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 3: when should there be a public inquiry?

44. As set out in chapter 1, our investigation has been concerned only with the category of inquiries into matters of public concern. This category includes a spectrum of inquiries which range from those concerned with a particular event or chain of events to those involving policy.

45. The question whether and when to hold an inquiry is always problematic. Calls for inquiries are frequent; our own researches have shown that during the few months of our investigation, there have been in excess of 30 calls for ''public'' inquiries, into matters such as domestic violence, the Supa-Puma helicopter crashes and the baby ashes scandal.[58] Calls for an inquiry can be made by a single person or group, often victims or victims' families. Even the support of an interested celebrity or Member of Parliament does not necessarily demonstrate sufficient wider public concern.

46. For an inquiry under the Act, and no doubt also for one not under the Act, "public concern" that events may have occurred, or "public concern" caused by events that have occurred, is a necessary but not a sufficient condition. Ashley Underwood QC explained: "Generally speaking, by the time there is a head of steam for any sort of inquiry there will be a victim support group, there may be NGO support, there may well have been a lot of publicity, lobbying of parliamentarians and so on."[59] Without these, it is unlikely that the necessary public concern condition will be satisfied. Even if all these are present, it does not follow that the concern justifies an inquiry.

47. The most important question seems to us to be, as Professor Sir Ian Kennedy put it, "are there circumstances where a public inquiry is an appropriate response and where it is not?"[60] There are many events which can be said to have caused public concern, but have not been investigated by an inquiry. Examples include the deaths of four young soldiers at Deepcut barracks,[61] the murder of Pat Finucane,[62] the death of Alexander Litvinenko,[63] and the Omagh bombing.[64] The solicitor for 60 of Jimmy Savile's victims has requested an inquiry chaired by a High Court judge.[65] The NHS is currently conducting 33 separate investigations into individual NHS institutions in relation to Savile.

48. In order to consider when an inquiry is an appropriate response to a matter of public concern the Cabinet Secretary in 2010 issued an Advice Note on the establishment of a judicial inquiry,[66] which identified certain common characteristics present in previous inquiries. They are:

· Large scale loss of life

· Serious health and safety issues

· Failure in regulation

· Other events of serious concern.[67]

Again, even if these conditions are present, they may not be sufficient to justify an inquiry.

49. Several of our witnesses[68] told us that there should be set criteria against which to decide on the establishment of a public inquiry. Julie Bailey CBE,[69] founder of Cure the NHS[70] and a core participant[71] in the Leveson Inquiry, was clear on the need for certainty for victims and victims' families,[72] while Eversheds[73] linked the need for criteria to the need for transparency in decision making.[74]

50. The Government echoed the draft Cabinet Office Inquiries Guidance,[75] telling us that in fact "Ministers take a number of factors into account when deciding whether to establish an inquiry, including whether the public interest will be served by an inquiry rather than another form of investigation and whether that public interest will outweigh the costs."[76] But again these factors may not be sufficient to justify an inquiry.

51. None of our witnesses was able to suggest useful criteria.[77] Indeed, as suggested by Robert Francis QC,[78] there is a danger that fixed criteria may in fact fetter discretion, and so limit the circumstances when an inquiry may be set up. After some consideration of possible formulae and witnesses' suggestions, we have concluded that there neither can nor should be fixed criteria regulating the setting up of inquiries.

52. One thing is clear to us. Establishing an inquiry should not be a matter of politics. But Professor Kennedy told us that an inquiry is usually set up in the context of political controversy[79] and Dr Karl Mackie, the Chief Executive of the Centre for Effective Dispute Resolution (CEDR), thought that "the major political decision very often is the on/off switch,"[80] and gave an example of when political considerations had influenced the decision whether to have an inquiry.[81]

53. Conversely there are examples of opposition parties promising inquiries into particular matters once they come into power. An inquiry into the Marchioness disaster was promised by John Prescott MP,[82] then Shadow Secretary of State for Transport, in 1991, after the Conservative Government of the time had declined to order an inquiry. When the Labour Party came to power Mr Prescott, then Secretary of State for Environment, Transport and the Regions, set up the first inquiry by Lord Justice Clarke in 1999, and the second in 2000.

54. The then Labour Government refused requests by members of the local community for a statutory inquiry into the Mid Staffordshire NHS Trust in 2009 "given the thoroughness of the reports already produced";[83] instead setting up the non-statutory inquiry. Andrew Lansley MP said that the Conservative Party would order a statutory inquiry if they came to power, and he did so as Secretary of State for Health in 2010.

