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 7: inquiry procedure

Inquisitorial or adversarial

211. Rule 1.4 of the Civil Procedure Rules 1998[315] imposes on the civil courts of England and Wales a duty of active case management. Nevertheless litigation, whether civil or criminal, is basically adversarial, in the sense that evidence is presented by the parties in furtherance of their case rather than requested by the court. Witnesses are examined and cross-examined to the same end. Court procedure is designed with this in mind. The truth, if it emerges, does so as a by-product of the adversarial litigation.

212. An inquiry under the Act "is not to rule on, and has no power to determine, any person's civil or criminal liability."[316] However "an inquiry panel is not to be inhibited in the discharge of its functions by any likelihood of liability being inferred from the facts that it determines or recommendations that it makes."[317] Nothing therefore should prevent an inquiry from seeking evidence which will allow it to perform its central task of eliciting the truth. As Eversheds told us, what the witnesses want to say is not necessarily what the inquiry needs to know.[318]

213. All our witnesses who addressed the issue agreed that inquiries were best served by an inquisitorial rather than an adversarial procedure, with the line of questioning directed at ensuring that the panel hear all that they need to know. Jason Beer QC told us that an inquisitorial model

319

214. Our witnesses, who included many chairmen and counsel involved in recent inquiries under the Act, felt without exception that the Act provided a suitable framework for such a procedure. Lord Gill said: "I thought the 2005 Act worked very well in the inquiry that I did. I think the legislation is good legislation."[320] Sir Brian Leveson's view was similar: "I think the Inquiries Act does a splendid job in making the inquiry inquisitorial, not adversarial … I think the Act did provide me with adequate powers to conduct the inquiry in a way that was efficient and as effective as I could make it."[321] Sir Robert Jay, counsel to his inquiry, felt that "the Act itself and most of the rules made under it worked extremely well, with sufficient flexibility, to meet the particular requirements of the Leveson Inquiry, and do not warrant significant change. I think it is a good piece of legislation."[322]

215. We agree with our witnesses that an inquisitorial procedure for inquiries is greatly to be preferred to an adversarial procedure, and we conclude that the Act provides the right procedural framework for both the chairman and counsel to the inquiry to conduct an inquiry efficiently, effectively and above all fairly.

Counsel to the inquiry

216. The chairman will invariably direct the line of questioning, but most inquiries appoint counsel to the inquiry to carry out the questioning. Sir Stephen Sedley[323] explained that "the reason why it is wise to have counsel to an inquiry is that if the chair starts asking all the questions, there is a real risk that at some point he or she is going to look parti pris. It is much better for the counsel to have that much distance from the chair."[324] Collins, Kemish and Underwood agreed:

325

217. Sir Brian Leveson told us that his relationship with Sir Robert Jay, his counsel, was "very close"[326] and he clearly found his counsel's work invaluable. Other chairmen emphasised the differences between their job and that of counsel. Robert Francis QC explained that "whether you have a legally qualified chairman, a judge, or not, you do in all but the simplest of inquiries need someone else to be asking the questions, and that skill, if I may say so, is different from the skills required as a chairman."[327] Lord Bichard said: "I chaired the Soham [non statutory] inquiry but I had counsel interrogating witnesses and that worked terribly well … I met counsel every morning; we talked about what the questioning was going to be; we met at the end of the day; we reflected upon it".[328]

218. Some inquiries seem to have managed without counsel. Alun Evans explained that in the Foot and Mouth Inquiry "the chairman was absolutely adamant that he did not want permanent access to counsel." The Iraq Inquiry has not used counsel, but Sir John Chilcot told us: "The absence of Counsel to the Inquiry undoubtedly placed an additional onus on myself and my colleagues in relation to the questioning of each witness who appeared before us. When preparing for our public hearings, we were assisted by staff employed within the Inquiry Secretariat and received some expert guidance on the questioning of witnesses."[329] Sir Stephen Sedley pointed out that the Iraq Inquiry not only had no counsel but no practising lawyer on the panel, and "some of us reading the daily reports of what was going on were almost weeping at the questions that were not being asked."[330]

