Clause 22: Powers of chairman to require production of evidence etc

52.     This clause provides inquiries with statutory powers to compel evidence. The powers are exercisable by the chairman, but in a multi-member inquiry he will be exercising them on behalf of the panel. It is envisaged that most requests for information from an inquiry panel will not be made under clause 22. An inquiry panel will usually ask for information informally first, and experience from past inquiries has shown that the vast majority of informal requests will be complied with. There are three main scenarios in which powers of compulsion are likely to be used:

(i)     a person is unwilling to comply with an informal request for information;

(ii)     a person is willing to comply with an informal request, but is worried about the possible consequences of disclosure (for example, if disclosure were to break confidentiality agreements) and therefore asks the chairman to issue a formal notice; or

(iii)     a person is unable to provide the information without a formal notice because there is a statutory bar on disclosure.

53.     Clause 22(4) covers two reasons for which a person might refuse to comply with a notice issued under powers of compulsion. Subsection (4)(a) would cover circumstances when the person was unable to comply, for example, if he did not have the information being requested. Subsection (4)(b) is designed to cover situations in it would be unreasonable to expect a person to comply. For example, this might be because the difficulty, time or expense involved in providing the information would be so great that a person could not reasonably be expected to do so. For example, if an inquiry chairman gave a notice requesting that an organisation produce every document it had on a particular topic within two weeks, and the organisation would have to search through thousands of files to comply, the organisation might make a claim under clause 22(4)(b). The chairman would then consider, under clause 22(5), whether the public interest in obtaining the information within that timeframe outweighed the cost, bearing in mind how important the information was likely to be. He might choose to vary his notice by extending the deadline, narrowing the categories of information being asked for, or by specifying that the organisation only need to search certain sites for the information. Clause 22(4)(b) could also cover situations in which it would not be reasonable to expect a person to provide evidence because the evidence is unlikely to be of material assistance to an inquiry.

54.     On occasion, it is possible that the evidence being requested will be an intercepted communication. To ensure that such material can be disclosed to the inquiry, there is an amendment in paragraph 21 of Schedule 2 to the Bill to ensure that this is permissible under section 18 of the Regulation of Investigatory Powers Act 2000.

Clause 23: Privileged information etc

55.     Clause 23(1) ensures that witnesses before inquiries will have the same privileges, in relation to requests for information, as witnesses in civil proceedings. In particular, this means that a witness will be able to refuse to provide evidence:

(i)     because it is covered by legal professional privilege;

(ii)     because it might incriminate him or his spouse or civil partner (by virtue of section 84 the Civil Partnerships Act 2004); or

(iii)     because it relates to what has taken place in Parliament.

56.     In some recent inquiries, the Attorney General has given undertakings along the following lines:

"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."

57.     If such an undertaking was given, it would be difficult for an individual to refuse to answer certain questions by claiming the privilege against self-incrimination. As for subsection (1)(b), in certain circumstances European Community law may prevent a person from disclosing information to others. An example of this is article 30 of the Directive of the European Parliament and of the Council of 20 March 2000 relating to the taking up and pursuit of the business of credit institutions, which is commonly known as the Banking Consolidation Directive.

58.     Clause 23(2) provides expressly that it will be possible to make in an inquiry, as it is in civil proceedings, an assertion that documents or information should be withheld from the inquiry (or from public disclosure) on the grounds that they are immune from disclosure in the public interest ("public interest immunity" or PII). Such applications have been made to inquiries in the past, including the Bloody Sunday Inquiry, for example, on the grounds that disclosure of the information would be prejudicial to national security. The Government's policy on claiming PII is that Ministers will claim PII only when it is believed that disclosure would cause real damage or harm to the public interest and that this outweighs the public interest in open justice. A claim for PII should be made by the person whose duty it is to protect the information (which need not necessarily be the Crown) supported by evidence (usually in the form of a witness statement or ministerial certificate) that disclosure would cause real damage or harm to the public interest. It is then the responsibility of the inquiry panel, having viewed the documents or information, to balance the public interest in disclosure against the public interest in maintaining confidentiality. Having carried out that "balancing exercise", the inquiry must decide whether to uphold the claim for immunity and, if so, on what terms. The inquiry panel may decide that the information may be withheld, or that it be disclosed in whole or in part (after "redaction").

