CHAPTER 2: the background to the act |
20. Parliament, "the grand inquest of the
since the seventeenth century conducted inquiries into alleged
maladministration, and alleged misconduct by ministers and officials;
and the chosen vehicle has usually been a committee, in particular
committees of the Commons. There were occasions when they worked
effectively. The tabling on 26 January 1855 of the motion "That
a Select Committee be appointed to inquire into the condition
of our Army before Sebastopol, and into the conduct of those Departments
of the Government whose duty it has been to minister to the wants
of that Army" led to the resignation of Lord John Russell,
the Lord President of the Council, while the passing of the motion
three days later brought down the Government of the Earl of Aberdeen.
The Committee reported within five months and its "conclusion
was to substantiate to the letter every report that had been circulated
concerning the sufferings of our army in the Crimea."
21. But inquiry by Parliamentary select committees
also had its drawbacks. The composition of such committees generally
reflected the composition of the parties in the Commons. When
the committees divided on party lines, as they usually did, their
conclusions therefore tended to favour the Government, which made
them a far from ideal mechanism for holding the Government to
22. The culmination came with the Marconi scandal
in 1912-13. Negotiation of a contract between the Post Office
and the British Marconi company resulted in a large increase in
the value of the shares of the American Marconi company from which
a number of ministers in the Liberal Government made huge profits,
chief among them Herbert Samuel, the Postmaster-General, David
Lloyd George, the Chancellor of the Exchequer, and Sir Rufus
Isaacs, the Attorney General, whose brother happened to be the
managing director of the British Marconi company. In 1912 a Select
Committee was formed to investigate the contract and the speculation
surrounding it. A majority report by the Liberal members cleared
ministers of any wrong-doing, while a minority report prepared
by the Conservatives labelled the transaction "gravely improper".
It was clear that after this there would be little public confidence
in inquiries conducted by Parliamentary committeescertainly
not in those investigating alleged misconduct by ministers.
The Tribunals of Inquiry (Evidence)
23. On 22 February 1921 allegations were made
in the House of Commons that officials of the Ministry of Munitions
had been ordered to destroy documents relating to the entitlements
of contractors, so that they would be paid more than they were
entitled to. The matter was debated that evening, and Andrew Bonar
Law, then Leader of the House, proposed setting up a committee
chaired by a judge. Sir Frederick Banbury, the member for
the City of London, then asked "whether it would not be necessary
to have an Act of Parliament in order to enable the Committee
which he is going to set up to take evidence on oath
venture to suggest to the Leader of the House that he could without
any difficulty, after 11 o'clock on any evening, pass a Bill through
all its stages to enable the Committee to take evidence on oath."
Mr Bonar Law replied: "I will consult with my right
hon. Friend the Attorney-General as to what difficulties there
are in the way, and also as to whether it would not be possible
to pass with the same facility a short general statute dealing
with the matter."
A Bill was introduced on 4 March, and on 24 March the Tribunals
of Inquiry (Evidence) Act 1921 received the Royal Assent and came
24. We have set out the background to the 1921
Act in some detail to make clear that it did not require or permit
inquiries to be set up for any particular purpose or in any particular
way. It provided merely that where a tribunal of inquiry was set
up by a Secretary of State following a resolution of both Houses
of Parliament to inquire into a matter "of urgent public
the tribunal was to have all the powers of the High Court (or,
in Scotland, the Court of Session) for compelling the production
of documents, enforcing the attendance of witnesses, and examining
them on oath.
25. It is sometimes said that the 1921 Act required
inquiries to be set up by Parliament. This disregards the reality
of the situation. Inquiries were then, as they are now, set up
by ministers. We are not aware of any case where a minister who
wished to set up an inquiry with powers to compel the production
of documents, enforce the attendance of witnesses, and examine
them on oath was unable to obtain the resolutions of both Houses
of Parliament which were needed for the 1921 Act to give the inquiry
those powers. But it is also the case that, while Parliament did
not itself have the power to set up such an inquiry, it could
apply political pressure on a minister to do so, as happened in
1959 in relation to allegations that John Walters, a 15 year old
boy, had been assaulted by two police officers.
The Government initially refused an inquiry under the 1921 Act,
stating that "This procedure has never been used in such
a case". But
a week later the Prime Minister moved that an inquiry be set up
under the Act.
