House of Commons - Public Administration

Select Committee on Public Administration First Report

7 Ensuring a role for Parliament

216. The Government stated "[I]t 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".[354] This responsibility is incorporated into the Inquiries Bill, currently before Parliament. However, it may result in a failure to set up an inquiry when there is a strong, but perhaps politically inconvenient, case for doing so. For example Sir Andrew Turnbull, the Cabinet Secretary revealed that Ministers had no appetite for an inquiry over Iraq. "There was a discussion, but the idea was dismissed pretty quickly. The Prime Minister and Ministers did not want an inquiry, did not think it was necessary. They thought they had set out their case to Parliament".[355] As Lord Heseltine told the Committee, where issues relate to the machinery of government, ministers "will only concede the inquiry if they are forced, or it suits them".[356] The Government's answer to the concern that ministers do not always yield to parliamentary and public demands for an inquiry, is that "Ministers should explain publicly any decision to establish, or not to establish, an inquiry. Ministers can be, and often are, called to justify such decisions to Parliament and this practice will undoubtedly continue. This is Ministers' basic constitutional accountability".[357]

217. It is right that the Government should not automatically give way to every demand for a public inquiry. The armed forces minister, Adam Ingram, originally rejected calls for an inquiry into the deaths at Deepcut Barracks saying "We cannot run the Government on the basis of public inquiries. They may be good for lawyers, but they are not good for the governance of this country".[358] In so doing, however, he was refusing an inquiry despite pressure from the families for one. Similarly papers released by the National Archives recently, suggest that John Major's Government did not wish to have an inquiry into Robert Maxwell's death for fear of offending Spain and the attendant media circus. Frank Dobson told the Committee and Sir Liam Donaldson confirmed that officials had advised against the Bristol Inquiry. For Lord Heseltine inquiries are a measure of last resort "No government wants inquiries; they are usually in circumstances where the government is in trouble, where it is felt there is something to be found beneath the bland spin-doctoring of national politics, and so governments will do their best to avoid inquiries".[359] This has led on occasion to a recourse to the law and, in the case of Gulf War Syndrome, the establishment of an inquiry chaired by a retired law lord, Lord Lloyd of Berwick, without Government support or cooperation.

Parliament as initiator: using the Liaison Committee?

218. As has become apparent during our investigation there is no agreement about the conditions that need to exist for an inquiry to be established. We have described the category of inquiry where there should be parliamentary involvement. We have recommended a consequent amendment to the Inquiries Bill. We have proposed the form—the Parliamentary Commission—which that involvement should take. We have also set out possible criteria for calling inquiries but as Lord Norton acknowledges:

"Even if the criteria for an inquiry are satisfied, there is no formal obligation on a minister to establish one. Parliament should, I believe, consider a mechanism—in effect, a default mechanism—by which a public inquiry can be triggered by either House of Parliament".[

360

219. British Irish Rights Watch went further, believing that: "Minister(s) responsible for an issue giving rise to an inquiry should have no hand in setting up the inquiry" as the "temptation to indulge in a damage limitation exercise is too great". They therefore proposed that:

361

220. Professor Anthony Barker likewise argued that it would be:

362

221. Dr Matthew Flinders put forward a similar proposal, arguing for "a process that facilitates the creation of an official (i.e. publicly funded) inquiry without necessarily being reliant on the support of the government of the day". This, he believed, "would help foster public confidence. The process might take the form of a parliamentary public inquiry that reported back to a select committee or the House of Commons as a whole. The creation of an inquiry would be based on a vote in the House being supported by a certain percentage of members".[363] Yet the Government continues to argue that establishing an inquiry is a ministerial function. Moreover, while noting that "[i]t is for Parliament to consider the question of whether it might establish its own inquiries", it continues; "Many questions would arise regarding the mechanisms for appointing and funding such inquiries".[364] While the foregoing ideas have merit and are consistent with the argument we have advanced, giving Parliament a direct role in initiating inquiries should be a practical proposition which reflects the realities of our parliamentary system.

222. The House has appointed the Liaison Committee, which includes the chairs of all the select committees, to provide, among other things, a body of expertise to oversee the scrutiny role exercised by parliamentary select committees in respect of Ministers and their Departments. We believe, therefore, that it would provide a suitable forum for arriving at a considered view on the need for an inquiry into matters of public concern in a particular area. The Liaison Committee would act, in effect, as a filter against the risk of excessive demands for inquiries. We recommend that Standing Order No. 145 should be amended to enable the Liaison Committee to consider the value of a proposal that a specific matter of public concern should be the subject of a formal inquiry and, if so, to report a Resolution to the House for its consideration. The House would then come to a final decision.