55. An approach which may help to limit the political nature of the decision making process was suggested by Robert Francis QC: "it might be thought that a better course would be to list factors it is considered Ministers should take into account".[84] We have considered the 14 inquiries held under the Act to ascertain whether the characteristics identified by the Cabinet Secretary were present:

· Five inquiries[85] involved multiple deaths (five or more people);

· One inquiry (ICL: 2008) was set up in relation to health and safety concerns;

· Ten inquiries[86] involved a previous investigation report and/or regulatory or investigatory body involvement;

· Two inquiries (Baha Mousa in 2008 and Al Sweady in 2009) were established in the context of international law or relations. One inquiry (Azelle Rodney, 2010) was established because it was not possible for the death to be adequately investigated by an inquest because there was certain intelligence material which the coroner was not permitted to be privy to;[87]and one (E. coli, 2006) was set up due to the scale of the event.

56. "Failure in regulation", one of the Cabinet Secretary's inquiry characteristics, seems to us to be particularly significant.[88] We agree with Michael Collins, Judi Kemish and Ashley Underwood QC, the secretary, solicitor and counsel of the Rodney Inquiry,[89] that "The first principle we believe should underlie the use of public inquiries is that a matter of public concern has been identified which cannot be allayed by lesser means such as investigation by an established regulatory body."[90] It is generally when concern has arisen about a "lesser investigation" that previous inquiries have been initiated. Where it is the established regulatory or investigatory body which itself is seen to have failed, there is really no way that public concern can be allayed short of an inquiry.

BOX 3

Examples of inquiries which investigated failure by a regulatory or
investigatory body

· The Mid Staffordshire Inquiry investigated the failure by the Healthcare Commission, Care Quality Commission (CQC) and the Health and Safety Executive (HSE) to monitor the Mid Staffordshire NHS Trust.

· Inquiries into the deaths of Victoria Climbié and Baby P examined the combined failure of the multi-agency child protection system by the care services, NHS and the police.

· The Bichard Inquiry into the Soham murders examined the failure of police child protection systems.

· The Shipman Inquiry investigated failure by police, the coronial system, the system of death certification, the General Medical Council (GMC) and others.

· The Equitable Life Inquiry examined the failure of the Financial Services Authority (FSA), the Government Actuary's Department (GAD) and the Department of Trade and Industry (DTI).

· The Azelle Rodney Inquiry, set up because there was certain intelligence material which the coroner was not permitted to be privy to, examined the failure by the Independent Police Complaints Commission (IPCC) to identify any significant fault on behalf of the police.

57. Where deaths, injuries or other incidents have occurred which seemingly need not and would not have occurred if regulatory or investigatory bodies had properly been carrying out their duties, there will be public concern not just at what has happened but at the failure to prevent it happening. In such cases a public inquiry may well be the best and only way of alleviating public concern.

58. A number of existing statutory bodies have the power to investigate complaints or specific incidents referred to them, for instance the IPCC, Ofsted, the Information Commissioner, the Parliamentary Commissioners for Administration and Health, the Northern Ireland Commissioner for Children and Young People, and the Commission for Local Administration. Some of these bodies already influence national policy and practice.[91] The Children's Commissioner for England's powers go one step further. Under the Children Act 2004 the Commissioner is required to draw national policymakers' and agencies' attention to the particular circumstances of a child or small group of children which should inform both policy and practice.[92]

59. We believe that statutory bodies such as the IPCC, Ofsted, the Information Commissioner, the Parliamentary Commissioners for Administration and Health, the Commission for Local Administration, and the Children's Commissioner, can be in a position to recommend full public inquiries when they identify wider areas of concern.

What type of inquiry? Statutory or non-statutory?

60. The majority of our witnesses found the Act to be a useful framework for conducting inquiries, particularly those witnesses who had chaired or acted as counsel to an inquiry.[93] Lord Gill explained in the ICL Inquiry Report in July 2009: "The 2005 Act has introduced a new framework for public inquiries that will greatly increase the efficiency with which they are conducted without compromising the thoroughness of the process."[94] Human Rights organisations have been generally supportive of the Act overall: "Liberty firmly believes that an inquiry into allegations of human rights violations should be conducted under the Inquiries Act. We believe it provides protection. We do not believe that it goes far enough to guarantee the key features of an inquiry—the publicness and effective independence from the Executive—but we think that it provides useful protections and creates a better situation than the sort of ad hoc situation that existed before."[95] Rights Watch UK told us: "Our experience is that inquiries under the Act have been efficient and cost effective."[96] We conclude that the Act is a useful tool in the administration of effective inquiries.

61. We can see no good reason why the Act should not be used as a matter of course when establishing an inquiry, as suggested by Professor Tomkins, who told us: "The presumption should be that if an inquiry is to be established, it should be established under the legislation … because otherwise there is a question as to why we have the statute at all".[97] Lord Justice Beatson gave concurring evidence, and thought it was "important for there to be careful consideration of the justification for not using the procedure so recently established by Parliament as the appropriate one for inquiries."[98]

62. The Cabinet Office Guidance, which we consider more fully in chapter 5,[99]merely states: "Departments should seek advice from the Cabinet Office Propriety and Ethics Team on the different forms of inquiry and the merits of the different options. Possible forms of inquiry include inquiries conducted under the Inquiries Act 2005, statutory public inquiries under other legislation,[100] non-statutory ad hoc inquiries (public or private), Committee of Privy Counsellors or Royal Commissions." No preference is expressed for inquiries to be set up under the Act.

