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House of Commons
Public Administration
Select Committee
Government by Inquiry
First Report of Session 2004-05
Volume I
Report, together with formal minutes and
annexes
Ordered by The House of Commons
to be printed 27 January 2005
HC 51-1
Incorporating HC 606, Session 2003-04
Published on 3 February 2005
by authority of the House of Commons
London: The Stationery Office Limited
£15.50
The Public Administration Select Committee
The Public Administration Select Committee is appointed by the House of
Commons to examine the reports of the Parliamentary Commissioner for
Administration, of the Health Service Commissioners for England, Scotland and
Wales and of the Parliamentary Ombudsman for Northern Ireland, which are
laid before this House, and matters in connection therewith and to consider
matters relating to the quality and standards of administration provided by civil
service departments, and other matters relating to the civil service; and the
committee shall consist of eleven members.
Current membership
Tony Wright MP (Labour, Cannock Chase) (Chairman)
Annette Brooke MP (Liberal Democrat, Mid Dorset and Poole North)
Mrs Anne Campbell MP (Labour, Cambridge)
Sir Sydney Chapman MP (Conservative, Chipping Barnet)
Mr David Heyes MP (Labour, Ashton under Lyne)
Mr Kelvin Hopkins MP (Labour, Luton North)
Mr lan Liddell-Grainger MP (Conservative, Bridgwater)
Mr Gordon Prentice MP (Labour, Pendle)
Hon Michael Trend, CBE MP (Conservative, Windsor)
Brian White MP (Labour, Milton Keynes North East)
lain Wright MP (Labour, Hartlepool)
The following member was also a member of the committee during the
parliament.
Mr Kevin Brennan MP (Labour, Cardiff West)
Powers
The committee is one of the select committees, the powers of which are set out
in House of Commons Standing Orders, principally in SO No 146. These are
available on the Internet via www.parliament.uk.
Publications
The Reports and evidence of the Committee are published by The Stationery
Office by Order of the House. All publications of the Committee (including press
notices) are on the Internet at
www.parliament.uk/parliamentary_committees/public_administration_select_co
mmittee.cfm. A list of Reports of the Committee in the present Parliament is at
the back of this volume.
Committee staff
The current staff of the Committee are Philip Aylett (Clerk), Clive Porro (Second
Clerk), Lucinda Maer (Committee Specialist), Jackie Recardo (Committee
Assistant), Jenny Pickard (Committee Secretary) and Phil Jones (Senior Office
Clerk).
Contacts
All correspondence should be addressed to the Clerk of the Public
Administration Select Committee, Committee Office, First Floor, 7 Millbank,
House of Commons, London SW1P 3JA. The telephone number for general
enquiries is 020 7219 3284; the Committee's email address is
pubadmincom@parliament.uk
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Government by Inquiry 1
Contents
Report Page
Summary 3
1 Introduction 5
2 Background 7
A tradition of inquiry 7
Definitions 7
Why is a review needed? 7
What are inquiries for? 8
Development of the independent public inquiry 10
The Tribunals of Inquiry (Evidence) Act 1921 12
Developments since the Salmon Commission 16
The Overseas experience 16
3 The Judiciary 19
4 Inquiry Process and Principles 27
Inquiry form 27
Value of a panel 28
Panels and independence 30
Terms of reference 34
Public versus private 34
Fair play 38
Access to papers and persons 39
Length of inquiries 43
Inquiry costs 45
Inquiry value 46
Ownership and publication of the report 48
Learning lessons 49
Guidance and support 54
Towards some key principles 57
Principles of good inquiry practice 59
5 Accountability and reform 60
Inquiries and Ministerial Accountability to Parliament 60
A New Model for Inquiries 61
The Government's Inquiries Bill: Strengths and weaknesses 62
Abolishing the 1921 Act 63
The need to amend the Inquiries Bill. 64
Criteria and taxonomy 65
Types of inquiries 67
Politically Sensitive Inquiries 67
6 Parliament's Role 70
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2 Government by Inquiry
Where should Parliament have a role? 70
Select Committees: Redressing the balance 70
Limitations on Select Committees 71
i, Government cooperation 71
ii, Perceptions of partisanship val
iii Structure and role 72
Finding a parliamentary alternative 73
A Parliamentary Commission of Inquiry 74
The precedents 74
Rhodesian Oil Sanctions Special Commission 74
7 Ensuring a role for Parliament 77
The failure to call inquiries 77
Parliament as initiator: using the Liaison Committee? 78
Policing the Ministerial Code 79
Conclusion 81
Annex 1: Inquiries into matters of public concern: 1900-2004 86
Annex 2: Inquiries Bill [HL]—Draft New Clauses & Amendments 96
Annex 3: The Salmon Principles 98
Formal Minutes 99
Witnesses 100
List of written evidence 101
Reports from the Public Administration Select Committee since 2001 102
Volume Il, Written Evidence, HC 51-I1
Government by Inquiry 3
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Summary
This Report considers the effectiveness of inquiries established by Ministers to investigate
events that have caused public concern, It examines the reasons for establishing these
investigatory inquiries, which in recent years have ranged from the Hutton and Butler
inquiries into issues surrounding the decision to go to war in Iraq to the Bloody Sunday
inquiry and the Budd inquiry into the events in the Home office surrounding the
resignation of David Blunkett as Home Secretary. The Report recommends that Ministers
should justify their decisions whether to hold an inquiry or not on the basis of a published
set of criteria.
The Committee believes that there is a need for regular review of the operation of such
inquiries; they must be seen to be fair and efficient in discovering what may have gone
wrong and in recommending what is needed to put things right. Such a review is
particularly timely because the Government has recently introduced a Bill to regulate the
establishment and conduct of such inquiries.
The Report lists a number of functions of inquiries and examines how effectively they
discharge them under present arrangements, in particular with regard to how lessons may
be learnt and recurrences avoided. It asks why the costs of such inquiries should vary so
much, It also examines the political, constitutional and practical implications of the
frequent use of judges to head inquiries, including the impact on judges’ independence and
reputation for political neutrality. It recommends that the Lord Chief Justice or the Senior
Law Lord should be equally involved with Ministers in all decisions about the use of judges
in inquiries.
The Committee welcomes many of the provisions in the new Inquiries Bill, especially its
rationalisation of the many statutes which currently regulate such inquiries. However, it
expresses its concern that the Bill creates wide powers for ministers to restrict access to
inquiries; the Report endorses the presumption of openness contained in the Tribunals of
Inquiry (Evidence) Act 1921, which has governed the conduct of many, but not all, major
inquiries over the years. The 1921 Act would be repealed if the new Bill becomes law.
The Committee expresses its concern at the long-term diminution in Parliament’s role in
the process of public inquiries, and makes recommendations for improvements to
parliamentary scrutiny, It also proposes a new mechanism which would enable Parliament
to initiate inquiries in cases where Ministers may be unwilling to do so, including the
establishment of a Parliamentary Commission of inquiry, composed of parliamentarians
and others. In addition, the Committee repeats its earlier proposals for using the
Parliamentary Ombudsman in the investigation of breaches of the Ministerial Code.
The Report makes a number of recommendations on practical matters, endorsing the
Government's proposal for the establishment of a small support unit for inquiries. The
Committee also recommends the setting of a broad budget figure near the start of
inquiries, Any increase in costs over that figure would have to be publicly explained.
The Committee recommends that the presumption should be that inquiry chairs should
handle publication of reports and that publication arrangements should ensure fairness to
all concerned, and allow adequate time for parliamentary consideration and debate.
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Government by Inquiry 5
1 Introduction
1. This report examines the tradition of setting up inquiries into matters of public concern;
it considers some principles of good inquiry practice and explores the case for greater
parliamentary involvement in the process, including possible changes to the Inquiries Bill
currently before Parliament.' The Committee heard oral evidence from 19 witnesses and
received 27 written submissions. The table below provides, for easier reference, a list of
those chairs of, and secretaries to, inquiries who provided contributions. A number of
published papers were also sent to us by their authors for our attention. We also took
evidence on our visit to Washington from 18-23 April 2004. We are very grateful to all
those who provided evidence. The Department for Constitutional Affairs (DCA)
submitted a comprehensive memorandum as part of its own consultation exercise into
effective inquiries. The Committee and the Department have worked together to ensure
that both exercises, while separate, have complemented one another. The consultation
responses were copied to the Committee, and officials have worked with Committee staff
to ensure that there was no duplication of effort on factual information. We are particularly
grateful to our specialist adviser Professor Diana Woodhouse whose expertise and interest
in the related fields of public law, ministerial accountability and inquiries have proved very
valuable. We would also like to thank Chris Sear of the House of Commons Library for his
help in analysing past practice of public inquiries.
