Select Committee on Public Administration Written Evidence


Memorandum by Lee Hughes CBE, Head of Judicial Competitions (Courts) Division (GBI 16)

  You asked me to provide some written evidence to the Committee, as I was unable, due to illness, to give oral evidence in June.

I attach a copy of my procedural report which covers a number of general points.

  You asked about the arrangements for the disclosure of information provided to the Inquiry. Lord Hutton, in his evidence, said that it was his decision that every piece of evidence provided to the Inquiry should be disclosed to the public, unless there were good reasons not to do so. Of course, at that time we did not know what information we would receive as evidence. However my role at that stage was to discuss with the parties to the Inquiry the circumstances in which we would agree not to disclose information. I gave evidence to the Inquiry on 21 August 2003 in which I stated that we followed, as far as practicable, the exemptions in the Code of Practice on Access to Government Information when deciding what information should be disclosed or withheld. We reached agreement with the parties that they would identify information they did not wish to be disclosed publicly and give reasons why. We set out on the website all documents received and gave a reason where the document itself was not disclosed.

  Very few documents were withheld on national security grounds. The main reason for non disclosure was to protect personal privacy. You asked if we had any kind of certification procedure to ensure that we had all the information we needed. We did not operate such a system. The legal team considered all the documents received and were able to identify possible gaps in our knowledge and we then sought further information as appropriate. We received full co-operation from all parties.

  You asked whether I consider that the Inquiry's disclosure policy will have any effect on the interpretation of the Freedom of Information Act. As noted above, we used the Code of Practice on Access to Government Information as the basis for our disclosure policy. But both the Code and the Act have a public interest override on exemptions.

  In the case of the Inquiry there was widespread consensus that the public interest in disclosure was very great and therefore there was a great deal of information disclosed, on public interest grounds, where in less exceptional circumstances, an exemption might apply.

  You also asked about the financial constraints on the Inquiry. I was the accounting officer for the Inquiry, reporting on this matter directly to the Permanent Secretary at the Department for Constitutional Affairs, at the time Sir Hayden Phillips. We did not set a budget for the Inquiry at the outset, as we simply did not have significant information about the length or nature of the Inquiry to do so. But we, wherever possible, used existing contracts, or Departmental facilities (such as the courtroom in the RCJ) to keep costs down or to ensure "planning gain" from the Inquiry.

THE HUTTON INQUIRY

Report on procedures by the Secretary to the Inquiry

INTRODUCTION

  1.1  The Permanent Secretary for the Department for Constitutional Affairs and the Head of Litigation at Treasury Solicitors asked for a report on the procedural successes and failures for retention and for use as a learning tool for future Inquiries. I understand that Senior Counsel and the Solicitor to the Inquiry will also provide similar reports.

  1.2  The aim of this report is primarily to draw out points which may be useful for consideration in future Inquiries. But, as the Select Committee on Public Administration has decided to undertake an investigation into Inquiries generally, the report may assist the Government in its development of evidence to the Select Committee, or its response, in due course, to the Committee's report. I have already discussed points in this report with the Inquiry Policy Division in DCA for this purpose.

  1.3  The Hutton Inquiry was set up by the Government on 18 July 2003. Its terms of reference were:

    "urgently to conduct an investigation into the circumstances surrounding the death of Dr Kelly".

  1.4  The setting up of the Inquiry was announced by the Secretary of State for Defence, Mr Hoon, but the sponsor Department for the Inquiry was the Department for Constitutional Affairs. This arrangement was confirmed in Lord Hutton's letter of appointment of 22 July.

  1.5  The Inquiry was set up on an ad hoc basis—it did not have any powers under the Tribunals of Inquiries (Evidence) Act 1921. However, as regards Government witnesses, the Cabinet Secretary wrote on 7 August stating that the Government expects witnesses to cooperate fully with the Inquiry and to give full and frank testimony. An undertaking was given to Government Servants that nothing which any official provided to the Inquiry by way of evidence, whether orally or in writing, would be used in subsequent disciplinary proceedings against that official, or any other official. This undertaking was subject to three limitations:

    —  it did not apply to anyone charged with having deliberately misled the Inquiry by telling lies or deliberately omitting important information in their evidence;

    —  it did not apply to allegations of misconduct so serious as to justify summary dismissal for gross misconduct; and

    —  there would be no immunity against prosecution for any criminal offences.

