CHAPTER 4: SETTING UP AN INQUIRY: THE
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
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."
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.
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".
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."
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
"experience of fact finding about past events
[judges] are very used to listening to witnesses speak
about past events and making up their mind about what happened
they have the ability to deal with legal and procedural
they are very used to running trials, running
hearings, and avoiding unnecessary diversions and keeping focus
they are very used to analysing large amounts of data and
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."
Lord Bichard saw other disadvantages:
"I am not sure that [judges] tend to follow
the inquiry afterwards by making sure that something happens,
because they are not used to doing that. They make a judgment
in the court and that is the end of it
I do not think they
are necessarily the best people to draft reports in a way that
normal people can understand
I am not sure that they are
absolutely the best people to work with the press."
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."
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."
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.
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).
Sir Brian Leveson said that he would never have agreed to
conduct his inquiry had there not been cross-party support for
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
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
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
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
on Report 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. However
when the Bill reached the House of Commons the original wording
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."
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
and Lord Cullen of Whitekirk
were among others who thought that the Lord Chief Justice (or
his equivalent in other jurisdictions) should have to give his
125. The Lord Chief Justice, in a letter to our
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, somein particular
judgesare 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
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.
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:
"The position was the assessors were in
fact appointed by, I think, the Prime Minister or formally then
by the Home Secretary and the Secretary of State for Culture,
Media and Sport
I was asked for my views
I was given
a list of names of those whom the Government sought to consider.
I was not given the choice: assessors or no assessors? This was
how the Government decided they wished to proceed. Of course,
you must recognise that I did not know any of these people personally
and what happened was I said that I would speak to each. I had
very lengthy conversations with each one, first of all to ensure
they understood what was involved and, secondly
I could be satisfied that I would be getting impartial views based
upon the evidence and their experience."
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.
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
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."
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
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."
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."
There may also be problems when a panel member leaves for whatever
reason, as Peter Riddell did in the Detainee Inquiry.
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.
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.
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
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
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
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.
But in a further oral statement a week later he described these
as "draft terms of reference",
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.
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."
Robert Francis QC described this as "a staged process."
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."
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."
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."
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."
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".
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."
150. We believe that such consultation is desirable
in the case of inquiries under the Act, though three months may
be excessive. A short periodno more than a monthshould
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.
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.
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
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
Q 203. Back
Q 43. Lord Scarman had chaired the inquiries into the
Red Lion Square disorders in 1974 and the Brixton riots in 1981. Back
Q 81. Back
Q 191. Back
Q 203. Back
Q 203. Back
Q 91. Back
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
Letter to Lord Shutt of Greetland, 17 December 2013. Back
QQ 81-82. See also the written evidence of Lord Justice
Beatson, paragraphs 3-5. Back
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
Paragraph 17 of the Note by Lord Mackay of Clashfern LC
on Disasters and the law: deciding the form of inquiry, 16
May 1991, printed in Annex D to the Final Report of Lord Justice
Clarke on the Thames Safety (Marchioness) inquiry, January
2000, Cm 4558. Back
HL Deb, 18 January 2005, col GC242. Back
HL Deb, 7 February 2005, col 645. The amendment was supported
by Lord Woolf, the then Lord Chief Justice and a member of this
HL Deb, 28 February 2005, col 22. Back
HC Deb, Standing Committee B, 22 March 2005, cols. 62-63. Back
Q 333. Back
Q 82. Back
Q 190. Back
Letter to Lord Shutt of Greetland, 17 December 2013. Back
Sections 3(1), 4(3) and 5(1). Back
Q 87. Back
Q 298. Back
Q 72. Back
Q 209. Back
Q 85. Back
Q 209. Back
Q 209. Back
In the event this did not impede the inquiry, since it was
halted when criminal proceedings were imminent. Back
Under section 11(2)(b) the chairman has the power to appoint
assessors during the course of the inquiry. Back
Q 298. Back
At the time of the inquiry which he chaired, Sir Brian Leveson,
now President of the Queen's Bench Division, was a Lord Justice
of Appeal, and we so refer to him in references to the time of
the inquiry. Back
Sir George Young MP. Official report, HC Deb, 7 July 2011,
col 1659. Back
Official report, HC Deb, 13 July 2011, cols 311-312. Back
Official report, HC Deb, 20 July 2011, cols 918-919. Back
The Prime Minister was in any event not strictly the "Minister
who proposes to cause an inquiry to be held", whose duty
it is under section 6(1) to make the statement, since Lord Justice
Leveson was appointed jointly by the Secretary of State for Culture,
Media and Sport and the Minister of State at the Home Office by
a letter dated 28 July 2011. Back
Q 121. Back
Q 215. Back
HC Deb, 20 July 2011, cols 918-919. Back
Q 131. Back
Q 215. Back
Written evidence, paragraph 12. Back
Q 160. Back
Q 131. Back
See the written evidence of the Northern Ireland Committee
on the Administration of Justice, paragraphs 10-12, where they
give details of the judicial review seeking amendments to the
terms of reference of the Robert Hamill Inquiry. They also explain
that in the case of the Rosemary Nelson Inquiry (a non-statutory
inquiry) the terms of reference were amended following representations
made by them. Back
Letter to Lord Shutt of Greetland of 17 December 2013. Back
Paragraph 145. Back