26. Twenty-four inquiries were held between 1921
and 2005 using the powers of the 1921 Act. Twenty of these were
set up between 1921 and 1982. Fourteen years then elapsed without
inquiries under that Act until 1996, after which four further
inquiries were held under that Act until its repeal in 2005.
The Salmon Royal Commission
27. A major development in the history of inquiries
was the setting up in 1966 of a Royal Commission on Tribunals
of Inquiry under the chairmanship of Lord Justice Salmon.
This had its origins in the inquiry by Lord Denning into the Profumo
scandal. The inquiry
procedure was unusual, to say the least. As Lord Denning subsequently
wrote: "I did it alone. Just two secretaries and two shorthand
writers. I had a room in the Treasury in Whitehall. There I saw
Ministers of the Crown, the Security Service, rumour mongers and
prostitutes. They all came in by back doors and along corridors
secretly so that the newspapers should not spot them. Some of
the evidence I heard was so disgustingeven to my sophisticated
mindthat I sent the lady shorthand-writers out and had
no note of it taken."
28. Despite this procedure, where Lord Denning
"had to be detective, inquisitor, advocate and judge,"
the findings of the inquiry were not challenged, but "this
was only because of Lord Denning's rare qualities and high reputation."
It was clear that such a procedure was unsatisfactory, but it
was not clear that the 1921 Act procedure would have been any
better. The Royal Commission was appointed "to review the
working of the Tribunals of Inquiry (Evidence) Act 1921 and to
consider whether it should be retained or replaced by some other
procedure, and, if retained, whether any changes are necessary
or desirable; and to make recommendations."
29. The Royal Commission concluded that the 1921
Act should be retained, but with amendments, in particular to
allow the payment of costs to those appearing, and to grant immunity
to the members of the inquiry and counsel. The Government accepted
these recommendations for amendment of the 1921 Act but did not
in fact implement them, preferring in the case of some future
inquiries to rely on a guarantee that costs, and damages awarded
against inquiry members, would be met out of public funds.
30. The Salmon Commission set out "six cardinal
principles" for the treatment of those taking part in inquiries.
The six Salmon Principles
|(1) Before any person becomes involved in an inquiry, the Tribunal must be satisfied that there are circumstances which affect him and which the Tribunal proposes to investigate.
(2) Before any person who is involved in an inquiry is called as a witness, he should be informed of any allegations which are made against him and the substance of the evidence in support of them.
(3) (a) He should be given an adequate opportunity of preparing his case and of being assisted by his legal advisers. (b) His legal expenses should normally be met out of public funds.
(4) He should have the opportunity of being examined by his own solicitor or counsel and of stating his case in public at the inquiry.
(5) Any material witness he wishes called at the inquiry should, if reasonably practicable, be heard.
(6) He should have the opportunity of testing by cross-examination conducted by his own solicitor or counsel any evidence which may affect him.
31. For some years these principles were generally
accepted and followed by inquiries. However in the report of his
inquiry into Exports of Defence Equipment to Iraq, Lord Justice
Scott carried out
a detailed review of "the factors to be taken into account
in deciding what procedures should be adopted for an inquisitorial
inquiry." He stated that "The six Salmon 'cardinal principles'
carry strong overtones of ordinary adversarial litigation,"
and concluded: "In summary, in my opinion, care should be
taken lest by an indiscriminate adoption and application of the
six 'cardinal principles' the inquiry's inquisitorial procedures
become hampered by an unnecessary involvement of adversarial techniques
and of lawyers acting for witnesses and others whose interests
may lie in delay and obfuscation."
Since then the procedure of inquiries has become increasingly
inquisitorial and so less reliant on the Salmon principles, particularly
principles 4 and 6. We return to this issue in chapter 7.
Inquiries under specific statutory
32. Even before the Salmon Royal Commission reported,
other statutory powers had been enacted to allow ministers to
set up inquiries with powers of compellability where matters of
public concern had arisen in relation to particular topics, and
some of these powers included provisions for costs to be awarded
out of public funds. Section 143 of the Mental Health Act 1959
provided that "The Minister may cause an inquiry to be held
in any case where he thinks it advisable to do so in connection
with any matter arising under this Act". The same wording
was used in section 84 of the National Health Service Act 1977,
section 125 of the Mental Health Act 1983, section 81 of the Children
Act 1981, section
49 of the Police Act 1996,
and other statutes. Some included their own provisions about
the compellability of witnesses, some incorporated the provisions
of section 250 of the Local Government Act 1972, which provides
that "the person appointed to hold the inquiry may by summons
require any person to attend, at a time and place stated in the
summons, to give evidence or to produce any documents in his custody
or under his control which relate to any matter in question at
the inquiry, and may take evidence on oath, and for that purpose
administer oaths". All these statutes included provisions
about the payment of costs of witnesses, though none dealt with
immunity for members of an inquiry.