  1.6  On 21 July 2003, Lord Hutton made the following statement:

    "The Government has invited me to conduct an investigation into the tragic death of Dr David Kelly which has brought such great sorrow to his wife and children.

  My terms of reference are these:

    "urgently to conduct an investigation into the death of Dr Kelly."

  The Government has further stated that it will provide me with the fullest cooperation and that it expects all other authorities and parties to do the same.

  I make it clear that it will be for me to decide as I think right within my terms of reference the matters which will be the subject of my investigation.

  I intend to sit in public in the near future to state how I intend to conduct the Inquiry and to consider the extent to which interested parties and bodies should be represented by counsel or solicitors. In deciding on the date when I shall sit I will obviously wish to take into account the date of Dr Kelly's funeral and the timing of the inquest into his death.

  After that preliminary sitting I intend to conduct the Inquiry with expedition and to report as soon as possible. It is also my intention to conduct the Inquiry mostly in public.

  I have appointed Mr James Dingemans QC to act as Counsel to the Inquiry and Mr Lee Hughes of the Department for Constitutional Affairs will be the Secretary to the Inquiry.

APPOINTMENT AND ROLE OF KEY STAFF OF THE INQUIRY

  2.1  Lord Hutton was appointed by the Secretary of State for Constitutional Affairs, on behalf of the Government, to conduct the Inquiry. The subject matter of the Inquiry was considered, by the Government, to be sufficiently significant to justify the appointment of a Lord of Appeal in Ordinary to conduct the Inquiry.

  2.2  Lord Hutton appointed Mr James Dingemans QC as Senior Counsel to the Inquiry on 18 July 2003. Mr Peter Knox was appointed junior counsel to the Inquiry by Lord Hutton on 24 July 2003.

  2.3  The role of Counsel to an Inquiry is described by the Council on Tribunals as follows (report to the Lord Chancellor, July 1996):

    "In certain types of inquiry . . . it is usual to have Counsel to the Inquiry, to assist in eliciting and laying before the Inquiry the relevant evidence, and ensuring that the representatives of interested parties do not set the agenda. Even in a purely inquisitional inquiry, Counsel to the inquiry can fulfill a useful role in relieving the inquiry of the burden of asking questions, and in avoiding the danger of the inquiry being seen to descend into the arena. Where there is a need for forceful questioning of witnesses, it is often better if this is undertaken by Counsel to the inquiry, rather than by the tribunal itself. Otherwise, the tribunal may be seen as having already formed a certain view. And if objection is taken to specific questions, it is less embarrassing for the inquiry to adjudicate if the questions come from Counsel. Counsel to the inquiry may also be helpful in eliciting technical evidence.

    . . . If Counsel to the inquiry is appointed, he or she will, of course, work closely with the inquiry chairman . . . in working out the general direction of the inquiry. However it is important, not least from the presentational viewpoint, that Counsel should not been seen to be part of the inquiry panel. At the hearing the roles of the tribunal and Counsel should be seen to be distinct. For example, as noted above, it may be necessary from time to time for the tribunal to intervene to stop a particular line of questioning by Counsel. The perception of the separate roles of tribunal and Counsel is greatly enhanced if they are physically separated from each other in the inquiry room."

  2.4  The solicitor to an inquiry is usually provided by Treasury Solicitors. However on 29 July 2003 Lord Hutton announced that Clifford Chance LLP had been appointed to act as solicitor to his Inquiry, the practice being represented by Martin Smith. In his statement, Lord Hutton said:

    "The Government Legal Service would normally provide solicitors for a judicial inquiry. Lord Hutton would have complete confidence in the independence and integrity of the Government Legal Service in carrying out that role, but because of the nature of his Inquiry he considers that public confidence would best be served by the appointment of an independent firm of solicitors."

