Memorandum by Iain McLean, Professor of
Politics, Oxford University (GBI 26)
ON NOT SCRAPPING THE TRIBUNALS OF INQUIRY
(EVIDENCE) ACT 1921
1. This note is a very belated response
to your "Issues and Questions Paper". I am sorry to
intervene so late in the discussion. I will therefore be very
brief. In particular, I agree with the points made in the written
and oral evidence given in summer 2004 by Lord Norton of Louth.
2. What I have to add to his evidence derives
from the work I have published with Martin Johnes on the Aberfan
disaster (21 October 1966), when 144 people, most of them schoolchildren
and their teachers, were killed by the slide of a colliery waste
tip down a mountain. This work was based on public records released
by the National Archives on 1 January 1997 and 1 January 1998.
See especially I McLean and M Johnes, Aberfan: Government and
Disasters (Cardiff: Welsh Academic Press 2000) and our website
at http://www.nuff.ox.ac.uk/politics/aberfan/home.htm.
3. The Aberfan disaster was the fault of
a body which in 1966 was to all intents and purposes a Government
department, namely the National Coal Board (NCB). The gross (it
is not too strong to say grotesque) failures of the NCB were not
spotted by its regulator, HM Inspectorate of Mines and Quarries.
The Ministry of Power, we argue from evidence in the National
Archives, operated more to protect the coal industry than the
people of Wales. The Charity Commission intervened when it should
not have done, and failed to intervene when it should have done.
It tried to force the Disaster Fund to withhold payments from
bereaved families until it had satisfied itself that they had
been "close" to their deceased children; and to prevent
it from building the memorial in Aberfan cemetery. It did not
protect the Disaster Fund against the raid on its assets by the
Government of the day in 1968, which forced the Disaster Fund
to pay some of the cost of removing the Aberfan tips. (This money
was repaid by the Rt Hon Ron Davies in one of his first actions
as Secretary of State for Wales in 1997).
4. The disaster therefore demonstrated comprehensive
failure by various public bodies for which Secretaries of State
were answerable, directly or indirectly.
5. The "controversial events giving
rise to public concern" that are the subject of your inquiry
will very often involve allegations that a public body did something
wrong.
6. When a Secretary of State orders an inquiry,
therefore, s/he is often in the position of arranging an inquiry
into possible misdeeds for which, if proved, s/he must answer
to Parliament.
7. The incentives facing the Secretary of
State are therefore to arrange the inquiry in such a way as to
minimise his/her own exposure to blame.
8. It is therefore essential that the 1921
Act, or a successor, should be preserved as a mechanism for either
House to insist on an inquiry in the event of a Secretary of State
refusing to hold one.
9. I would go further. I agree with various
of your witnesses (notably Lord Norton and Lord Howe of Aberavon[57])
that there should be a template for a standard statutory inquiry;
that this template should include the provision of "wing
members' to give specialist expertise and a standard level of
legal powers and rights to representation; that a collective memory
and secretarial capacity for such inquiries should be retained
in the Department of Constitutional Affairs; and that either House
should have the power to object to an inquiry announced by a Secretary
of State if it does not fit the standard model.
10. There is a tricky question of what rights
to representation to accord to witnesses. It is easy to say, in
reaction to the cost and time of the Saville inquiry, that "things
have gone too far" and that inquiries must be streamlined
and their cost reduced.
11. On the other hand, I am convinced by
my reading of the Aberfan documents released in 1997 and 1998
that, had the Aberfan inquiry been anything less than a "1921
Act" inquiry, justice to the bereaved and the survivors would
not have been done. Nor would the important policy lessons drawn
in the tribunal report have been drawn.
12. The Aberfan inquiry was the longest
to be held under the 1921 Act up to that date. The hearings occupied
76 days. Lord Ackner, who as Desmond Ackner was counsel for the
Aberfan Parents' and Residents' Association, has stated that the
sole reason for the length of the inquiry was the extreme reluctance
of witnesses for the NCB to admit any liability—indeed,
even to admit such facts as the presence of springs underneath
the fatal tip. Not until Day 70 of the Inquiry, in dramatic cross-examination
of the Rt Hon Lord Robens, Chairman of the NCB, did Ackner elicit
any admission of responsibility.
13. My answers to the relevant questions
in your Issues and Questions Paper are therefore:
(a) Q8. Yes, the 1921 Act should be used
in preference to ad hoc inquiries.
(b) Q9. No, the 1921 Act is not redundant.
(c) Q10. They should be investigatory. The
role of Counsel for the Inquiry is important, as Aberfan and Scott
(albeit Scott was not a 1921 Act inquiry) showed.
(d) Q12. They should always sit in public,
and go in camera only if all parties represented agree to that.
(f) Q14. Yes, but a minimalist approach.
For the reasons given by the Salmon Royal Commission, parliamentary
committees are not themselves equipped to conduct this sort of
inquiry.
(g) Q16. A parliamentary commission, working
in conjunction with the permanent secretariat to be located in
the Department of Constitutional Affairs.
(h) Q19. The report should (continue to)
be a House of Lords and/or House of Commons paper. Ministers should
not get advance sight of it. Its publication should be under the
control of the House(s) that called for it, not of the executive.
(i) Q20. In the case of Aberfan, yes.
(k) Q22. Yes. The authorities of the House(s)
that called for the report.
December 2004
57 Whose evidence is given even more authority because
he was Counsel for the British Association of Colliery Management
and the National Association of Colliery Managers at the Aberfan
disaster inquiry: HL 316, HC 553, 1967.
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