63. We asked Shailesh Vara MP, the Parliamentary Under-Secretary of State for Justice, whether there should not at least be a presumption that if an inquiry was being set up, it should be under the Act. Mr Vara replied: "I see no reason for not having that presumption … certainly the Act is there and it is there to be used … it is a first port of call". But he subsequently corrected himself: "To the extent that I may have led the Committee to believe that there is a presumption, I am saying that I do not know the answer. I am not aware of the word "presumption" being used in the Guidance … I do not know whether there is a natural presumption or whether the decision that needs to be taken is something for future guidance."[101] This hardly amounts to a ringing endorsement of the Act as the preferred vehicle for conducting inquiries; or even to a coherent policy on the use of the Act.

64. We note moreover that the Act has not been used since the establishment of the Leveson Inquiry in 2011. In that time two non-statutory inquiries have been announced. The first, which began in September 2013, is the Morecambe Bay inquiry into a high number of serious untoward incidents in the maternity and neonatal services provided by the University Hospitals of Morecambe Bay Trust. The Ministry of Justice tell us that this is not an inquiry because the Secretary of State for Health, in his written statement,[102] described it as an investigation and said that evidence sessions would be open to family members but not to the public. We regard this as a distinction without a difference. This inquiry has all the characteristics of the first, non-statutory, inquiry by Robert Francis QC into the NHS Mid Staffordshire Foundation Trust, except that the chairman, Dr Bill Kirkup, intends to exercise his power to exclude the public from evidence sessions.

65. The second non-statutory inquiry is even more recent. On 6 February 2014 Lord Faulks QC, the Minister of State at the Ministry of Justice, announced that the Government had decided to hold "an independent review to learn lessons from self-inflicted deaths of young adults in custody aged between 18 and 24". In reply to a question whether this was to be an inquiry under the Inquiries Act 2005 he said that he was unable to give a precise answer.[103] Lord Faulks subsequently wrote to the chairman to say that the review had not been established under the 2005 Act, but gave no reason for this.

COMPELLABILITY OF WITNESSES AND EVIDENCE ON OATH

66. The only significant differences between a statutory and a non-statutory inquiry are, first, that a non-statutory inquiry has to rely on the voluntary compliance of witnesses, or on the coercive power of the press and public opinion; secondly that it cannot take evidence on oath;[104] and thirdly, that a statutory inquiry under the Act contains a presumption that hearings will be held in public.[105]

67. Many of our witnesses, including Sir Brian Leveson and Professor Kennedy, have been in favour of the power given by the Act to compel witnesses, at least as a power of last resort. In his report on Bristol Royal Infirmary, Professor Kennedy wrote:

106

68. On the other hand Sir John Chilcot, the chairman of the Iraq inquiry,[107] felt that the power of compulsion contributed to an overly formal or court-like adversarial process, commenting on his own non-statutory inquiry: "The absence of legal powers to subpoena witnesses and to take evidence on oath was also the subject of debate when the Inquiry launched … In my statement on 30 July [2009] I said that the Inquiry is not a court of law and nobody is on trial, and that remains the case."[108]

69. The European Court of Human Rights has determined that Articles 2 and 3 of the European Convention on Human Rights (ECHR) give rise to a duty to investigate certain deaths and ill treatment.[109] Lord Bingham summarised the Article 2 requirements as being:

· The investigation must be independent.

· The investigation must be effective.

· The investigation must be reasonably prompt.

· There must be a "sufficient element of public scrutiny".

· The next of kin must be involved to an appropriate extent.[110]

70. In relation to compellability, the judgment of the European Court of Human Rights in the case of Edwards v United Kingdom[111] is particularly significant. The applicants were the parents of a prisoner killed in his cell by another prisoner who was dangerous and mentally ill. Two prison officers, one of whom had walked past the cell shortly before the death was discovered, had submitted statements to an inquiry but declined to attend it. Their absence prevented the provision of further detail and clarification. The court held that the inquiry had failed to be effective and so was not compliant with Article 2: "The Court finds that the lack of compulsion of witnesses who are either eyewitnesses or have material evidence related to the circumstances of a death must be regarded as diminishing the effectiveness of the inquiry as an investigative mechanism. In this case … it detracted from its capacity to establish the facts relevant to the death, and thereby to achieve one of the purposes required by Article 2 of the Convention."[112]

71. It is only if an inquiry is set up under the Inquiries Act, or another Act giving the inquiry similar powers,[113] that the inquiry will have the power to compel the production of documents and the attendance of witnesses, and to require witnesses to give evidence on oath. We are aware of three instances where those involved in the setting up of inquiries seem either not to be aware of this simple fact, or to be prepared to attempt to devise a way to circumvent it.