  2.5  The letter of appointment described the role of solicitor to the Inquiry as follows:

    "The Inquiry's terms of reference are set out in the enclosure. In the broadest terms you will be responsible for offering advice on any legal issue out of those terms of reference or out of the conduct of the Inquiry. You will be expected both to respond to requests for advice or to participate in discussion with Lord Hutton, leading and junior Counsel or the Inquiry team, and to be proactive in raising issues with them. The following is a non-exhaustive list of responsibilities:

    —  obtaining evidence relevant to the inquiry;

    —  offering advice and assistance on any ancillary litigation involving the Inquiry and, where appropriate, conducting it;

    —  liaising with other organisations in respect of documentation and procedures eg the police, Government Departments, the BBC etc;

    —  dealing with claims for legal and other costs where public funds are involved;

    —  advising on and carrying out the "Maxwellisation" process;

    —  assisting with the drafting of the Inquiry report;

    It is of paramount importance that, as well as being clear and accurate, your advice should at all times be independent and impartial, setting out your best understanding of the law without reference to the interests of the parties to or persons affected by the Inquiry. Your duty of care is to Lord Hutton as chairman of the Inquiry.

    The Inquiry's remit is to act with urgency and, subject to the overriding requirements of accuracy, clarity and independence, you will be required always to act with the utmost expedition."

  2.6   We understand that the Hutton Inquiry may be the first public inquiry where solicitors have been appointed directly from the private sector (as opposed to private sector solicitors assisting Government lawyers with specific aspects of an inquiry's work). It is worth noting that the arrangements have worked very well.

  2.7  The Secretary to the Inquiry is usually appointed by the sponsoring department, as was the case in this Inquiry. The job description for the post of secretary was determined by the sponsoring Department and was as follows:

    "To lead the Inquiry Secretariat to enable the Inquiry to fulfil its terms of reference effectively, fairly and having regard to cost. The key tasks are:

    (i)   to provide strategic advice and briefing to the Inquiry Chairman on the management of the Inquiry, to enable him to achieve a target date for completion of the Inquiry by the end of October 2003;

    (ii)   to devise a strategy for recording the evidence given to the Inquiry and to produce the Inquiry report;

    (iii)  to ensure that the Inquiry's external communication and relations with witnesses and other parties support the Inquiry's objectives of openness, fairness and thoroughness;

    (iv)  to ensure that the Secretariat is appropriately staffed to fulfil the Inquiry's terms of reference, ensuring any necessary briefing and training is given, and to lead the staff of the Secretariat, providing direction and guidance;

    (v)   to manage expenditure in accordance with Government accounting requirements, ensuring the Inquiry is properly carried out, but that resources are not expanded unnecessarily. This task includes:

        —  the preparation of a budget and forecast out-turn;

        —  regular monitoring of expenditure and revision of forecast out-turn in the light of the best information available on the time-table for the Inquiry.

    (vi)  to ensure that there is a full and effective documentary record of the Inquiry, including a full account of procedural success and failures, for retention and for use as a learning tool.

  2.8  In practice the role of Secretary followed the job description fairly closely. Points to note include:

    (i)  participation in the selection process for the solicitor to the Inquiry. As this was the first occasion, as far as can be ascertained, that it has been necessary to procure the services of a solicitor to an Inquiry from outside the Government Legal Service, there was some uncertainty as to what to put in the tender documents. It became clear, really only during the interviewing process, that what was needed was someone who would be part of the Inquiry team, backed up by wider expertise which could be drawn on as required. This arrangement was delivered and, as noted above, worked well.

    (ii)  there was some tension between my role as Secretary to the Inquiry and my position as a civil servant. As secretary my role was to support Lord Hutton. Occasionally this required me to undertake functions which are not usually undertaken by civil servants—such as issuing press releases in my own name, or writing letters to the press. Though, as this was always on the express authority of Lord Hutton, no problems arose. I also had to negotiate with those Departments directly involved in the Inquiry over issues such as a the availability of witnesses, the prompt submission of evidence and arrangements for the publication of the report. Though, on balance, the interaction with other Departments was not a great deal more difficult than one might expect to find in discussions on contentious policy issues, it could have been difficult if the Secretary had been appointed from the MoD or the Cabinet Office. In order to minimise potential conflict it may be appropriate to ensure that for future inquiries, the Secretary, as in this case, comes from a Department not directly involved in the Inquiry. If legislation on Inquiries is contemplated, it may be worthwhile setting out the duties and responsibilities of the Secretary in legislation (presumably in secondary legislation to provide for a relatively easy method for amendment) so that all can be clear about lines of responsibility.