59.     Clause 36(4) makes clear that a person who does not produce evidence to an inquiry because it is covered by clause 23 is not committing any of the offences created in that clause relating to distortion, suppression or destruction of evidence. In the case of a refusal to comply with an order of the inquiry on the ground that the evidence was covered by clause 23, this could also be relied on as a "reasonable excuse" under clause 36(1) for failure to comply with an order of the inquiry.

60.     The House of Lords has recently made it clear in its decision in Three Rivers v Bank of England [2004] UKHL 48 that legal advice privilege applies in relation to advice given to witnesses in the context of an inquiry. Such privilege extends to advice given about the presentation of evidence, since it is given within a relevant legal context. There is therefore no need for an express provision relating to the application of legal professional privilege to inquiries in the legislation.

Clause 24: Risk of damage to the economy

61.     Although an application under clause 24 can be made only by those acting on behalf of the bodies specified (the Crown, Financial Services Authority or Bank of England), it can be made in respect of information held by any person. The inquiry panel will carry out a balancing exercise between the public interest in the information being revealed to the public and to other participants and the public interest in avoiding a risk of damage to the economy. If the inquiry panel considers that the public interest in avoiding the risk of damage to the economy outweighs the public interest in disclosure, it will be able to take this material into account in its deliberations but will not be able to refer to the material (or its existence) publicly. Clause 24 does not impact upon the general principles of public interest immunity, but exists in addition to them.

INQUIRY REPORTS

Clause 25: Submission of reports

62.     Clause 25 places a duty on the chairman of an inquiry to report its conclusions to the Minister. If an inquiry has been brought to an end early under clause 15(1)(b), the chairman does not have to produce a report but he can do so if he wishes. In the unlikely event that a member of the inquiry panel disagrees with the general conclusions to such a great extent that no amount of modification under clause 25(5) will produce a report that he is content to sign, he can release himself from the obligation, under subsection (4), to sign it by resigning from the panel.

Clause 26: Publication of reports

63.     Subsection (4)(a) would allow, for example, the person publishing the report to redact personal information (such as medical reports) as required by the Data Protection Act 1998. The factors that the person publishing the report must take into account, when considering whether any redaction is in the public interest under subsection (4)(b), are equivalent to those for restriction notices (see clause 20(4)), except for the references to cost, effectiveness and efficiency of the inquiry, which are no longer relevant in the context of reports.

Clause 27: Laying of reports before Parliament or Assembly

64.     The report published under clause 26 will be the same version required to be laid before the relevant Parliament or Assembly.

SCOTLAND, WALES AND NORTHERN IRELAND

65.     This group of clauses deals with the respective powers of United Kingdom Ministers, of Scottish Ministers, of the National Assembly for Wales and of Northern Ireland Ministers to set up inquiries under this Bill. The Bill allows Ministers in each administration to set up inquiries in their administration's own areas of responsibility but contains limitations, set out in clauses 28 to 31, which reflect the terms of each devolution settlement.

Clause 28: United Kingdom Inquiries

66.     This clause provides that a Minister setting up a United Kingdom inquiry cannot include anything in the terms of reference that would require the inquiry to receive any evidence or make any recommendations that are wholly or primarily concerned with a Scottish, Welsh or Northern Ireland matter without consulting the devolved administrations first. It is envisaged that UK Ministers will not usually set up inquiries into devolved matters without the agreement of the relevant devolved administration and that Ministers will consider whether a joint inquiry between the two administrations would be appropriate instead.

67.     The clause also places similar constraints on the use of powers of compulsion into devolved matters. If the terms of reference covered devolved areas (and the Minister had therefore already consulted the devolved administration under subsection (2)), the Minister might also need to give the inquiry permission to use its powers of compulsion in all the devolved areas that would be covered by the terms of reference.

