of Contempt as it affects Tribunals of Inquiry. Cmnd 4078. Back

15   Southall Rail Crash Inquiry, McPherson Inquiry into the death of Stephen Lawrence, Ladbroke Grove Inquiry. Back

16   The Government's proposals for a Civil Partnership Registration Scheme for same-sex couples would extend this privilege to cover civil partners as well as spouses. Back

17   The recent Court of Appeal decision in Three Rivers District Council v The Governor & Company of the Bank of England may have implications for (ii). Back

18   Chapter 2, paragraph 20, Learning from Bristol: The Report of the Public Inquiry into children's heart surgery at the Bristol Royal Infirmary 1984-1995. Cmnd 5207-I. Back

19   Such investigations do not come within the definition of inquiries as discussed in this Memorandum. Back

20   Beldam Report para 18. Back

21   Piper Alpha Report, Vol 2, paragraph A.1 of Appendix A. Back

22   Beldam Report (at Annex B) para 18. Back

23   Appendix 4: Lost in Care-Report of the Tribunal of Inquiry into the Abuse of Children in Care in the Former County Council Areas of Gwynedd and Clwyd since 1974. (HC 201, ISBN 0-10-556660-8). Back

24   Beldam Report (at Annex B) para 19. Back

25   Eg Civil Aviation Act 1982 Air Navigation (Investigation of Air Accidents involving Civil and Military Aircraft of Installations) Regulations 1986. Back

26   Beldam report (at Annex B) para 18. Back

27   A Continuing Evaluation of the Civil Justice Reforms, August 2002. Back

28   Hansard, 24 March 1921. Back

29   Crampton v Secretary of State for Health (unreported, 9 July 1993). Back

30   [2002] EWHC 396 Admin. Back

31   Falklands Islands review: Report of a Committee of Privy Counsellors. Cmnd 8787. Back

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Prepared 14 July 2004