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 4: SETTING UP AN INQUIRY: THE FORMaLITIES

Constitution of the inquiry: appointment of the chairman

113. Once a decision has been taken to hold an inquiry, the most important matter to be decided is the identity of the chairman. It is not therefore something to be done in haste. Yet Robert Francis QC told us:

"like most chairmen, I had the experience of being phoned up out of the blue and asked to decide within an hour whether I would like to chair the inquiry because the Minister was in a hurry to make an announcement … I think there is absolutely no reason why the announcement that there will be an inquiry has to be accompanied immediately by the name of a chair. There would be a lot to be said for a process that is a little more transparent in relation to appointment."

Professor Kennedy added: "I was phoned at about 8.30 pm to be told that the Secretary of State was delighted that I had agreed to take on this inquiry, which I might say left me with little room to negotiate."[206]

114. We are not saying that ministerial haste has ever resulted in the appointment of a chairman whose appointment might subsequently have been regretted, but we agree with Mr Francis that there is much to be said for a process which is less hurried and more transparent. The difficulty arises from section 6(1) of the Act, which requires a minister who proposes to cause an inquiry to be held to make a statement to Parliament "as soon as is reasonably practicable" and section 6(2)(a) which requires the statement to stipulate who is to be appointed as chairman. We believe the fact of the inquiry and the name of the chairman should not necessarily be the subject of the same statement, and we recommend that section 6(2) should be amended accordingly. Section 6(4) allows such statements to be oral or written. A minister may well wish to announce an inquiry in an oral statement, but the identity of the chairman could be the subject of a subsequent written statement.

Judges as chairmen

115. There are both advantages and disadvantages in having a judge or retired judge as chairman.

ADVANTAGES

116. Robert Francis QC suggested that "there are some inquiries where it is not only proper but probably almost essential that a senior judicial figure undertakes it. Those are the inquiries where the need for independence and proven integrity and authority are the greatest, and probably those that involve very contested facts".[207] Sir Stephen Sedley quoted to us some words of Lord Scarman: "I believe that a judge does have special qualifications … for investigating disorder … He is a trained adjudicator between differing parties. He is a trained investigator of fact. He is by office, and should be by nature, impartial and detached."[208]

117. This view was shared by Sir Brian Leveson, who agreed that judges are "absolutely independent and publicly recognised as independent", but suggested additional qualities a judge can offer, such as

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DISADVANTAGES

118. Lord Gill thought that "Some inquiries may be suited to other types of chairmen. Maybe in an inquiry on a specifically scientific topic, for example, it might be thought best to appoint someone with scientific expertise."[210] Lord Bichard saw other disadvantages:

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119. Professor Kennedy raised what seems to us to be the most important disadvantage of a judicial appointment: "if a public inquiry is set up, as it usually is, in the context of political controversy or the inability of political leaders to reach some kind of alternative solution then the judge is necessarily, as a sitting judge, embroiled in political controversy. The independence of the judiciary is thereby, in my view, impaired."[212] Lord Gill made the same point: "when politics come into the matter, no judge would wish to be involved in an inquiry that had a political content. That would be your worst nightmare, I would have thought."[213] We agree. We did not need evidence to remind us of the inquiry into the death of Dr David Kelly. Lord Hutton's conduct of the inquiry was widely and rightly admired, not least by the press, until his report reached conclusions which they had neither expected nor desired. At that point his report was described as a whitewash, and he personally was vilified.[214]

120. The dangers of involving a serving judge in matters of political controversy are all too apparent. The present Lord Chief Justice, Lord Thomas of Cwmgiedd, told us that it is not appropriate to ask a judge to conduct an inquiry into issues of policy (other than policy related to the operation of the courts and the administration of justice).[215] Sir Brian Leveson said that he would never have agreed to conduct his inquiry had there not been cross-party support for it.[216]

121. We acknowledge that there are often significant advantages in the appointment of a serving or retired judge to chair an inquiry, but we believe that ministers have in the past been too ready to assume that a serving judge would be the most suitable chairman.

