The Inquiries Act 2005: post-legislative scrutiny - Select Committee on the Inquiries Act 2005 Contents

The Inquiries Act 2005: post-legislative scrutiny

CHAPTER 1: Introduction

Constitution of the Committee

1.  "It is wholly impracticable to attempt to devise a single set of model rules or guidance that will provide for the constitution, procedure and powers of every inquiry." This advice of the Council on Tribunals, given to the Lord Chancellor in 1996,[1] was followed within nine years by an Act and Rules which together govern in great detail the constitution, procedure and powers of public inquiries. The task of this Committee has been to see whether the Inquiries Act 2005 and the Rules made under it do indeed provide a satisfactory framework for inquiries.[2]

2.  Post-legislative scrutiny of Acts of Parliament is a relatively recent activity, dating from a report of the House of Lords Constitution Committee in 2004.[3] The Committee recommended that Government departments should prepare post-legislative scrutiny memoranda in respect of all significant primary legislation, other than Finance Acts, within three years of its entry into force, and deposit a copy of its memorandum with the appropriate Commons Departmental Select Committee. It would be for that Committee to carry out the scrutiny, the purpose being to ensure that the legislation was achieving the objects it was intended to achieve.

3.  In their response to that report, the Government asked the Law Commission to consider the proposal and to report on it. The Law Commission did so in October 2006.[4] Taking their views into account, the Government in March 2008 published their response Post-legislative scrutiny: the Government's approach.[5] Their conclusion was that scrutiny was not appropriate for all legislation, and that there should be a selective approach. They agreed that in appropriate cases Government departments should prepare a post-legislative scrutiny memorandum.

4.  As to the mechanics of scrutiny, they said:

    "The Government accordingly considers that the best approach would be for the proposed departmental Memorandum … to be submitted to the relevant Commons departmental select committee in the first instance. The Memorandum would be published as a Command paper, thereby allowing Lords and other interests to take up points raised in it. But the prime responsibility would rest with the Commons Committee initially to consider the Memorandum … The Committee would decide whether it wished to conduct a specific post-legislative inquiry into the Act, or perhaps to include it as part of another inquiry within its work programme. It might also be considered whether a Lords Committee, or a Joint Committee of both Houses, might be well suited to carry out such a review (though not ordinarily where the Commons Committee has decided to undertake scrutiny) … The Government envisages that the initiative for deciding whether a full and specific parliamentary post-legislative scrutiny of an Act should be carried out should rest with the relevant Commons select committee. This would not preclude the possibility of other committees—whether ad hoc Lords or Joint Committees or existing committees—conducting an inquiry, potentially as a result of the departmental Memorandum."[6]

5.  We do not understand why an initiative originating with the Lords Constitution Committee should have led the Government to suppose that "the prime responsibility should rest with the Commons Committee," and that a Lords Committee should not "ordinarily" undertake such scrutiny where a Commons Committee has decided to do so. In the event, when in October 2010 the Ministry of Justice submitted to the Commons Justice Select Committee a memorandum on post-legislative scrutiny of the Inquiries Act 2005, that Committee decided not to carry out a scrutiny, and there has been no scrutiny of the Act until this Committee was set up on 16 May 2013.[7]

6.  Post-legislative scrutiny of the Act has not been our only task. Our terms of reference go considerably wider, and require us to consider more generally "the law and practice relating to inquiries into matters of public concern, in particular the Inquiries Act 2005". We have therefore used the Act as a basis for a broader and more topical inquiry.

Inquiries into matters of public concern

7.  Inquiries can be held by any persons and bodies, public or private, to look at anything which they are required to investigate or which they believe needs investigating. We have been concerned only with the category of inquiries covered by section 1 of the Act, which provides that a minister may cause an inquiry to be held under the Act where it appears to him that "particular events have caused, or are capable of causing, public concern, or there is public concern that particular events may have occurred." These inquiries into matters of public concern are sometimes referred to as "judicial inquiries" or "public inquiries". Both of these are misnomers. Inquiries into matters of public concern can be and often are chaired by persons other than judges or retired judges, and they can sit in private where necessary.

8.  Nor do such inquiries have to be set up under this Act, or any Act. As a minimum, all that is needed for an inquiry is a suitable person to carry it out, the necessary resources, and witnesses who are willing or required to disclose the relevant documents and to give oral evidence. This is an important issue which we consider in chapter 3.