72. In the first case, in his letter of 17 June 2009 setting up the inquiry the then Prime Minister, Gordon Brown MP, wrote to Sir John Chilcot on the powers of compulsion: "I hope … that you will consider whether it is possible for there to be a process whereby they give their contributions on oath."[114] It seems to us extraordinary that the Prime Minister should have been advised to set up a non-statutory inquiry and at the same time to ask the chairman to devise a means for evidence to be given on oath. This was presumably an attempt to ensure that the non-statutory investigation complied with ECHR Article 2.

73. The second example is that of Dr Bill Kirkup CBE, chairman of the current Morecambe Bay Investigation, which is non-statutory, who said in his opening statement: "With the panel and the secretariat, I am determining what evidence I will require them [certain organisations] to supply and the practical arrangements for the safe transfer of that material to the investigation."[115] It is not open to this inquiry to "require" information.

74. Lastly, in 2013 a judgment of the Divisional Court[116] required the Ministry of Defence to set up non-statutory inquiries into recent cases involving claims by Iraqi citizens of ill-treatment and unlawful killing by British armed forces in Iraq. It was held that an investigation established by the Secretary of State for Defence was neither independent nor adequately compliant with the investigative duties under ECHR Articles 2 and 3. Further inquiries were deemed necessary, and the Court went on to give detailed directions as to what form these should take. The Court agreed with the decision of the Secretary of State not to order an overarching public inquiry, on grounds including length, cost, the difficulty of finding a judge or retired judge for the necessary length of time, and the different margins of appreciation in different cases.[117] Instead, the Court asked for a large number of inquest-like investigations to be conducted by "a suitable person such as a retired judge or possibly a very experienced practitioner" who would need, despite the fact that the inquiry was not to be set up under the 2005 Act, powers to require witnesses to attend to give evidence and to produce a statement, together with appropriate sanctions for non-compliance.[118] The judgment added:

119

The Court's formal order provides: The Inspector must have a power to compel witness [sic] to attend and to compel the production of documents (with appropriate sanction for failures to comply)."[120] There is no indication as to how this might be achieved. The intention is presumably to secure compliance with ECHR Article 2, following the judgment in Edwards v United Kingdom.[121] There is however no suggestion as to how the inspector might acquire such powers of compulsion.

75. Our witness from the Ministry of Defence, Jonathan Duke-Evans, Head of Claims, Judicial Reviews and Public Inquiries, told us how the department was intending to implement the judgment in practice. He thought it might be possible to use the powers under the Civil Procedure Rules (CPR) to summon witnesses or require the production of documents if requested by a tribunal, and added: "We think that may be the answer unless anyone can come up with a reason that says a new creature of this kind cannot be regarded as a tribunal".[122] We ourselves doubt whether the CPR were intended to assist a new kind of non-statutory tribunal to compel documents to be produced or witnesses to attend.

HEARINGS IN PUBLIC

76. We received criticism of non-statutory inquiries from human rights organisations such as Liberty[123] and Rights Watch UK[124], and from Julie Bailey,[125] because of the lack of rules governing private and public hearings. Rights Watch UK told us: "non-statutory inquiries … can be the result of political agendas which undermine their credibility, for example … The Detainee Inquiry (Gibson). When a human rights violation is engaged, either individual or systemic, then a statutory inquiry is required".[126] Eversheds reasoned that "The legislative framework under which a public [2005 Act] inquiry operates also makes the inquiry accountable to the public in a way that a non-statutory inquiry cannot."[127] Other witnesses were also concerned that the practice of holding all or part of an inquiry in private might not satisfy the Article 2 obligations.[128] Non-statutory inquiries are therefore more likely to be non-compliant with Article 2 than inquiries held under the Act. As the cases of Edwards and Ali Zaki Mousa demonstrate, non-statutory inquiries are particularly likely to be non-compliant if witnesses fail or refuse to attend.

77. The reasons given to hold non-statutory inquiries often include that they are cheaper and quicker.[129] We explain later in our report why we do not agree that this is necessarily so.[130]

78. Another reason given is that matters of intelligence may make it impossible to hold an inquiry under the Act for reasons of national security. Professor Tomkins cautioned there "would never have been an Iraq inquiry and there would never have been a Detainee inquiry at all"[131] if the non-statutory route had not been available, or that in such cases important evidence might have had to be heard in closed session. Peter Riddell told us that had the non-statutory Detainee Inquiry commenced hearing evidence, evidence from security agencies on operational issues would have had to be heard in secret.[132]

79. We note that security issues can sometimes be managed under the Act, as demonstrated by the pragmatic solution in the Azelle Rodney Inquiry. The inquiry team told us: "the majority of Metropolitan Police Officer statements [were] re-drafted to reveal the intelligence gathered as part of covert operations without revealing the source of that information. This meant that statements contained minor redactions and did not compromise existing legislation."[133] This approach fits with the Act's intent. During the Second Reading of the Inquiries Bill in the Commons, Christopher Leslie MP, then Parliamentary Under-Secretary of State for Constitutional Affairs, said: "The Bill would [put] on a proper, more comprehensive footing our ability to conduct an effective public inquiry in circumstances where national security issues may well arise."[134]

THE COMMITTEE'S VIEW

80. Nevertheless even those of our witnesses who had chaired statutory inquiries—Lord Cullen of Whitekirk,[135] Lord Gill,[136] and Robert Francis QC[137]—supported retention of the non-statutory route as a means of conducting a less formal investigation. Lord Bichard felt that the non-statutory nature of his inquiry helped to keep proceedings as informal as possible for the victims' families.[138]

81. We recommend that inquiries into issues of public concern should normally be held under the Act. This is essential where Article 2 of the ECHR is engaged. No inquiry should be set up without the power to compel the attendance of witnesses unless ministers are confident that all potential witnesses will attend.