THE VIEW OF THE SENIOR JUDICIARY: CONSULTATION OR CONSENT?

122. Section 10(1) of the Act provides that if the minister proposes to appoint a serving judge of England and Wales as chairman, the Lord Chief Justice must first be consulted. There are similar provisions for the Supreme Court and for other jurisdictions.[217] In addition to the obvious fact that the removal of a judge from his judicial duties will have logistical repercussions, the Lord Chief Justice must have the opportunity to intervene where in his view such an appointment would be wrong; and where he agrees that the chairman should be a judge, he must be able to give his views on the identity of the judge.

123. The question is whether such consultation goes far enough, or whether the formal consent of the Lord Chief Justice should be required. As far back as May 1991 Lord Mackay of Clashfern, then Lord Chancellor and hence at that time head of the judiciary, stated that "in the case of an inquiry to be chaired by a serving judge the Lord Chancellor's concurrence is required."[218] In the Inquiries Bill as introduced in the House of Lords the requirement was only for consultation. During the passage of the Bill, Lord Goodhart, with wide all-party support, moved both in Committee[219] and on Report[220] an amendment to replace the requirement to consult the Lord Chief Justice with a requirement to seek his consent. Both times the amendment was withdrawn, but on Third Reading it was pressed to a division and was agreed.[221] However when the Bill reached the House of Commons the original wording was reinstated.[222]

124. In evidence to us it was argued by Shailesh Vara MP, the Parliamentary Under-Secretary of State at the Ministry of Justice and the Minister for Courts and Legal Aid, that "it is highly unlikely that a Minister would go against the advice of a Lord Chief Justice."[223] It is also unlikely that a judge would agree to serve in the face of opposition from the Lord Chief Justice. Nevertheless, as Lord Justice Beatson reminded us, "section 10 appears to be the only example in the statute book of a government minister being empowered to deploy a serving judge … it should not be for government alone to decide that a serving judge is to be used and to choose the judge who is to chair or conduct the inquiry." Sir Brian Leveson[224] and Lord Cullen of Whitekirk[225] were among others who thought that the Lord Chief Justice (or his equivalent in other jurisdictions) should have to give his consent.

125. The Lord Chief Justice, in a letter to our chairman,[226] endorsed what was said by Lord Justice Beatson, and regarded it as "imperative" that the consent of the Lord Chief Justice should be required: "concurrence, not merely consultation, is required for the Lord Chief Justice properly to fulfil his responsibility for judicial deployment and to protect against judicial involvement in areas of political controversy." We share that view.

126. We recommend that section 10(1) of the Act should be amended so that a minister who wishes to appoint a serving judge as a chairman or panel member of an inquiry should first obtain the consent of the appropriate senior member of the judiciary.

Panel members and assessors

127. Some chairmen are appointed for their expertise in the subject-matter of the inquiry, some—in particular judges—are appointed more for their stature and reputation. Most inquiries are investigating matters of some complexity; some, especially those investigating disasters, are looking at highly specialised topics. In many cases even the most expert of chairmen would not pretend that they have all the specialist knowledge they need. The question arises whether and in what circumstances additional experts are needed, and how they are to take part in the inquiry.

128. The chairman can be assisted by additional panel members, or by assessors. Many functions are for the chairman alone: it is the chairman alone who is consulted by the minister on a variety of matters, the chairman who ultimately determines the procedure and conduct of the inquiry, who designates core participants, who makes restriction orders, who decides awards of costs, and who rules on a number of other matters. But the chairman is the first among equals. Panel members are full members of the inquiry, they will be consulted on these matters, they will play a full part in the conduct of the inquiry, and the report will be theirs as much as the chairman's.

129. Before the setting-up date the minister must inform the person appointed, or to be appointed, as chairman whether or not he proposes to appoint other panel members, and must consult the chairman before appointing another panel member.[227] The chairman therefore has some say in the matter; but given that the panel members must work closely together, perhaps over a period of years, this may not go far enough.

