House of Lords - The Inquiries Act 2005: post-legislative scrutiny - Select Committee on the Inquiries Act 2005

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

CHAPTER 2: the background to the act

Before 1921

20. Parliament, "the grand inquest of the nation",[17] has 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.[18] 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."[19]

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 account.[20]

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".[21] It was clear that after this there would be little public confidence in inquiries conducted by Parliamentary committees—certainly not in those investigating alleged misconduct by ministers.

The Tribunals of Inquiry (Evidence) Act 1921

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 … I 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."[22] A Bill was introduced on 4 March, and on 24 March the Tribunals of Inquiry (Evidence) Act 1921 received the Royal Assent and came into force.

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 importance",[23] 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.[24] The Government initially refused an inquiry under the 1921 Act, stating that "This procedure has never been used in such a case".[25] But a week later the Prime Minister moved that an inquiry be set up under the Act.[26]

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.[27] This had its origins in the inquiry by Lord Denning into the Profumo scandal.[28] 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 disgusting—even to my sophisticated mind—that I sent the lady shorthand-writers out and had no note of it taken."[29]

28. Despite this procedure, where Lord Denning "had to be detective, inquisitor, advocate and judge,"[30] the findings of the inquiry were not challenged, but "this was only because of Lord Denning's rare qualities and high reputation."[31] 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."[32]

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.

BOX 2

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[33] 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."[34] 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.[35]

Inquiries under specific statutory powers

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,[36] section 125 of the Mental Health Act 1983, section 81 of the Children Act 1981,[37] section 49 of the Police Act 1996,[38]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.[39] 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 Inquiries generally … 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.[40]

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"[41] 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[42] on 6 May 2004 took the form of a paper entitled Effective Inquiries, which was in fact a consultation paper for the Inquiries Bill.[43] 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 framework for … 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.[44] 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.[45]

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,[46] 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.[47] 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 … to cause an inquiry to be held otherwise than under this Act".[48]

· 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 on oath.[49]

· 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.[50]

· Finally, the Act allows the Lord Chancellor to make Rules governing in further detail the procedure of inquiries.[51]

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[52], 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 of caution.[53]

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[54] 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 that Act.

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[55] considered three options—an 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,[56] 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,[57] 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 [1839] 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 quarter". Back

18 HC Deb, 26 January 1855, cols 960-1063, and 29 January 1855 cols 1121-1233. Back

19 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

20 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

21 Minority report of the Select Committee on Marconi's Wireless Telegraph Company, Limited, Agreement, 2 June 1913, page xlvi, paragraph 31. Back

22 HC Deb, 22 February 1921, cols 863-86. Back

23 Tribunals of Inquiry (Evidence) Act 1921, section 1. Back

24 Inquiry into the allegation of assault on John Walters. Back

25 HC Deb, 10 February 1959, col 983. Back

26 HC Deb, 17 February 1959, cols 204-28. Back

27 Subsequently Lord Salmon. Back

28 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