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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