Table 1: Chairs and Secretaries who contributed to the Inquiry
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Inquiry Year Chairman Secretary
Set up
(commissioning department in
brackets)
An inquiry into the application 2004 Sir Alan Budd
for indefinite leave to remain
(Home Office)
Review of intelligence on 2004 Lord Butler of
weapons of mass destruction Brockwell
(womb)
(Foreign and Commonwealth
Office)
An independent inquiry arising I 2004 Sir Michael Bichard
from the Soham murders
(Home Office)
Investigation into the 2003 Lord Hutton Lee Hughes
circumstances surrounding the
death of Dr David Kelly
(Department for Constitutional
Affairs)
Victoria Climbié Inquiry 2001 Lord Laming
(Department of Health)
Foot and Mouth Disease 2001: 2001 Alun Evans
Lessons to be Learned Inquiry
1 Inquiries Bill [Lords], [Bill 7 (2004-05)]
6 Government by Inquiry
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Inquiry
(commissioning department in
brackets)
Year
Set up
Chairman
Secretary
(Department of the Environment,
Food and Rural Affairs)
Bristol Royal Infirmary Inquiry
(Department of Health)
1998
Sir lan Kennedy
Ashworth Special Hospital Inquiry
(Department of Health)
1997
Dr Tim Baxter
The Allitt Inquiry
(Department of Health)
1993
Sir Cecil Clothier QC
Inquiries into the circumstances
of the death of various children
and others and the first
Ashworth Inquiry
(Various Local Authorities and
Department of Health)
1985-96
Sir Louis Blom-Cooper
Qc
The Ely Hospital (Cardiff) Inquiry
(Department of Health)
1967
Lord Howe of
Aberavon
Government by Inquiry 7
2 Background
A tradition of inquiry
2. The tradition of the public inquiry has become a pivotal part of public life in Britain, and
a major instrument of accountability. Some of the basic principles on which British
inquiries are based are reflected in practice elsewhere, including in the Republic of Ireland,
Israel, Australia and New Zealand. In the United States, with its powerful Congressional
committees, the British system is viewed as a model of robustness, and admired as a
reflection of a political culture where investigations can be undertaken without a need for
legislation to bring them about.
Definitions
3. The term ‘independent public inquiry’, as it has come to be used in this country, is a
loose one. It is applied equally to investigations surrounding accidents in transport or other
industries and to commissions of independent expert advisers producing proposals for
public policy reform. It is also applied to everyday inquiries such as those held under
planning legislation or company law. Our investigation is concerned with none of these,
4, We have instead concentrated on those inquiries set up by ministers to investigate
specific, often controversial events that have given rise to public concern. In the aftermath
of such events there are invariably demands for a ‘full and public inquiry’, and often for a
‘judicial inquiry’. These are judicial in so far as they are often chaired by a leading judge
(notably the Hutton, Phillips, McPherson, Saville, Bingham, and Scarman inquiries). But
other major inquiries have not been judicial in this sense (e.g. Sir Ian Kennedy's
chairmanship of the Bristol Royal Infirmary Inquiry, Dr Iain Anderson’s Inquiry into
Lessons to be Learned from Foot and Mouth, Sir Michael Bichard’s Inquiry into the Soham
murders or Lord Butler’s investigation into intelligence on WMD in Iraq).
5. The term ‘public’ is also used imprecisely, As the Rt Hon Frank Dobson MP explained to
us, “... two of the inquiries that I referred to which had looked into quite important
scandals within the NHS and had far-reaching consequences, were not public inquiries”?
Moreover the investigatory process may be statutory, on the basis of the Tribunal of
Inquiry (Evidence) Act 1921 or other subject specific legislation, such as the NHS Act 1977
or the Police Act 1996, or conducted by means of ad hoc procedures based entirely on the
prerogative power with the active cooperation of government and other public bodies.
Why is a review needed?
6. Given this inquiry tradition, why is there a need to review their operation? Nearly forty
years ago, the Royal Commission on Tribunals of Inquiry chaired by Lord Justice Salmon
(henceforth referred to as the ‘Salmon Commission’) examined the process in depth and
concluded that, “... it is essential in the national interest to retain the Tribunal of Inquiry
(Evidence) Act 1921, albeit with the amendments and safeguards recommended in this
7Q 639
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8 Government by Inquiry
report”.’ Lord Howe told us he was “... astonished that you are still looking at this topic,
because it should have been wrapped up, in my view, had earlier advice been followed”.
7. However other witnesses believed that all was not well. Sir Liam Donaldson, Chief
Medical Officer, considered that “there is a pool of information about things that go wrong
in the public health services from which we need to learn. At the moment inquiries
probably cover a relatively small amount of that pool”. He went on “Essentially it is not
enough to have inquiries; you have got to have some other system of analysis or
investigation which will lead to learning”.’ Mr John Gieve (now Sir John), Permanent
Secretary at the Home Office, believed that “the pressure for [public inquiries] is increasing
all the time, and there is a risk that we overdo it and go over a lot of events which are very
similar where there are not a lot of new lessons to be learned, but I accept that as an
inevitable development over several years”.
8. The Government considers that inquiries have been successful overall but concedes that
there have been cases where inquiries have been marred by arguments about procedure, or
have taken much longer or cost more than expected. It therefore “... believes that there is a
strong case for considering what steps could be taken to make inquiry procedures faster
and more effective and to contain cost escalation”.’ It has now introduced legislation to
this end.
9. We welcome the fact that the Government is taking the effectiveness of inquiries
seriously, It is right to keep this important instrument of accountability and learning in
public administration under review to ensure it is functioning well. Inquiries continue to
be as much the subject as the source of criticism in public life, particularly where they have
been established to examine the actions of government. It is timely to review matters.
Modernisation must address not just procedures but the wider issues as well: why have
inquiries; how valuable are they; when should we have them; of what kind; and what
should happen to ensure we learn their lessons?
What are inquiries for?
10. There can be little doubt that inquiries matter greatly to the public, especially those
directly affected by the events under investigation. The fact that people are prepared to
resort to legal action in relation to inquiries, successfully such as over the Shipman Inquiry
or the Mubarek Inquiry, or unsuccessfully as over Foot and Mouth Disease (FMD), is
testament to this. For the Government “the primary purpose of an inquiry is to prevent
recurrence”.* It is also their view that, “the main aim is to learn lessons, not apportion
blame”. They believe that inquiries have “helped to restore public confidence through a
thorough investigation of the facts and timely and effective recommendations to prevent
> Report of the Royal Commission on Tribunals of Inquiry, Cmnd 3121, November 1966, para 47, p 22.
*Q 398
5Q559
*Q560
7 HC 606-ii, GBI 09, Ev 20, para (iii)
* Ibid., para 4.6
> Ibid., para 10.2
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Government by Inquiry 9
recurrence of the matters causing concern, Many inquiries have helped to bring about
valuable and welcomed improvements in public services.’ Lord Laming, who carried out
the Victoria Climbié Inquiry, told us that inquiries:
“[... ] provide an assurance that the facts surrounding an alleged failure will be
subjected to objective scrutiny. They are expected to reach judgements on why
terrible events happened. They often make recommendations on how such events
might be prevented in future, They may give relief to some and allow the expression
of anger and outrage to others. They are often disturbing and painful events. They
should improve our understanding of complex issues. At best they change attitudes,
policies and practice. That being so they occupy an important place in our society”."
11. For ministers it is more cynically alleged that inquiries may involve kicking an issue
into the long grass, blaming predecessors in government, making a gesture, or simply
buckling to public pressure to do something. Sir Ian Kennedy QC told the Committee that
“it has to be borne in mind that there is a somewhat perverse motive sometimes in setting
up a public inquiry”.'? As Lord Heseltine put it to us “... No Government wants inquiries;
they are usually in circumstances where the government is in trouble [...] They are not
popular things for governments”.'*
12. Sir Ian Kennedy identified six functions for an inquiry: the recognition and
identification of different, genuine perceptions of the truth; learning; healing; catharsis;
prescribing; and accountability. Lord Howe, who gave evidence to us from his experience
of different roles in several public inquiries, identified six similar functions which have
been summarised as follows:'*
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— Establishing the facts—providing a full and fair account of what happened, especially
in circumstances where the facts are disputed, or the course and causation of events is
not clear;
— Learning from events—and so helping to prevent their recurrence by synthesising or
distilling lessons which can be used to change practice;
— Catharsis or therapeutic exposure—providing an opportunity for reconciliation and
resolution, by bringing protagonists face to face with each other's perspectives and
problems;
— Reassurance—rebuilding public confidence after a major failure by showing that the
government is making sure it is fully investigated and dealt with;
© ibid, para (ii)
"HC 606-iii, GBI 03, Ev 76
”Q 667
PQ 615
¥ Geoffrey Howe, “The management of public inquiries", Political Quarterly 70, (1999); pp 294-304, summarised in
Kieran Walshe and Joan Higgins, “The use and impact of inquiries in the NHS", British Medical Journal, Vol 325, (19
October 2002), pp 896-7
10 Government by Inquiry
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— Accountability, blame, and retribution—holding people and organisations to account,
and sometimes indirectly contributing to the assignation of blame and to mechanisms
for retribution;
— Political considerations—serving a wider political agenda for government either in
demonstrating that “something is being done” or in providing leverage for change.
