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


CHAPTER 8: recommendations of inquiries

266.  The terms of reference of inquiries usually conclude with the words: "and to make recommendations". In this chapter we consider whether ministers, once they receive the recommendations, become solely responsible for deciding whether, when and how to implement them, or whether the inquiry chairman or other persons or bodies should have a role to play.

267.  The Act has no provision for the implementation of inquiry recommendations. Section 24 deals with the submission of the report, which must set out any recommendations of the inquiry panel. The report is then laid by the Minster before Parliament. What comes next is not prescribed. Eversheds, among others, were concerned that "the Act does not ensure that recommendations are adequately implemented."[400] The question of who is responsible for overseeing the implementation of recommendations is one on which opinion was divided.

Judicial and non-judicial chairmen

SERVING JUDGES

268.  Views on whether or not inquiry chairmen should be responsible for following up their own recommendations were in part dependent on whether the chairman was a serving member of the judiciary. Lord Justice Beatson encapsulated what seem to us to be the most important issues in relation to the relationship between the judiciary and the executive:

    "Unless an inquiry directly concerns the administration of justice, or where there has been prior agreement about this (normally when the terms of reference are settled), a judge should not be asked to comment on the recommendations in his report or to take part in its implementation. This is the position of judges in relation to their decisions in legal proceedings over which they have presided. There are three principal reasons for the same principle governing judge-led inquiries:-

(i)  the judge may be asked to give an opinion without hearing evidence;

(ii)  the judge may be drawn into political debate, with accompanying risks to the perception of impartiality, as discussed above; and

(iii)  implementation is the responsibility and the domain of the executive."[401]

269.  Many witnesses agreed with this position. Sir Brian Leveson told us: "I am a serving judge. It would be absolutely inappropriate for me to come back into the question of my report or regulation of the press. I was given a job to do. It was to examine the facts and to make recommendations. I examined the facts. I set them out in what might be described as extremely tedious detail. I reached a series of conclusions, which was my very best shot. I have said all I can say on the topic."[402]

Sir Robert Jay agreed: "Sir Brian Leveson has given his recommendations. He signed off the report. He is functus officio. That is the end of it."[403] Lord Cullen of Whitekirk made the same point: "I think it is peculiarly inappropriate for a serving judge to be asked to undertake this."[404]

270.  We agree that in many cases for a judicial chair to take responsibility for overseeing his or her recommendations would risk them being drawn into areas of active party-political controversy, thereby damaging the perceived independence of the judiciary. We consider that a serving judge who has chaired an inquiry not concerned with the practice or procedure of the courts should play no further part after submitting his report, leaving this to ministers, others to whom the recommendations are addressed, and Parliament.

271.  The Lord Chief Justice made the further point that "it is not right as a matter of constitutional principle that a judge who conducts an inquiry should be subject to questioning by Parliament in relation to the inquiry's recommendations … it would be highly desirable that there be a convention that Parliament would not question a judge in relation to any recommendations that they might have made". We ourselves were scrupulous to avoid questioning Sir Brian Leveson and other former judges who had chaired inquiries and gave evidence to us, about their recommendations and whether, when or how they might be implemented.[405]

272.  The day after he gave evidence to us, Sir Brian Leveson gave evidence to the Commons Select Committee on Culture, Media and Sport. Almost from the outset of a long evidence session he was asked questions about his recommendations and their implementation. He made clear that he would not be able to answer such questions,[406] and quoted from a letter written to the chairman, John Whittingdale MP, by the previous Lord Chief Justice, Lord Judge:

    "I am extremely concerned that the judge should not be asked to comment about matters which are in the political sphere, even when those matters arose out of the inquiry that he has conducted. There can be no doubt that the principle of whether the competing models of self-regulation satisfied the principles set out in Lord Justice Leveson's report is at present an intensely political issue. Any judge asked questions about such matters would have no alternative but to decline to answer. The extent to which Lord Justice Leveson could assist the Committee would be to invite it to draw its own conclusions from the relevant sections of his report."

Nevertheless this line of questioning continued for most of the remainder of the evidence session.

OTHER CHAIRMEN

273.  By "other chairmen" we mean chairmen who are retired judges or who are not part of the judiciary. The question whether other chairmen should continue to have some responsibility for their recommendations is nuanced, and we heard differing views. There have been instances where a chairman who has not been a serving judge has, either voluntarily or by invitation, followed up their own recommendations, with varying results.