130. Section 4(3) of the Act, which requires the minister to consult the chairman before appointing a further member to the inquiry panel, should be amended to provide that the minister can appoint a member to the inquiry panel only with the consent of the chairman.

131. Assessors, like panel members, are there to assist the chairman, but the way in which they do so and the extent of their contribution will be entirely for him. It is for him to decide at what stage to seek their advice, and what to make of it. They will often read the report in draft and comment on it, but ultimately it is the chairman's alone. They can be appointed by the chairman at any stage of the inquiry. The minister is also empowered to appoint assessors before the setting up date, again after consulting the chairman.

132. Sir Brian Leveson told us about the appointment of the six assessors who assisted him:

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133. As Sir Brian implied, it is particularly important that experts, whether panel members or assessors, should be able to demonstrate that their previous experience will not prevent them from reaching unbiased views. One of Sir Brian's assessors was Sir David Bell, who had been in the newspaper industry for 40 years and was chair of the Media Standards Trust until he resigned on being appointed an assessor. He explained to us that although his interests were exhaustively declared and published on the inquiry website, he would have been happy to answer questions formally before his appointment, particularly from the organs of the press which objected to his appointment.[229]

134. Where expertise is required, and is not provided by expert witnesses, the question arises whether it is preferable for the chairman to be accompanied by other panel members or to be assisted by assessors. On this we heard differing views. Dr Mackie thought that "it would be helpful to have more capabilities on an inquiry team than you get through one judge,"[230] and Professor Kennedy said: "I think that the default position for any chairman of an inquiry would be to sit with others … ordinarily those others ought to be part of the inquiry's panel and therefore have a say."[231]

135. Other witnesses thought an inquiry should be by a chairman alone, with additional expertise provided by assessors or expert witnesses. Sir Brian Leveson told us that "The trouble with appointing members of a panel is that they are just as much conducting the inquiry as the chairman … the consequence would have been a massive extension of the time everything took."[232] Lord Bichard pointed to the effect panel members had on a report: "I did not want to get myself into a position where I was having to compromise what I thought needed to be said by having to trade off with others."[233] Robert Francis QC agreed: "… a report written by a committee is a rather different animal from one that an individual chairman … it is more likely to be a compromise, for obvious reasons. I think there are disadvantages with that."[234] There may also be problems when a panel member leaves for whatever reason, as Peter Riddell did in the Detainee Inquiry.[235]

136. We believe that facility of organisation, clarity of drafting and avoiding lengthening the reporting process are all persuasive arguments for having a single member panel. We recommend that an inquiry panel should consist of a single member unless there are strong arguments to the contrary.

137. Section 11(2)(a) and (3) allows the minister to appoint assessors after consulting the chairman, but does not require the chairman's consent. It is clear from the evidence of Sir Brian Leveson and Sir David Bell which we have cited that the chairman's consent is essential. We recommend that section 11(3) should be amended so that the minister can appoint assessors only with the consent of the chairman.[236]

138. Courts can, but very seldom do, appoint assessors; when they need expert help, they receive it in the form of evidence from expert witnesses. This has the advantage that the expert advice, like evidence of fact and opinion, is heard openly by all taking part, can to a certain extent be challenged, and can be cited by the judge in the judgment. Inquiries are very different to courts, not least in their procedure. We do not seek to diminish the contribution made by assessors, but we believe inquiries might sometimes benefit from receiving expert advice in the form of evidence.

139. Where the chairman requires expert assistance during the course of the inquiry hearings, consideration should be given to receiving this openly from expert witnesses rather than privately from assessors. However the chairman should continue to be able to rely on the confidential advice of assessors when drafting the report.

