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|Inquiries Bill [HL]|
These notes refer to the Inquiries Bill [HL] as brought from the House of Lords on 1st March 2005 [Bill 70]
INQUIRIES BILL [HL]
1. These revised explanatory notes refer to the Inquiries Bill [HL] as brought from the House of Lords on 1st March 2005. They have been prepared by the Department for Constitutional Affairs in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
3. The Inquiries Bill is intended to provide a comprehensive statutory framework for inquiries set by Ministers to look into matters of public concern. It gives effect to proposals contained in a Government consultation paper, dated 6 May 2004 entitled "Effective Inquiries", which itself arose out of a memorandum, submitted to the House of Commons Public Administration Select Committee as part of its "Government by Inquiry" investigation.
4. The explanatory notes are divided into groups of clauses reflecting the structure of the Bill. In relation to each group of clauses, there is a summary, and also some background. Commentary on particular clauses is then set out in numerical order, with the commentary on the various Schedules included with the clauses to which they relate.
5. The clauses are grouped under 10 cross-headings:
[Bill 70EN] 53/4
Constitution of Inquiry
Conversion of Inquiries
Scotland, Wales and Northern Ireland
COMMENTARY ON CLAUSES
CONSTITUTION OF INQUIRY
Clause 1: Power to establish inquiry
6. This clause enables any Minister to cause an independent inquiry to be held and sets out the circumstances in which the inquiry may be established. The range of inquiries in the past ten years illustrates that is not possible to specify more precisely the circumstances when an inquiry may be called. An inquiry could be called into a particular event (e.g. Dunblane inquiry 1996) or a series of events (e.g. BSE inquiry 1997). Although most past inquiries have been triggered by events, they have also been held where there is a concern that something has failed to happen or that particular systems have not operated properly (for example, the Climbi, inquiry 2001). This clause allows for an inquiry to be set up when there are concerns of this type too.
7. The Bill is UK-wide. Ministers from the Devolved Administrations will have the power to establish inquiries into matters within their remit.
Clause 2: No determination of liability
8. The purpose of this clause is to make clear that inquiries under this Bill have no power to determine civil or criminal liability and must not purport to do so. There is often a strong feeling, particularly following high profile, controversial events, that an inquiry should determine who is to blame for what has occurred. However, inquiries are not courts and their findings cannot and do not have legal effect. The aim of inquiries is to help to restore public confidence in systems or services by investigating the facts and making recommendations to prevent recurrence, not to establish liability or to punish anyone.
9. However, as subsection (2) is designed to make clear, it is not intended that the inquiry should be hampered in its investigations by a fear that responsibility may be inferred from a determination of a fact.
Clause 3: The inquiry panel
10. The aim of this clause is to provide Ministers with the flexibility to appoint an inquiry panel that is appropriate to the circumstances under investigation. The Minister may appoint either a chairman to sit alone (e.g. Lord Cullen sat alone as the chairman to the inquiry into the shootings at Dunblane Primary School, 1996) or with one or more panel members (e.g. Michael Redfern QC chaired a three person panel for the Royal Liverpool Children's Hospital inquiry, 1999). Clause 4 ensures that where the chairman will not sit alone the Minister will consult him on the appointment of any other panel members, including any appointed under clause 7.
Clause 4: Appointment of inquiry panel
11. This clause is self-explanatory.
Clause 5: Setting-up date and terms of reference
12. Clause 5 requires the Minister to specify a setting-up date and terms of reference for the inquiry. The setting-up date given by the Minister is the date the inquiry formally comes into existence as an independent body. This date is purely a formality and need not relate to any other event connected with setting up the inquiry, such as an opening meeting. An inquiry will not begin considering evidence until the setting-up date has passed. It might, however, begin taking some practical steps to find premises and staff.
13. An inquiry is set up to investigate a particular set of circumstances. The remit of the inquiry must be set out by the Minister in the terms of reference before the setting-up date. The Minister must consult with the chairman when either setting or changing the terms of reference. The Bill does not contain any specific requirement for the Minister to consult other individuals or organisations, but they can be consulted if the Minister considers it appropriate in the particular circumstances. The period of time leading to the setting-up date could be used for consultation.