  2.9  It is also worth considering whether one Department, such as the Department for Constitutional Affairs, should normally act as sponsor Department for Inquiries. This would make it easier for a "collective knowledge" of Inquiries to be built up for future use— though acknowledging that both Cabinet Office and Treasury Solicitors have helpful guidance available.

  2.10  In the case of the Hutton Inquiry, there were no potential conflicts of interest as regards the solicitor to the Inquiry, as he was appointed from the private sector and therefore the professional relationship was clearly between the solicitor and the Inquiry. But conflicts may emerge if the solicitor is a member of the Government Legal Service, which is the usual case as regards Inquiries. Therefore the recommendations in paragraph 2.8 above may also be relevant to the position of solicitor to the Inquiry.

PROCEEDINGS AND EVIDENCE

  3.1  The Inquiry was conducted in two stages: the first stage consisted of neutral examination of witnesses by Counsel to the Inquiry. In stage 2, witnesses were examined by their own Counsel, and limited cross-examination by Counsel to other parties to the Inquiry was allowed, including Counsel to the Inquiry.

  3.2  In determining the procedures to be used in the Inquiry Lord Hutton considered the common law duty of fairness and the Salmon Principles. The Salmon Principles were set out in the report of the Royal Commission on Tribunals of Inquiry under the chairmanship of Lord Justice Salmon (as he then was). These principles were intended to safeguard the position of citizens called to give evidence before Tribunals of Inquiry established under the 1921 Act, but have since been applied generally to all judicial inquiries. The principles are:

    (1)  Before any person becomes involved in an Inquiry, the Tribunal must be satisfied that there are circumstances which affect him and which the Tribunal proposes to investigate.

    (2)  Before any person who is involved in an Inquiry is called as a witness he should be informed of any allegations which are made against him and the substance of the evidence in support of them.

    (3) (a) He should be given an adequate opportunity of preparing his case and of being assisted by legal advisers.

    (b) His legal expenses should normally be met out of public funds.

    (4)  He should have the opportunity of being cross examined by his own solicitor or counsel and of stating his case in public at the Inquiry.

    (5)  Any material witnesses he wishes called at the Inquiry should, if reasonably practicable, be heard.

    (6)  He should have the opportunity of testing by cross-examination conducted by his own solicitor or counsel any evidence which may affect him.

  3.3  Following the Scott report, recommendations were made as to the relevance of the Salmon principles to inquisitional Inquiries. The Scott report commented that the Salmon principles: "carry strong overtures of ordinary adversarial litigation."

  3.4  In the case of the Hutton Inquiry, the principles were met in the following way:

    (i)  witnesses were invited to give evidence to the Inquiry— their invitation specified the areas on which they would be questioned and invited then to submit a written statement beforehand (principles 1 and 3a);

    (ii)  following stage 1, any witnesses who might be the subject of criticism were informed of the possible grounds for criticism, invited to submit a written statement before appearing in stage 2 of the Inquiry, and, in stage 2, had the opportunity of being examined by their own Counsel (principles 2 and 4);

    (iii)  all parties to the Inquiry were invited to submit evidence or to call witnesses, if not called by the Inquiry (principle 5);

    (iv)  all parties were invited to seek the agreement of Lord Hutton to cross-examine other parties' witnesses on specified issues. Lord Hutton agreed to these requests if he was satisfied that the cross-examination would assist the Inquiry (principle 6);

    (v)  in the circumstances of this Inquiry, all parties to the Inquiry were public bodies, or employees of public bodies, and therefore their costs were, by definition, met from public funds, with the exception of Dr Kelly's family. Lord Hutton sought the agreement of the sponsoring Department that the Inquiry should meet the family's legal costs which was agreed (principle 3b).

  3.5  There were some discussions about the procedures to be adopted by the Inquiry. Lord Hutton determined that the Inquiry would proceed in two stages. Stage 1 consisted of neutral examination of witnesses by Counsel to the Inquiry. At the end of stage 1, Lord Hutton determined which witnesses might be liable to criticism in his report. Those witnesses received notification of the potential criticisms and were invited to appear before the Inquiry in stage 2 where they would be able to answer those criticisms. Other witnesses were recalled in stage 2 to provide further evidence, even though they were not under any threat of potential criticism. A few witnesses were called for the first time in stage 2.