9.  Inquiries always have some at least of the following functions.


The purposes of inquiries[8]
  • Establishing the facts, especially where these are disputed or the chain of causation is unclear.
  • Determining accountability.
  • Learning lessons, and making recommendations to prevent recurrence, often by improving the constitution and powers of regulatory bodies.
  • Allaying public disquiet and restoring public confidence.
  • Catharsis: an opportunity for reconciliation between those affected by an event and those whose action caused it or whose inaction failed to prevent it.
  • Developing public policy.
  • Discharging the obligations of the State to satisfy the European Convention on Human Rights (ECHR), by investigating allegations that agents of the State have violated Article 2 of the Convention (the right to life)[9] or Article 3 (prevention of torture or of inhuman or degrading treatment or punishment).

10.  Appendix 4 lists inquiries established under the Act, or established prior to the passing of the Act but converted to inquiries under the Act; Appendix 5 lists inquiries since 1990 set up under other legislation, or with no statutory basis—non-statutory inquiries. Both lists include the length of the inquiry and, where available, its cost. The longest and most expensive, by a very long way, was the Bloody Sunday Inquiry—over 12 years, and £191.5 million. But many others have been inordinately long, and many—not necessarily the longest—have also been phenomenally expensive. Our report suggests ways in which the purposes of inquiries can be achieved without excessive length or expense.

Constitutional importance of inquiries

11.  Inquiries are a major feature of our unwritten constitution and play an important part in the way the executive deals with major crises. Liberty described public inquiries as "a key component of the constitutional and administrative justice system in the UK", and continued: "Inquiries provide a means for the truth about an event or series of events to be reached by an independent and authoritative body, but in a manner which is more inclusive and restorative than litigation."[10] Professor Adam Tomkins, Professor of Public Law at Glasgow University, thought public inquiries were "an important component of our system of administrative justice … capable of playing a very significant role constitutionally in our public law system", but he stressed that inquiries must be understood as only one of the components of our system of administrative justice, alongside courts, tribunals, the ombudsmen and auditors; a list to which Sir Stephen Sedley added inquests.[11]

12.  Independent public inquiries have sometimes had momentous consequences. The Crichel Down inquiry in 1954 led directly to the resignation of Sir Thomas Dugdale, the Secretary of State for Agriculture, not for any personal wrongdoing but because he took full ministerial responsibility for the ineptitude of his civil servants—the first such case of ministerial resignation since 1917.[12] Sir Stephen Sedley described this as "one of the most effective inquiries in our constitutional history."[13] It is regarded as "one of the key events leading to the creation of the post of Ombudsman".[14]

13.  Another example of an inquiry with far-reaching consequences was the Macpherson inquiry into the death of Stephen Lawrence, and in particular the conclusion that "institutional racism … exists both in the Metropolitan Police Service and in other Police Services and other institutions countrywide."[15] The changes which that finding initiated are still continuing.

The Government's approach to our inquiry

14.  Given the great constitutional importance of inquiries, their contribution to our administrative law, and the major effects they have had in the past and continue to have, we would have hoped that the Ministry of Justice and the Cabinet Office, which together are currently responsible for the Act and for the law, practice and procedure of inquiries, would have regarded this as a serious topic meriting a full and careful consideration by this Committee. We would have expected that at least one Cabinet minister would be involved, and would ensure that senior staff gave us full and prompt assistance. We regret to say that, in our view, this did not happen. Moreover the minister who gave evidence to us, Shailesh Vara MP, the Parliamentary Under-Secretary of State at the Ministry of Justice, had been in office for barely two months. We say nothing against him personally; the evidence he gave us was as full and helpful as we might have expected within the limits of his experience. We would however have hoped that the Secretary of State for Justice and Lord Chancellor would have come to give us the benefit of his experience and to demonstrate the importance which he should attach to the subject.

Our working methods

15.  On 13 June 2013 we issued a Call for Evidence. We began taking oral evidence in June 2013 with officials from the Ministry of Justice. Our evidence session with the minister was in December 2013. In between we took evidence from six chairmen of inquiries and a panel member, three counsel to inquiries, three secretaries, an inquiry solicitor, assessors, core participants, academics, legal specialists, interest groups and others. To all our witnesses we are most grateful.