Developments after 2000
THE MARCHIONESS REPORT
33. In the years that followed inquiries were
set up by ministers under these and other particular statutes,
or incorporating the powers of the 1921 Act, or on a non-statutory
basis with no specific powers. The Council on Tribunals seemed
content that matters should remain thus.
But in 2000, 34 years after the Salmon Commission reported, Lord
Justice Clarke wrote in his Final Report of the Marchioness
Inquiry: "Finally, it does seem to me that the time has come
when it would be desirable to set up a statutory framework for
There is at present no generally applicable
statute which covers public inquiries." Lord Justice Clarke
went on to express the opinion that it would be desirable
to remove the adversarial aspects of inquiries, and to give the
inquiry chairman the power to conduct the inquiry as he or she
thought fit, subject to an overriding obligation of fairness.
The inquiry should have powers, so far as appropriate, to compel
witnesses to give evidence and to obtain documents and would be
subject to judicial review. He thought that such an approach
ought to save time and money.
THE BELDAM REVIEW, THE PUBLIC ADMINISTRATION
SELECT COMMITTEE REPORT AND THE INQUIRIES BILL
34. In 2002 the Lord Chancellor, Lord Irvine
of Lairg, asked Sir Roy Beldam, a former Lord Justice of
Appeal and former Chairman of the Law Commission, to consider
whether there was scope for combining civil or criminal proceedings
with a public inquiry. In a preliminary report Sir Roy set
out a number of issues of procedure and evidence which would need
further investigation. They included:
· Consideration should be given to the introduction
of rules of procedure for public inquiries, to include additional
judicial powers to be conferred on the chairman when the inquiry
was set up;
· The "Salmon"
procedure should be reviewed and consideration given to the appointment
of one counsel to represent all interested parties whose interests
did not conflict, and to the greater use of written submissions.
35. Although it was intended that Sir Roy
Beldam's preliminary report should lead to further work, this
did not take place. Instead, work began on policy for the Bill
which was eventually to become the Inquiries Act 2005. Early in
2004 the Commons Public Administration Select Committee (PASC)
began an inquiry into the effectiveness of inquiries. It began
by putting out a questions and issues paper. The reply from the
Department for Constitutional Affairs
on 6 May 2004 took the form of a paper entitled Effective Inquiries,
which was in fact a consultation paper for the Inquiries Bill.
In the paper the Government said it believed that "there
is a strong case for considering what steps could be taken to
make inquiry procedures faster and more effective, and to contain
cost escalation". It wondered "whether current legislation
provides a suitable basis for appropriate and effective inquiries"
and thought that "one option would be to create a new statutory
inquiries set up by Ministers to look into
matters that have caused or have potential to cause public concern".
36. PASC began taking evidence in April 2004,
and continued doing so until January 2005. Its report was not
published until 3 February 2005.
By then the Government's Bill for the Inquiries Act 2005 had already
completed its report stage in the Lords. It received its third
reading on 28 February and was sent to the House of Commons. It
received the Royal Assent on 7 April 2005 and came into force
on 7 June 2005.
The Inquiries Act 2005
37. The Act is many times longer than any previous
statutory enactment on inquiries, but many of its provisions are
ancillary. No fewer than 10 sections and a Schedule deal with
the position of Scotland, Wales and Northern Ireland,
while there are a number of transitional and transitory provisions.
The substantive provisions are the following.
· The Act repeals the Tribunals of Inquiry
(Evidence) Act 1921 and a large number of statutory provisions
which previously were the bases for statutory inquiries.
From the entry into force of the Act, with the exception of the
enactments we refer to in paragraphs 38-43 below, the Act is the
sole basis for statutory inquiries set up by ministers.
· The Act does not affect the many statutory
powers which allow Parliamentary Commissioners, local authorities,
regulatory bodies and others to set up inquiries into matters
of public concern in particular fields. Most importantly, it expressly
preserves "any power of Her Majesty to establish a Royal
Commission", and "any power of a Minister
cause an inquiry to be held otherwise than under this Act".
