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| Inquiries Bill [HL] |
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These notes refer to the Inquiries Bill [HL] as introduced in the House of Lords on 25th November 2004 [HL Bill 7] INQUIRIES BILL [HL] EXPLANATORY NOTESINTRODUCTION 1. These explanatory notes relate to the Inquiries Bill [HL] as introduced in the House of Lords on 25th November 2004. They have been prepared by the Department for Constitutional Affairs in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament. 2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given. OVERVIEW 3. The Inquiries Bill is intended to provide a comprehensive statutory framework for inquiries set by Ministers to look into matters of public concern. It gives effect to proposals contained in a Government consultation paper, dated 6th May 2004 en-titled "Effective Inquiries", which itself arose out of a memorandum, submitted to the House of Commons Public Administration Select Committee as part of its "Government by Inquiry" investigation. 4. The explanatory notes are divided into groups of clauses reflecting the structure of the Bill. In relation to each group of clauses, there is a summary, and also some background. Commentary on particular clauses is then set out in numerical order, with the commentary on the various Schedules included with the clauses to which they relate. 5. The clauses are grouped under 10 cross-headings. 1. Constitution of Inquiry
Conversion of Inquiries
Inquiry Proceedings
Inquiry Reports
Scotland, Wales and Northern Ireland
Supplementary
General
Amendments etc
Final provisions
TERRITORIAL EXTENT 6. This Bill applies throughout the United Kingdom (see clause 49). Clause 25 applies specifically to Scotland, clause 26 to Wales and clause 27 to Northern Ireland. COMMENTARY ON CLAUSES CONSTITUTION OF INQUIRY Clause 1: Power to establish inquiry 7. This clause enables any Minister to cause an independent inquiry to be held and sets out the circumstances in which the inquiry may be established. The range of inquiries in the past ten years illustrates that is not possible to specify more precisely the circumstances when an inquiry may be called. An inquiry could be called into a particular event (e.g. Dunblane inquiry 1996) or a series of events (e.g. BSE inquiry 1997). Although most past inquiries have been triggered by events, they have also been held where there is a concern that something has failed to happen or that particular systems have not operated properly (for example, the Climbi, inquiry 2001). This clause allows for an inquiry to be set up when there are concerns of this type too. 8. The Bill is UK-wide. Ministers from the Devolved Administrations will have the power to establish inquiries into matters within their remit. Clause 2: No determination of liability 8. The purpose of this clause is to make clear that inquiries under this Bill have no power to determine civil or criminal liability and must not purport to do so. There is often a strong feeling, particularly following high profile, controversial events, that an inquiry should determine who is to blame for what has occurred. However, inquiries are not courts and their findings cannot and do not have legal effect. The aim of inquiries is to help to restore public confidence in systems or services by investigating the facts and making recommendations to prevent recurrence, not to establish liability or to punish anyone. 9. However, as subsection (2) is designed to make clear, it is not intended that the inquiry should be hampered in its investigations by a fear that responsibility may be inferred from a determination of a fact. Clause 3: The inquiry panel 10. The aim of this clause is to provide Ministers with the flexibility to appoint an inquiry panel that is appropriate to the circumstances under investigation. The Minister may appoint either a chairman to sit alone (e.g. Lord Cullen sat alone as the chairman to the inquiry into the shootings at Dunblane Primary School, 1996) or with one or more panel members (e.g. Michael Redfern QC chaired a three person panel for the Royal Liverpool Children's Hospital inquiry, 1999) Clause 4: Appointment of inquiry panel Clause 5: Setting-up date and terms of reference 11. Clause 5 requires the Minister to specify a setting-up date and terms of reference for the inquiry. The setting-up date given by the Minister is the date the inquiry formally comes into existence as an independent body. This date is purely a formality and need not relate to any other event connected with setting up the inquiry, such as an opening meeting. An inquiry will not begin considering evidence until the setting-up date has passed. It might, however, begin taking some practical steps to find premises and staff. 12. An inquiry is set up to investigate a particular set of circumstances. The remit of the inquiry must be set out by the Minister in the terms of reference before the setting up date. There is no statutory obligation on the Minister to consult either with the chairman or interested parties when setting the terms although he may decide to do so if he considers it appropriate in the particular circumstances. 