14. The type of information contained in the terms of reference will vary from inquiry to inquiry. For example, the terms for the Victoria Climbi, and Shipman inquiries were fuller than those used for the Bloody Sunday inquiry. In some cases it might be appropriate to specify a date by which the inquiry is asked to report, or the level of urgency. The definition of terms of reference in this Bill is wide in order to allow for appropriate terms of reference to be set for a wide range of inquiries under this clause. Under subsection (6)(c) of clause 5, the Minister must specify whether the inquiry is asked to make recommendations. However, clause 24(1), which is concerned with inquiry reports, makes it clear that the panel may make recommendations even if this was not a requirement in the terms set by the Minister.
Clause 6: Minister's duty to inform Parliament or Assembly
15. This clause requires the Minister to inform "the relevant Parliament or Assembly" that he intends to hold an inquiry and to give certain details about it. As the definition of this expression in clause 43 makes clear, the relevant Parliament or Assembly will depend upon whether the Minister is a UK Minister or a Minister in a devolved administration. If the inquiry is being set up jointly by Ministers from more than one administration, this clause requires statements to be made to each relevant Parliament or Assembly. The Bill requires statements to be made "as soon as is reasonably practical", which allows for periods of recess, for example.
Clause 7: Inquiries where Ministerial misconduct in issue
16. This clause is self-explanatory.
Clause 8: Further appointments to inquiry panel
17. This clause is self-explanatory.
Clause 9: Suitability of inquiry panel
18. The Minister is required to consider the factors in subsection (1)(a) and (b) of clause 9 every time he makes an appointment, including any further appointments during the inquiry. He must consider the need for balance in relation to issues that are likely to be relevant to the terms of reference. So, for example, this requirement would not usually mean that the Minister needs to consider appointing an equal number of men and women to the panel, unless the subject matter of the inquiry means that the sex of the panel members is particularly relevant. What it does mean is that he should consider balance in terms of the relevant experience that the panel members bring. So, for example, the panel of the Bristol Royal Infirmary inquiry consisted of a professor of health law, ethics and policy, a professor at the Imperial College School of Medicine and practising GP, an academic specialising in family law and an executive director of nursing with 20 years' experience. That panel had a range of experience, which was balanced between different subject areas and between academic and practical experience. The requirement does not mean that the panel must contain people who would be seen as representing all the groups with an interest in the inquiry. It does mean, however, that the Minister should avoid appointing a set of panel members who, in the light of their combined experience and backgrounds, are likely to tend towards a particular viewpoint.
19. Under subsection (2) the Minister may bear in mind the contribution of assessors to the expertise of the panel for the purposes of subsection (1)(a). The purpose of subsection (1)(a) is to ensure that the panel has the ability to conduct an informed analysis of the evidence and produce a full and useful report. Assessors may provide expert assistance to the panel members, enabling them to do this. However subsection (1)(b), which provides for the need for balance in the context of the terms of reference, does not take into account the contribution of any assessors. This is because it is the panel, and the panel alone, who have responsibility for the contents of the report, and the requirement for balance is designed to ensure that this report is fair and reasoned. The panel may ask for the assistance of those working for the inquiry, including the assessors, in writing the report, but it is the panel who have the final word on what goes into the report.
Clause 10: Requirement of impartiality
20. A person might be said to have an "interest" in the events which gave rise to the inquiry where the matters raised impinge on issues which he is concerned about, either personally or professionally. Therefore a "direct interest" would be present where the individual's concern with the events is particularly strong. In contrast, "close association" focuses not so much on the interests of the individual, but on the links (whether personal or professional) that the individual has. For example, were an inquiry panel member to have ties with a witness, there might be concerns about the weight which that inquiry panel member would give to the evidence.
21. The clause does not prevent the appointment of individuals with expertise in a specific subject area, as set out in clause 9. For example, if an inquiry were set up to look into the circumstances surrounding allegations of misconduct by a doctor this clause would not prevent the appointment to the panel of individuals with expertise in NHS monitoring practices who had not been involved in the case of that particular doctor. That experience in itself should not constitute a "direct interest" or "close association".
22. There might be cases in which it would be beneficial to the inquiry to appoint a person with more direct experience of the area under investigation. In some specialised subject areas, it could be difficult to find panel members who did not have some sort of association with those involved, or a general interest in the subject matter. Even if a prospective panel member did have a "direct interest" or "close association", the clause allows the Minister to appoint the individual, provided that the interest or association could not reasonably be regarded as affecting the impartiality of the panel as a whole.