· The Act sets out in great detail provisions
for the constitution of inquiries, and governing inquiry proceedings.
These include the power to compel the production of documents
and to require witnesses to give oral evidence, including evidence
· The Act provides for the payment of expenses
of witnesses and, as recommended by the Salmon Commission, for
the first time gives immunity to the inquiry panel, counsel and
staff in respect of acts or omissions during the inquiry.
· Finally, the Act allows the Lord Chancellor
to make Rules governing in further detail the procedure of inquiries.
Remaining statutory provisions
38. The Act's object was to repeal all the then
current statutory provisions under which ministers could hold
inquiries and replace them with a single Act and a single system.
The Inquiries Guidance produced by the Cabinet Office,
to which we refer in greater detail in chapter 5,
states that "The majority of inquiries will be held under
the Inquiries Act 2005, although some other legislation continues
to apply." At an early stage of our inquiry we asked what
that other legislation was, and why it continued to apply rather
than being repealed by the Act. The Ministry of Justice's officials
were unable to answer this question. The best answer they could
provide at a late stage of our evidence gathering was that the
draftsman of the Guidance had not intended to refer to any particular
legislation, but had included this phrase out of an abundance
39. Our own researches lead us to believe that
there are at least two statutory provisions which might qualify.
The first of these is section 14 of the Health and Safety at Work
etc. Act 1974 which allows the Health and Safety Executive "with
the consent of the Secretary of State [to] direct an inquiry to
be held into
any accident, occurrence, situation or other
matter whatsoever which the Commission thinks it necessary or
expedient to investigate". Given that the consent of the
Secretary of State is required, it is arguable that the initiative
should lie with the Secretary of State to order an inquiry under
the 2005 Act. Similarly sections 68-72 of the Financial Services
Act 2012 allow the
Treasury (which in practice means ministers), where it appears
to them that there may have been a serious failure of the regulatory
system, to appoint a person to hold an inquiry. Again, it is arguable
that ministers' powers under the 2005 Act would suffice. However
these are specialist areas on which we have received little evidence,
and we accordingly make no recommendations, but we suggest that
the Government consider bringing these inquiries under the 2005
Act in accordance with what appears to have been the purpose of
Inquiry into Historical Institutional
Abuse Act (Northern Ireland) 2013
40. On 29 September 2011, following the report
of an inter-departmental task force, the Northern Ireland Executive
announced that there would be an inquiry into historical institutional
abuse. On 12 June 2012 a Bill was introduced in the Assembly which
had as its sole purpose the formal constitution of the inquiry.
The Bill's Explanatory and Financial Memorandum states that "OFMDFM
considered three optionsan amendment to the Inquiries Act
2005 by way of an Assembly Bill, to allow for its application
to a Historical Institutional Inquiry; an Assembly Bill which
sets out comprehensive provision for an Inquiry into Historical
Institutional Abuse; and an Assembly Bill which provides the inquiry
panel with powers only to compel witnesses and documentation."
41. There was a fourth option, apparently not
considered, which was for the Northern Ireland ministers to set
up an inquiry under section 1 of the Inquiries Act 2005 itself.
This did not need any amendment. Because the terms of reference
required the inquiry to consider matters before 2 December 1999,
under section 30 the consent of the Secretary of State would have
been required; we do not doubt that it would have been forthcoming.
42. The Bill was closely modelled on the 2005
Act; many of its provisions are taken from it verbatim. The Inquiry
into Historical Institutional Abuse Act (Northern Ireland) 2013
received the Royal Assent on 18 January 2013. Rules, again based
on the Inquiry Rules 2006, were then made and came into force
on 25 July 2013,
nearly two years after the initial announcement of an inquiry.
43. In deciding to introduce legislation into
the Assembly, rather than exercising their powers under the 2005
Act, the First Minister and Deputy First Minister were of course
entirely within their rights. We merely draw attention to the
fact that the 2005 Act was available to them, had they so wished.
17 A phrase probably originating with Lord
North, and used by the judge, Patteson J, in the seminal case
of Stockdale v Hansard  EWHC QB J21, to describe
the House of Commons: "it is the grand inquest of the nation,
and may enquire into all alleged abuses and misconduct in any
HC Deb, 26 January 1855, cols 960-1063, and 29 January 1855
cols 1121-1233. Back
However when the report was debated on 17 and 19 July 1855
(HC Deb, 17 July 1855 cols 954-1018, and 19 July 1855 cols 1051-1189)
the House by a large majority declined to endorse the Resolution
of the Committee "that the conduct of the Administration
was the first and chief cause of the calamities which befell that
Army," or to "visit with severe reprehension every Member
of that Cabinet whose Counsels led to such disastrous results." Back
When there was a minority Government the converse applied.