82. We would not however remove the possibility of an inquiry being held otherwise than under the Act, for example where security issues are involved, or other sensitive issues which require evidence to be heard in secret. Ministers should give reasons for any decision to hold an inquiry otherwise than under the Act.

Inquests as an alternative

83. As a matter of course certain deaths[139] in the United Kingdom are investigated by means of an inquest. Where it appears that agents of the State may be implicated in some way in the circumstances of the death, the subsequent investigation, whether that be by inquest or not, must satisfy the minimum requirements imposed by Article 2 of the European Convention on Human Rights.[140] An inquest is limited to examining who the deceased was; and how, when and where the deceased came by his or her death.[141] An inquiry's scope is determined by its terms of reference and so can be much wider. We say more about this in chapter 4. The other chief distinctions are that inquests cannot hear evidence in private, cannot make recommendations, and may in certain circumstances have a jury. Juries do not give reasons for their decisions.

84. Witnesses gave different views about the usefulness and independence of inquests and inquiries. Some witnesses told us that in some instances the coronial system had not worked. Eversheds thought that "On occasion, Article 2 inquests have been established where the public interest in our view might have been better served by public inquiries."[142] For Collins, Kemish and Underwood the recent investigations and inquests into the Hillsborough football disaster could be said to be "an example of a lengthy investigation which led to a further investigation (in this instance new inquests) when it would have been swifter and more economical to move straight to a public inquiry."[143] Disaster Action believed "Failures in the inquest process have been important in other disasters, including the Marchioness disaster".[144]

85. Other witnesses favoured inquests as the preferred Article 2 compliant investigation to establish the truth of a death. Helen Shaw of INQUEST told us: "I think everybody who represents people at inquests is very keen that we continue to have inquests as the primary method of investigating any kind of contentious death".[145] Liberty were concerned that "there are problems with the ability of an inquiry to get to the truth in the same way as an inquest can,"[146] and that "The Coroners and Justice Act 2009 radically changed the role played by inquiries under the 2005 Act, as it allowed them to be used as a substitute for an inquest."[147] The 2009 Act was in fact only re-enacting a provision already on the statute book[148] which was used by the then Lord Chancellor, Lord Falconer of Thoroton, to suspend the inquest into the death of Dr David Kelly when the Hutton Inquiry was set up.

86. Those working with family groups seemed to favour an inquest over an inquiry because of a preference for a jury-led decision. Ashley Underwood QC explained: "Ministers think there is a great driver to having a jury, if they can possibly have one, to investigate a death, because the popular perception is that unless you have a jury, somehow it is being swept under the carpet … I think there was a great deal of pushing for [the Mark Duggan inquest] to remain a jury matter and the Ministers took that on."[149] Helen Shaw of INQUEST agreed: "We lost the jury in the [Azelle Rodney] inquiry, and that is very important in these kinds of deaths."[150]

87. The circumstances surrounding the deaths of Mark Duggan and Azelle Rodney contained many similarities,[151] but were investigated by different means. The Azelle Rodney Inquiry replaced the earlier inquest which could not proceed because there was certain intelligence material which the coroner was not permitted to be privy to. The death of Mark Duggan in 2011, which led to serious riots in London and beyond, was investigated by way of an inquest. This unquestionably was a matter of public concern which could have justified an inquiry; the inquest could look only at the circumstances of the death. A jury verdict cannot provide any reasons for the conclusions.

88. In fact the Mark Duggan inquest "was the subject of considerable debate about whether it should have been an inquiry under the 2005 Act."[152] Ashley Underwood QC explained: "the question is whether there is something more than just the death. For example, let us look at allaying the public concern. In the inquest we have into Mark Duggan … we are only exercised by the death, but it is idle to forget that the riots took place as a result of that death. Now, the public concern that surrounds the death does not just deal with how it is that Mark Duggan came to die. There is an argument for the allaying of public concern to deal with it rather wider than the inquest would ordinarily do."[153]

89. The investigation of a death by an inquest can also be compromised by the presence of intelligence issues which the inquest cannot investigate, but which could be considered by an inquiry, using if necessary its power to restrict disclosure of evidence. Sir Robert Owen, the Assistant Deputy Coroner of the inquest into the death of Alexander Litvinenko, wrote to ministers asking for the inquest to be converted into an inquiry under the Act. The letter said: "if I were to remove certain [intelligence] issues from scope, that would be likely to lead to the inquest failing to discharge its duty to undertake a full, fair and fearless investigation."[154] His request was refused by the Home Secretary, but following an application for judicial review[155] a three-judge court decided on 11 February 2014 that her decision could not stand and must be re-considered,[156] albeit stressing that the judgment did not of itself mandate any particular outcome. The Home Secretary did not appeal the Court's decision.

