|Inquiries Bill [HL] - continued||House of Commons|
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Clause 38: Immunity from suit
90. This clause provides immunity for the inquiry panel, the inquiry's legal advisers and assessors, and other people engaged to assist it, from any civil action for anything done or said in the course of carrying out their duty to the inquiry. Subsection (1) will change the current practice whereby sponsor Departments usually have to provide indemnities to the inquiry, which can cause delays at the beginning of an inquiry. The lack of such protection was identified as an undesirable omission in the Tribunals of Inquiry (Evidence) Act 1921 in the report of the Royal Commission on Tribunals of Inquiry in 1966 (the "Salmon Report").
91. This clause also provides that witness statements and inquiry reports will be covered by the same privilege, for the purposes of defamation law, as proceedings before a court. This privilege was already afforded to witnesses under the Tribunals of Inquiry (Evidence) Act 1921 but not under some subject-specific legislation.
92. The aim of this clause is to reduce the time limit for judicial reviews of decisions that could delay an inquiry. This is because the prospect of a challenge to a procedural decision can halt the inquiry until it has been resolved by a court. For example, a challenge regarding a decision as to whether a witness could give evidence anonymously (perhaps to ensure his right to life was protected) would mean that the inquiry could not require evidence from that individual until the court had decided the matter. This time limit does not extend to challenges about the contents of reports or interim reports.
93. Unlike that in the Civil Procedure Rules, the time limit set by this clause runs from the date on which an applicant became aware of the decision, not from the date on which the decision was made. Subsection (2) ensures that this change cannot serve to increase the time limit beyond the standard time limit in the Civil Procedure Rules or the Northern Ireland equivalent.
Clause 40: Payment of inquiry expenses by Minister
94. This clause sets out what the establishing Minister is obliged to fund and what he has discretion to fund.
95. Under subsections (4) and (5), the Minister is not obliged to fund activities that he has certified to the panel as being outside the inquiry's terms of reference.
96. The withdrawal of funding may be temporary and the Minister will resume funding if he is satisfied the inquiry is working back within the terms of reference. It is envisaged that any withdrawal of funding would only occur in exceptional circumstances. The Minister would be expected to notify the chairman if he had any concerns that the inquiry was working outside terms of reference, giving the inquiry an opportunity to address those concerns and avoid the need to remove funding.
97. Under subsection (6), the Minister is required to publish the total amount that he has paid for the inquiry under clause 40. This requirement to publish costs would not cover all those costs to which the chairman must have regard under clause 18(3), such as costs borne by witnesses themselves.
Clause 41: Expenses of witnesses etc
98. Legal costs of participants often constitute the most significant part of the total cost of an inquiry. The non-statutory position adopted in recent inquiries has been for the Minister to decide, in consultation with the chairman, to fund those participating in the inquiry who are considered to have such a direct interest in the inquiry that they require representation but who may be unable to pay for representation themselves. The Government would not normally meet the costs of large organisations. This clause enables this practice to continue. The chairman automatically has the power to pay costs, but the Minister can place qualifications on that power. The Minister will generally set out any broad conditions under which payment may be granted, and the chairman will then take the individual decisions.
99. The legal costs of Government witnesses might be met by the sponsoring department under the mechanism set out in this clause, but not necessarily. If the witnesses were from a different department, their own department might pay for their representation, putting them in the same position as any other large organisation, to whom the inquiry would not usually grant funding.
Clause 42: Rules
100. It is envisaged that the Lord Chancellor will make procedural rules for United Kingdom inquiries under this clause. There is however no requirement for such rules to have been made before an inquiry may be established under the Bill.
101. Subsection (2) enables rules to make provision for assessment of costs by a Costs Judge, among other things.
102. It is for the devolved administrations to make rules for their own inquiries. The rules will generally be subject to annulment by the relevant legislative body, as explained in subsections (5) and (6). However, there is no need for subsection (5) to make provision for Wales, because sections 66(2) and 67(3) of the Government of Wales Act 1998 set out the procedures for all general subordinate legislation made by the National Assembly for Wales.
103. These clauses are self-explanatory.
Clause 45: Transitory, transitional and saving provisions
104. Clause 45 contains provisions for inquiries that have been set up under legislation that is being repealed by the Bill. It will ensure, for example, that inquiries set up before this Bill was introduced will not be affected by the provisions contained in this Bill and will be able to continue as if the old legislation were still in place. It also provides that a Minister may still in the future set up an inquiry in ways other than under this Bill, whether on a statutory basis or otherwise.
105. This clause ensures that during suspension of devolved government, the Secretary of State for Northern Ireland can exercise the powers of Northern Ireland Ministers to establish Northern Ireland Inquiries under clause 31 and to make rules of procedure under clause 42. The Secretary of State will be consulted, in place of the Northern Ireland Ministers, when consultation is required under clause 28 or clause 52.
