An Issues and Questions Paper
INTRODUCTION
PASC—the Public Administration Select Committee—is
looking into the
use of investigatory inquiries by Government.
This paper sets out some of the issues on which the Committee
wishes to hear views. It contains a list of questions which is
not exhaustive, but which outlines the main areas for discussion.
The Committee is publishing this paper to encourage debate and
provide a basis for evidence in the inquiry.
Definitions
The term "independent public inquiry" is
a loose one. It is applied equally to investigations surrounding
accidents in transport or other industries and to commissions
of independent expert advisers producing proposals for public
policy reform. It is also applied to everyday inquiries such as
those held under planning legislation or company law.
This inquiry is concerned with none of these. Rather
it will be considering those inquiries set up by ministers to
investigate particular, controversial events giving rise to public
concern. They are often termed judicial inquires in so far as
they are often chaired by a leading judge (Hutton, Phillips, McPherson,
Saville, Bingham, Scarman to name a few). But this is not invariably
the case (e.g. Sir Ian Kennedy's chairmanship of the Bristol Inquiry,
Dr Iain Anderson's Inquiry into Lessons to be Learnt from Foot
and Mouth and now Sir Michael Bichard's Inquiry into the Soham
murders). The investigatory process may statutory or conducted
by means of ad hoc procedures.
Development of the independent public inquiry
From the middle of the 19th century until
1921, the usual method of investigating events giving rise to
public disquiet about the alleged misconduct of ministers or other
public servants was by means of a Select Parliamentary Committee
or Commission of Inquiry. It was therefore one such Select Committee
which was appointed to investigate the allegations surrounding
what became known as the Marconi Scandal of 1912 concerning widespread
rumours that the Government had corruptly favoured the Marconi
Company in the construction of a chain of state owned wireless
telegraph stations throughout the British Empire and
that certain prominent members of the Government had improperly
benefited from the transaction. At the end of the investigation
the Committee, and then the House, divided on strictly party
lines.
As a result when allegations were made by a Member
of Parliament against officials in the Ministry of Munitions in
1921 Parliament decided to enact instead an investigatory mechanism
to deal with this and any other matters which might arise in future.
The Tribunals of Inquiry (Evidence) Act 1921 however still requires
a resolution of both Houses to establish an inquiry tribunal.
A number of significant events have since been investigated
under the Act, such as the unauthorised disclosure of information
relating to the Budget by the Colonial Secretary in 1936 and the
employment of the Soviet spy William John Vassall in the Admiralty
in 1962. Some twenty one tribunals of inquiry were established
between 1921 and 1978 followed by a hiatus lasting until the mid-1990s
since when four more inquiries have been called (Shipman, Bloody
Sunday, Child Abuse in North Wales and Dunblane).
Powers and Legal Basis
The powers for statutory inquiries are mainly derived
from the 1921 Act. This provides for the tribunal to have all
the powers, rights and privileges that are vested in the High
Court. It can enforce the attendance of witnesses whom it may
examine under oath, and it may compel the production of documents.
Failure to comply can lead to the Chairman certifying the offence
to the High Court where the witness may be punished in the same
way as if he had committed contempt of court. The Act however
contains no provisions concerning the procedure to be followed
by a tribunal. Legislation concerning certain parts of the public
service such as the NHS, or the police also makes provision for
tribunals of inquiry in given circumstances. Section 84 of the
National Health Service Act 1977, for example, gives an inquiry
powers to compel persons to give evidence or to produce papers;
and to take evidence on oath or affirmation.
However a number of the most high profile inquiries
in recent years have been non-statutory, where the power to summon
witnesses and evidence has been based on the determination of
the chairman and the willingness of the Government in particular
to cooperate. The earliest example is probably the Denning inquiry
into the Profumo affair in the early 1960s. The Hutton, Phillips
and Scott inquiries are three more recent instances of such non-statutory
investigations, which have been increasingly favoured by ministers.
