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


Summary of Conclusions and Recommendations

In this chapter we summarise our conclusions and recommendations.

The following eleven recommendations are for amendment of the Inquiries Act 2005, and so will require primary legislation.
Section of
the Act
Rec. Substance
4(3)6 Consent of chairman to appointment of panel member
5(4)9 Consent of chairman to terms of reference
6(2)4 & 10 Separate statements for appointment of chairman and for terms of reference, once they are agreed by the chairman
10(1)5 Consent of senior judiciary to appointment of serving judge
11(3)8 Consent of chairman to appointment of assessors
1221 & 22 Termination of appointment of chairman or panel members
18(3) & (4), 20(6) 29Exemption of inquiry records from disclosure under the Freedom of Information Act 2000
1919 Minister's power to issue restriction notices abrogated
25(4)20 Power to withhold material from publication in report

Recommendations 25-28 are for amendment of the Inquiry Rules 2006, and can be implemented by Rules made under section 41 of the Act.

We encourage the House's Liaison Committee, in following up our recommendations a year after this report is published,[444] to pay particular attention to recommendations 12-16 on the setting up of a Central Inquiries Unit within Her Majesty's Courts and Tribunals Service.

When should there be a public inquiry?

1.  We have concluded that there neither can nor should be fixed criteria regulating the setting up of inquiries. (paragraph 51)

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

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

WHAT TYPE OF INQUIRY? STATUTORY OR NON-STATUTORY?

4.  Recommendation 1: We recommend that inquiries into issues of public concern should normally be held under the Act. This is essential where Article 2 of the ECHR is engaged. No inquiry should be set up without the power to compel the attendance of witnesses unless ministers are confident that all potential witnesses will attend. (paragraph 81)

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

INQUESTS AS AN ALTERNATIVE

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

WHO SHOULD DECIDE?

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

GIVING REASONS FOR NOT ORDERING INQUIRIES

8.  We believe ministers must retain a general discretion as to when to give reasons for their decisions; at the same time, events involving what the Cabinet Secretary called "failure in regulation" are uniquely important and reasons should always be given for a decision not to initiate an inquiry. (paragraph 110)

9.  Recommendation 2: We recommend that ministers should give reasons to Parliament for a decision not to hold an inquiry particularly in the following circumstances: when invited to hold an inquiry by IPCC, Ofsted, the Information Commissioner, Parliamentary Commissioners for Administration and Health, the Commission for Local Administration, or a body of similar standing; and when an investigation by a regulatory body has been widely criticised. (paragraph 111)

10.  Recommendation 3: A decision on a request by a coroner for an inquest to be converted into an inquiry should always be the subject of reasons. (paragraph 112)

Setting up an inquiry: the formalities

CONSTITUTION OF THE INQUIRY

11.  Recommendation 4: 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. (paragraph 114)

12.  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. (paragraph 121)

13.  Recommendation 5: 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. (paragraph 126)

14.  Recommendation 6: 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. (paragraph 130)

15.  Recommendation 7: We recommend that an inquiry panel should consist of a single member unless there are strong arguments to the contrary. (paragraph 136)

16.  Recommendation 8: We recommend that section 11(3) should be amended so that the minister can appoint assessors only with the consent of the chairman. (paragraph 137)

17.  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. (paragraph 139)

18.  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. (paragraph 140)

TERMS OF REFERENCE

19.  Recommendation 9: 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. (paragraph 145)

20.  Recommendation 10: 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). (paragraph 146)

21.  Recommendation 11: We recommend that interested parties, particularly victims and victims' families, should be given an opportunity to make representations about the final terms of reference. (paragraph 151)

Setting up an inquiry: the practicalities

CABINET OFFICE GUIDANCE

22.  We believe that the current Cabinet Office Guidance on inquiries is wholly inadequate. In particular, there is no point in requiring secretaries of inquiries to provide lessons learned papers unless they, or any unit replacing them, ensure that such papers are produced, and use them to provide detailed guidance for secretaries of subsequent inquiries. (paragraph 164)

A CENTRAL INQUIRIES UNIT

23.  Recommendation 12: We recommend that the Government should make resources available to create a unit within Her Majesty's Courts and Tribunals Service which will be responsible for all the practical details of setting up an inquiry, whether statutory or non-statutory, including but not limited to assistance with premises, infrastructure, IT, procurement and staffing. The unit should work to the chairman and secretary of the inquiry. (paragraph 174)