13. The type of information contained in the terms of reference will vary from inquiry to inquiry. For example, the terms for the Victoria Climbi, and Shipman inquiries were fuller than those used for the Bloody Sunday inquiry. In some cases it might be appropriate to specify a date by which the inquiry is asked to report, or the level of urgency. The definition of terms of reference in this Bill is wide in order to allow for appropriate terms of reference to be set for a wide range of inquiries under this clause. Under subsection (4)(c) of clause 5, the Minister must specify whether the inquiry is asked to make recommendations. However, clause 22(1), which is concerned with inquiry reports, enables the panel to make recommendations even if this was not a requirement in the terms set by the Minister. Clause 6: Further appointments to inquiry panel Clause 7: Suitability of inquiry panel 14. The Minister is required to consider the factors in subsection (1)(a) and (b) of clause 7 every time he makes an appointment, including any further appointments during the inquiry. He must consider the need for balance in relation to issues that are likely to be relevant to the terms of reference. So, for example, this requirement would not usually mean that the Minister needs to consider appointing an equal number of men and women to the panel, unless the subject matter of the inquiry means that the sex of the panel members is particularly relevant. What it does mean is that he should consider balance in terms of the relevant experience that the panel members bring. So, for example, the panel of the Bristol Royal Infirmary inquiry consisted of a professor of health law, ethics and policy, a professor at the Imperial College School of Medicine and practising GP, an academic specialising in family law and an executive director of nursing with 20 years' experience. That panel had a range of experience, which was balanced between different subject areas and between academic and practical experience. 15. Under subsection (2) the Minister may bear in mind the contribution of assessors to the expertise of the panel for the purposes of subsection (1)(a). The purpose of subsection (1)(a) is to ensure that the panel has the ability to conduct an informed analysis of the evidence and produce a full and useful report. Assessors may provide expert assistance to the panel members, enabling them to do this. However subsection (1)(b), which provides for the need for balance in the context of the terms of reference, does not take into account the contribution of any assessors. This is because it is the panel, and the panel alone, who have responsibility for the contents of the report, and the requirement for balance is designed to ensure that this report is fair and reasoned. The panel may ask for the assistance of those working for the inquiry, including the assessors, in writing the report, but it is the panel who have the final word on what goes into the report. Clause 8: Requirement of impartiality 16. The clause does not prevent the appointment of individuals with expertise in a specific subject area as required in clause 7, and is designed to allow the Minister a certain level of discretion when considering whether a panel member will act with impartiality even in the light of any link that may exist. In some specialised subject areas, it could be difficult to find panel members who did not have some sort of association with those involved, or a general interest in the subject matter. For example, if an inquiry were set up to look into the circumstances surrounding allegations of misconduct by a doctor, this clause would not prevent the appointment to the panel of individuals with expertise in NHS monitoring practices, provided they had not been involved in the case of that particular doctor. The aim of the clause is to ensure that no one is appointed to the panel whose actions are likely to be influenced by a direct interest in the outcome of the inquiry. Clause 9: Appointment of judge as a panel member 17. This clause deals with the circumstances in which a Minister proposes to appoint a (serving) judge as a panel member (including chairman) to an inquiry. The clause sets out whom the Minister is required to consult before making such an appointment. In practice, it is likely that consultation for judges in England, Wales and Northern Ireland will be done through the Lord Chancellor. Clause 10: Assessors 18. The role of assessors will vary from inquiry to inquiry, but in essence they are experts in their own particular field whose knowledge, where necessary, can provide the panel with the expertise it needs in order to fulfil an inquiry's terms of reference. For example in the Victoria Climbi, inquiry, four expert assessors, including a consultant paediatrician and a detective superintendent, joined the chairman, Lord Laming. Assessors do not have any of the inquiry panel's powers and are not responsible for the inquiry report or findings. An assessor could be appointed for the duration of the inquiry, but it would also be possible to appoint an assessor only for part of the inquiry, to assist when evidence on a particular subject was being considered. Clause 11: Duration of appointment of members of inquiry panel 19. In practice, if a panel member needs to leave the panel before the end of an inquiry, it is highly likely that he will resign. The circumstances covered in subsection (3), in which the Minister would be able to terminate the appointment of a panel member, are expected to arise very rarely. Clause 12: Power to suspend inquiry 20. An inquiry may be one of a number of investigations into a particular matter. Often, the respective timing of these is very important; for example, to ensure that an inquiry does not prejudice a criminal prosecution. The results of other investigations may also inform the inquiry and help prevent duplication. 