Clause 11: Appointment of judge as a panel member
23. This clause deals with the circumstances in which a Minister proposes to appoint a (serving) judge as a panel member (including chairman) to an inquiry. The clause creates a requirement for the Minister to obtain the agreement of the appropriate senior judicial figure before making such an appointment. In practice, it is likely that agreement for judges in England, Wales and Northern Ireland will be sought from the relevant person via the Lord Chancellor.
Clause 12: Assessors
24. The role of assessors will vary from inquiry to inquiry, but in essence they are experts in their own particular field whose knowledge, where necessary, can provide the panel with the expertise it needs in order to fulfil an inquiry's terms of reference. For example in the Victoria Climbi, inquiry, four expert assessors, including a consultant paediatrician and a detective superintendent, joined the chairman, Lord Laming. Assessors do not have any of the inquiry panel's powers and are not responsible for the inquiry report or findings. An assessor could be appointed for the duration of the inquiry, but it would also be possible to appoint an assessor only for part of the inquiry, to assist when evidence on a particular subject was being considered.
Clause 13: Duration of appointment of members of inquiry panel
25. In practice, if a panel member needs to leave the panel before the end of an inquiry, it is highly likely that he will resign. The circumstances covered in subsection (3), in which the Minister would be able to terminate the appointment of a panel member, are expected to arise very rarely.
Clause 14: Power to suspend inquiry
26. An inquiry may be one of a number of investigations into a particular matter. Often, the respective timing of these is very important; for example, to ensure that an inquiry does not prejudice a criminal prosecution. The results of other investigations may also inform the inquiry and help prevent duplication.
27. In the event that new investigations or proceedings come to light or are commenced after the inquiry has started, it may be necessary to halt the inquiry temporarily. This clause sets out the circumstances in which a Minister may, after consulting the chairman, suspend an inquiry to allow other proceedings to be completed.
Clause 15: End of inquiry
28. This clause sets out how an inquiry comes to an end. An inquiry is not permanent. It only exists between the setting-up date and the date on which it ends under this clause. In most cases an inquiry will end when the chairman has submitted a report to the Minister and has done any further work necessary to wind up the inquiry, such as a costs assessment. However, there might be situations before the submission of the report in which it is no longer necessary or possible for the inquiry to continue. Evidence may emerge that obviates the need to hold an inquiry or demonstrates that the inquiry has the wrong focus, for example, if it emerged during an inquiry that the event being investigated was an act of sabotage rather than failings of a particular system, and ought to be dealt with by the police rather than an inquiry. Other events might occur which also need to be investigated, and it may be more appropriate to set up a single, wider-ranging inquiry, perhaps with a different panel. Something might happen, such as a fire or the death of a witness, which means that an inquiry will no longer have access to the evidence it needs to conduct an effective investigation, and it may no longer be in the public interest for it to continue. Such scenarios are unlikely, but possible. In such cases, and other unforeseen circumstances, the Minister, after consulting the chairman, is able to bring the inquiry to a close.
29. Subsection (2) provides that the Minister may not end the inquiry retrospectively. Any proceedings up to the date the Minister notifies the chairman an inquiry is ending would be valid.
Clause 16: Power to convert other inquiry into inquiry under this Act
30. This clause enables the Minister to convert an inquiry that is not being held under the Inquiries Bill into an inquiry held under the Inquiries Bill. In recent non-statutory inquiries, including Hutton and Bichard, the chairmen have stated that if formal powers were required, these would be made available to them by effectively converting to a statutory inquiry. Three recent health inquiries (Ayling, Neale, Kerr/Haslam) were converted from being held under a general power to do anything which related to the discharge of a Minister's duties (section 2 National Health Service Act 1977) into inquiries established under section 84 of the same Act which is a specific inquiry power with powers of compulsion.
31. The Minister may convert a non-statutory or statutory inquiry provided that he is satisfied that the matter the original inquiry was investigating fell within the scope of the circumstances in subsection (2), which are the same as those set out in clause 1 of the Bill. It is not intended that this power should be used to convert other types of inquiries, such as planning inquiries.
32. The Minister may, after consulting the chairman, change the terms of reference when converting the inquiry. This means that he can ensure that they fulfil the conditions set out in clause 5. It may also be appropriate to alter the terms of reference if, for example, the inquiry is being converted because it has become clear that the scope of the original inquiry was too narrow, and a broader inquiry power is needed. The requirement to keep the relevant Parliament or Assembly advised (under clause 6) applies also to converted inquiries.