68.     Even if the terms of reference mentioned only reserved areas (and no consultation had been necessary under subsection (2)), the panel might consider that it is necessary to take evidence on certain devolved matters in order to fulfil them. For example, suppose that a United Kingdom inquiry had been established to investigate an incident relating to gun control. The inquiry might need to take medical evidence from a Scottish hospital in relation to injuries caused. If the panel believes the evidence is relevant to its terms of reference, it is entitled to consider it, provided that the hospital is willing to provide it. Similarly (see clauses 29, 30 and 31 below) devolved inquiries are entitled to take evidence on reserved and excepted areas (except as prohibited by clause 31(7)) provided it is relevant to the terms of reference and is willingly given. However, there might be occasions when a person is unable or unwilling to provide evidence without a notice under clause 22, compelling him to do so. For United Kingdom inquiries, this is dealt with by clause 28(3). (A different approach is taken for the devolved administrations, and is described in the notes on clause 29.) The inquiry can apply to the Minister for permission to use its powers of compulsion in devolved areas. Before granting permission, the Minister would have to consult the devolved administration. It is envisaged that UK Ministers will not usually grant permission without the agreement of the relevant devolved administration.

69.     Subsection (6) is needed to prevent a possible gap in coverage between the powers of inquiries set up by UK Ministers and by Northern Ireland Ministers, which arises out of the way in which "Northern Ireland matter" has been defined. This is explained in the notes on clause 31.

Clause 29: Scottish Inquiries

70.     As explained above, a Scottish inquiry may take evidence on reserved matters, if the panel considers that it is relevant to the terms of reference. However, it cannot compel that evidence, except in so far as it is allowed by subsection (3). Subsection (3)(b) has the effect of allowing Scottish inquiries to compel evidence on reserved matters if this is for the purpose of inquiring into something that is wholly or primarily a Scottish matter. The reasons for this power are best illustrated by an example. Suppose that the Scottish Ministers were to establish an inquiry into the environmental effects of flooding in Scotland and that one of the causes of flooding in Scotland is the leakage of polluted water from coal mines. The inquiry might wish to compel the production of documents held by a coal mining company relating to the operation of the water pump in its coal mine. However, coal mining is a reserved matter (clause D3 of Part 2 of Schedule 5 to the Scotland Act 1998) and the documents are therefore concerned with a reserved matter. It would be difficult to say that a document prepared by a coal mine operator into the routine maintenance of its water pumps, which most likely would have been prepared long before the events giving rise to public concern occurred and without any anticipation of the events that occurred, were wholly or primarily concerned with the devolved matter of environment.

71.     However, it would not be possible for a Scottish inquiry to compel evidence under subsection (3)(b) from any member of the United Kingdom Government (including Government Ministers and the Departments acting on their behalf), or of the other administrations, because of the prohibition in subsection (4).

Clause 30: Welsh inquiries

72.     The provisions on Welsh inquiries mirror those on Scottish inquiries as explained above.

Clause 31: Northern Ireland Inquiries

73.     The provisions on Northern Ireland inquiries are similar to those on Scottish inquiries described above, but reflect the differing circumstances of Northern Ireland and its devolution settlement.

74.     The definition of "Northern Ireland matter" in clause 31(8) covers some reserved matters in relation to which Northern Ireland Ministers have functions (see paragraph (b)), as well as transferred matters. However, clause 31(6) creates some exceptions to the circumstances in which Northern Ireland inquiries can exercise their powers of compulsion in relation to those matters, in order to make the scope of inquiries' powers equivalent to the scope of the Northern Ireland Assembly's powers to summon witnesses and compel evidence. Since those exceptions are in clause 31(6), rather than in the definition of "Northern Ireland matter", clause 28(6) is needed to ensure that they are not also excluded from the scope of inquiries established by United Kingdom Ministers.

75.     In addition to the general restrictions on terms of reference and powers of compulsion, subsection (7) provides that an inquiry established by a Northern Ireland Minister must not receive evidence or make any recommendations on matters falling within paragraph 17 of Schedule 2 to the Northern Ireland Act 1998, which deals with national security.