90. The Government's 2011 Justice and Security Green Paper[157] put forward a proposal to amend the Coroners Rules to allow for a closed material procedure where sensitive material is required for consideration. The Green Paper detailed inquiries as an alternative to the coronial system. It is relevant to our investigation that the Government define inquiries as "an exceptional means of last resort to investigate deaths of significant public interest",[158]citing complexity and cost as justification for this view. We do not agree with this definition, nor is it in line with the circumstances when an inquiry into public concern may be suitable as specified in section 1 of the Act.

91. We received evidence from Liberty supporting the need for a statutory inquiry in instances where the coronial system is not engaged: "wherever there are human rights allegations involved there should always be a statutory inquiry if there is not an inquest."[159] The most important contributory factor when deciding whether to hold an inquest or an inquiry into the circumstances of a particular death seems to us to be whether wider areas of public concern are present, or policy issues which require examination.

92. Where public concern extends significantly beyond a death itself to wider related issues, an inquiry may be preferable to an inquest. If such issues emerge in the course of an inquest, consideration should be given to suspending the inquest and appointing a senior judge as chairman of an inquiry under the Inquiries Act 2005.

Who should decide?

93. The question who should decide whether to hold or not to hold an inquiry, and what type of inquiry to hold, is a delicate one on which we heard differing views.

94. Section 1 of the Act provides that the minister "may cause an inquiry to be held" where "it appears to him"that public concern about particular events is present. There is no legal duty to establish an inquiry under the Act—it is a matter of discretion for the minister. Inquiries may also be established otherwise than under the Act, as discussed earlier in this chapter.

95. The proposed ministerial powers in the draft Inquiries Bill were subject to much criticism at the time about the perceived effect the powers would have on the independence of inquiries. Specifically, there was criticism of a "shift in emphasis towards inquiries established and largely controlled by government Ministers."[160] Many of our witnesses thought one of the most significant changes made by the Act was to set out in statute that the power to establish an inquiry into matters of public concern rested with a minister.

96. Criticism varied from that of Disaster Action, who felt the discretionary nature of the power "is vague and, in our view, leaves too wide a discretion to the minister concerned"[161] and claimed there was an "arbitrary and inconsistent approach to decision making",[162] to that of Dr Mackie, who thought it possible for unnecessary inquiries to be set up "as a way of kicking issues into the long grass".[163]

97. Many of our witnesses, including Eversheds, Disaster Action, Liberty, the (Northern Ireland) Committee on the Administration of Justice (CAJ), and Collins, Kemish and Underwood gave examples of matters which they believed should have been investigated under the Act but which were not.[164] Some witnesses, for instance CAJ[165] and Liberty,[166] told us that this called into question the independence of ministerial decision making. We do not agree. An analysis of ministerial decisions shows that while it is true that the case for holding a statutory inquiry has often been argued by family members and interest groups to no avail, in many cases, ministers have given comprehensive reasons for the decision not to hold an inquiry. In the recent case of Litvinenko, the Home Secretary's reasons, while comprehensive, were found by the High Court "not [to] provide a rational basis for the decision not to set up a statutory inquiry".[167]

BOX 4

Examples of ministerial reasons not to hold an inquiry

· The then Secretary of State for Defence (Geoffrey Hoon MP) opposed an inquiry into the deaths of four young soldiers at Deepcut Barracks in a debate in the House of Commons on 27 April 2004,[168] arguing that the matter been "subject to thorough and detailed examination" by Surrey Police.

· The then Parliamentary Under-Secretary of State for the Home Department (Caroline Flint) set out three reasons for not holding an inquiry into the murder of Daniel Morgan. They were, in summary, that there was insufficient public concern; Government did not consider there be a realistic prospect of uncovering new evidence following previous investigations; and previous investigations found no police involvement in the murder.[169]

· The then Secretary of State for Health, Andy Burnham MP, opposed a "full public inquiry" into the failings at Mid Staffordshire NHS Foundation Trust "given the thoroughness of the reports already produced."[170]

· The Prime Minister (David Cameron MP) set out reasons for not holding an inquiry into the death of Pat Finucane on 12 December 2012: "if we look at the other inquiries … we see that some of them took five or six years or longer and cost tens of millions of pounds, and I do not believe that they got closer to the truth than de Silva[171]has in his excellent and full report."[172]

· In the case of the inquest into the death of Alexander Litvinenko, in a letter to the Coroner of 17 July 2013 the Home Secretary (Theresa May MP) set out her detailed reasons for her decision not to convert the inquest into an inquiry. The six reasons included, in summary, that an inquiry was likely to be more costly of time, money and resources, and that international relations would be better served by an inquest.[173] This decision was later overturned by the High Court, which expressed concern about each of the reasons.