Development of the independent public inquiry
13. Parliament’s role in holding ministers to account was well established long before the
development of a more formal doctrine of ministerial accountability in the nineteenth
century. Parliament was the “grand inquest of the nation”, whose Members had a duty, as
Prime Minister Lord North described it in 1774, to “undertake the very difficult, the very
painful, the very meritorious task of watching our Ministers; of reprehending them; of
blaming and calling them daily to account”.!*
14, There are some instances in the seventeenth century of committees conducting
inquiries into government failures, often related to possible impeachments, for example
those on the mismanagement of the Second Dutch War in 1667-8, and of the war in
Ireland in 1689, From at least the premiership of Sir Robert Walpole, inquiries by select
committees into the conduct of the government and its officials, as well as of private
corporations and individuals, were a commonplace.’* Famous examples included the
inquiry of 1844 into the conduct of the Post Office and the Home Secretary into the
opening of letters addressed to (among others) the Italian nationalist and radical, Joseph
Mazzini."” The demand for a select committee of inquiry was often a matter of intense
party political controversy. In 1908 the American political scientist, Lawrence Lowell,
described the considerations involved in the choice of body to conduct an inquiry:
“the question often arises whether inquiry shall be conducted by a committee of the
House, or by a commission appointed by the government. When the matter is
distinctly political a committee of the House is the proper organ; but when the
judgment of outside experts is needed the other alternative is obviously preferable,
several members of Parliament being often included in such cases, Naturally enough,
the ministry and the members chiefly interested in pushing an inquiry do not always
agree about the matter”."*
15, As this suggests, parliamentary inquiries were frequently resisted by governments.
Gladstone complained in 1855 that while:
“a Committee is extremely well fitted to investigate truth in its more general forms,
by bringing every possible form of thought to bear on the points before it ... it is also
well fitted for overloading every question with ten or fifteen times the quantity of
*5 Peter D G Thomas, The House of Commons in the Eighteenth Century (Oxford, 1971), pp 14-15,
6 Ibid, p, 265
¥” On which, see Alpheus Todd On Parliamentary Government in England, 2 edn. (2 vols, London, 1887), I, pp 432-3.
** Abbott Lawrence Lowell, The Government of England (2 vols, New York, 1909), I, 267, n. 3
Government by Inquiry 11
matter necessary for its consideration; and therefore as ill as possible calculated for
those rapid searching and decisive inquiries which have practical remedies rather
than the arriving at general propositions for their main business”.'°
16. Some demands for inquiries produced particularly significant confrontations between
government and opposition. The vote of the Commons to appoint a committee to “inquire
into the condition of our army before Sebastopol, and into the conduct of those
departments of Government whose duty it has been to administer to the wants of the
army” resulted in the resignation of the government of Lord Aberdeen in 1855, The
Committee was ultimately appointed in the teeth of Gladstone’s resistance, who felt that
such an inquiry “is incompatible with real confidence on the part of Parliament in those
who hold executive office, and entirely incompatible with the credit and authority which
ought, under all circumstances, to belong to the Ministers of the Crown, whatever party or
political creed they possess”.””
17. Even as late as 1924 the Conservative and Liberal parties in the House successfully
pressed a demand for a parliamentary select committee to investigate the circumstances
leading up to the withdrawal of proceedings recently instituted by the Director of Public
Prosecutions against a Mr Campbell of the Workers Weekly on charges of sedition after
alleged involvement by the Government, Ramsay MacDonald’s administration promptly
resigned rather than accept what it termed an unfair and mean proposal for a committee
where his party would be in a minority.”!
18. The decline in the use of select committees to investigate alleged ministerial
misconduct is sometimes associated with the outcome of the investigations of the
Committee on the Marconi Wireless and Telegraph Company Agreement of session 1912-
13. The Committee was set up to inquire into the allegations that the Government
corruptly favoured the Marconi Company in the construction of a chain of state owned
wireless telegraph stations throughout the British Empire and that certain of its prominent
members had improperly benefited from the transaction. At the end of the investigation
the Committee, and then the House, divided on strictly party lines.
19. This has been seen as the defining moment when parliamentary committees gave way
to independent committees or tribunals of investigation. Certainly a near contemporary
subsequently portrayed it that way. In his autobiography G K Chesterton was moved to
write about these events that “... the affair [Marconi] had concluded as such affairs always
conclude in modern England, with a formal verdict and a whitewashing committee...”.”*
However, its impact was, in his view, profound and rather than follow “the fashion to
divide recent history into Pre-War and Post-War conditions” it would instead be better “to
» 23
divide them into the Pre-Marconi and the Post-Marconi days”.”®
¥ Quoted in William Anson, The Law and Custom of the Constitution 5" edn. (3 vols, Oxford, 1922), I, 398
® Ibid, I, 399
71 CJ, 8 October 1924, Col 635.
2 Gilbert Keith Chesterton, The Autobiography of G K Chesterton, New York 1936 p 209
» Ibid., p 202
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12. Government by Inquiry
The Tribunals of Inquiry (Evidence) Act 1921
20. The 1921 Act was framed with simple intent. In that year the Leader of the House,
Bonar Law, acceded to an inquiry into the destruction of papers relating to contracts in the
Ministry of Munitions." He proposed a committee chaired by a judge, and assisted by a
business man and an accountant. It was only in response to one Member who felt that
unless the Committee was empowered to take evidence on oath “its findings [...] will not
have the weight in the country which they ought to have ...” that Bonar Law, despite
noting that an earlier inquiry had managed perfectly well without statutory powers,
proposed a general rather than a particular statute dealing with this. This was eventually
enacted as the Tribunals of Inquiry (Evidence) Act 1921.” The Act sought to retain a
connection with its parliamentary roots not only through the requirement for a Resolution
of both Houses but also in its terminology where the requirement for an “inquiry into a
definite matter [...]of urgent public importance” is redolent of the wording for a motion
for an adjournment of the House on “a specific and important matter that should have
urgent consideration”.”°
21. Nonetheless, over the years, 1921 Act inquiries themselves became increasingly the
subject of concern because of the perception that the reputations of individuals, often
ministers and Members of Parliament, were being destroyed in a forum which did not
offer the customary legal safeguards. This concern was crystallised in a Private Member’s
Bill of March 1965 which sought to repeal the 1921 Act. Its sponsor, Leslie Hale MP,
scathingly referred to the 1921 Act as “a bastard Bill, which provides a method of
procedure never known in the law in England since we have our present system of justice”
and its result was that “mud attached to colleagues of high repute”.”” In response, the
following July, Harold Wilson announced the Salmon Commission saying “anxiety about
the working of the Tribunals of Inquiry (Evidence) Act 1921 has been expressed on every
occasion on which a report of a tribunal set up under the Act has been debated in the
House”.* Significantly, Wilson revealed he had considered a select committee rather than a
royal commission given that “after all, there is Parliamentary responsibility here”.”
22. We have carried out some analysis of inquiries since the beginning of the Twentieth
Century. The full results are tabulated at Annex 1. The analysis suggests a trend, from the
primacy of parliamentary committees and royal commissions up to the second decade of
the century to the dominance of 1921 Act inquiries until the 1970s, then the predominance
of ad hoc or subject specific statutory inquiries subsequently. The trend is depicted in the
graph below. More significantly from Parliament's point of view, the gradual distancing of
Parliament from the investigatory mechanisms over this period has also been reflected in
less rigorous parliamentary procedures following inquiry reports. The practice of having
debates on substantive motions following 1921 Act reports gradually gave way to debates
on motions for the adjournment, ministerial statements and, on occasion, opposition
* Text of the Act reproduced at Cmnd 3121, Appendix A
3 CJ, 22 February 1921, Col
% Tribunal of Inquiry (Evidence) Act 1921, Section 1 para 1 and see, for example, Standing Order No 24
2” CJ, 30 March 1965, Cols 1402-04
% CJ, 22 July 1965, col 1842
78 Ibid, col 1843
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Government by Inquiry 13
supply days. Our research has therefore revealed a long-term diminution in Parliament’s
role in the process of public inquiries. We regard this as a serious development, and one
which needs to be addressed urgently.
> CJ, 16 February 1972, Col 426
14 Government by Inquiry
Table 2: The changing nature of Parliamentary Handling of Inquiry Reports
[Note: Most reports have been the subject of ministerial written or oral statements]
weapons of mass destruction
Name Date Legislative basis Debate
[Unauthorised disclosure of rribunal of Inquil
information relating to the 1936 quiry Debate on substantive motion
(Evidence) Act 1921
Budget
Bribery of Ministers of the
crown or other public servants Tribunal of Inquiry .
in connection with the grant of I '°48 (evidence) Act 1921 Debate on substantive motion
licences ete.