76.     Whilst there is a suspension of devolved government in Northern Ireland, functions conferred on a Northern Ireland Minister may be discharged by the Secretary of State for Northern Ireland, by virtue of clause 46.

Clause 32: The relevant part of the United Kingdom and the applicable rules

77.     Subsection (1) provides that when an inquiry is set up, the Minister or Ministers who established it must specify what is "the relevant part of the United Kingdom" for the purposes of those provisions of the Bill that use this expression. This will determine, for example, which law on privilege will apply and which court should have the powers to enforce orders of the inquiry (see clause 23(2)). It will not necessarily correspond to the administration setting up the inquiry. For example, if a United Kingdom Ministers were to establish an inquiry into a reserved matter in Scotland, which conducted its hearings mainly in Scotland, it would make sense for the relevant part of the United Kingdom to be Scotland. The relevant part of the United Kingdom will usually be the part in which the inquiry is being held, but it is possible that an inquiry may have several venues so for clarity it is important that the Minister or Ministers specify which part it is to be.

78.     Subsection (2) applies (typically) where there is an inquiry involving two administrations each of which has made rules under the power conferred by clause 42. It requires the Ministers responsible for the inquiry to specify which set of rules is to apply. For example, in the case of a joint inquiry set up by a United Kingdom Minister and the Scottish Ministers, the Ministers might specify the rules made by the Lord Chancellor or the rules made by the Scottish Ministers, or some of each. Subsection (4), on the other hand, gives power to a United Kingdom Minister setting up an inquiry into non-devolved matters in, say, Scotland to specify not only that the relevant part of the United Kingdom is Scotland but also that some or all of the rules applicable to the inquiry are to be rules made by the Scottish Ministers.

INQUIRIES FOR WHICH MORE THAN ONE MINISTER RESPONSIBLE

Clause 33: Joint Inquiries

79.     In practice, this clause would probably be used in situations where the subject matter of the inquiry fell within the responsibilities of more than one Minister). For example, the Victoria Climbi, inquiry was established by the Home Secretary and the Secretary of State for Health. Sometimes, a joint inquiry might involve Ministers from more than one administration. For example, if devolution had been in place at the time of the Dunblane inquiry, which related both the firearms (a reserved issue) and safety in schools (a devolved one), the Scottish and UK Ministers might have chosen to set up a joint inquiry. Inquiries involving more than one administration are dealt with in more detail in the next clause.

Clause 34: Inquiries involving more than one jurisdiction

80.     This clause applies specifically to joint inquiries for which the responsibility is shared between two (or more) administrations - for example a joint inquiry set up by a United Kingdom Minister and the Welsh Assembly, or even a joint inquiry set up by the Scottish Ministers and the Northern Ireland Assembly. (The wording of subsection (1) reflects the fact that there are several United Kingdom Ministers and several Northern Ireland Ministers, whereas the Scottish Ministers and the National Assembly for Wales are each a single legal entity.)

81.     This clause sets out how the restrictions on terms of reference and powers of compulsion will work. Subsection (2) means that the terms of reference of the joint inquiry can cover matters that any one of the relevant Ministers would be able to establish an inquiry into. For example, the terms of reference of a joint inquiry established by Scottish Ministers and the National Assembly for Wales could require the inquiry to receive evidence or make recommendations that are wholly a primarily concerned with a Welsh or Scottish matter, but not on anything else. The terms of reference of a joint inquiry established by United Kingdom Ministers and Scottish Ministers could require the inquiry to receive evidence or make recommendations about anything not wholly concerned with a Welsh or Northern Ireland matter, and could extend to Welsh and Northern Ireland matters only if the UK Minister had first consulted the relevant administrations. The restrictions on powers of compulsion will operate in the same way.

Clause 35: Change of responsibility for inquiry

82.     This clause might be used if it became clear, during the course of the inquiry, that its focus was more properly within the responsibilities of a Minister other than the commissioning Minister. For example, if a United Kingdom Minister had established an inquiry into events in Scotland that was expected to examine primarily reserved matters, and it subsequently became clear that there were significant implications for devolved matters, the establishing Minister might agree with the Scottish Ministers to share responsibility for the inquiry, making it an inquiry to which clause 34 applied. This clause might also be used to pass responsibility for an inquiry from one Minister to another within the same administration.