Policing the Ministerial Code

223. We have considered the investigation of government conduct in particular areas which, in our view should be undertaken by Parliament by delegation to a commission. There is also the matter of the conduct of individual ministers with regard to their obligations under the Ministerial Code. We pursued the question of how to police the Ministerial Code with Sir Alan Budd and Sir John Gieve. Although he acknowledged that his "[ …] inquiry clearly had implications relating to whether a minister had observed the Ministerial Code of Conduct" Sir Alan Budd regarded "the Ministerial Code of Conduct and inquiries relating to such matters as a special topic to be dealt with in a special way by special bodies whose job it is to make such inquiries".[365] Pressed on whether it might be simpler to have a piece of machinery akin to that of the Parliamentary Commissioner for Standards in respect of the Code, Sir Alan Budd expressed his liking for:

366

224. Sir John Gieve provided us with an insight into the makeshift arrangements for choosing an investigator:

367

368

225. The Budd Inquiry was clearly about the Ministerial Code but was not formally so. It was also set up by the Department and the Minister whose alleged behaviour was an issue. The arrangements were also hasty and haphazard. None of this is satisfactory and it is time to consider how the Ministerial Code should be properly policed.

226. In her written evidence to us the Ombudsman, Ann Abraham, argued that extending her powers into inquiries would be inappropriate and that there are a range of more appropriate mechanisms, subject to certain criteria being met. In her oral evidence she was slightly more open to the possibility. She was concerned about the potential that, "if we were to take on ministerial codetype investigations [they would risk] … diverting attention and the attention of this Committee and the attention of the media from the issues that certainly our stakeholders say they want us to be about as an office seems to me to be a risk that certainly at present I would not want to take on".[369] But she added "I am not saying it is not something that the Ombudsman from time to time could not usefully do".[370]

227. The Ombudsman and her staff have certain advantages: expertise and skills in conducting inquiries mostly into areas of Government actions; powers akin to those of a High Court judge to compel witnesses and call for evidence and statutory independence. There are other examples of Ombudsmen undertaking inquiries. Sir Cecil Clothier QC undertook the Allitt inquiry in 1993 after leaving office The Prisons Ombudsman conducted an inquiry into the fire at Yarl's Wood Detention Centre in 2003. As Ann Abraham indicated in Wales and Northern Ireland the public service ombudsmen have additional responsibilities with regard to investigating possible breaches in local government standards.[371]

228. This Committee has recommended before that, on referral from the Prime Minister, or by a resolution of the House the Parliamentary Ombudsman should be empowered to conduct independent investigations on alleged breaches of the Ministerial Code and to report to the Prime Minister and to the House.[372] The Committee believed then that it could provide greater transparency and accountability to the process of dealing with complaints against Ministers. An independent parliamentary mechanism for complaints, such as the Ombudsman, was seen to offer substantial benefits. It would carry greater weight than the judgement of the Minister, the Prime Minister or the Cabinet Secretary. That applied both where there is a breach of the Code but it also applies where a Minister has not transgressed and deserves to be cleared in the most transparent and authoritative manner. In light of recent events we believe that the time is now right for the Government to reconsider its view that it would be undesirable to fetter the Prime Minister's freedom to decide how individual cases should be handled. Accordingly we recommend that the Parliamentary Ombudsman should be empowered to investigate alleged breaches of the Ministerial Code and other allegations about the conduct of individual Ministers.

Conclusion

229. It is because inquiries play an important role in the public life of this country, as part of the armoury of accountability, that they deserve to be taken seriously. This means reviewing their operation from time to time to ensure that they are working effectively and efficiently for the purposes for which they are established. That is what we have set out to do in this report. It is also why we welcome the Government's proposal to bring inquiries under a unifying statute. However we have suggested a number of ways in which we believe the Inquiries Bill can be improved. We also do not want to see Parliament removed from the picture altogether, as a consequence of the repeal of the Tribunals of Inquiry (Evidence) Act 1921. That is why we are proposing that there should be a special mechanism, called a Parliamentary Commission, established as the appropriate form of inquiry for certain major political issues involving ministers and their departments. Parliament now has to decide whether it wants to reclaim territory it has lost as far as inquiries of this kind are concerned, becoming once again the Grand Inquest of the Nation, or whether it is content to abandon the field to others, and to the executive. If it chooses the former, then this report offers a means of doing so.

354 HC 606-ii, GBI 09, Ev 22 Back

355 HC (2003-04) 423-i, Q 52 Back

356 Q 624 Back

357 Response to Consultation, CP 12/04. Back

358 HC Deb, 24 May 2004, Col 1318 Back

359 Q 615 Back

360 HC 606-v, GBI 13, Ev 105 Back

361 Response to Consultation, CP 12/04. Back

362 Professor Anthony Barker, 'Public Policy Inquiry and Advice as an Aspect of Constitutional Reform' The Journal of Legislative Studies, Vol. 4, No 2, (1998) pp 107-127 at 124. Back

363 Response to Consultation, CP 12/04. Back