\Vassall Tribunal - The
circumstances under the Official Tribunal of Inquiry ’
Secrets Act were committed by I 1962 (evidence) Act 1921 Pebate on substantive motion
William Vassall
Profumo Inquiry 1963 INon-statutory [Debate on motion for the adjournment
Aberfan Inquiry - The Disaster ay FFribunal of Inquiry ,
Aberfan 1966 (Evidence) Act 1921 Debate on substantive motion
The circumstances leading to
the cessation of trading by the Tribunal of Inquiry
Vehicle and General insurance I '°”? (evidence) Act 1921 Pebate on Estimates
ico Itd
Brixton Disorders 1981 Police Act 1964, s. 32 [Debate on motion for the adjournment
Falkland Islands Review 1982 INon-statutory Debate on substantive motion
Maze Prison Escape 1983 INon-statutory [Debate on motion for the adjournment
Kings Cross Underground Fire I 1987 Reguiavion of Railways Act Ip bate on substantive motion
The Mineral Workings
The Piper Alpha Disaster 198g I{Offshore Installations) Io etate on motion for the adjournment
Public Inquiries)
Regulation 1974
Hillsborough 1989 INon-statutory Opposition day debate
Inquiry into the supervision of
the Bank of Credit and 1991 INon-statutory Debate on motion for the adjournment
Commerce International
Public Inquiry into export of
ldefence equipment and dual- I 1992 INon-statutory Debate on motion for the adjournment
luse_ goods into Iraq
BSE Inquiry 1997 _[Non-statutory Debate on motion for the adjournment
Stephen Lawrence Inquiry 7997 _IPolice Act 1996, 5.49 Debate on motion for the adjournment
Bristol Royal Infirmary Inquiry 7998 [NHS Act 1977, 5.84 Debate on motion for the adjournment
Sierra Leone Arms Investigation I 1998 _INon-statutory Opposition day debate
MV Derbyshire Inquiry (2) 199g [Merchant Smipping A NWestminster Hall adjournment debate
Royal Liverpool Children's 1999 NHS Act 1977, 5.2 Westminster Halll adjournment debate
Hospital Inquiry (Alder Hey)
Equitable Life Inquiry 2001 [Non-statutory Debate on a motion for the adjournment]
Children Act 1989, 5.81;
Victoria Climbie 2001 INHS Act 1977, s.84; Police Opposition day debate
Act 1996, s.49
Investigation Into the
circumstances surrounding the I 2003 INon-statutory Debate on motion for the adjournment
ldeath of Dr David Kelly
Review of Intelligence on 2000 INon-tatutory Debate on Iraq on motion for the
adjournment
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Government by Inquiry 15
Types of Inquiry
Number
1900-1910 1911-1920 1920-1929 1930-1939 1940-1949 1950-1959 1960-1969 1970-1979 1980-1989 1990-1999 2000-2005
Date
1921 WOther Statutory DNon Statutory GRoyal Commissions Select Committees I
23, The 1921 Act is now portrayed, by some, as providing a heavy handed inquiry
mechanism, best avoided if at all possible, which brings in its train a panoply of procedural
requirements and a posse of attendant lawyers. Sir Andrew Turnbull, the current Cabinet
Secretary and Head of Home the Civil Service, calls it “... this rather clunking instrument
of the 1921 Act, which assumes everything is in public, with full legal representation and so
on...”.*! But the assumption that the 1921 Act leads inevitably to inquiries becoming slow
and costly exercises, in part because of their public nature, is not borne out by the evidence.
In 1996 the Council on Tribunals, reviewing public inquiry procedures following the
publication of the Scott Report on Arms to Iraq, stated that:
“Tt may be the experience of previous inquiries under the 1921 Act particularly that
of the Crown Agents inquiry itself, had led to the perception that such inquiries
would inevitably take much longer and involve greater expense, particularly if the
Salmon principles were strictly adhered to. However that does not seem to be
necessarily so, as was shown by the Aberfan inquiry”.*
24, Our analysis supports this view. No 1921 Act inquiry up until the Crown Agents
inquiry of 1978 had lasted more than a year. Of the four inquiries set up under the 1921
Act since 1990, one—the Bloody Sunday Inquiry set up in 1998—is still to report and is
estimated to cost some £155m. The Shipman Inquiry was established in 2000 and made its
final report last week and is estimated to cost £21m. The North Wales Child Abuse Inquiry
also took four years but, on the other hand, the Dunblane Inquiry only took four months.
Other statutory inquiries in this period include the Mirror Group Inquiry which lasted ten
years at a cost of £8.6m and was held in private; the Ashworth Inquiry, two years and
£2.5m; the Bristol Royal Infirmary Inquiry, three years and £14.5m; the Victoria Climbié
Inquiry, two years and £3.8m; and the so-called “Three Inquiries” into medical
1Q 46
* The Annual Report of the Council of Tribunals for 1995-96, Advice to the Lord Chancellor on the Procedural Issues
arising in the Conduct of Public Inquiries set up by Ministers, HC (1995-96) 114, para 6.4
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16 Government by Inquiry
practitioners, already two years in the running and estimated to cost £5m and also held
largely in private.
25, Similarly non-statutory inquiries include the Scott Inquiry into export of defence
equipment and dual-use goods into Iraq which lasted four years and cost £7m; the BSE
Inquiry which lasted three years and cost £27m; and the Equitable Life Inquiry, held in
private, which lasted two and a half years and cost some £2.5m, It would be wrong to
conclude therefore that the use of the 1921 Act per se necessarily leads to costly and time
consuming inquiries,
Developments since the Salmon Commission
26. Since the Salmon Commission reported in 1966 there have been significant
developments both in the balance of constitutional arrangements and in the regulation of
the public sector, In 1967 the Parliamentary Commissioner Act [CHECK TITLE]created
the post of Parliamentary Commissioner (or Ombudsman) which has subsequently
developed a wider role, notably with regard to access to government information.
Parliamentary standards are now policed on behalf of the Standards and Privileges
Committee by a Parliamentary Commissioner for Standards. Rights, obligations and duties
concerning ministerial accountability in particular have become enshrined in a whole
range of legislation, codes and official guidance including: the Freedom of Information Act
2000; the Data Protection Act 1998; the Ministerial Code; the Civil Service Code; and
official guidance on giving evidence to select committees (the Osmotherly rules) and on
answering Parliamentary Questions. The period has also seen the growth of judicial review
and the Human Rights Act 1998 which have allowed courts to test legislation and
ministerial actions,
The Overseas experience
27. As part of our inquiry we visited Washington in April 2004 and met with Senators,
Congressmen and staff from Congressional Committees as well as with officials from the
9/11 Commission and the General Accounting (now Accountability) Office (GAO) and
political commentators. Unsurprisingly inquiries in the US were also seen to have more
than one goal: to find facts, to recommend action, to prevent repetition of mistakes and to
bolster the accountability and legitimacy of various parts of government. Although it was
thought it would be hard to draft legislation which would cover all types of inquiry, it could
be possible to classify inquiries that had already taken place to provide a menu to choose
from in the future. However, in the end the political environment was seen as much more
important than the precise legal basis for an inquiry.
28, As in the UK, inquiries took on a variety of forms, The Executive Branch often
conducted internal inquiries within its own agencies such as the CIA panel under Admiral
Jeremiah on the India/Pakistan nuclear tests which reported to the Director of Central
Intelligence. Agencies themselves had Inspectors General who investigated allegations of
abuse or misconduct and occasionally conducted investigations reporting to the head of
the Agency and Congress as part of its oversight function, An example of this was the
investigation into the bombings in East Africa which led to a review of Embassy security.
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Government by Inquiry 17
29. The President can also convene commissions or other informal bodies, such as
President Eisenhower’s foreign advisory board whose reports were seldom made public.
Although there was a strong history of presidential commissions to look at policy issues
they were much rarer with regard to examining events. The Robb/Silberman Commission
on intelligence with regard to WMD was a notable exception.
30. The Judicial Branch was not usually involved except in certain cases surrounding
criminal investigations. The use of judges to chair inquiries was generally considered
unconstitutional by the US Supreme Court which in Mistretta v United States stated “The
legitimacy of the Judicial Branch ultimately depends upon a reputation for impartiality and.
non-partisanship, That reputation may not be borrowed by the political Branches to cloak
their work in the neutral colors of judicial action”. **
31. Congress also has the ability to set up a variety of inquiries but we found that the
popular image of a strong bi-partisan Congress was not entirely accurate. Part of their
strength was that, if members investigated a problem, they were in an excellent position to
legislate to tackle it. It was also seen as important for accountability and honest
government that Congress should be seen to exercise its powers and call the Executive to
give evidence in public. Public appearances by senior figures in the Administration, such as
Condoleezza Rice, the National Security Adviser in front of the 9/11 Commission (albeit
not a Congressional Committee) was seen to be of real impact.
32. Inquiries on specific matters could be set up by Congress often through interested
chairs but these often had limited investigative powers, limited resources and, since they
were often established by appending to an Appropriation Bill, no power to subpoena.
33, Congressional committees were seen to carry out an excellent task in their traditional
role of oversight but beyond this matters became more partisan and they were thought to
function less well. It was possible for these bipartisan committees to look at what were
often politically charged events but in so doing the tendency was to turn the investigation
over to lawyers who were good at the orderly presentation of facts, and developing the
contours of the story but less so at assessing the political nuances. Inevitably constituency
interests on domestic issues and the economy tend to dominate members priorities and
time.
34, Committee powers were also circumscribed for example by Executive Privilege or the
need to secure a majority vote to subpoena recalcitrant witnesses, as well as by their own
terms of reference This limited their ability to conduct wide ranging inquiries as, for
example on 9/11, where the Joint Congressional Inquiry was remitted to the Intelligence
Committees of both Houses to ensure a joint view because the bulk of the subject matter
was thought to deal with intelligence. It thereby excluded certain key areas such as
transportation issues relevant to the investigation.
35. The calibre and motivation, and number, of staff were key issues. The House
Committee on Intelligence for example had 36 staff with a background in intelligence, the
law, and the military. The Intelligence Committees of both Houses had hired dedicated
staff, experts in various fields in addition to writers and investigators for their joint inquiry
* 488 US 362 (1989) at 407.
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18 Government by Inquiry
on 9/11. Support was also available to Congress from the GAO who also provided staff on
loan to the 9/11 Commission and provided the Commission with reports including one on
Homeland Security.