219. One argument advanced against the use of counsel to the inquiry is the expense. We referred earlier[331] to the judgment of the Divisional Court in R (Ali Zaki Mousa) v Secretary of State for Defence (No 2). One of the Court's reasons for ordering a number of quasi-inquests[332] rather than a single inquiry was the expense of legal expertise: "We have taken cognisance of the fact that the extensive deployment of teams of lawyers at inquiries has added significantly to the cost and length of inquiries."[333] In a later judgment the Court said: "We have expressed our very strong view that there should be no separate counsel to the inquiry as the inquiry can be effective without such counsel and the appointment would impose a disproportionate cost."[334] This view was subsequently embodied in a formal order of the Court: "There should be no separate counsel to the inquiry."[335]

220. The expense of counsel to the inquiry is undoubtedly considerable, though for the reasons advanced in chapter 5 we do not think it need be inordinate. We do not know whether the Court received evidence that the cost would be "disproportionate". The evidence we received from Lee Hughes (whose experience, as we have said, was very substantial) was, on the contrary, that the use of counsel could save money: "I am a great believer in having counsel to the inquiry leading and focusing the questioning of witnesses. The biggest cost in an inquiry is the length. If you can keep the inquiry shorter, you save money. There are various ways you can do that but one of them, I think, is having counsel to the inquiry taking the major responsibility for the questioning of witnesses."[336] We stress that, ultimately, the responsibility for the questioning will be that of the chairman.

221. We agree with the majority of our witnesses that for an inquiry of any length the appointment of counsel to the inquiry is essential.

APPOINTMENT OF COUNSEL

222. There are references in the Act to counsel to an inquiry, for example in the provisions on immunity from suit[337] and on payment,[338] but there is no definition in the Act of "counsel to the inquiry" and no provision concerning the appointment of counsel. The Rules define "counsel to the inquiry" as "the qualified lawyer or lawyers, if any, appointed by the chairman to act as counsel". In practice counsel are invariably appointed by the chairman, and this is clearly right. As Sir Brian Leveson said, "The relationship between the chairman and counsel to the inquiry is very close … I was very content that I was able to appoint somebody, first, who I thought could do the job and, secondly, with whom I could work … It is difficult for somebody else to do it because you cannot do the chemistry thing and it is difficult for somebody else to know precisely how you want the inquiry to be conducted."[339]

223. The precise role of counsel is to be settled with the chairman, and needs no statutory provision. We believe the Act should include a provision to make clear that appointment of counsel too is a matter for the chairman. Section 11 makes clear that assessors may be appointed by the chairman as well as by the minister, and it should perhaps be put beyond doubt that the minister has no say in the appointment of counsel.

224. A provision should be added to the Act stating that the chairman, and only the chairman, may appoint one or more barristers or advocates in private practice to act as counsel to the inquiry.

225. In deciding how many counsel to appoint, and who they should be, the chairman will bear in mind the general duty to avoid unnecessary cost to public funds[340] and, as we have suggested,[341] will wish to consult the central unit and the Treasury Solicitor. There will be occasions when the Law Officers could also usefully be consulted.

Legal representation for core participants and witnesses

226. Persons with a particular interest in an inquiry who are designated by the chairman as core participants[342] may well give written or oral evidence, though they will not necessarily do so. There will usually be persons appearing as witnesses—often many—who will not be core participants. Some of these witnesses will have been summoned to give evidence, some will have requested and been given permission to do so. There is of course nothing to stop anyone involved in an inquiry, whether or not as core participants or witnesses, from receiving legal advice, whether from solicitors, counsel or both. There are however detailed provisions in the Act and the Rules on the extent to which such legal representatives can take part in the proceedings, and on whether and to what extent they should be paid out of public funds. We have considered whether these provisions strike the right balance between the interests of the inquiry as a whole and the fair treatment of core participants and witnesses, particularly in the light of Helen Shaw of INQUEST's comments: "we think that one thing that is very important is the standing that the victims or bereaved families have in an inquiry".[343] We are conscious of the fact that, although the inquiry will not be determining civil or criminal liability, liability may be inferred from what is said, and reputations may be damaged or even destroyed.

