APPENDIX 3: LETTER FROM LORD HOLME
OF CHELTENHAM, CHAIRMAN OF THE CONSTITUTION COMMITTEE TO BARONESS
ASHTON OF UPHOLLAND, PARLIAMENTARY UNDER-SECRETARY OF STATE FOR
CONSTITUTIONAL AFFAIRS
1. Thank you for your letter of 17 December 2004,
which helpfully explains the position of the Government in several
respects. I should first make clear that we accept that there
is a case for legislation in relation to the holding of public
inquiries on matters that are or may be of public concern, although
the urgency which surrounds this particular measure is less easy
to understand. We are concerned that the subject has constitutional
implications that appear not to have been appreciated by the Government,
and are anxious to ensure that these implications are taken into
account during the progress of the Bill through Parliament. Our
preference, indeed, would have been for the Bill to be published
in draft and subjected to pre-legislative scrutiny, in a similar
manner to the procedure applied to the Bill which, after consideration
over two sessions, has been enacted as the Civil Contingencies
Act 2004.
2. Before dealing with other concerns about which
you have asked for more information, I have to confess to some
surprise that you do not see the Inquiries Bill as being one of
substantial constitutional significance. That might possibly be
the case if it were indeed a "consolidation measure"
as you state, but in our view this is simply not a tenable description
of the Bill. It is the case that the Bill seeks to repeal both
the Tribunals of Inquiry (Evidence) Act 1921 Act and over twenty
subject-specific powers for the holding of inquiries. Yet the
general scheme of powers that it proposes does not so much amount
to consolidation of existing statute-law as to be wholly new legislation.
To give one example: before the powers of the 1921 Act can be
exercised, a resolution of each House of Parliament is required
declaring that it is expedient for a tribunal of inquiry to be
appointed to inquire into a matter of urgent public importance.
This is very different from the power that the Bill confers on
a newly defined, but very wide, group of Ministers—including
the devolved authorities—to cause an inquiry to be held
when it appears that particular events have caused, or are capable
of causing public concern, or that there is a public concern that
particular events may have occurred. A further point among many
that could be made to show that the Bill is not a "consolidation
measure" is that under the Bill any reference to the specific
subject-matter of particular inquiries (police, health, railway
accidents and so on) disappears from the new generalised grounds.
3. It is to be hoped that the Bill builds on
successful practice in relation to public inquiries as it has
evolved in recent years, but there is a vital distinction to be
drawn between allowing administrative practice to continue to
evolve, and drawing from the recent record of inquiries the need
to confer wide and far-reaching statutory powers on Ministers
in relation to the conduct of inquiries. Indeed, that process
of conferring powers upon Ministers may need to be accompanied
by a statement of the essential principles that must be observed
if the integrity of the inquiry process is to be maintained.
4. I might add, briefly, three other reasons
why the Bill seems to us to be of constitutional significance.
First, the Bill concerns the framework for the procedure of impartial
and independent inquiry, a mechanism that in its various forms
is an important means of helping to secure the democratic accountability
of the Executive: in this matter, both Parliament and the public
at large have a substantial interest. Secondly, many but not all
inquiries have involved the use of full-time judges for purposes
that are not ordinarily regarded as being part of their duties
in administering civil and criminal justice. The experience of
several western legal systems is that the use of judges in this
way is likely to raise questions of principle as to the relationship
between the judiciary and the Executive. Thirdly, I would draw
attention to the evidence already given to the Select Committee
on Public Administration which both shows that the subject is
of constitutional significance and raises questions to which a
wide range of possible answers may be given.
5. Against this background, I will attempt to
identify the principal concerns of the Committee on the Constitution.
As noted above, the principal constitutional significance of the
Bill is that it repeals the Tribunals of Inquiry (Evidence) Act
1921. This requires that a resolution of each House of Parliament,
declaring that it is expedient that a tribunal of inquiry be appointed
to inquire into a matter of urgent public importance, is necessary
before the Government (that is, Her Majesty or a Secretary of
State) can appoint a tribunal of inquiry with the same powers
to compel witnesses to give evidence as are exercised by the High
Court. Under the terms of the new Bill, similar powers are exercisable
by "Ministers" (as defined) alone, who may initiate
inquiries with the statutory authority to compel witnesses to
give evidence, without reference to the two Houses of Parliament.
The subject-matter of the inquiries need not (as under the 1921
Act) be of "urgent public importance", but must relate
to events that have caused or are capable of causing "public
concern".
6. There are five further reasons why the Bill
is of constitutional significance:
(a) It contemplates that Ministers may appoint
judges to conduct inquiries initiated under the new powers. The
only express safeguard affecting the use of this power is (by
clause 9(1)) that before the Minister appoints a full-time serving
judge to be a member of an inquiry, he must first consult the
relevant presiding or senior judge (in England and Wales, this
will be the senior Lord of Appeal in Ordinary, so far as the Lords
of Appeal in Ordinary are concerned, or the Lord Chief Justice,
in respect of judges of the Supreme Court or circuit judges; in
Scotland, the judge to be consulted will be the Lord President
of the Court of Session and, in Northern Ireland, the Lord Chief
Justice of Northern Ireland). It is a matter for consideration
whether this is a sufficient provision to govern the situation
in which a Minister seeks to appoint a judge to exercise functions
lying outside the judge's regular duties in the administration
of justice. A related issue is whether the Bill should draw a
distinction, as it does not at present, between inquiries conducted
by judges and inquiries conducted by other persons.