36. We also received evidence from the Law Reform Commission of Ireland. The Tribunals
of Inquiry (Evidence) Act 1921 is also part of the Irish body of law but, given their differing
constitutional arrangements has continued to be used to investigate matters of public
concern. Nonetheless the Commission explained that legal code presently governing
tribunals of inquiry is made up of six separate and inconvenient-to-use statutes. They have
made proposals for:
“a comprehensive draft Bill that not only consolidates the existing legislation but also
incorporates a number of substantive changes. Among these is a requirement that a
tribunal of inquiry should be under a legal obligation to comment on its terms of
reference within four weeks of beginning its work. In addition, various methods are
proposed for fast-tracking judicial review proceedings taken in respect of decisions of
tribunals of inquiry. The Commission also proposed that an express power should be
given to the relevant minister or the Government, acting on foot of a resolution of
both Houses of the Oireachtas, to terminate a tribunal of inquiry where it has been
sitting for some time and seems unlikely to bear fruit”.*
37. As with the UK a key factor has been the debate about how far it is necessary to erect
legal safeguards in an inquisitorial process to ensure due process and fairness which in turn
add to cost and delay. The Commission recommended that in order to balance the
competing interest between fair procedures and “the entitlement to constitutional justice”
was to have “legislation [...] providing for private, low-key inquiries which concentrate on
the wrong or malfunction in the system and not on the wrongdoer”.**
38, The Commission was also concerned to minimise legal costs by:
— engaging representation at the right level for particular tasks;
— better timetabling and sequencing;
— re-calculating legal costs and expenses in a way more appropriate to pay for guaranteed
employment for several months or years, rather than at a daily rate;
— remuneration for work done rather than simply on a daily basis;
— and that, where possible, legal representation should be pooled, where parties might
have interests in common.**
9* HC 51-II, GBI OS, Ev7
> Ibid, EV8
% Ibid,
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Government by Inquiry 19
3 The Judiciary
39. With notable exceptions, when matters of public concern require investigation,
governments have traditionally tended to establish judicial inquiries. This tendency was
described in earlier days as ‘Government by Radcliffery’, Lord Radcliffe being a frequent
chairman of inquiries during the middle part of the twentieth century. During the
Twentieth century around 30% of departmental and statutory inquiries were chaired by a
judge. Since 1990, out of the 31 notable inquiries 58% have been chaired by a serving judge
and 65.5% have been chaired by a serving or retired judge.” The Salmon Commission
recommended an amendment to the 1921 Act requiring that the chairman of any tribunal
should be a person holding high judicial office. This would, he believed, give assurance that
the inquiry was being conducted impartially, efficiently and judicially, and ensure that
findings continued to achieve the same measure of public confidence and acceptance that
they had in the past.*
40. The use of senior judges was supported by the Council on Tribunals in 1996, It
commented “it is usual to ask a senior judicial figure or other eminent senior lawyer to
head an inquiry. In addition to their legal expertise, judges, by their experience, are well
equipped to assess evidence, and their independence and impartiality will command public
confidence”.” A similar view was expressed by Lord Woolf, the Lord Chief Justice, who
considered that “the fact that an inquiry is conducted by a judge or with a judicial
chairman enhances the confidence of the public as to the impartiality and thoroughness of
the inquiry’. The Government also supports the use of judges to chair inquiries,
considering that “their experience and position makes them particularly well suited to the
role, [...] The judiciary has a great deal of experience in analysing evidence, determining
facts and reaching conclusions, albeit in an adversarial rather than an inquisitorial context.
The judiciary also has a long tradition of independence from politics, and judges are widely
accepted to be free from any party political bias”. *
41. Three main reasons have been identified for the frequency with which judges have been
chosen to chair inquiries, First, they are valued for their skills in what has become a quasi-
judicial forum. Lord Hutton told us that “a judge is very well-versed in some aspects of
running an inquiry, which flows from his experience of conducting cases in court”. This
was because “they are used to hearing witnesses, they are used to assessing evidence, they
are used to defining issues, they are used to analysing facts and relating them to issues [...]
Judges are also well versed in ruling on procedural matters, whether a question is fair,
whether it is relevant”. Dr Tim Baxter, secretary to the Ashworth Hospital Inquiry, also
noted that a judicial chair has “particular experience and a capacity to keep proceedings
» Jack Beatson, Should Judges conduct public inquiries?, paper based on 51* Lionel Cohen Lecture, Jerusalem, 1 June
2004 (DCA website).
3 Cmnd 3121, p 29, para 72
HC (1995-96) 114, para 5.15
HC 51-ii, GBI 22, Ev 183
“HC 606+ii, GBI 09, para 5.2,
2Q 110
"Q92
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20 Government by Inquiry
under control in inquiries where the parties are represented”. Lord Woolf accepted that
while it used to be the case that judicial skills were acquired mainly within an adversarial
system, not always appropriate to inquiries, “most civil litigation has now changed and.
judges can be expected to conduct inquiries in a more informal and expeditious manner
than is appropriate for some litigation”."°
42, Second, they have been appreciated for their independence and impartiality and thus
the authority which they can bring to the proceedings, what Professor Jowell calls
“symbolic reassurance”.“* Senior judges, who have security of tenure, are independent from
government, in the sense of not relying on ministers for position or advancement. As Lord
Woolf told us, a judge “does not owe anything to the government of the day and is
therefore fully independent”. Judges are thus seen as ideally suited for investigating
matters in which government has a stake, They are also seen as impartial, in the sense of
being apolitical, and therefore not likely to favour any political party or interest group. As
Lord Hutton said, “They [ ...] have the reputation of being politically dispassionate. They
are not concerned by political considerations”.** They can, in the words of Lord Falconer of
Thoroton, Secretary of State for Constitutional Affairs, look into issues “dispassionately—
away from politics, from trying to establish the point of view of a particular political
persuasion, from trying to damage the political party in power or to score political points [
...]”.° He told the Committee that what is required is “authoritative conclusions. [...] By
authoritative I do not mean necessarily ones that everyone agrees with but ones that the
public knows have been reached by somebody who is utterly independent, objective and
dispassionate in the inquiry that he or she has done”. Professor Bogdanor even went so
far as to argue that “it is difficult to see how anyone other than a judge could chair such an
inquiry, which could result in the resignation of a minister [ ...]”.*! Judges can also remove,
or at least reduce, the political heat, which is important if the facts are to be uncovered. In
short they play “a significant part in [ ...] a major function of inquiries: the organising of
controversy into a form more catholic than litigation but less anarchic than street
fighting”.
43. Third is their availability. An advantage for government of using judges to chair
inquiries is that they are available, in the sense that they can be transferred relatively easily
from their ordinary judicial duties, and this transfer is without apparent extra cost. There is
undoubtedly an issue about finding individuals, outside the judiciary and the legal
profession more generally, who are both suitable and available to chair inquiries. The
continued use of judges was confirmed by Lord Falconer who explained that the reason for
there being at least twelve judges in the proposed Supreme Court was “to allow continued
“Q 353
SHC 514i, GBI 22, Ev 183
“7 HC 51-I1, GBI 17, Ev 39
"Q 732
#Q92
“HL Deb, 4 February 2004, col. 786.
© Q 186
5 bid.
® Stephen Sedley QC, ‘Public Inquiries: A Cure or a Disease? Modern Law Review, 52 (1989), 469 at 472.
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Government by Inquiry 21
release of members of the Court to undertake other functions such as chairing of public
» 53
inquiries”.
44, Yet none of these reasons seem to us totally compelling. Professor Jowell argues that
judges operate in the context of “guidance of principle derived from similar previous cases.
Political controversies, however narrowly confined, normally involve a wider set of
relevant issues ... and a different set of principles to those found in the law reports”.5* Mr
Justice Beatson noted that the ‘skills’ argument is strongest where the task of the inquiry is
solely to find facts. It is less compelling where issues of social or economic policy with
political implications are involved”.®* Judges are also unlikely to have the professional
expertise of someone like Lord Laming who told us:
“T would like to suggest that there are few judges who have managed a big workforce,
managed a public agency, managed big budgets in competing priorities, dealt with
the party political machine, both locally and nationally, dealt with trade unions going
about their perfectly legitimate business and dealt with the media day by day”.°°
45. Such skills and experience may be more useful to the chair of an inquiry, established to
investigate an issue close to the centre of government, than those possessed by judges. This
is supported by Sir Michael Bichard. He recognised that “a judge is likely to be as good as
anyone at getting to the truth ... if you are just looking at someone to try and get to the
facts” but had reservations about the use of judges.” He told us that:
“Very often we are talking about public sector bodies of which a judge has no
experience at all. We are talking about accountability. In order to hold public
servants to account, I think you need to understand a little of the context within
which they are working, though you can get some of that from an assessor and an
adviser, but it is second-hand. I do not think a judge is necessarily the best person for
that. If you are talking about healing, whether you are talking about healing between
some of the parties or actually healing the public confidence, which often this is
about, I am not sure a judge has particular qualities to enable him to do that. If you
are talking about learning and improving for the future, I am not sure a judge is the
best person to do that”.**
46. Graham Mather commented that “judges visibly run out of steam as they contemplate
the interaction of the facts they have disinterred with the incoherent complexities of
Cabinet government and collective responsibility, British style”. Lord Woolf made a
related point when he told the Committee, “today, judges do not often have any insight
into the workings of the public service”.“ Hence Mr Justice Beatson concludes: “Given the
political nature of the British constitution, judicial skills may not necessarily be the most
® Department for Constitutional Affairs, Constitutional Reform—A new Way of Appointing Judges, July 2003, p 3.