CORE PARTICIPANT STATUS

227. Designation of a person as a core participant is a matter for the chairman's discretion, taking account of the criteria in rule 5. Once a person is so designated, the chairman must direct that where two or more core participants have similar interests they are to be represented by a single legal representative.[344] In his Ruling on Core Participants of 14 September 2011 Lord Justice Leveson ruled that the 46 persons listed in the Annex to the Ruling who were alleging ill-treatment by the press should be represented by a single legal representative.

228. The main advantages of core participant status often derive from decisions of the chairman on practice and procedure. Thus Lord Justice Leveson allowed core participants to see in advance, under strict rules of confidentiality, copies of statements that witnesses had provided and which would form the basis of their evidence. For those who were not core participants, the witness statements only became available when published on the inquiry website after the conclusion of the evidence of the witness.

POWERS AND DUTIES OF LEGAL REPRESENTATIVES

229. We have set out in paragraph 30, Box 2, the six Salmon principles which the Royal Commission on Tribunals of Inquiry thought should be followed by inquiries to provide protection for witnesses. In summary, the Salmon Commission thought that a person called as a witness should have a right to legal representation out of public funds, and should have an opportunity to be examined by his own solicitor or counsel and to test by cross-examination any evidence affecting him. As Professor Tomkins told us, the Salmon principles "come from an era when we used to talk of something called tribunals of inquiry, when we did not know what the difference was between a tribunal and an inquiry". He suggested that "one of the things that … your Committee could usefully do is officially junk the Salmon principles."[345] He thought they should be replaced by principles fit for investigative inquiries where neither the courts nor Parliament could fill the gap.

230. Not all our witnesses showed quite the same root and branch antipathy to the Salmon principles, but in a sense the first two have already been "junked" by the Inquiry Rules. The default position is now that only counsel to the inquiry and the inquiry panel can ask questions of a witness to an inquiry.[346]There are qualifications to this. The chairman can direct that a witness who has been questioned by counsel to the inquiry can be questioned by his own legal representative.[347] The chairman can allow a witness to be questioned by the legal representative of a core participant;[348] and, within strictly defined criteria, he can allow the legal representative of a witness who is not a core participant to question another witness.[349] But in both cases an application has to be made to the chairman, and it is the chairman's decision which is final. The right of a witness to be examined by his own counsel, and to have his counsel cross-examine other witnesses, has already gone.

231. There is thus a heavy burden on the chairman and, subject to the chairman, on counsel to the inquiry to make sure that the right questions get asked, and that no important issues are overlooked because questions go unasked. As Ashley Underwood QC told us, "I think it is a position of huge power which has to be used incredibly carefully."[350] Professor Kennedy explained: "I developed a procedure where cross-examination was not barred, although there was no right to it, but it was made irrelevant because counsel to the inquiry received all the requests from those representing interested parties and he or she then asked the relevant questions on behalf of those interested parties."[351] Sir Brian Leveson had a similar procedure: "I was very keen that counsel to the inquiry, whoever was going to ask questions of any witness, met informally with that witness beforehand … to discuss the evidence and the sorts of questions they would ask, and equally to receive any feedback … Nobody was disadvantaged only because they were a witness as opposed to a core participant",[352] although Sir Brian Leveson emphasised: "if I was investigating a death then I would be extremely sensitive to the legitimate concerns of the family of the bereaved. Therefore, I have no doubt that I would allow much greater latitude to those legal representatives … I do believe that the approach to inquiries after fatal incidents requires extreme sensitivity and adjustment to the approach."[353]

232. Disaster Action told us: "To the bereaved or survivor from a disaster … the process can feel adversarial, particularly when it is clear that the company or government department involved in the multiple deaths have briefed their own lawyers."[354] Helen Shaw agreed: "From the point of view of whether it is an inquiry involving a death or a series of deaths, it is absolutely vital that there is, in addition to counsel to the inquest, counsel for the victims' families."[355] But Collins, Kemish and Underwood cautioned that "The adversarial model is not suited to discovering the truth, and would add stress to what is almost inevitably a charged atmosphere of public concern."[356] It is precisely such stress that all involved in inquiries should seek to avoid.