A relatively rare variant of ad hoc inquiries
is the Committee of Privy Counsellors, one of which has just been
established under the chairmanship of Lord Butler of Brockwell.
Prior to that Mrs Thatcher set up a Committee led by Lord Franks
to review the actions of the Government in the period leading
up to the invasions of the Falkland Islands. Another was established
in 1955 to examine security procedures in the public services
as a result of the defection of Burgess and MacLean. This sort
of committee is particularly appropriate where much of the evidence
is likely to be highly sensitive, related to security or intelligence
matters and can be made available on "privy counsellor terms".
The concept of the Privy Counsellors' committee is
partly reflected in the system of parliamentary oversight of the
security services. Although not necessarily Privy Counsellors,
members of the Intelligence and Security Committee are senior
Parliamentarians. The Committee is set up by statute and Written Evidences
to the Prime Minister. Their access to information however is
subject to possible restrictions.
The Salmon Royal Commission
The Royal Commission chaired by Lord Salmon (Cmnd
3121) Written Evidenceed in November 1966. It examined the tribunal model
established under the Tribunals of Inquiry (Evidence) Act 1921
and whether it should be replaced by other inquiry forms when
cases concerning alleged instances of lapses in accepted standards
of public administration or other matters causing public concern
required investigation to allay public anxiety. Setting up the
Commission, the then Prime Minister Harold Wilson observed that,
"in recent years anxiety about the working of the [1921 Act]
has been expressed on every occasion on which the Written Evidence of a
tribunal set up under the Act has been debated in this House".
Although by then alternative procedures such as the Denning Inquiry
had been developed he did not think the Government was quite satisfied
that "we have yet found the right answer" (HC Deb, July
1965, col 1842)
The Salmon Commission explored various alternatives
including Parliamentary Select Committees. It concluded in favour
of retaining the Act with certain amendments. In particular the
Commission established six "cardinal principles" which
should underpin such inquiries in future to safeguard fairness.
It favoured retaining existing procedures for setting up tribunals
under the Act because the need for a Parliamentary resolution
implied that "the matter is ventilated and the Government
has to justify before Parliament its decision […]".
The Commission also recommended the Chairman should be "a
person holding high judicial office", because "without
a judge of high standing as chairman we think it unlikely that
the findings of tribunals would achieve the same measure of public
confidence and acceptance as they have in the past". It also
rejected allowing appeals from findings because "it is of
the utmost importance that finality should be reached and confidence
restored with the publication of the Written Evidence".
The Commission also dealt in some detail with parliamentary
inquiries given that it was the discrediting of the Marconi inquiry
that led to the 1921 Act. It concluded that to resurrect this
form of inquiry would be "a retrograde step". Select
committees were suitable for many purposes "but the investigation
of allegations of public misconduct is not one of them. Such matters
should be entirely removed from political influences". Among
the drawbacks listed by Lord Salmon were that: Committees were
composed of members representing the relative strength of the
parties in the House; Parliamentary Committees do not hear counsel;
some, if not all of its members will have no experience of taking
evidence or cross-examining witnesses; and witnesses might not
enjoy the same absolute privilege as under a tribunal set up under
the Act.
Developments since the Salmon Commission
Arguably with the establishment in 1979 of departmental
select committees Parliament acquired renewed means to undertake
these sorts of investigations. Examples include the Foreign Affairs
Committee's inquiry into the Pergau Dam Affair in 1994; the Trade
and Industry Committee's inquiries into the Iraqi Supergun in
1991 and Export Licensing and BMARC in 1996 and the Public Administration
Select Committee's consideration of the events at the DTLR in
2002. However commentators and indeed Committees themselves have
recognised their limitations. Evaluating its own experience in
the BMARC case the Trade and Industry Committee believed that
detailed inquiries involving examination of a very large number
of documents and witnesses posed difficulties for Select Committees
because the demand on Members' time risked important aspects of
departments' current work becoming neglected.