“The wrong man for the job", The Guardian, 3 February 2004
® Should Judges conduct public inquiries?, p 15
© Q278
57 Q 679 [Sir Michael Bichard]
Ibid,
5° HC 51-II, GBI 20, Ev 40
@Q7i2
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22 Government by Inquiry
appropriate where an inquiry concerns the relationship between the government and.
Parliament”.®! These reservations are reflected in the view of Lord Hutton’s Report
expressed by another of our witnesses, Sir Louis Blom-Cooper QC, who wrote: “Perhaps it
might be said that the Report reflected absolutely Lord Hutton’s qualities as a judge,
meticulous and superb in the analysis of details and evidence, but more evidently
questionable on matters of wider judgment”.
47, The notion of judges as above the political process has also begun to be challenged. The
growth of public law in recent years has made this more apparent as judges have come to
play an increasing role in determining cases which raise political and constitutional issues,
By their nature such cases are controversial and therefore are subject to criticism by the
media and politicians. Cases such as Pinochet, the conjoined twins and the anti-terrorism
legislation have also resulted in the media seeking to position the judges along
conservative-liberal and activist-deference spectrums and discussing their religious,
educational and ethnic backgrounds. Such information, or speculation, suggests that
judges are not neutral or impartial, if by this it is meant that they are without ideological
commitment or social outlook, and this is confirmed by the views expressed in
publications and public lectures by some senior judges.
48. The authority of the judiciary, itself seen as a valuable import into an inquiry, risks
being damaged by its aftermath. Those who do not agree with an inquiry’s conclusions
may not perceive it as independent and objective, regardless of whether the chair is a
member of the judiciary. The authority that judges are said to lend to an inquiry may
therefore not be sufficient for its conclusions to be accepted. Inquiry reports are, in any
case, only advisory or recommendatory and their authority can be undermined by
attempts to discredit their findings. This is particularly true in politically sensitive inquiries.
If their reports fail to conclude that ministers and senior officials are to blame, they may be
heralded as a ‘whitewash’ by political opponents and the media and the judge criticised, as
Lord Hutton was, for interpreting his terms of reference too narrowly, for being too
establishment-minded, and for showing a lack of understanding of the political context. If
they are critical of ministers and senior officials, they may, like Lord Scott, be accused by
government supporters of being anti-government and having a lack of understanding of
how government and the political process work.
49. Such criticisms have the potential to damage the reputation of the individual judge, and
Mr Justice Beatson considers that “perceived deficiencies [...] whether procedural or
substantive, will follow a judge back to the bench”.® This is supported by JUSTICE which,
in response to the Government's consultation on inquiries, noted that: “There is a danger
that a judge who has chaired a politically controversial inquiry will be perceived differently
by sections of the public when he returns to his judicial role”. Lord Hutton conceded that
there was a risk, although he did not think it “a very serious risk” that if he continued as a
judge after the inquiry, people might have seen him differently, in a way that could
jeopardise the reputation of the judiciary. As Professor Jowell suggested, this may have a
© Should Judges conduct public inquiries?, p 17
© Comment, Public Law [2004] 472-76 at 476
® Should Judges conduct public inquiries?, p 29
© Response to Department for Constitutional Affairs Consultation, CP(R) 12/04.
© Q94
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Government by Inquiry 23
“corrosive effect on public trust in the judiciary”.“* Mr Justice Beatson took a similar line
arguing “If the authority of reports and their judicial authors is regularly undermined, the
risk of damage to the authority of the judiciary itself is more than fanciful”.” Lord Woolf
made a similar point in his Memorandum when he stated:
“T have no doubt that it is preferable that judges should not conduct some inquiries.
The subject matter of the inquiry may be so political that it would be damaging to the
judiciary for a judge to be involved, In addition, the question of whether there should
be an inquiry at all may be highly controversial and if a judge is appointed the
judiciary, as a result of the appointment, may be seen as siding inappropriately with
the Government”,
50. He told the Committee that if an inquiry was:
“[_...] highly political, then it may be that the Chief Justice would say that to get a
judge to do something which is obviously of such party-political significance would
be undesirable because it would expose the judge to having to adjudicate on issues
which would not be appropriate for a judge to adjudicate on, which would not be
issues that a court would adjudicate on”.
51. The former Attorney General, Lord Morris of Aberavon, talking about the Scarman
and McPherson inquiries months before Hutton, put the warning in more colourful terms:
“When a judge enters the marketplace of public affairs outside his court and throws
coconuts, he is likely to have the coconuts thrown back at him [ ...] If one values the
standing of the judiciary [ ... ] the less they are used the better it will be”.”
52. Nor is the use of judges cost free either from the House of Lords, as now, or from the
Supreme Court in future. Extra judicial activities impact upon the workings of the courts.
They are only possible because retired law lords are prepared to make up for any shortage
of sitting judges. It was because “Placing a serving judge on an inquiry prevents him from
being deployed on his normal judicial duties” that Lord Woolf is demanding the right to
say whether a particular judge can be released to conduct an inquiry.” He illustrated the
consequences by reference to the Bloody Sunday Inquiry: “A judge like Lord Saville could
be expected to make a real contribution in the House of Lords to the development of our
law but we have been deprived of that for five or six years”,””
53. The problem of available resources is not new. Bonar Law was asked to reconsider his
intention to appoint a judge to the Ministry of Munitions Inquiry of 1921 (which had
prompted the 1921 Act itself) “in view of the arrears of work to be dealt with in the Law
Courts and the fact that it was not even possible to spare judges to go all the recent
circuit...” and to “... leave those overworked and underpaid officials to do their own work,
® "The wrong man for the job", The Guardian, 3 February 2004,
® Should Judges conduct public inquiries?, p 34
® Government by Inquiry, Minutes of Evidence (14 December 2004) HC 51-ii, Memorandum.
#Q72
* HL Deb, 21 May 2003, Col. 883
BI 22, Ev 182
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24 Government by Inquiry
and choose a chairman for the new Committee from some equally distinguished but less
busy class”. The additional factor today is that, while historically many major inquiries
were chaired by High Court judges, the pressure is now greatest on the judicial work of the
House of Lords and Court of Appeal because, in the case of inquiries of major national
importance involving central government, the trend has been to appoint judges from those
courts, Effectively there has been “grade inflation”. Lord Falconer was more relaxed about
this. In his evidence to us he said “If you want a sitting judge, i.e. somebody who is sitting
as a current judge, I think the figures are something like 102 High Court judges, 34 Appeal
Court judges and 12 judicial Members of the House of Lords. That is 146 senior judiciary
and that is not counting those in Northern Ireland and Scotland. There are enough
people”.”°
54, There is, additionally, an important argument against judges chairing inquiries, based
on the separation of powers and closely allied to judicial independence. While this
principle lacks constitutional force in the UK at present, it does have a particular validity in
the case of the law lords, given the proposed establishment of a UK Supreme Court
through the Constitutional Reform Bill. Such a development is a recognition that the
nature of judicial responsibilities and the requirements of judicial office have changed. The
expansion of judicial review, the incorporation of the European Convention on Human
Rights (ECHR) through the Human Rights Act 1998, and the devolution legislation (ie.
Scotland Act 1998, Government of Wales Act 1998, and Northern Ireland Act 1998) are
likely to increase the number of constitutional issues that come before the courts. These
could include such matters as alleged infringements of human rights by legislation or
executive action and disputes about the division of power between the Scottish and
Westminster Parliaments. Such cases give senior judges a larger constitutional, and hence
political, role and make it even more important that they are not only independent and.
impartial but are seen as such, On its visit to the United States the Committee encountered
the established view there that it was constitutionally and politically inappropriate for
judges to undertake inquiries.
55. Professor Jowell, concerned about the impact on the judiciary, believes that it is “wrong
in principle for serving judges to chair inquiries of a ‘political nature”.”° This view is
supported by Lord Laming who, in evidence to the Committee, wondered “whether or not
it is always helpful for senior members of the judiciary to be involved in some inquiries
which are so closely associated with the party-political machine [ ...]”.” Mr Justice
Beatson, while recognising that there may be situations where it is appropriate for a judge
to chair an inquiry, asked “Even if it is constitutionally permissible for [judges] to be used
in highly politicised situations, is it constitutionally appropriate?”.”* The logic of this
constitutional development was reflected in Lord Woolf’ position that “the Chief Justice of
the day should have an equal say with the Lord Chancellor as to whether a judge should be
* CJ Vol 138 25 February 1921 Col 1309
74 Should Judges conduct public inquiries? p. 19
5 Q 189
76 HC 51-I1, GBI 17, Ev 39
”Q 330
Should Judges conduct public inquiries? p. 5
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Government by Inquiry 25
deployed”.” This accords with the concordat agreed between the Lord Chief Justice and
the Lord Chancellor, whereby the deployment of the judiciary is for the Lord Chief Justice.