233. Broadly, the core participants who spoke to us thought this system worked fairly. Julie Bailey said: "On balance, I think we did get most of the questions that we wanted. There were occasions where we would like to have pushed a little bit more and got more evidence out of the witness. There was always at the back of your mind that you wanted this inquiry to finish quickly".[357] Christopher Jefferies told us:

358

234. One member of this Committee with experience of giving evidence to an inquiry, and of the stresses which inappropriate questioning can place on witnesses, believes that they should once more have the right to be represented by their own counsel. The majority of us, while sympathising with this view, believe that with the right chairman and counsel the interests of those involved—core participants and other witnesses—are sufficiently protected by the flexibility of the procedure under the Inquiry Rules. They allow the inquiry proceedings to be taken forward without undue delay, but also without the risk of unfairness to the participants. But we agree with Mr Underwood that achieving this places a heavy burden on counsel.

235. The fourth and sixth Salmon principles, which allow a person the opportunity of being examined by his own solicitor or counsel, and of testing by cross-examination any evidence which may affect him, are over-prescriptive and have the effect of imposing an adversarial procedure on proceedings which should be inquisitorial. They should no longer be followed. Reliance should be placed on the chairman who has a duty to ensure that the inquiry is conducted fairly.

EXPENSES OF LEGAL REPRESENTATION

236. The chairman's power to make awards of costs to compensate witnesses for their expenses includes power to award amounts in respect of legal representation "where the chairman considers it appropriate."[359] It is subject to conditions notified by the minister to the chairman,[360] and to detailed provisions of the Rules.[361] The general criteria which the chairman must take into account in determining whether an award should be made are the financial resources of the applicant, and whether making an award is in the public interest.[362] We have already referred in paragraph 179 to the very similar detailed Protocols on Legal Representation at Public Expense issued by the chairmen of the ICL, Mid Staffordshire and Leveson inquiries to explain to those contemplating applying for costs from public funds whether they are likely to be awarded them, and if so subject to what conditions.

237. If the Salmon entitlement of witnesses to examination by their own counsel, and to cross-examination of other witnesses, still applied, we can see that there might be arguments in favour of such representation being paid for out of public funds unconditionally. As it is, we believe that it is right to leave to chairmen of inquiries the discretion of whether the cost of legal representation of core participants and witnesses should be met out of public funds.

Assistance to core participants and witnesses

238. Most inquiries include as witnesses, and in certain circumstances as core participants,[363] people who have been directly affected by the matter under investigation. These people, especially victims and victims' families, will usually have no experience of any previous form of inquiry. We heard that for them participating in an inquiry can be a daunting task. Julie Bailey suggested that some people were reluctant to give evidence "because it was going to be in public and adversarial."[364] Sir Robert Jay agreed that some witnesses are frightened to give evidence, although he explained that this could be for a variety of reasons.[365]

239. Our witnesses who had been core participants told us that they were generally well provided for. Julie Bailey told us: "We felt very supported. I felt we had a very good team at the public inquiry and I think we felt supported when we gave evidence … we had a separate room and were given all the help we needed … we were offered counselling if we needed it, and some witnesses did take up that offer."[366] She detailed the assistance given to her even prior to the start of the inquiry. Christopher Jefferies emphasised that he was satisfied with his legal support, and did not need emotional support.[367] But where it was needed, we heard evidence of inquiry teams organising support such as counselling.[368] Collins, Kemish and Underwood told us that they set up a dedicated "witness support team" for one inquiry, which proved successful.[369]

240. Some inquiry chairmen met witnesses in advance. Lord Cullen of Whitekirk explained the value of this: "Certainly I find it helpful to have meetings with the bereaved and possibly the injured—mostly the bereaved—before the inquiry gets going, so they have a chance to see what I am like and they can put questions to me and we can discuss how the inquiry is going to be carried out."[370] Lord Gill agreed: "You have to make it clear to them at the outset that everything is coming out in the open, that nothing is being held back and that everything that they want to know, to the extent that it can be known, will be brought out. I think it also helps if you speak to them directly, person to person, just to let them know that all you are there to do is to help to get to the truth."[371] Sir Brian Leveson told us that he was keen that counsel to the inquiry met informally with witnesses beforehand.[372] We can see the value of doing so.

241. Inquiry chairmen and counsel to the inquiry should as a matter of course meet victims and families as early as possible in the inquiry process. There should be a dedicated team or named members of staff responsible for liaising with witnesses.