274.  Lord Bichard, following his inquiry into the Soham murders, said: "I decided that I should review the progress on recommendations six months after publication. I am not sure that has happened before but seemed sensible if the objective was to achieve real change. I have this week, therefore, written to the parties seeking a report on progress and will publish a report on this in February/March. I have no specific power to do so but all parties have indicated that they will respond."[407] In his evidence to us, Lord Bichard explained that he was able to do so because he was not a judge.[408]

275.  After the death of Baby P, Lord Laming was invited by the Secretary of State for Children, Schools and Families, to "evaluate the good practice that has been developed since the publication of the report of the Independent Statutory Inquiry following the death of Victoria Climbié",[409] which he had chaired. Lord Laming found that although there had been progress in policy and structural terms, this had not been carried through to frontline practice, where implementation was patchy.

276.  Judi Kemish told us:

    "in Azelle Rodney the chairman [Sir Christopher Holland, a retired High Court judge] made recommendations and he has been waiting for a report from the IPCC and the Metropolitan Police Service as to whether they have implemented them. He has had a response back but I think, in his view, he felt, suddenly because his position was functus, he could not then write angry letters or say, what is happening about my recommendations."[410]

277.  Many of our witnesses felt that it was not within the remit of the chairman to oversee the implementation of their own recommendations. There are practical considerations. Ashley Underwood QC told us: "The difficulty under the Act is that once the chairman has told the minister that he has fulfilled his terms of reference, that is the end of the inquiry. So whether it is a judicial chairman or not, under a statutory inquiry it is finished and there is no scope for that at all."[411] Lord Gill agreed: "Once the inquiry chairman has reported, that is the end of it as far as the chairman goes. His job is done, and I would not wish to be involved in any follow up. The implementation of recommendations is an entirely different exercise. That is for the politicians and the Executive to do".[412] However there is nothing to prevent an inquiry chairman from making a recommendation that Parliament be updated on progress, as suggested by Lord Cullen of Whitekirk.[413]

278.  We agree with the majority of our witnesses that inquiry chairmen and panels are not responsible for the implementation of their recommendations when the inquiry has reported.

Overseeing implementation

279.  All our witnesses who considered this issue agreed that a monitoring and reporting of recommendations beyond the inquiry is necessary. Julie Bailey believed that public confidence in an inquiry comes from how the recommendations are implemented.[414] Christopher Jefferies agreed: "Implementation of the recommendations is key."[415]

280.  The importance of monitoring and reporting on the implementation of recommendations is underlined by examples of inquiries whose recommendations were not acted upon, to negative effect. For instance:

·  The Bristol Royal Infirmary report preceded the failings at Mid Staffordshire NHS Trust. Julie Bailey commented: "People say that, if the Bristol Royal Infirmary Inquiry recommendations had been implemented, Mid Staffs would never have happened and our loved ones certainly would not have lost their lives the way they did."[416] Eversheds agreed.[417]

·  The Fennell report into the 1987 King's Cross underground fire preceded the 2005 London bombings. Disaster Action told us: "A number of significant recommendations concerning internal and external communications by the emergency services made by Mr Fennell had not been implemented by the time of the 2005 London bombings."[418]

·  The reforms in Lord Laming's report into the death of Victoria Climbié were overwhelmingly supported, yet in his subsequent report following the death of Baby P he found that public bodies had not done enough to make them a reality in frontline practice.[419]

281.  We are not saying that all recommendations made by an inquiry must be accepted. The Government (and others to whom recommendations are addressed) may have reasons, perhaps good reasons, for not accepting recommendations, and they will say so in their response. The problem lies with recommendations which are accepted in principle but not then implemented in practice. As Lord Cullen of Whitekirk said: "It is one thing for recommendations to be accepted or rejected. It is another thing for them to lie on the shelf."[420]

282.  Peter Riddell told us: "there ought to be a firm guideline that the government response should be given within a certain time, as they are supposed to be."[421]

283.  Views on how the implementation of recommendations should be monitored were disparate. Dr Mackie suggested that the responsible department could "report back to that inquiry group, so they should formally reconvene to hear what is being delivered and what is being promised."[422] Dame Janet Paraskeva, Stephen Jones, and Collins, Kemish and Underwood agreed that allowing the inquiry panel to reconvene could be useful. Conversely, Rights Watch UK told us: "It is not for a statutory inquiry to monitor the implementation of its recommendations".[423] We agree that overseeing the implementation of recommendations is not within the remit of an inquiry. To reconvene the inquiry group when the inquiry is over and the chairman and other members may have moved on to other areas of work seems impractical and onerous.