In Lord Woolf's view, “the Lord Chief Justice of the day is in a singularly appropriate
position to see the advantages and disadvantages to the judiciary if an inquiry is to be
conducted by a judge and is also in the best possible position to assess the impact on the
judicial system of any individual judge being deployed elsewhere”. He explained that in
coming to a decision on this, he would have two concerns. First, “the judge may be
required to do something else”; second, “the inquiry may not be an inquiry in which the
Chief Justice thinks it would be advisable for a judge to be involved”.*! Where the request is
for a judge from the Appellate Committee of the House of Lords, Lord Woolf told the
Committee that “the appropriate person to say, according to my thesis, as to whether a
judge should be involved, would be the senior law lord”. *
56, Despite the view expressed by Lord Woolf, which has the full support of the Judges’
Council, the Inquiries Bill provides for ministers to determine who should chair an inquiry
(clauses 3 & 4). If this is to be a judge, clause 9 requires that the Lord Chief Justice should
be consulted. This, according to Lord Woolf, is not sufficient. He told the Committee “the
Chief Justice should be able to say no, In these days of separation of powers, the Executive
should not, in my view, be able to tell a judge what he is going to do and select the judge
who is going to do it. This is a retrograde step”.** Professor Robert Stevens highlighted the
irony of a government arguing, on the one hand, for the establishment of a Supreme Court
and Judicial Appointments Commission and the abolition of the office of Lord Chancellor,
on the grounds that “the judiciary and politics live in totally different systems and never the
twain shall meet”, while, on the other, continuing to “offer the judges on the sacrificial altar
of public inquiries, which inevitably have a greater or lesser political content”.“*
57. We recognise the value of using senior judges to chair some inquiries. Their training
and experience give them important transferable skills, and they provide reassurance that
an inquiry will be independent and fair. Their use is most appropriate in fact-finding
inquiries which are at a distance from government. Inquiries into issues at the centre of
government are however, by their nature, politically contentious, as well as requiring an
understanding of how government works, Criticism of their reports in such cases may
undermine the impact of the inquiry and the judiciary as an institution, as well as being
detrimental to the reputation of the individual judge.
58. With developments in public law, Human Rights Act considerations about impartiality,
and the proposed establishment of a Supreme Court, which involves the institutional
separation of the judges from the House of Lords, care needs to be exercised in the future
use of judges for such work, particularly those from the highest court, and especially in
relation to politically sensitive inquiries. We agree with Lord Woolf's concerns over the
current provisions in the Inquiries Bill and recommend that decisions about the
™Q71
© HC 51-Il, GBI 22, Ev 183
8Q72
2Q7i
© Q 722
* R. Stevens, ‘Reform in Haste and Repent at Leisure: lolanthe, the Lord High Executioner and Brave New World! (2004)
Legal Studies 1 at 34-35.
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26 Government by Inquiry
appointment of judges to undertake inquiries should be taken co-equally by the
Government and the Lord Chief Justice or senior law lord.
Government by Inquiry 27
4 Inquiry Process and Principles
Inquiry form
59, Inquiries can and have taken various forms over the years: the use of sole chairs such as
the Scott, Hutton and Bichard Inquiries; a committee or panel such as the BSE or Butler
inquiries; or a chair with assessors such as the Climbié Inquiry. Our evidence considered
two aspects: whether particular forms were more advantageous in terms of ensuring the
required experience was available to an inquiry and whether independence of an inquiry
was more easily assured by one form over another.
60. Senior officials explained some of the practical considerations in putting together an
inquiry membership. Sir Brian Bender, the Permanent Secretary at the Department for
Environment, Food and Rural Affairs, described how “in the case of foot and mouth, the
perceived need was someone who understood systems, understood crises and would
address systems issues”.° Sir John Gieve saw:
“The comparative advantage in appointing lawyers is that they know about evidence,
about questioning, adversarial questioning, and so on; so they are the experts in the
process. In a number of cases we have tried to appoint advisors or panels alongside
them who can bring a bit of specialist knowledge, and sometimes that works very
well”,
61. Sir Liam Donaldson noted a problem of availability: “with non-lawyers you are often
faced with somebody who is at or near retirement, because otherwise people would be
taken out of circulation for a year or sometimes two years at once; so there is a dearth of
opportunity to get younger people, who might be absolutely in touch with the issues”.*”
62. Single chairs, whether lawyers or not, can be successful. For example, Sir Michael
Bichard brought direct personal experience from across a wide area of local and central
government, in a notably effective inquiry. Dr Iain Anderson, chair of the Foot and Mouth
Disease 2001: Lessons to be Learned Inquiry, is another example of a single chair, The
secretary of the inquiry, Alun Evans, was “not particularly convinced that having assessors
or panel members would have assisted the process”. Nonetheless:
“In terms of expertise we identified fairly early on the areas we thought our inquiry
was lacking which was, one, on high-level economic analysis and, two, on statistical
analysis. [...]. Very early on we brought in two leading academic experts on these
two disciplines to advise on those areas, and that worked admirably well for us
63. Lord Hutton’s perspective on his inquiry was simple: the matters he was being called
upon to decide were straightforwardly about facts. There was no need for a commission
*5 Q 611 [Sir Brian Bender)
* Jbid, [Sir John Gieve]
®” Q 611 [Sir Liam Donaldson]
© Q 384
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28 Government by Inquiry
because first, “in this country [...] a single judge does decide issues of very great
importance in civil cases. [...] Judges are used to trying very grave issues on their own”.
Secondly because:
“A commission can be a somewhat unwieldy body in considering perhaps somewhat
confined issues. For example, in questioning a witness, there are certain
disadvantages, if one is trying to find out the truth about a matter that a person is
questioned by a succession of questioners because coherence is sometimes lost; the
thrust of a line of questioning is sometimes lost and I think it is advantageous that a
person is questioned at an inquiry by counsel to the inquiry”.”
64, But he conceded that “if one was going into wider political implications, then there
would be advantages in having a commission or a body of people sitting”.” He also agreed.
that “Experts are of assistance” although he “thought it was preferable that he [the
psychiatric expert] should give that assistance by giving evidence so that the public could
hear his views, rather than that he act as an assessor to give views, as it were, to me in
private”. It is the personality of the chair and the experience which they bring or can draw
upon which matters crucially to the outcome of an inquiry. Panels can therefore hold
certain advantages over single member inquiries in this regard.
Value of a panel
65. Bonar Law was clear in setting up the first 1921 Act inquiry into the Ministry of
Munitions that, to ensure confidence, he needed “a Committee consisting of a judge [...].
There ought also to be a well-known business man [...] and the third member [...] should
be a good public accountant”.”” The Council on Tribunals was convinced about the value
of additional experts:
“Wing members can provide a breadth of experience which can be brought to bear
on the subject matter of the inquiry. They can also enhance public confidence in the
fairness of the process and in the inquiry’s conclusions. They can afford the inquiry
chairman helpful support and some protection against errors of judgement in
matters of both substance and procedure”.”®
66. It went on to advise that consideration should also be given to the appointment of
assessors, particularly on technical issues in a specialist field.** Lord Howe started:
“from the premise, [...] that ‘wingmen’ [...] will almost always be desirable, partly
for the reason that they bring wisdom beyond that of the single Chairman on the
subject in question but also because they function in a quasi jury fashion. [...] T
found myself, in the Ely Inquiry in particular, enormously helped by the presence of
outsiders, not just on the technicalities, but on the human questions and how best to
©Q 131
Q 133
*Q 101
® CJ Vol 138 22 February 1921 col 881
® HC (1995-96) 114, 5.16
* Ibid, 5A7
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Government by Inquiry 29
handle things, and T quote, I think, a most impressive tribute: Lord Bingham in his
BCCI Report [...] pays tribute to the valuable help they gave him in his role as a
judge (as well as in their role as experts), a sounding board on whom you can test
your opinions[...]”.°*
67. Lord Butler believed his Committee had “worked out very well, certainly from my
point of view and I think from the public’s point of view. [...] It contained two Members of
Parliament from the main two parties [...] and three other people, including me, who had.
experience of intelligence and government. I think that was a knowledgeable, well balanced
committee and it worked satisfactorily”.*° Lord Norton endorsed this perception that the
Butler Inquiry would:
“[ ...] enjoy a greater deal of support and protection by virtue of the fact that it is
drawn up by that particular body, rather than resting on one individual. So people
cannot say, ‘It is all Lord Butler, he is getting his own back,’ or anything of that
nature, because he has a team, a panel in effect, that is making the recommendation,
and I think that therefore strengthens the position of the inquiry in a way it would
» 97
not be strengthened if it was just dependent upon one person”.
68. Lord Laming explained how he:
“[ ...] decided when I was charged with this responsibility, [...] that I needed to have
the best possible advice that I could get. That was not me in any way wanting to shirk
my responsibilities; I just felt, [...] that I needed to have good advisors around me.
Therefore, I appointed four people who had experience that I do not have. I wanted
to have four people who were sitting with me as professional assessors who today
currently have up-to-date experience of managing front-line services and for
delivering front-line services because it is a long time since I was in the front line”.°*
69. Support for ‘wing members’ or a panel also came from Graham Mather who argued for
two lay assessors; British Irish Rights Watch who stated that “once a matter is sufficiently
serious to warrant an inquiry, then three heads are better than one”; and Sir Robin Ibbs
who noted that “It is undesirable for a chairman to be on his (or her) own. Just one
colleague can give a useful contrast in experience and views; more colleagues may be
appropriate depending on the circumstances”. Mr Justice Beatson also argued that “the
benefits of ‘wing-members’ or expert assessors to a judicial or other chairman should not
be underestimated”, while Lord Norton, who is sceptical about the use of judges as
chairpersons, believed that a panel of at least three people “allows for someone with a legal
background to be appointed”."°
% Q 398
*Q521
7 Q 432
% Q 287
® HC 51-II, GBI 20, Ev 42 and Response to Consultation, CP 12/04.