· In September 2013 the Secretary of State for Northern Ireland (Theresa Villiers MP) decided not to initiate a public inquiry into the circumstances surrounding the bombing in Omagh on 15 August 1998, as: "I do not believe there are sufficient grounds to justify a further review or inquiry above and beyond those that have already taken place or are ongoing. The current investigation by the Office of the Police Ombudsman for Northern Ireland is the best way to address any outstanding issues relating to the police investigation of the Omagh attack."[174]

98. Where the Act has not been used, it seems that this has been primarily due to cost and logistical concerns, particularly in relation to security and intelligence issues. We received no evidence of a minister failing to establish an inquiry under the Act into his or her department in order to avoid criticism; or of a minister establishing a statutory inquiry to ''kick an issue into the long grass''[175].

99. Sir Stephen Sedley however felt the scarcity of inquiries under the Act might be because of reluctance by the Government to establish an inquiry due to the perceived lack of independence from the executive: "It does not look good if you set up an independent inquiry and retain the power to interfere with its proceedings."[176] This was the reason given by the Home Secretary in her letter of July 2013, refusing a public inquiry into the death of Alexander Litvinenko. She wrote: "An inquest managed and run by an independent coroner is more readily explainable to some of our foreign partners, and the integrity of the process more readily grasped, than an inquiry, established by the Government, under a Chairman appointed by the Government which has the power to see Government material, potentially relevant to their interests, in secret."[177] But this reason was not accepted by the High Court, which overturned the decision.

100. Conversely, there has been one instance where the Government tried unsuccessfully to set up an inquiry under the Act: the family of Pat Finucane refused to take part in an inquiry under the Act due to their concerns about its independence.[178]

101. Witnesses who remained unconvinced about the impartiality of ministerial decision-making suggested alternatives. Rights Watch UK suggested that a new independent body be established to take the decision: "A statutory authority such as a Permanent Commission of Inquiry … A quasi statutory authority such [as] a Public Truth Commission",[179] amongst others. This is not a new proposal—the families of the Lockerbie victims suggested: "the creation of an independent ''disasters ombudsman''."[180] While we do not view this as necessary, for reasons explained above, there is nothing within the Act which prohibits the minister from establishing a committee to consider whether an inquiry should be held—the National Assembly for Wales set up a cross-party committee to consider the need for an inquiry into the E. coli outbreak. The Committee recommended an inquiry under the Inquiries Act which was duly held.

102. Some of our witnesses, including Rights Watch UK, Eversheds, and Peter Riddell, favoured transfering the power to set up an inquiry to Parliament, for instance via a motion in either House.[181]

103. Many of our witnesses felt that the power to establish inquiries was best left with a minister, who is accountable to Parliament. In written evidence Collins, Kemish and Underwood told us: "In the final analysis, the recognition, and response to, public concern, is a matter for the executive, subject as it is to oversight by the legislature and by the courts."[182] Peter Riddell,[183] Professor Tomkins[184] and Dr Mackie[185] all described the effectiveness of parliamentary oversight, for instance parliamentary questions. On the other hand Robert Francis QC cautioned: "While Parliament can hold ministers to account for not holding an inquiry it cannot force them to do so."[186] This is true as a matter of law, but in practice a minister would be unlikely to decline to comply with a motion carried by either House calling for an inquiry to be set up.

104. Eversheds told us that concerns about independence could be addressed by the way the inquiry is established, in ensuring openness, transparency and fairness: "we believe the issue is not about whether or not Ministers should have the power or discretion to set up, or not set up, an inquiry, but rather ensuring that there is transparency in the way that an inquiry is created and conducted."[187] That view is borne out by the judgment of the European Court of Human Rights in the Edwards case.[188] In that case the authorities who had statutory responsibility towards the deceased set up the inquiry into the circumstances of his death, determined its terms of reference, and appointed its members as well as the solicitors who assisted the inquiry. Nevertheless the court was satisfied that the inquiry was independent, because the inquiry chairman was a member of the Bar with judicial experience and the other members were eminent or experienced in the relevant fields. None had any hierarchical link to the authorities in question and, in the court's view, all acted in an independent capacity. The report was described as meticulous and the Court declared that it had no hesitation in relying on its assessment of the facts and issues.[189]

105. We have considered whether the power to set up an inquiry should reside with the minister of the department responsible for the matter under investigation, or with a minister of an ''overseeing'' department, which would have responsibility for all inquiries. Prior to the passage of the Act departments had been responsible for specific legislation, now repealed, under which inquiries could be set up; they still retain expertise on the subject of particular inquiries. One example is the Ministry of Defence—Jonathan Duke-Evans told us of his position: "it was thought that there needed to be a quasi-permanent post dealing with public inquiries".[190] In chapter 5 we recommend the establishment of a central inquiries unit with responsibility for maintaining good practice. Before an inquiry is established the minister could seek advice from this unit.