242. Julie Bailey raised concerns about having to share the same waiting space as other witnesses: "What I did find uncomfortable at times was having to share the same rooms with other witnesses who I felt were responsible for some of the harm … I did feel quite unnerved some days by some witnesses being there around us after they had failed so badly."[373] While we recognise that the inquiry process is not adversarial, we accept that in certain instances it may not be appropriate for certain witnesses to share the same space. We urge the inquiry secretariat to ensure that witnesses and core participants are handled sensitively, so that victims and families do not come into contact with those they believe to be responsible for any harm.

Warning letters

243. Any participants in an inquiry, in whatever capacity, who will be or may be criticised in an interim or final report should have an opportunity to state their case. This is no more than common fairness and common law. From the point of view of the inquiry panel, it is also common sense. This practice is sometimes said to derive from the second Salmon principle. That principle, however, recommends that any person who is involved in an inquiry should be informed of any allegations which are made against him, and the evidence in support of them, before he is called as a witness. Here we are concerned with what happens at the later stage when the evidence has been heard, and it is clear that the draft report will be critical of individuals.

244. We believe that circumstances are so varied that fixed rules are unnecessary and unhelpful. There will be cases where, from the outset of an inquiry, it is clear that it is concerned with serious allegations against individuals—one need think only of some of the staff of Stafford Hospital, or of the News of the World—and their concern throughout the inquiry will therefore be to argue their case. They may succeed. If they do not, this will be clear to them, and they will hardly be surprised if the report contains perhaps very strong criticism of them. At the other extreme, at a late stage of an inquiry cogent evidence may be given criticising an individual who has not previously been concerned with the inquiry; it would be blatantly unfair if the report were to criticise that person without allowing them first to put their views.

245. The provisions of the Inquiry Rules on warning letters are highly detailed and go far beyond what is necessary. Rule 13(1) ostensibly gives the chairman a discretion whether or not to send a warning letter to a person, but there is in fact no discretion, since rule 13(3) does not allow any significant criticism of a person to be included in a report unless that person has been sent a warning letter and given an oportunity to respond to it. Furthermore, rule 15 specifies in minute detail what the letter must say: it must set out the proposed criticism, the facts which substantiate it, and the evidence supporting those facts.

246. The interpretation of those rules has caused great difficulty. Some chairmen have interpreted them as requiring individuals to be sent drafts of the passages of the report including criticism. Robert Francis QC stated in the Executive Summary to the report of the Mid Staffordshire Inquiry: "Some recipients asked that they be given sight of any revision of the potential criticism before publication of the Inquiry report. I declined to do so; first because the Rules do not provide for such a facility, and second because it would have been impracticable and undesirable. Such a process would inevitably have led to a virtually endless exchange of drafts and submissions, making the Inquiry process even longer than it already had been."[374] In evidence to us Mr Francis stated: "in practice I think my inquiry was extended by at least six months by having to undertake a rule 13 process."[375]

247. Lord Justice Leveson issued a 25-page ruling explaining how he intended to apply these rules in his inquiry, and a further 11-page ruling on the specific application to the Metropolitan Police. He told us that "if I had obeyed [rule 13] to the letter, [it] would have killed any prospect of doing the report in time." He continued: "I think it is rule 15 that required me to set out the potential criticism, the facts forming the basis of the criticism, and all the evidence. Had I done that in terms, I need never have finished because they were all very specific."[376] Robert Jay QC said: "Rule 15 caused us huge grief and a huge amount of work and incurring of public expense. I think literally thousands of hours of work went into the generic letter."[377]

248. The Penrose Inquiry into Hepatitis C/HIV acquired infection from NHS treatment in Scotland was to have reported in March 2014. It will now not meet that date, and one of the reasons is that "this date was subject to the time required for the warning letters process and this process is taking longer than expected."[378] Lord MacLean, the chairman of the Vale of Leven Hospital Inquiry, hopes to report by 31 March 2014, but started sending out warning letters as long ago as October 2013.[379]

249. Further work, also at public expense, has been involved in an application for judicial review by E7 (the police marksman) arising from the Azelle Rodney Inquiry. He attempted, unsuccessfully, to review the inquiry findings, arguing that the draft report containing possible criticisms should not have been sent to all core participants, that a letter with those criticisms should have been sent only to E7, and that when the chairman amended the draft to strengthen the criticisms he should have sent a new warning letter with the revised draft. Counsel to the inquiry described this as "an absurdly stretched interpretation of Rules 13-15".[380]

250. The only support for these rules came from Jason Beer QC, and even this was limited: "A lot of the inquiries that I have tended to be involved in … involved very serious allegations, the most serious allegations, and if you were on the wrong end of those allegations you would want full and meticulous compliance with rules 13 to 15. So they are very well suited and absolutely necessary in such cases."[381] We believe that even in such cases chairmen can follow a procedure which is strictly fair without the shackles of the rules.