Clause 47: Inquiries under the Financial Services and Markets Act 2000
106. This clause amends section 14 of the Financial Services and Markets Act 2000 ("FSMA") which provides a mechanism for the Treasury to appoint a person to hold an independent inquiry in various circumstances relating to the regulatory framework. The amendment is intended to extend the possible scope of inquiries under FSMA to cover failings in the previous regulatory system (albeit only where the events triggering the inquiry have occurred after December 2001). References to subsections below are to those of section 14 of FSMA.
107. An inquiry may be held include two types of cases. The first case, set out in subsection (2), relates to events concerning persons carrying on regulated activities or collective investment schemes. To trigger the power, it must appear to the Treasury that two conditions are met. The first of these is that the events posed, or could have posed, a grave risk to the financial system, or that they caused, or could have caused, significant damage to the interests of consumers. The second condition is that a serious failure in the regulatory system, or in the operation of that system, might have caused or exacerbated the risk or damage, or potential risk or damage.
108. The second case, set out in subsection (3), relates to events concerning the listing function under Part VI FSMA and significant damage to holders of listed securities. Here the Treasury must be concerned with the damage, or potential damage, that might have been caused by a serious failure in the listing regime or its operation.
109. In both cases, the power to arrange an inquiry relates to serious failure in the regulatory system established by FSMA. Subsections (2) and (3) of the clause expand the scope of subsections (2) and (3) to include serious failure in the regulatory system under predecessor legislation, albeit that the event triggering an inquiry (e.g. grave risk to the financial system or significant damage to consumers) is subject to a separate requirement (see below).
110. Subsection (4) of this clause inserts a new subsection (5A). This provides that an inquiry cannot be triggered where events described in subsection (2) and (3) occurred before 1 December 2001. An inquiry into similar events after 1 December 2001 could though consider circumstances surrounding these events, regardless of when these circumstances occurred.
111. This clause amends the Interpretation Act (Northern Ireland) 1954 which applies the powers set out in Schedule 8 to the Health and Personal Social Services (Northern Ireland) Order 1972 (referred to below) to inquiries and investigations set up by Ministers. Schedule 8 is being repealed by this Bill. Subsection (2), which introduces Schedule 1 to the Bill, ensures that any legislation under which these powers have been implicitly given to inquiries by virtue of the Interpretation Act (Northern Ireland) 1954 will be unaffected.
Clause 49: Minor and consequential amendments
112. Schedule 2 to this Bill contains minor and consequential amendments to other legislation. Many of the amendments are to pieces of legislation relating to other types of inquiry that explicitly incorporate the powers in Schedule 8 to the Health and Personal Social Services (Northern Ireland) Order 1972, which is being repealed by this Bill. The relevant provisions of that order are reproduced in a new schedule to the Interpretation Act (Northern Ireland) 1954 which is inserted by Schedule 1 to the Bill, so that they can continue to apply to the legislation that will remain in force.
Clause 50: Repeals and revocations
113. This clause repeals the Tribunals of Inquiry (Evidence) Act 1921 and also introduces Schedule 3. The provisions being repealed in Schedule 3 are mainly ministerial powers to hold inquiries that could, in future, be established under the Inquiries Bill.
Clause 51: Crown application
114. This clause ensures that the Bill binds the Crown, so that the powers conferred on inquiries by this Bill can be exercised in relation to Government Departments.
115. These clauses are self-explanatory.
116. The Inquiries Bill does not necessitate any additional public expenditure or changes to public service manpower. Under this Bill, as is the case at present, the Government department that is responsible for sponsoring the inquiry will meet its running costs. It is not possible to predict the number or cost of future inquiries, since these are determined by factors outside the control of Government, but it is not intended that the Bill will increase the number of inquiries. The Bill includes provisions to enable inquiries to be conducted more cost effectively.
COST TO BUSINESS AND REGULATORY IMPACT
117. The Regulatory Impact Assessment for the Bill concluded that the legislation would not directly impact upon business, charities or the voluntary sector.
118. There will be no immediate cost implications associated with the Inquiries Bill; any implications would only take effect when an inquiry was established under the legislation. The Bill includes specific provisions designed to reduce the potential for excessive cost and delay.
119. The Bill has no competition implication. The Bill does not affect any particular market or firms. No impact on small business has been identified.
120. The Regulatory Impact Assessment for this Bill has been placed in the libraries of both Houses and on the web-site of the Department for Constitutional Affairs.
121. The provisions in the Bill will come into force on a day appointed by the Lord Chancellor by order, after consultation with the devolved administrations (see clause 52).
