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.
BOX 1
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).
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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.
OUR RECOMMENDATIONS
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.
- 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:
http://www.official-documents.gov.uk/document/cm69/6945/6945.pdf. Back
5
Post-legislative scrutiny: the Government's approach, Cm
7320, available at:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/228516/7320.pdf. Back
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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