24.  Recommendation 13: The inquiries unit should ensure that on the conclusion of an inquiry the secretary delivers a full Lessons Learned paper from which best practice can be distilled and continuously updated. (paragraph 175)

25.  Recommendation 14: The inquiries unit should review and amend the Cabinet Office Guidance in the light of our recommendations and the experiences of inquiry secretaries, and should publish it on the Ministry of Justice website. (paragraph 176)

26.  Recommendation 15: The inquiries unit should also retain the contact details of previous secretaries and solicitors, and be prepared to put them in touch with staff of new inquiries. (paragraph 177)

27.  Recommendation 16: The inquiries unit which we recommend should collate Procedures Protocols and other protocols issued by inquiries and make them available to subsequent inquiries. (paragraph 180)

COST OF INQUIRIES

28.  Recommendation 17: We recommend that the chairman, solicitor and secretary of an inquiry should consult the central inquiries unit and the Treasury Solicitor to ensure that counsel are appointed on terms which give the best value for money. (paragraph 187)

INITIAL PLANNING

29.  Recommendation 18: We recommend that a scoping exercise should be carried out by the staff involved in planning a new inquiry to examine all the key issues, in particular to address matters of timescale and cost. (paragraph 189)

30.  They must have available from the outset the material derived from lessons learned at previous inquiries. While their first priority must be the effectiveness of their own inquiry, comparison with other inquiries should avoid the excessive expenditure which has bedevilled many of them. (paragraph 190)

Independence of inquiries

31.  Recommendation 19: We recommend that the power of the minister to issue a restriction notice under section 19, restricting public access to an inquiry, should be abrogated. The chairman's power to issue a restriction order is sufficient. (paragraph 206)

32.  Recommendation 20: We recommend that, whoever is responsible for publication of the inquiry report, section 25(4) should be amended so that, save in matters of national security, only the chairman has the power to withhold material from publication. (paragraph 207)

33.  Recommendation 21: We recommend that where the minister wishes to terminate the appointment of a panel member other than the chairman, section 12(6) should be amended to require the chairman's consent. (paragraph 209)

34.  Recommendation 22: We recommend that section 12 should be amended to provide that where the minister wishes to terminate the appointment of the chairman of an inquiry, he should be required to lay before Parliament a notice of his intention, with the reasons. (paragraph 210)

Inquiry Procedure

INQUISITORIAL OR ADVERSARIAL

35.  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. (paragraph 215)

COUNSEL TO THE INQUIRY

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

37.  Recommendation 23: 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. (paragraph 224)

CORE PARTICIPANTS AND WITNESSES

38.  Recommendation 24: 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. (paragraph 235)

39.  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. (paragraph 237)

40.  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. (paragraph 241)

41.  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. (paragraph 242)

AMENDMENTS TO THE INQUIRY RULES 2006

42.  Recommendation 25: 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." (paragraph 251)

43.  Recommendation 26: 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. (paragraph 254)

44.  Recommendation 27: We recommend that rule 9 should be amended to allow the inquiry's own legal team to take written statements from witnesses. (paragraph 255)

45.  Recommendation 28: Rules 20 to 34 are over-prescriptive; we recommend that the procedure for awarding costs should be simplified. (paragraph 256)

FREEDOM OF INFORMATION ACT 2000

46.  Recommendation 29: 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. (paragraph 261)

USE OF EVIDENCE IN SUBSEQUENT PROCEEDINGS

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

Implementation of recommendations

48.  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. (paragraph 270)

49.  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. (paragraph 278)

50.  Recommendation 30: 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. (paragraph 287)

51.  Recommendation 31: 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. (paragraph 288)

52.  Recommendation 32: 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. (paragraph 289)

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

Overview of the Act

54.  Our recommendations, in particular those on the setting up and administration of inquiries, and on a more flexible procedure, will make it easier to control both the length and the cost of inquiries under the Act. In particular, revocation of rules 13-15 should alone cut months off the length of inquiries, and reduce their cost proportionately. (paragraph 297)

55.  Recommendation 33: Ministers have at their disposal on the statute book an Act and Rules which, subject to the reservations we have set out, in our view constitute a good framework for such inquiries. Ministers should be ready to make better use of these powers, and should set up inquiries under the Inquiries Act unless there are overriding reasons of security or sensitivity for doing otherwise. (paragraph 300)


444   See paragraph 18. Back


 
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