In 1924 the mere threat by the Conservative opposition of setting
up an inquiry into allegedly improper intervention by ministers
to halt the prosecution of J.R.Campbell, the editor of the Communist
Workers Weekly, under the Incitement to Mutiny Act 1797,
was enough to bring down the minority Government of Ramsay MacDonald. Back
Minority report of the Select Committee on Marconi's Wireless
Telegraph Company, Limited, Agreement, 2 June 1913, page xlvi,
paragraph 31. Back
HC Deb, 22 February 1921, cols 863-86. Back
Tribunals of Inquiry (Evidence) Act 1921, section 1. Back
Inquiry into the allegation of assault on John Walters.
HC Deb, 10 February 1959, col 983. Back
HC Deb, 17 February 1959, cols 204-28. Back
Subsequently Lord Salmon. Back
John Profumo, the Secretary of State for War, had a brief
liaison with Christine Keeler, a model who was also involved with
Colonel Yevgeny Ivanov, a naval attaché at the Soviet Embassy
who was an intelligence officer. Lord Denning's inquiry was primarily
concerned with the potential security risk. Back
Lord Denning, The Due Process of Law, 1980. Back
Lord Denning's words in pages 2-3 of his report, quoted
in the report of the Royal Commission on Tribunals of Inquiry,
Cmnd 3121, paragraph 37. Back
Report of the Royal Commission on Tribunals of Inquiry,
Cmnd 3121, paragraph 21. Back
Ibid., Royal Warrant. Back
Now Lord Scott of Foscote. Back
Report, Part 4, Section K1. Back
Paragraphs 229-235. Back
The basis for, among others, the inquiry into the Bristol
Royal Infirmary (1998-2001) and (with other statutes) the Victoria
Climbié Inquiry. Back
Another statutory basis of the Victoria Climbié Inquiry. Back
Another statutory basis of the Victoria Climbié Inquiry,
and also the basis for, among others, the Stephen Lawrence Inquiry
See paragraph 1 of this report. Back
Thames Safety Report, paragraph 11.60. Back
See Box 2 at paragraph 30. Back
Now the Ministry of Justice. Back
Written evidence from the Department for Constitutional
Affairs to the Public Administration Select Committee, (Session
2003-04, HC 606-ii), available at:
Public Administration Select Committee, Government by
Inquiry (1st Report, Session 2004-05, HC 51-1) Back
Inquiries Act 2005 (Commencement) Order 2005, SI 2005 No.
Sections 27-34, 45 and 47, and Schedule 1. Back
Sections 48 and 49, and Schedules 2 and 3. Back
Section 44(4). Back
Sections 21 and 17. Back
Section 37. Back
Section 41. The Lord Chancellor makes Rules for United Kingdom
inquiries, and Scottish ministers for inquiries for which they
are responsible (see paragraph 1 and the footnote). No Rules have
been made by the National Assembly for Wales. Northern Ireland
ministers have not made Rules under this Act, but the First Minister
and Deputy First Minister have used their powers under section
21 of the Inquiry into Historical Institutional Abuse Act (Northern
Ireland) 2013 to make Rules which govern only the Inquiry into
Historical Institutional Abuse. See paragraphs 40-43. Back
Paragraphs 157 et seq. Back
The statement we quote comes from page 2 of the Guidance.
On page 21 it states: "The majority of statutory inquiries
will be held under the Inquiries Act 2005, although some may be
held under other legislation such as the Police Act 1996 or the
NHS Act 1977." In fact the relevant provisions of the Police
Act 1996 (section 49) and of the National Health Service Act 1977
(section 84) were repealed by the Inquiries Act 2005. Back
Replacing sections 14-18 of the Financial Services and Markets
Act 2000. Back
The Office of the First Minister and Deputy First Minister. Back
The "appointed day" for the purposes of the Northern
Ireland Act 1998. Back
The Inquiry into Historical Institutional Abuse Rules (Northern
Ireland) 2013, Statutory Rules of Northern Ireland 2013 No. 171. Back