251. We recommend that rules 13-15 of the Inquiry Rules 2006 should be revoked and a rule to the following effect substituted: "If the chairman is considering including in the report significant criticism of a person, and he believes that that person should have an opportunity to make a submission or further submission, he should send that person a warning letter and give him a reasonable opportunity to respond."

Other amendments to rules

252. The complexities of rules 13-15 are only examples of a greater problem, which is the general over-prescriptiveness of the Rules. We agree with Lee Hughes that "there are a number of administrative things that the rules over-specify and make far too complicated."[382] Inquiries would work more efficiently (and hence be quicker and cheaper) if the chairman and secretariat were given greater discretion in organising their procedure. We give here three examples which have been drawn to our attention.

RULES 2 AND 18: INQUIRY RECORDS

253. Rule 2 defines "inquiry record" as "all documents given to or created by the inquiry" [our emphasis]. At the end of the inquiry "the chairman must transfer custody of the inquiry record to a department of Her Majesty's Government in the United Kingdom or to the appropriate public record office, as the Minister directs."[383] We were told that transferring all the inquiry documents to a public record office can be "very problematic."[384]

254. Robert Francis QC pointed out to us that the National Archives publishes guidance on the archiving of the inquiry record. It sets out the responsibilities of the various parties. It is the duty of the chair of a public inquiry, as a person responsible for public records "to make arrangements for the selection of those records which ought to be permanently preserved and for their safe-keeping."[385] There is clearly a conflict between this guidance and a strict interpretation of rules 2 and 18. The Government have noted that "the definition of 'inquiry records' could be amended to include only materials which merit permanent preservation but not day-to-day working papers".[386] They have not however made such a change to the Rules. We believe they should. We recommend that rules 2 and 18 be amended to give the inquiry secretariat some discretion as to which documents created by the inquiry should be part of the permanently archived inquiry record.

RULE 9: WRITTEN STATEMENTS

255. Rule 9 provides that the inquiry panel must send a written request for a written statement to any person from whom the inquiry proposes to take evidence. It does not allow the inquiry itself to take statements from witnesses. Lee Hughes told us: "This certainly has been a problem where you ask for a statement and it comes through, having been taken by the solicitor for the witness, and it is not adequate. We ask the witness to come in so that the inquiry can take a statement and the solicitors refuse, saying, ''No, we will do it'', and you have to go through iteration after iteration until you get anything useful."[387] The Government recorded a similar criticism in Annex 2 to their Response. We recommend that rule 9 should be amended to allow the inquiry's own legal team to take written statements from witnesses.

RULES 20-34: AWARDS OF COSTS

256. Lee Hughes pointed to the procedure for the assessment, award and payment of expenses as another example of the unnecessary complexity of the Rules. "The two inquiries I have done recently were sponsored by the Ministry of Defence. The easiest thing we could have done was to have paid all the expenses under the Ministry of Defence's arrangements for expenses but we could not. So we had to devise a whole system that was compliant with the rules and it just drove everybody mad, I think, trying to deliver that."[388] We agree that the Rules appear to be over-prescriptive. This is a case where the department could learn the views of previous inquiry secretaries from Lessons Learned documents. Rules 20 to 34 are over-prescriptive; we recommend that the procedure for awarding costs should be simplified.

THE SCOTTISH AND NORTHERN IRISH RULES

257. The provisions of the Inquiries (Scotland) Rules 2007[389] are very similar to those of the United Kingdom Rules, though there are differences of drafting and numbering. We are not aware of any reason why the changes we recommend to the United Kingdom Rules should not also be made to the Scottish Rules, and we invite Scottish ministers to consider doing so.