106. We believe it is right that the power to establish a public inquiry should be held by a minister of the relevant department. The fact that ministers are accountable to Parliament, and that Parliament can always call for an inquiry to be set up, allows sufficient Parliamentary involvement in the process.

Giving reasons for not ordering inquiries

107. In Effective inquiries: response to consultation,[191] it was stated that: "The Government believes that it is right that Ministers should explain publicly any decision to establish, or not to establish, an inquiry." Normally a minister who decides not to order an inquiry does not have to give reasons—indeed, does not have to do anything at all. In practice, in significant matters of public concern, there has often been a ministerial statement to Parliament; we have given examples of these above. In this section we consider whether it is possible to set out stricter criteria governing the cases where ministers should be obliged to give their reasons.

108. As judicial review is the only means by which to challenge a ministerial decision, it is important whether or not reasons are given. Christopher Jefferies told us: "it is absolutely essential that cogent reasons are given"[192] for the refusal to hold an inquiry. Robert Francis QC went further and suggested a procedure which could "allow for these reasons to be offered to Parliament for scrutiny",[193] a suggestion also made by Professor Tomkins[194].

109. We see no reason why a practice of giving reasons for not holding an inquiry should lead to an escalation in applications for judicial review. The decision to hold or not to hold an inquiry can be judicially reviewed whether or not reasons are given[195] and the position is similar in respect of coroners' inquests. Several aspects of inquiry procedure have been the subject of judicial review, notably challenges concerning the anonymity of witnesses before the Saville Inquiry.[196] Robert Francis QC told us: "Judicial review should offer a sufficient opportunity to challenge perverse or unlawful refusals."[197] A number of witnesses, on the other hand, including Sir Stephen Sedley,[198] Julie Bailey,[199] Disaster Action,[200] Herbert Smith Freehills,[201] Stephen Jones[202] and Liberty,[203] stressed that judicial review was cumbersome and expensive and hence not necessarily easily available to persons hoping that an inquiry will be set up or seeking to challenge procedure. Robert Francis QC also noted that "there remains a judicial reluctance to order inquiries".[204] For instance, we referred earlier[205] to recent cases where it was held that an investigation established by the Secretary of State for Defence was neither independent nor adequately compliant with the investigative duties under Articles 2 and 3 of the European Convention on Human Rights.

110. It would be impractical for ministers to give reasons every time there is a call for an inquiry which they do not believe to be justified, and none of our witnesses were able to suggest firm criteria for when reasons should, or should not, be given. We believe ministers must retain a general discretion as to when to give reasons for their decisions; at the same time, events involving what the Cabinet Secretary called "failure in regulation" are uniquely important and reasons should always be given for a decision not to initiate an inquiry.

111. We recommend that ministers should give reasons to Parliament for a decision not to hold an inquiry particularly in the following circumstances: when invited to hold an inquiry by IPCC, Ofsted, the Information Commissioner, Parliamentary Commissioners for Administration and Health, the Commission for Local Administration, or a body of similar standing; and when an investigation by a regulatory body has been widely criticised.

112. A decision on a request by a coroner for an inquest to be converted into an inquiry should always be the subject of reasons.

58 It emerged recently that the ashes of dead babies had been being buried or disposed off without the knowledge of families. Back

59 Q 249. Back

60 Q 205. Back

61 See the review by Nicholas Blake QC into the Circumstances Surrounding the Deaths of Four Soldiers at Princess Royal Barracks, Deepcut between 1995 and 2002, available at:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/228930/0795.pdf. Back

62 In fact, the then Northern Ireland Secretary Paul Murphy MP had announced on 23 September 2004 an inquiry to investigate the death of Pat Finucane under "new legislation which will be introduced shortly" (the then Inquiries Bill). But the Finucane family opposed an investigation under the Act, due to concerns about whether information would be released. See Northern Ireland Office, Statement by Secretary of State Paul Murphy MP on Finucane Inquiry, News release, 23 September 2004; and UK: Briefing to the Human Rights Committee, Amnesty International, June 2008. Back

63 Litvinenko died in London in November 2006 of radiation poisoning. Back

64 A car bomb attack carried out in Omagh by the Real Irish Republican Army on Saturday 15 August 1998. Back

65 Dame Janet Smith is currently conducting an investigation into Savile on behalf of the BBC. Back

66 The Advice Note explored findings of the Culture, Media and Sport Select Committee into Press Standards. The Committee's subsequent inquiry led to the establishment of the Leveson Inquiry. Back

67 Cabinet Secretary Advice Note, Public Inquiries, 19 March 2010, available at:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/60808/cabinet-secretary-advice-judicial.pdf. Back

68 Julie Bailey, Q 162; Eversheds, written evidence, paragraph 13; Susan Bryant, Q 236-237. Back