284.  One alternative approach is section 3(7) of the Children Act 2004 which enables the Children's Commissioner to require a responsible person to state in writing what action they have taken or propose to take in response to recommendations.[424] Collins, Kemish and Underwood suggested a similar mechanism: "an obligation, on the party who should implement the recommendations, to report on their progress to other interested persons within a specified time."[425] We agree with the majority of our witnesses that the duty to report on the implementation of recommendations should reside with the affected body. Oversight of this is a matter for the executive and the judiciary, as outlined by Lord Justice Beatson and Lord Gill.

285.  Robert Francis QC encouraged the House of Commons Health Select Committee to oversee implementation of his recommendations. The Committee accepted this role, stating: "The Committee agrees with Robert Francis' recommendation for its role in monitoring implementation of his recommendations. The Committee therefore proposes to enhance its scrutiny of regulation of healthcare professionals by taking public evidence each year".[426]

286.  Several of our witnesses, including Professor Tomkins and Rachel Robinson of Liberty, endorsed this approach. Professor Tomkins gave us an example of Parliament taking forward recommendations from an inquiry, when the former Public Service Committee "took on a number of the recommendations of the Scott report, particularly the recommendations about ministerial responsibility, and produced its own report into ministerial accountability and responsibility, which led to the resolutions of the House of Commons and the House of Lords, which are now in turn enshrined in the ministerial code."[427]

287.  In the case of many inquiries, publication of the formal Government response is accompanied by a statement to both Houses. We recommend that this should be the invariable practice. If a second, more detailed, written response is produced, as if often the case, it should also be published. It should say exactly which recommendations are accepted.

288.  If the inquiry specifies that particular recommendations are for implementation by particular public bodies, those bodies should have a statutory duty to say within a specified time whether they accept the recommendations, and if so, what plans they have for implementation.

289.  We recommend that in all cases, the response should be published not more than three months after receipt of an inquiry report. Reasons should be given for not accepting recommendations. For those which are accepted, details of when and how they will be implemented are essential. The report should include an implementation plan, and a commitment to issue further reports to Parliament at 12-monthly intervals.

290.  We believe Commons Departmental Select Committees are best placed to monitor the implementation of inquiry recommendations.


400   Eversheds, written evidence, paragraph 42. Back

401   Beatson LJ, written evidence, paragraph 26. Back

402   Q 99. Back

403   Q 127. Back

404   Q 200. Back

405   At the opening of Sir Brian Leveson's evidence session on 9 October 2013 Lord Shutt of Greetland said: "I have advised the Committee, prior to you joining us, that we are not in the business of asking you questions about the recommendations of your committee or any rival plans for implementation … What we are concerned about is the Inquiries Act, how it works and your experience with it." Back

406   Q 771. Back

407   Written evidence from Sir Michael Bichard to the Public Administration Select Committee, (Session 2004-05, HC 51-i) Back

408   Q 222. Back

409   The Protection of Children in England: A Progress Report, March 2009, page 3, available at:
http://webarchive.nationalarchives.gov.uk/20130401151715/https://www.education.gov.uk/publications/standard/publicationdetail/page1/HC%20330. 
Back

410   Q 269. Back

411   Q 269. Back

412   Q 200. Back

413   Q 200. Back

414   Q 188. Back

415   Q 188. Back

416   Q 184. Back

417   Written evidence, paragraph 43. Back

418   Disaster Action, written evidence, paragraph 16.1. Back

419   The Protection of Children in England: A Progress Report, March 2009, available at:
http://webarchive.nationalarchives.gov.uk/20130401151715/https://www.education.gov.uk/publications/standard/publicationdetail/page1/HC%20330. 
Back

420   Q 201. Back

421   Q 60. Back

422   Q 60. Back

423   Rights Watch UK, written evidence, paragraph 16. Back

424   "Where the Children's Commissioner has published a report under this section containing recommendations in respect of any person exercising functions under any enactment, he may require that person to state in writing, within such period as the Children's Commissioner may reasonably require, what action the person has taken or proposes to take in response to the recommendations." Back

425   Written evidence, paragraph 31. Back

426   Health Select Committee, After Francis: making a difference (3rd Report, Session 2013-14, HC 657). Back

427   Q 25. Back


 
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