21. In the event that new investigations or proceedings come to light or are commenced after the inquiry has started, it may be necessary to halt the inquiry temporarily. This clause sets out the circumstances in which a Minister may suspend an inquiry to allow other proceedings to be completed. Clause 13: End of inquiry 22. This clause set out how an inquiry comes to an end. An inquiry is not permanent. It only exists between the setting-up date and the date on which it ends under this clause. In most cases an inquiry will end when the chairman has submitted a report to the Minister and has done any further work necessary to wind up the inquiry, such as costs assessment. However, there might be situations before the submission of the report in which it is no longer necessary or possible for the inquiry to continue. New evidence may emerge that obviates the need to hold an inquiry or demonstrates that the inquiry has the wrong focus, for example, if it emerged during an inquiry that the event being investigated was an act of sabotage rather than failings of a particular system. In such cases, the Minister is able to bring the inquiry to a close. If there is still a need for investigation, the Minister might choose to start a new inquiry, with different terms of reference and possibly a change in panel membership. 23. Subsection (2) provides that the Minister may not end the inquiry retrospectively. Any proceedings up to the date the Minister notifies the chairman an inquiry is ending would be valid. CONVERSION OF INQUIRIES Clause 14: Power to convert other inquiry into inquiry under this Act 24. This clause enables the Minister to convert an inquiry that is not being held under the Inquiries Bill into an inquiry held under the Inquiries Bill. In recent non-statutory inquiries, including Hutton and Bichard, the chairmen have stated that if formal powers were required, these would be made available to them by effectively converting to a statutory inquiry. Three recent health inquiries (Ayling, Neale, Kerr/Haslam) were converted from being held under a general power to do anything which related to the discharge of a Minister's duties (s.2 National Health Service Act 1977) into inquiries established under clause 84 of the same Act which is a specific inquiry power with powers of compulsion. 25. The Minister may convert a non-statutory or statutory inquiry provided that he is satisfied that the matter the original inquiry was investigating fell within the scope of the circumstances in subsection (2), which are the same as those set out in clause 1 of the Bill. It is not intended that this power should be used to convert other types of inquiries, such as planning inquiries. 26. The Minister may change the terms of reference when converting the inquiry. This means that he can ensure that they fulfil the conditions set out in clause 5. It may also be appropriate to alter the terms of reference if, for example, the inquiry is being converted because it has become clear that the scope of the original inquiry was too narrow, and a broader inquiry power is needed. Clause 15: Inquiries converted under clause 14 27. This clause makes provision for inquiries converted under clause 14. Orders made under the original inquiry may only be enforced using powers that the inquiry had at the time of making the order. For example, if the chairman of a converted inquiry had made a request for evidence prior to conversion, he could not prosecute an individual under clause 32 for failure to comply. He would have to issue a request under clause 19, using the inquiry's new powers of compulsion first. INQUIRY PROCEEDINGS Clause 16: Evidence and procedure 28. The purpose of subsection (3) is to ensure that the need to control cost is a valid consideration for the chairman when conducting and planning proceedings. The cost of inquiries will vary according to the complexity of the matters being investigated. The Minister is required, by clause 36(3), to meet expenses reasonably incurred in holding the inquiry. Each decision to admit evidence, to hold oral hearings, or to allow legal representation adds to the cost of the inquiry. The requirement in subsection (3) will strengthen the chairman's ability to defend decisions in which the need to limit costly elements of an inquiry was a factor. Clauses 17 & 18: Restrictions on public access etc; Further provisions about restriction notices and orders 29. These two clauses set out the extent to which inquiry proceedings can be held in private and evidence can be withheld from the public domain. 