140. We heard evidence from Dr Judith Smith, the Nuffield Trust's Director of Policy, whose assistance to the Mid Staffordshire inquiry was unusual, perhaps unique. She started as an expert to the inquiry, prepared extensive written evidence and was one of the two opening witnesses to the inquiry, giving oral evidence over two days. She then had a period of almost two years of work with the inquiry before being appointed as an assessor towards the end of it, at the stage of report writing.[237] In this particular case this seems to have worked satisfactorily, perhaps because of the nature of her expertise, but we doubt whether it would usually be right for the same person to give expert evidence openly to the inquiry and subsequently to advise the chairman privately on the same issues.

Terms of reference

141. The precise terms of reference of an inquiry are crucially important. Not only will they define the breadth of the inquiry's remit, and hence its powers, but they will often be the chairman's only defence against arguments, all too frequent, that the scope of the inquiry should be widened.

142. We have already said that the identity of the chairman should not be decided in haste, and that the fact of the inquiry and the name of the chairman should not necessarily be the subject of the same statement to Parliament. This applies a fortiori to the terms of reference, which under section 6(2)(c) also have to be in the same statement as the announcement that an inquiry is to be held. The requirement of section 5(4) that the Minister must consult the chairman on the terms of reference means that the time for formulating and agreeing them is still further reduced.

143. An inquiry cannot be set up unless there is some indication of the terms of reference. In the case of disaster inquiries these may be clear from the outset, but not in the case of all inquiries. In his opening statement on 28 July 2011 Lord Justice Leveson[238] said that his terms of reference "in the week following the initial statement by the Prime Minister on 13 July grew very substantially." Government and Opposition had agreed on 6 July 2011 that there should be a public inquiry. The following day the Leader of the House[239] announced that the Government were looking at two inquiries, "the second on the wider issue of media ethics", and that careful thought would have to be given to the terms of reference, on which there would be wide consultation. On 13 July in an oral statement the Prime Minister announced that there would be a single inquiry under the Inquiries Act 2005, led by Lord Justice Leveson, and he gave the terms of reference.[240] But in a further oral statement a week later he described these as "draft terms of reference",[241] and announced that after consulting Lord Justice Leveson, the Opposition, the Chairs of relevant Select Committees, and the devolved Administrations, "significant amendments" had been made to the remit of the inquiry. He concluded: "I am today placing in the Library of the House the final terms of reference."

144. It is not clear whether it was the Prime Minister's statement on 13 or on 20 July which was, or was intended to be, the statement under section 6(1) of the Act; and perhaps it does not matter, since section 5(3) in any event allows the terms of reference to be amended.[242] What this does illustrate is the importance of allowing flexibility and latitude in the announcement of the fact of the inquiry, the identity of the chairman, and the terms of reference. The current wording of section 6 militates against this. We agree with Jason Beer QC's suggestion of "allowing a little cooling-off period. Announce the fact of the inquiry, announce the chairman or panel members, do not announce the full terms of reference, have a relatively short period while the chairman familiarises himself or herself with the material, consult, then publish the terms of reference."[243] Robert Francis QC described this as "a staged process."[244]

145. We recommend that section 5(4) should be amended so that the consent of the chairman is needed before the minister can set or amend the terms of reference.

146. We have already recommended that section 6(2) should be amended so that the fact of the inquiry and the name of the chairman need not necessarily be the subject of the same statement. We recommend that section 6(2) should be further amended to allow a minister, in announcing an inquiry, to set out only draft terms of reference, and that the final terms of reference should, when agreed with the chairman, be the subject of a further statement. This, we anticipate, would normally be a written statement, as permitted by section 6(4).