258. As we have explained,[390] the Inquiry into Historical Institutional Abuse Rules (Northern Ireland) 2013[391] were made for the purpose of a single inquiry, and cannot be used for inquiries under the 2005 Act. Nevertheless we suggest that the First Minister and Deputy First Minister should urgently consider amending the equivalent provisions of those Rules, and in particular rules 14-16, which follow precisely rules 13-15 of the United Kingdom Rules and will, if applied, entail all the unnecessary additional length and cost.

Freedom of Information Act 2000

259. There is a further problem with regard to the inquiry record. Section 32(2) of the Freedom of Information Act 2000 exempts from disclosure information in a document in the custody of a person conducting a statutory inquiry, and information in a document created by that person, i.e. the inquiry record. Those documents will include documents which are restricted from disclosure under section 19 of the Inquiries Act, and such restrictions can continue indefinitely.[392] Such documents may for example include papers relating to restriction orders for reasons of national security, requests by witnesses for anonymity, and orders made allowing anonymity.

260. These provisions work while the inquiry is running and the documents are in the custody of the inquiry. But once the inquiry record has been transferred to a public authority under rule 18(1)(b), as a consequence of section 18(3) of the Act (which was added to the Bill by a Government amendment which was not debated)[393] section 32(2) of the Freedom of Information Act ceases to apply, and under section 20(6) of the 2005 Act once the information is held by a public authority the disclosure restrictions imposed under section 19 cease to apply.

261. The Government acknowledge these problems, but have done nothing about them other than to say that "HMG plans to keep these issues under review."[394] In his oral evidence the minister accepted that "The Freedom of Information Act poses matters that need to be considered," but had no solution except to say that the issue needed to be looked at further.[395] We recommend that section 18(3) and (4) of the Inquiries Act 2005 be repealed, and section 20(6) amended, so that after the inquiry is concluded the inquiry record continues to have the same exemption from disclosure under the Freedom of Information Act as previously, and disclosure restrictions continue to apply.

Use of evidence in subsequent proceedings

262. As we have said, section 2 prohibits an inquiry from determining civil or criminal liability, but the inquiry is not to be inhibited from making findings or recommendations from which liability might be inferred. It has not been suggested to us that inquiry findings should determine liability. However there remains the question of the weight which evidence given to an inquiry should have in subsequent proceedings.

263. Inevitably evidence given to an inquiry may be relevant in subsequent proceedings. Lord Cullen of Whitekirk said: "It is inevitable that what turns up in the inquiry will be material that could lead to the founding of a claim," and Lord Gill agreed: "Certainly some of the findings that I made in my inquiries were plainly significant in relation to the civil claims. I understand that in some of the civil claims that are still going through the court, claimants are referring to some of my findings. That is inevitable. I do not see that that can be avoided."[396] Nor is it necessarily a bad thing, for as Dr Mackie said, "it does seem a terrible waste to run through a whole inquiry process and to then contemplate starting from the outset again with litigation or civil liability proceedings."[397] Sir Stephen Sedley thought that "Lord Justice Taylor's findings at the first Hillsborough Inquiry could very well have stood as prima facie evidence of liability in the litigation that followed."[398]

264. Herbert Smith Freehills sounded a note of caution: "The testing of evidence before an inquiry can be significantly more limited than the testing of evidence in civil proceedings with the consequence that the inquiry is not in the same position as a court in relation to fact finding. This can be unfair and unnecessarily damaging to participants, particularly where allegations of wrongdoing / misconduct are asserted."[399]

265. We believe it is right that evidence given to an inquiry, and findings based on it, can be used as evidence in subsequent proceedings.

315 SI 1998 No 3132. Back

316 Section 2(1). Back

317 Section 2(2). Back

318 Written evidence, paragraph 22. Back

319 Q 112. Back

320 Q 192. Back

321 QQ 94, 101. Back

322 Q 127. Back

323 A former Lord Justice of Appeal. He was Counsel for one of the parties in Lord Scarman's inquiries into the 1974 Red Lion Square disorders and the 1981 Brixton riots, and chaired the 1987 Tyra Henry child abuse inquiry on behalf of the Borough of Lambeth. Back

324 Q 45. Back

325 Written evidence, paragraph 17. Back