EUROPEAN CONVENTION ON HUMAN RIGHTS
122. Convention issues arise in relation to a number of provisions in the Inquiries Bill.
123. In terms of Article 6, case law confirms that an inquiry process as a whole does not determine civil rights or obligations, or criminal charges. Article 6 rights are not therefore engaged. An inquiry will not be directly decisive of any dispute and any findings of fact will not have any authoritative status. Clause 2 confirms that an inquiry cannot determine anyone's civil rights or obligations or criminal charge.
124. Clauses 20 and 21 make provision for restrictions to be placed on public access to an inquiry and the disclosure of information in certain circumstances. Clause 26 allows material to be withheld from publication in the report in certain circumstances. Clause 19(2) governs the circumstances in which inquiries can be broadcast. Each of these clauses permits certain restrictions on the dissemination of information available to the inquiry to the public. The European Court of Human Rights has accepted that Article 10 includes a right to impart and receive information but no right to gain access to information, so in this respect Article 10 rights are not engaged by clauses 20, 21 and 26. However, Article 10 would be engaged if a person was prevented by the restriction notice from disclosing information which was learnt from the evidence another person gave to the inquiry. In such circumstances, restrictions will only occur where they could be justified under Article 10(2).
125. In relation to broadcasting considerations differ in certain respects. Clause 19(2) does not create any sort of presumption that proceedings will be broadcast. The matter is entirely within the discretion of the chairman. A ruling made in the course of the Shipman inquiry by its chairman supports the position that Article 10 does not create a presumptive right for any person to film the proceedings.
126. Furthermore, the provisions within clauses 20 and 26 are considered to be necessary to ensure that the powers of compulsion within clause 22 can be properly exercised. Clause 22 empowers the chairman to compel people to attend and provide evidence and to produce documents and/or things. Clause 19(1) places certain obligations on the chairman to facilitate public access to the inquiry and evidence, subject to restrictions. If powers of compulsion are exercised, circumstances could arise in which Article 8 rights are engaged, depending on the nature of the evidence which is requested. Where the evidence is given in public, or subsequently published, any such interference will be more acute. The power to restrict access or publication will enable the chairman to exercise powers of compulsion in a way proportionate to the legitimate aims in Article 8(2).
127. Powers of compulsion are given to inquiries in the Tribunals of Inquiry (Evidence) Act 1921 and other subject-specific statutes which will be repealed by the Bill. The powers of compulsion in the Bill are intended to allow an inquiry to fulfil its terms of reference in the public interest. A chairman may only exercise powers of compulsion within the inquiry's terms of reference (clause 5(5)) and in accordance with the provisions of the Bill. Safeguards are provided which ensure that the chairman can only exercise his or her powers of compulsion where necessary in order to fulfil the legitimate aims defined under Article 8(2) and must do so in a proportionate manner. A person may claim that he cannot, or reasonably be expected to, comply with a request and in deciding whether to revoke or vary the request the chairman must take into account the public interest. Any interference with Article 8 rights will be justifiable if it is a proportionate means of pursuing the legitimate aims within Article 8(2).
128. The state's positive obligation to ensure protection for Article 2 rights includes an obligation to hold an effective, official investigation into a death where state involvement in that death is suggested. It may be that an inquiry under this Bill will be held in order to contribute to the fulfilling of this obligation. If so, the provisions of clause 22 will be a necessary tool.
129. Rights under Article 1 of the First Protocol may be engaged in connection with clauses 13 and 22. Clause 13 allows the Minister to terminate the appointment of a panel member, thereby depriving him or her of remuneration. Any interference with Convention rights will be justifiable if it is in the public interest and proportionate to the legitimate aim of ensuring that those serving on any panel are capable of doing so and do not have interests which conflict with their duties as a panel member. It is considered that the restrictions on removal within clause 13 provide sufficient safeguards against an unjustifiable interference. The safeguards within clause 22 ensure that the chairman will be able to exercise his or her powers of compulsion in a way which is proportionate to the legitimate aim of clause 22, which is to enable an inquiry to carry out its terms of reference in the public interest. The powers must only be exercised in accordance with the provisions in the Bill and to the extent necessary to carry out its terms. A person can apply for a request to be varied or revoked and the chairman must take into account the public interest in considering this request.
130. Clause 38 provides immunity from suit for panel members, lawyers, assessors and assistants to the inquiry. This provision does not engage any Article 6 rights as it amounts to a substantive limitation on a cause of action, rather than a procedural bar.
131. Rights under Article 6 may be engaged in relation to clause 39, which imposes a 14 day time limit in respect of an application for judicial review of a decision made in the course of an inquiry (except in Scotland). The court is given a discretion to extend the time limit. Case law establishes that time limits can be justified and do not necessarily breach Article 6 rights. There is a public interest in an inquiry coming to its conclusions, so as to address the matter of public concern which has been referred to it, within a reasonable time. It is considered that the reduction of the usual 3 month time limit for judicial review applications strikes a fair balance between the interests of potential applicants for judicial review and the wider public interest.
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