Clause 17: Inquiries converted under clause 16
33. This clause makes provision for inquiries converted under clause 16. Orders made under the original inquiry may only be enforced using powers that the inquiry had at the time of making the order. For example, if the chairman of a converted inquiry had made a request for evidence prior to conversion, he could not prosecute an individual under clause 36 for failure to comply. He would have to issue a notice under clause 22, using the inquiry's new powers of compulsion first. Once an inquiry has been converted, the appointment of the original panel members continues as if made under this Act and is subject to the provisions of clause 13.
Clause 18: Evidence and procedure
34. Subsection (3) requires the chairman to act fairly throughout the inquiry. This serves to underline the duty that already exists in the common law. In applying this duty the chairman may consider, for example, if certain participants require some form of legal advice or representation. Subsection (3) also ensures that the need to control cost is a valid consideration for the chairman when conducting and planning proceedings. The cost of inquiries will vary according to the complexity of the matters being investigated. The Minister is required, by clause 40(3), to meet expenses incurred in holding the inquiry. Each decision to admit evidence, to hold oral hearings, or to allow legal representation adds to the cost of the inquiry. The requirement to have regard to cost will strengthen the chairman's ability to defend decisions in which the need to limit costly elements of an inquiry was a factor.
Clause 19: Public access to inquiry proceedings and information
35. This clause makes clear that, subject to any restrictions issued under the following clause, the chairman is required to do what he considers reasonable to ensure public access to evidence in the ways set out in subsection (1)(a) and (b). The chairman is able to judge what is reasonable so, for example, if the panel has been sent documents that it considers to be irrelevant then the chairman may decide not to make those available with the rest of the evidence.
36. Broadcasting of inquiry proceedings is at the chairman's discretion. In the past, some inquiry chairmen have allowed broadcasting of particular stages, such as the opening statements. In deciding whether to allow broadcasting, the chairman will need to consider whether it would interfere with witnesses' human rights and, in particular, with the right to respect for a private and family life (article 8 of the European Convention on Human Rights). Unlike inquiries under the Tribunals of Inquiry (Evidence) Act 1921, inquiries under the Inquiries Bill will not be covered by section 9 of the Contempt of Court Act 1981, which places restrictions on sound recording.
37. Subsections (3) and (4) of this clause provide that, in relation to the records of inquiries held under this Bill, the general exemptions for the records of statutory inquiries in the Freedom of Information Act 2000 and the Freedom of Information (Scotland) Act 2002 ("the FOI Acts") will not apply. During the course of an inquiry held under the Inquiries Bill, that inquiry is not a public authority for the purposes of those Acts. However, once an inquiry is over, its records are generally held by a public authority, such as a Government Department or the National Archives. Clause 42 enables procedure rules to be made, which could provide for the passing of documents given to or created by an inquiry to a public authority. The exemptions in section 32(2) of the FOI Act 2000 and section 37(1)(b) of the FOI Act 2002 will not apply to information contained in those documents. This clause does not affect the application of the FOI Acts to inquiries held otherwise than under this Bill. Nor does it prevent any other exemption in the FOI Acts from applying to any information in inquiry records.
Clauses 20 & 21: Restrictions on public access etc; Further provisions about restriction notices and orders
38. These two clauses set out the extent to which inquiry proceedings can be held in private and evidence can be withheld from the public domain.
39. There may be circumstances in which part or all of an inquiry must be held in private, and over a third of the notable inquiries held in the past fifteen years have had some sort of restrictions on public access. These range from wholly private inquiries, such as the Penrose inquiry into the collapse of Equitable Life and the "Lessons Learned" (Foot and Mouth) Inquiry, to mainly public inquiries such the Bloody Sunday inquiry and the Hutton inquiry, in which a small amount of highly sensitive material was withheld from the public domain.
40. In some past inquiries, it has been the Minister who has specified restrictions, whereas in others the chairman has set the restrictions. Clause 20 allows for both. It replaces a range of statutory provisions on public access in the legislation that is repealed by schedule 2 including, for example, s. 81 of the Children Act 1989, which states:
41. Public access to past inquiries has been restricted for a variety of reasons. Clause 20(4) sets out a number of matters that must be taken into account when determining whether it is in the public interest to issue a restriction notice or order. Most of these factors are self-explanatory.