Instead it proposed that the House or committees
should be able to instigate their own external inquiries in order
to establish factual information on complex subjects which would
otherwise occupy too much committee time. They took as their model
the relationship between the National Audit Office and the Public
Accounts Committee. Such a "parliamentary commission"
would proceed independently of a committee. Its results would
then be examined by the committee which would itself make a Written Evidence
to the House. The Public Service Committee when it considered
the whole question of accountability and select committees as
part of its post-Scott Inquiry scrutiny endorsed this proposal,
noting that the procedure provided for in the Tribunals of Inquiry
(Evidence) Act 1921, might be adapted to provide the necessary
mechanism for this.
The 1996 Scott Inquiry made certain recommendations
about inquiry procedures. Scott concluded that most ad hoc
inquiries are of an inquisitorial character whereas civil and
criminal litigation is adversarial. The Salmon principles carried
"strong overtones of ordinary adversarial litigation"
(para K 1.4). Scott warned therefore that while the Salmon principles
should always be borne in mind consideration should also be given
to their impact on the conduct of a particular inquiry. There
has since been a continuing debate about the extent to which the
Salmon or the Scott approach should prevail in the conduct of
an inquiry.
Where judges are concerned there is a question too
whether judicial skills, required to weigh the evidence to determine
guilt in the criminal court or liability in the civil court, transfer
easily to inquiries. The courtroom usually requires a 'black or
white' answer which, as Scott suggested, may not be appropriate
in an inquiry. Moreover the nature of judicial responsibilities
is changing. The Human Rights Act 1998, for example, means that
senior judges now have a constitutional role. Greater clarity
in the relationship between the executive and the judiciary is
being sought through current Government proposals for a supreme
court and the abolition of the office of Lord Chancellor. In these
circumstances it is debatable whether it is constitutionally appropriate
to continue to use judges to chair inquiries, particularly those
directly affecting the Government.
Time for reconsideration?
This Inquiry aims to consider whether, nearly forty
years after Lord Salmon examined the 1921 Act experience of the
inquiry process suggests that the time is right to revisit the
best way of conducting investigations into matters of serious
public concern when things go wrong and what the role of Parliament
should be in that if any.
Although known as "independent public inquiries"
this description is subject to some qualification. Invariably
it is Ministers who set up inquiries in response to political
or public pressure or, more cynically, as a means of deferring
a potential problem. It is Ministers who therefore are responsible
for an inquiry's composition, its terms of reference, and the
powers and resources at its disposal. They may also influence
its form; not all independent inquiries are necessarily conducted
in public. In the recent debates about the terms of reference
of the Butler Inquiry to review intelligence on WMD the Government
has stated that the House cannot subcontract its responsibility
for decisions to an inquiry.
However if there is to be greater parliamentary role
in determining matters of public concern, consideration will
need to be given to the validity of the criticisms about the shortcomings
of parliamentary committees and how they can best be addressed.
At minimum this could simply mean that the 1921 Act, with its
requirement for Parliamentary resolutions, should always form
the basis of any inquiry of this nature although it may require
some consequential amendment. If Parliament is to play a more
proactive role via select committees consideration will need to
be given as to whether departmental committees are the appropriate
means for doing so; whether a select committee should be appointed
specifically for the purpose; what its composition should be perhaps
by formalising the ad hoc and practically bi-cameral nature
of the Committee of Privy Counselors; what access to witnesses
and documents they should have; and the availability of expertise
and resources that might be available to them such as the use
of "parliamentary commissions"; in the form of existing
organisations such as the Ombudsman or through the use of Counsel
as part of such an inquiry.
HOW TO RESPOND TO THIS PAPER
PASC would like to receive responses to any or all
of the questions in this paper. Although some of the questions
could theoretically be answered by a simple yes or no, the Committee
would especially value extended memoranda with background evidence
where appropriate. Some respondents may wish to concentrate on
those issues in which they have a special interest, rather than
necessarily answering all the questions.
Memoranda will usually be treated as evidence to
the Committee and may be published as part of a final Written Evidence.