  3.6  During stage 2 witnesses could be examined by their own counsel and further examined by counsel to the Inquiry. Lord Hutton also permitted cross-examination by counsel for other parties where he thought that such cross-examination would aid the work of the Inquiry. Cross-examination was limited to agreed areas and indicative time limits were imposed.

  3.7  These arrangements were intended to ensure both fairness and expedition of the proceedings. Stage 1 appears to have been widely regarded as fair and effective, though there have been some concerns expressed that stage 2 may have been a little too rushed and therefore not all the points that counsel for witnesses wanted to make, were made. These concerns were partly satisfied by the ability of all parties to submit written final submissions.

  3.8  Two other "fairness" issues arose regarding the proceedings. Parties to the Inquiry were keen that witnesses should be able to consult their legal advisers whilst giving evidence. Lord Hutton felt that this was unnecessary as counsel to the Inquiry would be examining witnesses in a neutral way. There was also speculation that witnesses would receive extracts of the report, relevant to themselves, prior to publication, to offer them a final opportunity to refute criticisms (the so-called "Maxwellisation" process). Lord Hutton decided that this was unnecessary as potential criticisms were notified to relevant witnesses prior to stage 2. In the end this seemed to work satisfactorily, though there were some concerns that the letters of potential criticism may not have been sufficiently explicit as to the conduct in question.

  3.9  Evidence for the Inquiry was sought initially by the Inquiry writing to relevant parties seeking documents and statements. On receipt and consideration of those documents and statements, further information was sought by the Inquiry as gaps were identified. For the most part, information was provided promptly and in full.

ORGANISATION, TECHNOLOGY AND MEDIA HANDLING

  4.1  When an Inquiry is announced, there appears always to be an issue of where it is to take place. We were able to make use of the Department's estate. We were able to secure a courtroom at the Royal Courts of Justice for the hearings. Though the room was decommissioned as a court, the layout and ambience was highly suitable for use for the Inquiry. A second, decommissioned courtroom was available next door, for use as an overflow for the public and the media. The main room was sufficient to hold all the parties' legal representatives, and to allow 70 press, 25 officials and 10 members of the public to be present. The overflow had space for a further 60 journalists and 30 members of the public. It quickly became clear when hearings began that this process was insufficient. A marquee was erected in an adjacent car park to provide 200 extra spaces for the media— leaving the overflow courtroom available solely for the public.

  4.2  We were fortunate that the Inquiry's hearings took place during the long vacation and therefore space was available for us to use. As a courtroom is likely to be a suitable venue for many types of inquiry, it may be worthwhile for the DCA to designate a courtroom for use by Inquiries and to fit it out with appropriate technology. This could be made available, where appropriate, for inquiries set up by Government, but used for other purposes if no Inquiry is in progress.

  4.3  We used "livenote" as an instantaneous transcription service. As well as providing a feed to the legal teams, the public and the media were able to follow the transcriptions on monitors both in the hearing room itself and in the annexes.

  4.4  All evidence submitted to the Inquiry was scanned into a database. We were able to retrieve the evidence as required and display it in the hearing room. This avoided the need for evidence "bundles" to be prepared and copies for each party. As with the transcription, the evidence was displayed also on monitors for the public and media.

  4.5  The daily transcripts and evidence were published twice daily on the Inquiry's website so that the public could be as fully informed as possible as to the proceedings. Where it was necessary to withhold evidence from publication, the Government's Code of Practice on Access to Government Information was used to justify non disclosure.

  4.6  The openness of the Inquiry and the website were very popular with the press and the public and significantly reduced press calls to the Inquiry itself or to press office.

5.  CONCLUSION

  5.1  Iwas very grateful for the briefing Treasury Solicitors gave me shortly after my appointment and for the help other secretaries to Inquiries, in particular Hugh Burns and Christine Pulford provided. In return I have held meetings with the Secretaries to the Holyrood, Bichard and Mubarek Inquiries about our experiences.

October 2004





 
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