30. There may be circumstances in which part or all of an inquiry must be held in private, and over a third of the notable inquiries held in the past fifteen years have had some sort of restrictions on public access. These range from wholly private inquiries, such as the Penrose inquiry into the collapse of Equitable Life and the "Lessons Learned" (Foot and Mouth) Inquiry, to mainly public inquiries such the Bloody Sunday inquiry and the Hutton inquiry, in which a small amount of highly sensitive material was withheld from the public domain. 31. In some past inquiries, it has been the Minister who has specified restrictions, whereas in others the chairman has set the restrictions. Clause 17 allows for both. It replaces a range of statutory provisions on public access in the legislation that is repealed by schedule 2 including, for example, s. 81 of the Children Act 1989, which states:
(3) When no direction has been given, the person holding the inquiry may if he thinks fit hold it, or any part of it, in private." 32. Public access to past inquiries has been restricted for a variety of reasons. Clause 17(4) sets out a number of matters that must be taken into account when determining whether it is in the public interest to issue a restriction notice or order. Most of these factors are self-explanatory. 33. Clause 17(4)(c) is intended, among other things, to cover cases in which a person has received information that he would usually be prevented by law from disclosing. For example, the Financial Services Authority receives sensitive information about firms in its role as a regulator, but is prevented from disclosing that information generally by Part 23 of the Financial Services and Markets Act 2000. Inquiries' powers of compulsion would override those restrictions, but it might be appropriate for the chairman or Minister to consider preventing the information from being disclosed more widely. 34. Clause 17(4)(d) recognises that some inquiries might be conducted more efficiently or effectively with restrictions on public access. Several recent inquiries under s. 84 of the NHS Act 1977 have been held partially in private, with relatives and participants admitted but not the general public. 35. Restrictions that could be imposed on attendance under subsection (1)(a) might range from the exclusion of the press or general public (allowing those with an interest in the inquiry to attend, as was the case in the Ayling and Neale inquiries) to the exclusion of everyone except the panel, the witness and, if appropriate, their legal representatives (as happened in the Penrose inquiry into the collapse of Equitable Life). They might be imposed on all hearings, or only where a particular witness was giving evidence or where evidence was heard on a specified topic. The nature of the restriction would depend upon the reasons for it. Similarly, a range of different restrictions might be imposed on the disclosure or publication of evidence or documents. 36. Clause 18 allows the Minister and chairman to issue further restrictions and to vary or revoke their own restrictions at any time before the end of the inquiry. The Minister cannot vary or revoke the chairman's restrictions and vice versa. There is, however, nothing to stop the chairman from asking the Minister to consider exercising his discretion to vary a notice. The power to vary notices and orders will allow for situations in which it becomes apparent that more information can be made public than was originally envisaged, or that more people can be given access to information than allowed by the original notice, as well as any situations in which it becomes apparent that further restrictions are necessary. 37. Clause 18 provides that, except in relation to inquiry records, restriction notices and orders continue indefinitely unless otherwise specified or unless they are revoked. Orders restricting attendance will only be relevant during the course of the inquiry, but some orders restricting disclosure or publication of evidence might need to continue beyond the end of the inquiry. For example, if an inquiry chairman issued an order that the identity of a particular witness was to be kept confidential, because the witness could be at risk if his identity were disclosed, that order would need to continue to protect that witness after the inquiry had ended. 38. However, restriction notices and orders can apply in relation to inquiry records for only 30 years (subsection (6)). This is designed to ensure that restrictions do not create an additional barrier to disclosure of information under the Freedom of Information Act 2000. Inquiry records are exempt from disclosure under section 32 of that Act only for 30 years. In addition to this, in order to ensure that restriction notices and orders do not unnecessarily prevent any future public disclosure of information, clause 18 allows the Minister to vary or revoke any restrictions after the end of an inquiry. 39. Disclosure restrictions would not prevent a person not involved in the inquiry from disclosing or publishing information that had come into his possession through means unconnected with the inquiry, even if some of that information might be included in documents or hearings that were covered by a restriction order or notice. 