16.  On 3 July 2013 we visited the Al-Sweady Inquiry to hear it taking evidence from a firearms expert. We found it very valuable to see the inquiry in action and to study the respective roles of chairman and counsel. We are grateful to the staff who helped to arrange this.

17.  We are grateful to Professor Carol Harlow, Emeritus Professor of Law at the London School of Economics and our specialist adviser, for her assistance to our inquiry.


18.  We share with the inquiries we have been considering one problem: as an ad hoc Committee, set up for a particular purpose, we cease to exist as a Committee on the production of our report, and are therefore unable to oversee the implementation of our own recommendations. The Liaison Committee, which is responsible for reviewing the work of the House's select committees, has decided to follow up the recommendations of former ad hoc committees a year after their reports are published. Our recommendations are listed in the Summary of Conclusions and Recommendations at the end of the report, and we have identified those which in our view should be subject to this process and to which others in the House will wish to return once we as a Committee are unable to do so.

  1. Some of our recommendations involve the amendment of legislation. The power to make Rules to amend the Inquiry Rules 2006 is already on the statute book,[16] and we see no reason why, with the right approach by the Ministry of Justice, these amendments should not be made within three months. We recommend eleven minor but significant amendments of the Act itself. These will require primary legislation, but they could be included as a Schedule to the next suitable Bill introduced by the Ministry of Justice.

1   Annual report of the Council on Tribunals for 1995/96, ordered by the House of Commons to be printed on 17 December 1996; paragraphs 1.22 to 1.34 and Appendix A. Lord Mackay of Clashfern had asked for the advice of the Council on Tribunals following criticisms of inquiry procedure and recommendations for changes made by Lord Scott of Foscote in Part 4, Section K of the report of his inquiry into Exports of Defence Equipment to Iraq. Back

2   Where in this report we refer to "the Act", this is a reference to the Inquiries Act 2005. Section 41 of the Act allows the Lord Chancellor to make rules governing evidence, procedure and other matters in relation to inquiries for which a United Kingdom Minister is responsible, and Scottish Ministers to make similar rules for inquiries for which they are responsible. The Lord Chancellor made the Inquiry Rules 2006 (SI 2006 No 1838) on 11 July 2006; they came into force on 1 August 2006. A Scottish Minister made the Inquiries (Scotland) Rules 2007 (SSI 2007 No 560) on 13 December 2007; they came into force on 19 January 2008. The provisions of the Scottish Rules are very similar to those of the United Kingdom Rules, though there are differences of drafting and numbering. A reference in this report to "the Rules" is a reference to the Inquiry Rules 2006, but what we say about them extends to the equivalent provisions of the Scottish Rules. Back

3   Constitution Committee, Parliament and the Legislative Process, (14th Report, Session 2003-04, HL Paper 173-I). Back

4   Law Commission, Reforming the law, Post-Legislative Scrutiny, Law Com No 302, Cm 6945, available at: 

5   Post-legislative scrutiny: the Government's approach, Cm 7320, available at: 

6   Appendix to the Government response, paragraphs 20, 21 and 28. Back

7   Other Lords ad hoc Committees have carried out post-legislative scrutiny of the Adoption and Children Act 2002, the Children and Adoption Act 2006, and the Mental Capacity Act 2005. Back

8   This list is based on the list in the book Public Inquiries by Jason Beer QC (OUP, 2011), which in turn follows closely the list in Lord Howe of Aberavon The Management of Public Inquiries (1999) 70 Political Quarterly 294. We have found Mr Beer's book a valuable source of information, analysis and opinion. Mr Beer also gave us oral evidence on the functions of counsel to inquiries. Back

9   ECHR Article 2 protects everyone's right to life, and this has been interpreted by the European Court of Human Rights as imposing on governments an obligation to conduct an effective official investigation into any death resulting from the use of force and any death resulting from the state's failure to protect the right to life. See further paragraphs 69 et seq. Back

10   Written evidence, paragraph 1. Back

11   Q 23. Back

12   HC Deb, 20 July 1954, cols 1178-1298. Back

13   Q 37. Back

14   Roger Gibbard, Whose land was it anyway? The Crichel Down Rules and the sale of public land. Back

15   Report, February 1999, Cm 4262, paragraph 6.39. Back

16   Section 41 of the Act. Back

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