CONSULTATION WITH INTERESTED PARTIES

147. In his statement on 20 July 2011 the Prime Minister said that, before the terms of reference of the Leveson Inquiry were finalised, "I also talked to the family of Milly Dowler and the Hacked Off campaign."[245] Lee Hughes, who was secretary to the Hutton, Baha Mousa and Al-Sweady inquiries, told us: "I think it is good practice for the terms of reference to be discussed by the major stakeholders before the inquiry is announced. That is what happened on both the Baha Mousa Inquiry and the Al-Sweady Inquiry. For example, the legal representatives for the Iraqi claimants in those inquiries were involved in the discussions on the terms of reference."[246]

148. Robert Francis QC went further, and thought that "there should be consultation with the public about the terms of reference that the Minister should be required to have regard to, though not bound to follow."[247] Eversheds on the other hand thought that "consideration should be given when establishing terms of reference for liaising with relevant victims who may have valuable input on the formulation of the terms of reference."[248] Julie Bailey, a moving spirit behind the Mid Staffordshire Inquiry, told us: "One of the things that I felt was missing from the public inquiry was a chance at the beginning to all get together and look at lines of inquiry that we needed to look at … one thing that I felt was missing from the very start of the terms of reference of the Mid Staffs public inquiry was whistleblowing".[249]

149. Consultation already happens in the case of non-statutory inquiries. Alun Evans, who was secretary of both the Foot and Mouth Inquiry and the Detainee Inquiry, told us that in both cases: "for three months before the formal start of the inquiry, there were discussions between the chair and the secretary and the Government representatives. In both of those inquiries as well we informally consulted groups of relevant stakeholders and only once we had got a near agreed set of terms of reference did we then formally launch an inquiry."[250]

150. We believe that such consultation is desirable in the case of inquiries under the Act, though three months may be excessive. A short period—no more than a month—should be allowed between the announcement of an inquiry and the finalisation of the terms of reference during which persons and bodies with an interest, in particular those who have been calling for an inquiry, can be consulted and have an opportunity to give their views on the draft terms of reference. This may have the additional benefit of avoiding judicial review of the terms of reference, as happened in the case of the Robert Hamill Inquiry.[251]

151. We recommend that interested parties, particularly victims and victims' families, should be given an opportunity to make representations about the final terms of reference.

152. In the case of an inquiry chaired by a serving judge, the Lord Chief Justice is by definition a person with an interest in the terms of reference. Lord Thomas of Cwmgiedd has suggested that for such an inquiry the Lord Chief Justice's consent should be required to the terms of reference.[252] We can understand the Lord Chief Justice's fear that he might consent to the appointment of a judge as chairman of an inquiry on the basis of draft terms of reference which are subsequently substantially amended. However we have already recommended[253] that section 5(4) of the Act should be amended to make the concurrence of the chairman to the terms of reference, and to any amendment, mandatory. We think this should suffice.

206 Q 205. Sir David Bell told us that he was rung by the Cabinet Secretary and asked to act as an assessor to the Leveson Inquiry "completely out of the blue when I was on holiday in Italy" (Q 296). Back

207 Q 203. Back

208 Q 43. Lord Scarman had chaired the inquiries into the Red Lion Square disorders in 1974 and the Brixton riots in 1981. Back

209 Q 81. Back

210 Q 191. Back

211 Q 203. Back

212 Q 203. Back

213 Q 91. Back

214 During the passage of the Inquiries Bill through the House of Lords Lord Hutton said: "I fear the reality is that if there is an inquiry into a matter in which some sections of the media hope that there will be a report that will be highly critical of the government, then notwithstanding that the report does not so report on the basis of evidence given to it, there will still be sections of the media that will allege a whitewash. I fear that that is simply a fact of life in this country today. However, that is not a reason why such an inquiry should not be conducted." HL Deb, 18 January 2005, col GC218. Back

215 Letter to Lord Shutt of Greetland, 17 December 2013. Back

216 QQ 81-82. See also the written evidence of Lord Justice Beatson, paragraphs 3-5. Back

217 In the case of a judge of the Supreme Court the President must be consulted; in the case of a Scottish judge, the Lord President of the Court of Session; and in the case of a Northern Ireland judge, the Lord Chief Justice of Northern Ireland. What we say about the consent of the Lord Chief Justice of England and Wales applies equally to those cases. Back