     SUPPLEMENTARY

Clause 36: Offences

83.     This clause provides sanctions for non-compliance with an inquiry, or for actions that are likely to hinder the inquiry. The offences created are similar to some of those created by section 250 of the Local Government Act 1972, which have been applied to a number of different types of inquiry in the past, including some under powers being repealed by this Bill.

84.     The offences created in this clause are summary offences and would be dealt with by magistrates (or, in Scotland, in the Sheriff or District Court). The maximum penalty given is the maximum for summary offences. Level three on the standard scale is currently £1000 (but see clause 40 of the Management of Offenders and Sentencing Bill introduced in the House of Lords on 12^th January 2005). The maximum term of imprisonment for summary offences is currently six months, but it will be extended to 51 weeks in England and Wales once section 281(5) of the Criminal Justice Act 2003 is commenced. Clause 45(3) ensures that the maximum term will be read as six months before that section is commenced.

85.     In particular clause 36(1) makes it an offence to fail, without a reasonable excuse, to comply with a formal notice requiring attendance at the inquiry or the production of evidence. Subsections (2) and (3) go wider, making it an offence to deliberately distort or conceal relevant evidence. These clauses are drafted in such a way that it should not be possible for a person to commit an offence unwittingly (for example, by destroying a document that he does not realise is relevant). Subsection (4) ensures that a person does not commit an offence under subsection (2) or (3) if he is withholding evidence because he is allowed to do so by clause 23 or, for example, if the evidence is covered by legal professional privilege. Subsection (4) also ensures that offences for suppressing or distorting evidence do not cover actions authorised by the panel (for example conducting a forensic test on a piece of evidence). The fact that the evidence was covered by clause 23 or a privilege could also be relied on as a "reasonable excuse" under subsection (1).

86.     In England and Wales and Northern Ireland, only the chairman can institute a prosecution for non-compliance with a notice issued under powers of compulsion. This is because it is for the chairman to decide whether to enforce notices issued under his powers of compulsion, and how best to do this. He has two possible options: prosecution for an offence under clause 36 or enforcement of the notice by the appropriate court under clause 37. It is considered to be undesirable for someone else to be able to begin a prosecution under clause 36 when the chairman has decided instead to certify the matter to the High Court (or equivalent) under clause 37.

87.     Prosecutions for offences under subsection (2) and (3) may be brought only by or with the consent of the Director of Public Prosecutions in England, Wales and Northern Ireland. This serves to ensure that it is not open to those with an interest in the outcome of the inquiry to bring private prosecutions against witnesses with whose evidence they disagree. It also ensures that prosecutions can be brought after the inquiry has ended (which would not be the case if the chairman had to bring them). Some offences of this nature might come to light only after the end of an inquiry. In Scotland, prosecution of any offence is the responsibility of the Crown Office and Procurator Fiscal Service.

Clause 37: Enforcement by High Court or Court of Session

88.     This clause provides for an appropriate court (the High Court or Court of Session) to enforce notices issued under powers of compulsion, restriction notices and any orders of the inquiry, including restriction orders. Where a person breaches a notice or order, or threatens to do so, the chairman of the inquiry (or the Minister, after the end of the inquiry) can certify the matter to the court, which can then take steps to enforce the order. This is similar to the mechanism that would have been used to enforce orders issued under the Tribunals of Inquiry (Evidence) Act 1921.

89.     In the case of notices issued under powers of compulsion in clause 22, enforcement by the appropriate court is an alternative mechanism to prosecution, and could be used in cases where a prosecution might not be the best method of obtaining the relevant evidence. However, the court could also be asked to enforce a wider range of orders, for example, to prevent someone revealing the name of a witness whose identity was covered by a restriction order. This example could occur after the end of an inquiry, when the chairman is no longer in a position to certify the matter to the court, so clause 37 provides for the Minister to certify matters to the court after the end of the inquiry.