(b) The holding of inquiries into events of public
concern is an important mechanism within a democracy for enabling
authoritative and impartial investigations to be made into events
which may in many ways involve the political responsibility of
governments. The Bill addresses only one, executive-led, means
of helping to secure such democratic accountability. If such inquiries
are to achieve the purpose of responding to public concern, it
is essential that the public should have confidence in the integrity
of the whole process, including the decision to appoint an inquiry,
the conduct of the inquiry hearings, and publication of the inquiry
report.
(c) A well-conducted and thorough inquiry can
have a strong impact on the rights and interests of individuals
connected with the events being inquired into. Clause 2 of the
Bill reads: "(1) An inquiry panel is not to rule on, and
has no power to determine, any person's civil or criminal liability."
It then goes on to state "(2) But an inquiry panel is not
to be inhibited in the discharge of its functions by any likelihood
of liability being inferred from facts that it determines or recommendations
that it makes." Certainly, no inquiry panel has the power
to determine questions of criminal liability or to make an award
of damages, but it may be questioned whether the reference in
this clause to civil liability aptly delimits the proper scope
of an inquiry that is appointed, for instance, to examine and
report upon the causes of a serious railway accident or industrial
disaster.
(d) Many inquiries appointed by Ministers in
recent years (including the "arms for Iraq" inquiry,
the Hutton inquiry, the Bichard inquiry into the circumstances
of the Soham murders, and the Budd inquiry) have been appointed
and held without the benefit of statutory powers. The Bill includes
provision enabling Ministers to convert an inquiry begun without
statutory powers into an inquiry held under the new legislation
(clauses 14-15), but questions arise as to the future intentions
of the Government in regard to non-statutory inquiries, including
questions as to the appointment of judges to conduct such inquiries.
(e) The Bill is concerned not only with the decision
to hold an inquiry and appoint the inquiry panel, but also grants
functions to the relevant Minister in respect of the conduct of
an inquiry—for instance, in regard to the termination of
a panel member's appointment, suspending an inquiry, power to
end an inquiry before it has reported, power to impose restrictions
on reporting and public access, and a qualified duty to publish
the report of an inquiry. It would however run counter to the
reasons for establishing the inquiry if, having set it up, a Minister
continued to exercise an active oversight of the proceedings.
It may in particular be asked whether such powers should be exercised
by a Minister where an inquiry is being conducted by a serving
judge. A further question is whether the Council on Tribunals
(a body that acts independently of Ministers) is to be entirely
excluded from oversight of such inquiries, as is the effect of
the Bill as it stands.[4]
7. As for the general case for legislation in
this area, for many years, since at least the report of the Royal
Commission on Tribunals of Inquiry chaired by Lord Justice Salmon
in 1966[5] and a departmental
committee on the application of the law of contempt to tribunals
of inquiry, also chaired by Lord Justice Salmon[6],
it has often been said that the Tribunals of Inquiry (Evidence)
Act 1921 is in need of reform. Although successive governments
have often appointed non-statutory inquiries, or inquiries under
subject-specific legislation, rather than proceeding under the
1921 Act, practical difficulties have arisen from the lack of
a statutory framework, and from the variety of statutory frameworks
that exist in the case of subject-specific inquiries. Nonetheless,
we are concerned for the broad reasons summarized above at the
full extent of the constitutional changes proposed by the present
Inquiries Bill.
8. In view of the Bill's constitutional significance,
we are also concerned at the manner in which it has been presented
to Parliament. We believe that the issues involved merit the widest
public debate, whether through the publication of a white paper
or by pre-legislative scrutiny of a draft bill. As you have acknowledged,
a full inquiry into the subject of public inquiries is currently
being conducted by the PASC, and I understand that the PASC will
issue its report at an early date. It is a matter of concern to
my Committee that the present Bill, that seeks (among other things)
to repeal legislation that has been in place for more than 80
years, is based upon the Government's response to a consultation
process that was undertaken while the PASC inquiry was in progress
and that has been given little prominence. The Constitution Committee,
for example, was not sent the consultation document. If I might
say so, it is no great comfort to be reassured that PASC's comments
will be taken into account after the Bill has left this House.
9. Finally, I would emphasise that in the time
available the Committee have not been able to scrutinise all the
detailed provisions of the Inquiries Bill, and this letter is
not a substitute for such scrutiny. Our terms of reference require
us to concentrate our attention on questions of principle, not
matters of detail. We therefore propose to bring this correspondence
to the attention of the House, in the belief that it may assist
the Bill to receive the detailed scrutiny in Parliament that it
deserves.
20 December 2004
4 Inquiries Bill, Schedule 2, para 14 (which amends
the Tribunals and Inquiries Act 1992, s 16, to bring about this
result). And see the comment on this point by the Minister, Baroness
Ashton of Upholland, HL Hansard, 9 December 2004, col 1014. Back
5
Cmnd 3121, 1966 Back
6
Cmnd 4078, 1969 Back
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