Conclusions and recommendations
1. We
agree with Lord Woolf's concerns over the current provisions in
the Inquiries Bill and recommend that decisions about the appointment
of judges to undertake inquiries should be taken co-equally by
the Government and the Lord Chief Justice or senior law lord.
(Paragraph 58)
2. We agree with and
endorse the view that the use of 'wing members' brings expertise,
reassurance, support and protection to inquiry chairs. We particularly
recommend the use of panels in politically sensitive cases as
a non-statutory means of enhancing the perception of fairness
and impartiality in the inquiry process. We also recommend that
where judges are seen as the most appropriate chairs, they should
usually be appointed as part of a panel or be assisted by expert
assessors or wing members. (Paragraph 73)
3. It is essential
that the terms of reference enjoy broad consensus and are drawn
up in a way which allows full and proper examination of the facts
and do not fetter the inquiry in its task. We recommend that the
chair of an inquiry should have the ability to negotiate the precise
terms of reference before agreeing to undertake the inquiry. We
also recommend that the Inquiries Bill should provide specifically
for a short period of consultation after any announcement to
ensure that the final terms of reference meet the expectations
of a particular inquiry. This should include appropriate parliamentary
involvement. (Paragraph 85)
4. We recognise that
circumstances may sometimes require Inquiries to hold all or part
of their proceedings in private. Ensuring the independence of
the inquiry will serve to reinforce trust in such circumstances.
Although the 1921 Act provides for a presumption of openness we
are concerned that the Government's new Inquiries Bill creates
wide powers for ministers to restrict access to inquiries, making
public accessibility subject to restriction notices. This subverts
accepted presumptions of openness and public interest and we recommend
it should be reversed. (Paragraph 99)
5. The time has clearly
come to reformulate the Salmon principles. We recommend that the
procedures followed by inquiries in the last ten years should
be reviewed. In particular there should be a re-evaluation of
how to ensure fairness within the inquisitorial process while
minimising the adversarial, legalistic element of inquiries. Good
practice in this field could be codified, possibly through the
rule making powers contained in the Inquiries Bill. (Paragraph
104)
6. We welcome the
production of guidance by the Cabinet Secretary on record keeping
and recommend that that it should be published alongside other
FoI material such as the publication scheme, and that the level
of compliance with it should be regularly reviewed. (Paragraph
111)
7. We welcome the
powers in the Inquiries Bill enabling chairs to administer an
oath and other powers of compulsion. We recommend that, in addition
to the appropriate statutory powers, inquiries dealing with public
bodies should require the permanent heads of such bodies to certify
that rigorous systems have been applied for the discovery of documents
and noting any problems. This 'certificate' could form part of
the 'core bundle' of inquiry documents. (Paragraph 116)
8. We acknowledge
that setting arbitrary deadlines can only be counterproductive
in a process which is intended to establish the facts, provide
public reassurance and in many cases have a healing and cathartic
effect. Nonetheless this is not incompatible with announcing an
estimated duration on the model of the BSE or Butler Inquiries.
Such a timescale would be non-binding and open to being revisited
in light of developments and we so recommend. (Paragraph 123)
9. We recommend that
Ministers should announce a broad budget figure fairly early on
at the start of an inquiry. Any increases over the announced limits
would then need to be publicly explained at the end of the inquiry
when final costs are published. (Paragraph 127)
10. We recommend that
while it is compiling central guidance on the calling, use and
procedures of inquiries, the Government should consider whether
research should be undertaken by an appropriate body, such the
National Audit Office, into the value for money which inquiries
represent. This should assess their outcomes and evaluate alternatives.
(Paragraph 133)
11. We welcome the
requirement in the Inquiries Bill for reports to be published
in full. We recommend that the presumption should be for chairs
to handle publication. This should be reflected in the Bill. Publication
arrangements should ensure fairness to all those concerned and
the Government should allow adequate time for Parliamentary consideration
and debate. (Paragraph 136)
12. We recommend that
departments should have a duty to report on the implementation
of recommendations at regular intervals, and in any case within
the first two years of the end of an inquiry. These reports should
cover the extent to which recommendations have been met and describe
the wider cultural changes which have been brought about as a
result. Select committees are well placed to undertake this kind
of assessment on the outcome of an inquiry on the basis of such
departmental reports as part of their core tasks, and we recommend
that the Liaison Committee should support the inclusion of such
work in select committee work programmes. (Paragraph 147)
13. If they are to
be successful, recommendations need to be workable in practice.
We recommend that inquiries should be expected and enabled to
test out potential recommendations and proposals prior to finalising
their reports, although nevertheless, chairs of inquiries should
not allow this process to undermine their independence in any
way. (Paragraph 152)
14. We should not
keep reinventing the inquiry wheel. We welcome the concept of
a support unit but recommend the Unit's size and role should be
limited and proportional to the relative infrequency of large
inquiries and to the degree of guidance and advice which can be
made available through other means. The accumulated experience
of past inquiries, such as the procedural elements of inquiry
reports, subsequent lectures, presentations and internal notes
as well as official guidance should be consolidated and made available
on a publicly accessible website. Given its small size we further
recommend that such a support unit should be co-located with a
central government department such as the Cabinet Office or the
Department for Constitutional Affairs. However, in recognition
of the need for independence for inquiries the unit should operate
independently of its host department and should include secondees
from bodies versed in investigatory processes such as the NAO,
the Ombudsmen community and Select Committee staff. (Paragraph
161)
15. Drawing on the
foregoing and in the light of the experience now available of
the inquiry process, we believe it should be possible to draw
up a set of principles defining good practice for an inquiry (Paragraph
166)
16. We recommend the
following principles as a basis for discussion and an exercise.
(Paragraph 166)
17. We recommend that
Clause 1 of the Inquiries Bill should be amended to provide for
parliamentary resolutions where the events causing public concern
which may have occurred involve the conduct of ministers. We further
recommend that the procedural framework for an inquiry called
under this new sub-clause which we have described should be the
subject of a Parliamentary Resolution once the Bill has passed
into law. (Paragraph 178)
18. We recommend that
Ministers should justify their decisions whether to hold an inquiry
or not on the basis of a published set of criteria and propose
the following as a possible basis for this (Paragraph 184)
We recommend the development of clear criteria for
calling inquiries and straightforward categorisation establishing
a distinction between those which are politically sensitive and
those which are not, on the basis of our exemplars, to ensure
that calls for judicial public inquiries and the appropriate involvement
of Parliament can be properly assessed and decisions on form can
be taken on that basis. (Paragraph 193)
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