40. For example, suppose that an inquiry were set up into the death of a hospital patient, and that a restriction notice were issued to exclude the general public from the proceedings and to prevent the publication of transcripts of evidence, because it was considered that a partially private inquiry would be more effective. The inquiry might consider information already in the public domain, such as papers from the inquest, or statements of hospital policy. The fact that a restriction notice was in place for the inquiry would not prevent a member of staff at the hospital from providing a patient with a copy of the hospital policy. 41. To take another example, suppose that a Government department provided information to a private inquiry and that, after the end of the inquiry, a request were made under the Freedom of Information Act 2000 for some of that information. The Department could not refuse to provide the information purely because it happened to have been covered by the restriction notice, because the Department would have held that information even if the inquiry had never happened. The purpose of a restriction notice is just to restrict disclosure of information in the context of the inquiry or to restrict disclosure by those who have received the information only by virtue of it being given to the inquiry. 42. Subject to any restrictions issued under these two clauses, the chairman is required by clause 17(6) to do what he considers reasonable to ensure public access to evidence in the ways set out in subsection (6)(a) and (b). The chairman is able to judge what is reasonable so, for example, if the panel has been sent documents that it considers to be irrelevant then the chairman may decide not to make those available with the rest of the evidence. 43. Broadcasting of inquiry proceedings is at the chairman's discretion under clause 17(7). In past, some inquiry chairmen have allowed broadcasting of particular stages, such as the opening statements. In deciding whether to allow broadcasting, the chairman will need to consider whether it would interfere with witnesses' human rights and, in particular, with the right to respect for a private and family life (article 8 of the European Convention on Human Rights). Unlike inquiries under the Tribunals of Inquiry (Evidence) Act 1921, inquiries under the Inquiries Bill will not be covered by section 9 of the Contempt of Court Act 1981, which places restrictions on sound recording.
44. This clause provides inquiries with statutory powers to compel evidence. The powers are exercisable by the chairman, but in a multi-member inquiry he will be exercising them on behalf of the panel. It is envisaged that most requests for information from an inquiry will not be made under clause 19. An inquiry will usually ask for information informally first, and experience from past inquiries has shown that the vast majority of informal requests will be complied with. There are three main scenarios in which powers of compulsion are likely to be used: (i) a person is unwilling to comply with an informal request for information; (ii) a person is willing to comply with an informal request, but is worried about the possible consequences of disclosure (for example, if disclosure were to break confidentiality agreements) and therefore asks the chairman to issue a formal notice; or (iii) a person is unable to provide the information without a formal notice because there is a statutory bar on disclosure. 45. Clause 19(4) covers two reasons for which a person might refuse to comply with a notice issued under powers of compulsion. Clause 19(4)(a) would cover circumstances when the person was unable to comply, for example, if he did not have the information being requested. Clause 19(4)(b) is designed to cover situations in which the difficulty, time or expense involved in providing the information would be so great that a person cannot reasonably be expected to do so. For example, if an inquiry chairman gave a notice requesting that an organisation produce every document it had on a particular topic within two weeks, and the organisation would have to search through thousands of files to comply, the organisation might make a claim under clause 19(4)(b). The chairman would then consider, under clause 19(5), whether the public interest in obtaining the information within that timeframe outweighed the cost, bearing in mind how important the information was likely to be. He might choose to vary his notice by extending the deadline, narrowing the categories of information being asked for, or by specifying that the organisation only need to search certain sites for the information. 46. On occasion, it is possible that the evidence being requested will be an intercepted communication. To ensure that such material can be disclosed to the inquiry, there is an amendment in paragraph 22 of Schedule 2 to the Bill to ensure that this is permissible under section 18 of the Regulation of Investigatory Powers Act 2000. |
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