Memoranda submitted to the Committee should be kept confidential
unless and until published by the Committee. If you object to
your memorandum being made public in a volume of evidence, please
make this clear when it is submitted.
Memoranda should be submitted by 2 April 2004 as
hard copy on A4 paper, but please send an electronic version also,
on computer disk in Rich Text Format, ASCII or WordPerfect 8 or
email to pubadmincom@parliament.uk.
Hard copies should be sent to Clive Porro, Second Clerk, Public
Administration Select Committee, Committee Office, First Floor,
Committee Office, 7 Millbank, London SW1P 3JA.
QUESTIONS
GENERAL
1. Have the largely ad hoc inquiries into
matters of public concern functioned adequately over recent years
or is a reconsideration of their use now necessary?
2. In what circumstances should an inquiry be called?
3. Who should take the decisions on a) calling an
inquiry b) the form it should take c) its terms of reference and
d) the appointment of chairs and members?
4. Should there always be a single, all encompassing
inquiry into an issue or is it inevitable that other "side"
inquiries will need to be conducted on certain specific aspects
e.g. into professional conduct?
MEMBERSHIP
5. Is it appropriate for judges to chair inquiries?
If not should the subject of the inquiry determine the characteristics
of the chair? What qualities should they have?
6. Is the use for expert assessors necessary for
every inquiry? Should inquiries always ensure lay participation?
If so what form should it take?
7. Is there value in having a trained panel from
which members of an inquiry can be drawn when necessary?
PROCEDURES
8. Should the Tribunals of Inquiry (Evidence) Act
1921 (or other specific legislation) invariably form the basis
for Ministers calling such inquiries or is there a continuing
need for non-statutory, ad hoc inquiries?
9. Is the Tribunals of Inquiry (Evidence) Act 1921
effectively redundant? If so are there any of its features, such
as use of the oath or powers to the power to compel witnesses
to appear, which should be retained for the conduct of inquiries?
10. Should inquiries be investigatory or is there
scope for an adversarial element in the procedures?
11. What are the main elements necessary for the
conduct of an effective inquiry for example access to witnesses
and documents? Is the implementation of the Freedom of Information
Act likely to affect this?
12. Should inquiries always sit in public or are
there circumstances when it is right to conduct an investigation
in private?
PARLIAMENTARY ACCOUNTABILITY
13. Are independent inquiries an appropriate investigatory
device within a parliamentary democracy? Do they undermine the
principle of ministerial accountability to Parliament?
14. Should there be greater parliamentary involvement
in the setting up of such inquiries? If so what form should this
take? For example should it be a 'minimalist' approach involving
use of parliamentary resolutions to agree terms of reference,
membership and procedures or a more 'maximalist' option which
could see parliamentary committees undertaking inquiries of this
nature themselves?
15. If the maximalist approach were to be pursued
what should be done to address the limitations which many believe
are inherent in select committees taking forward such inquiries?
16. Would the use of privy counsellors or senior
parliamentarians, and the use of counsel or other experts suffice
or is a more permanent machinery such as a parliamentary commission
or perhaps extended powers for the Ombudsman more appropriate
and effective?
17. What powers should such a committee of inquiry
or parliamentary commission have in relation to witnesses and
papers which select committees do not already enjoy?
18. What considerations, if any, arise concerning
parliamentary privilege in the event of potential criminal, civil
or disciplinary proceedings which might result from the evidence?
VALUE OF AN INQUIRY
19. How should the publication of the eventual Written Evidence
be handled? Who should be responsible for this?
20. Has the conduct of inquiries over the years ensured
that lessons giving rise to the matter under investigation have
been learnt?
21. Has the outcome of inquiries made any discernible
difference to the conduct of public life?
22. Should there be a formal system for following
up the recommendations of inquiries and their impact? If so what
should this system take and who should be responsible for it?
23. Is there anything for the UK to learn from other
countries about the conduct of investigatory inquiries?
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