42. Clause 20 (4)(c) is intended, among other things, to cover cases in which a person has received information that he would usually be prevented by law from disclosing. For example, the Financial Services Authority receives sensitive information about firms in its role as a regulator, but is prevented from disclosing that information generally by Part 23 of the Financial Services and Markets Act 2000. Inquiries' powers of compulsion would override those restrictions, but it might be appropriate for the chairman or Minister to consider preventing the information from being disclosed more widely.
43. Clause 20(4)(d) recognises that some inquiries might be conducted more efficiently or effectively with restrictions on public access. Several recent inquiries under section 84 of the NHS Act 1977 have been held partially in private, with relatives and participants admitted but not the general public.
44. Restrictions that could be imposed on attendance under subsection (1)(a) of clause 20 might range from the exclusion of the press or general public (allowing those with an interest in the inquiry to attend, as was the case in the Ayling and Neale inquiries) to the exclusion of everyone except the panel, the witness and, if appropriate, their legal representatives (as happened in the Penrose inquiry into the collapse of Equitable Life). They might be imposed on all hearings, or only where a particular witness was giving evidence or where evidence was heard on a specified topic. The nature of the restriction would depend upon the reasons for it. Similarly, a range of different restrictions might be imposed on the disclosure or publication of evidence or documents.
45. Nothing in clause 20 is intended to prevent a witness from passing on evidence that he himself has given to an inquiry either whilst inquiry proceedings are ongoing or after the inquiry has ended to do so. However, there might be situations in which restriction under clause 20 could prevent a person from passing on information that he has learnt as a result of his attendance at, or involvement in, the inquiry. If the powers in this clause are exercised in any way that engages Article 10 of the European Convention on Human Rights then of course that exercise must be done in a way which complies with article 10(2) of the Convention.
46. Clause 21 allows the Minister and chairman to issue further restrictions and to vary or revoke their own restrictions at any time before the end of the inquiry. The Minister cannot vary or revoke the chairman's restrictions and vice versa. There is, however, nothing to stop the chairman from asking the Minister to consider exercising his discretion to vary a notice. The power to vary notices and orders will allow for situations in which it becomes apparent that more information can be made public than was originally envisaged, or that more people can be given access to information than allowed by the original notice, as well as any situations in which it becomes apparent that further restrictions are necessary.
47. Clause 21 provides that, except in relation to inquiry records, restriction notices and orders continue indefinitely unless otherwise specified or unless they are revoked. Orders restricting attendance will only be relevant during the course of the inquiry, but some orders restricting disclosure or publication of evidence might need to continue beyond the end of the inquiry. For example, if an inquiry chairman issued an order that the identity of a particular witness was to be kept confidential, because the witness could be at risk if his identity were disclosed, that order would need to continue to protect that witness after the inquiry had ended.
48. Subsection (6) is designed to ensure that restrictions do not create a barrier to disclosure of information from inquiry records under the FOI Acts. In addition to this, subsection (7) allows the Minister to relax or revoke restrictions after the end of an inquiry. This is to ensure that any restrictions still in place (which apply to information other than in inquiry records) can be removed if they become unnecessary.
49. Disclosure restrictions would not prevent a person not involved in the inquiry from disclosing or publishing information that had come into his possession through means unconnected with the inquiry, even if some of that information might be included in documents or hearings that were covered by a restriction order or notice.
50. For example, suppose that an inquiry were set up into the death of a hospital patient, and that a restriction notice were issued to exclude the general public from the proceedings and to prevent the publication of transcripts of evidence, because it was considered that a partially private inquiry would be more effective. The inquiry might consider information already in the public domain, such as papers from the inquest, or statements of hospital policy. The fact that a restriction notice was in place for the inquiry would not prevent a member of staff at the hospital from providing a patient with a copy of the hospital policy.
51. To take another example, suppose that a Government department provided information to a private inquiry and that, after the end of the inquiry, a request were made under the Freedom of Information Act 2000 for some of that information. The Department could not refuse to provide the information purely because it happened to have been covered by the restriction notice, because the Department would have held that information even if the inquiry had never happened. The purpose of a restriction notice is just to restrict disclosure of information in the context of the inquiry or to restrict disclosure by those who have received the information only by virtue of it being given to the inquiry.
|© Parliamentary copyright 2005||Prepared: 4 March 2005|