9 Should Judges conduct public inquiries? p. 18 and HC 606-v, GBI 13, Ev 106
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30 Government by Inquiry
Panels and independence
70. In terms of independence Lord Heseltine gave us a jaundiced view of the process,
suggesting that if you have to have an inquiry “Reach your conclusion and then choose
your chairman and set up the inquiry”.'"' The setting up of the Butler Inquiry, for example,
met with controversy. The Liberal Democrats, dissatisfied with its terms of reference,
refused to participate. The Conservatives, having initially agreed to take part, subsequently
expressed their own doubts about the scope and withdrew. Their nominee, however,
remained part of the Committee in a personal capacity. Lord Butler explained to us, that
his Committee “found ways of dealing with the political tensions because there were just
two Members of Parliament on it who were already members of the Intelligence and
Security Committee and who already were trusted to look at these extremely sensitive
intelligence papers”.'”
71. However, others saw panels as a means of underpinning an inquiry’s independence.
Lord Norton thought:
“[ ...] several members [...] makes it less easy for government to manipulate, and so, I
suppose, you could counterpoise Hutton with, say, Butler in terms of the
composition. That is why, I think, if you have a common framework, so you have a
panel of say three to five, it makes it less easy for government to, if you like,
determine the outcome simply by the choice of a particular individual”.'*
72. Lord Howe agreed: “I think that the case for having this framework, this template, by
which all the decisions should be taken about composition and conduct, and so on, is to
some extent to protect governments from themselves, [...] I think that governments need
to be protected from the temptation to rig the inquiry, in other words”.
73. The Government is seeking to introduce a requirement of impartiality and suitability
for panel members through its Bill. There must be a concern that such a provision will lead
to challenges, particularly in politically sensitive inquiries. Lord Falconer was doubtful
about this argument, since “whether it leads to legal challenges or not you have got, in
order to make an inquiry of the sort that we are talking about worthwhile, to convince
people that the person or people you have appointed are independent and are suitable
because nobody is going to pay much attention to an inquiry that is not perceived to be
independent of the parties being looked at”.'” We agree with and endorse the view that
the use of ‘wing members’ brings expertise, reassurance, support and protection to
inquiry chairs. We particularly recommend the use of panels in politically sensitive
cases as a non-statutory means of enhancing the perception of fairness and impartiality
in the inquiry process. We also recommend that where judges are seen as the most
appropriate chair, they should usually be appointed as part of a panel or be assisted by
expert assessors or wing members.
1Q 615
12 Q 539
QAI7
126 Q 418
5 Q 252
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Government by Inquiry 31
Terms of reference
74. The Government in its evidence to us explained that the “Terms of reference are a
crucial factor in determining its [an inquiry’s] ambit, length, complexity, cost and,
ultimately, its success”."°° The Council on Tribunals in its examination of the issues post-
Scott warned that:
“[ ...] care should be taken to ensure that the terms of reference go no wider than is
necessary to fulfil the specific need which the Minister has in mind when setting up
the inquiry. If the terms of reference are too wide, this may result in unnecessary cost
and delay, and may introduce questions which merely confuse the essential issues”.'"”
75. The Salmon Commission considered that terms of reference “should be drawn as
precisely as possible”. Inquiries were not intended to satisfy idle public curiosity in pursuit
of general allegation and rumour. However, the Commission added that “It is essential that
Tribunals should not be fettered by terms of reference which are too narrowly drawn”. It
emphasised the importance of the Tribunal taking an early opportunity to explain its
interpretation of its terms of reference and more significantly did not rule out the
possibility that reinterpretation might be necessary “in light of the facts that have
emerged”,'°*
76. Our evidence emphasised the value of the chair of an inquiry being involved in
agreeing the terms of reference. Sir Ian Kennedy described them to us as “your relationship
with the minister or with the government”. He added that “Of course it is for government
to indicate what they want you to look into but it is perfectly open to the chairman to say, ‘I
am not going to do it if that is what you want me to do”.'” Sir Liam Donaldson told us that
“...the civil servants, drawing in ministers at the end of the process in consultation with the
Chair of the inquiry, would usually draw up the terms of reference”.'"° And Sir Brian
Bender added that “...certainly the terms of reference cannot be finalised without the
agreement of the Chair”.'"' Lord Falconer acknowledged that it is for the chair of an
inquiry to negotiate his terms of reference. Speaking hypothetically about the Hutton
Inquiry he said that “Tf he had said in order to get to the truth of what happened leading up
to Dr Kelly’s death, I [Lord Hutton] need different forms of terms of reference, I would
have readily agreed”.''? Lord Butler was not directly involved in agreeing terms of reference
but “[ ...] was satisfied that they would enable the inquiry to do the things which I thought
it would be necessary at that stage for it to do”.'"?_ The significance of being able to agree
the wording of the terms of reference was underlined by Sir Michael Bichard “[...] the very
first thing I did was to involve myself in a discussion about the terms of reference”. The
reason was telling:
495 HC 606-ii, GBI 09, Ev 23
7 HC (1995-96) 114, para 5.19
¥§ Cmnd 3121, pp 30-31, para 77-79.
™Q 654
™Q 565
™ Q 566
12 Q 183
Q 450
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32 Government by Inquiry
“You will regret it hugely if you do not do that [be clear on terms of reference] when
you come to make recommendations or draw conclusions and find that actually you
are excluded from doing so because of your terms of reference, and the lawyers [...]
are then threatening you with judicial reviews and injunctions. So, get it right at the
beginning”.'“ Terms of reference are therefore “[ ...] not something just to be
nodded through”.!'6
77. It is not always so apparent that terms of reference act as a constraint. Sir Brian Bender,
taking the BSE Inquiry as an example, recalled:
“that Lord Phillips was perfectly able to explore the areas he felt appropriate without
feeling totally constrained by three and a half lines in the terms of reference” and it
was a question of “some shared knowledge and understanding at the outset with the
Chair of not only what the terms of reference are but also what they mean, and then
clearly the Chair has, by definition, discretion along the way to use those terms of
reference to explore the areas that they think are appropriate”. “6
78. Sir John Gieve also believed terms of reference were usually drawn widely enough to
avoid difficulties of interpretation. In recent inquires he had been involved with:
“They [the terms of reference] have been quite permissive. Generally: “Here is an
incident. Look into why it happened and what are the lessons for the future.’ Most
terms of reference have something like that in them, and there is no problem about
them”.!7
79. We pursued the matter of the coherence between the issue under investigation and the
precise terms of reference with Sir John Gieve and Sir Alan Budd. Sir Alan Budd explained.
the difference between the central allegation, the misuse of ministerial office, and his
specific remit:
“J distinguished between what I think of as an introductory sentence setting out the
background to my inquiry [ ...] and the terms of reference. What I was entirely
guided by and limited myself to were the terms of reference. I did not regard myself
as bound by that introductory background however. That, to me, was background—
that is what had happened—and I was asked a specific question which I did my best
to answer”,!8
80. If the terms of reference are to be satisfactory, deliberation and agreement are vital.
Lord Laming has told us that “Spending time on refining the Terms of Reference is
essential if later challenges are to be avoided”.'” He recounted his experience of the first
Shipman Inquiry when such a shared view about terms of reference was absent:
1 Q 650
™Q651
567
1” Ibid,
™Q 801
1 HC 606-iii, GBI 03, Ev 77
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Government by Inquiry 33
“[T]he basic conflict was that there were those who wanted a full-blown public
inquiry, which was wide-ranging in respect of the activities of Dr Shipman but, more
than that, the activities of the agencies from the day on which virtually he began to
practise until his conviction, They wanted a full-blown inquiry to look at a wide
range of things. What I was asked to do was something much more narrow, which
was to look at the safeguards that exist in the system in respect of what GPs do with
their patients and to see how those safeguards could be strengthened. As I said, the
Secretary of State was judicially reviewed and he lost and so an inquiry was set up
very much along the lines requested by the people who brought the successful
judicial review”.
81. Sir Liam Donaldson reinforced the point about consultation since:
“[ ...] effectively, within a broad umbrella of terms of reference, the specific areas of
initial inquiry are usually on the basis of some discussion with those most involved
and the stakeholders, as well as, if it is a legally based inquiry, counsel for the inquiry
having gone through all the documents and picked out the key issues”.'!
82. Robert Francis QC and the General Medical Council suggested a wider consultation,
with ministers, the chairperson, Parliament and others with a particular interest in the
inquiry engaging in a dialogue about the terms before the inquiry commences.’” The
Committee on the Administration of Justice argued that when an inquiry is established
“precisely because of a lack of trust, or a need for closer scrutiny, of the exercise of
ministerial functions [...], it seems unlikely that an inquiry composed by appointees of the
Minister and working to terms of reference established by the Minister, could ensure the
necessary legitimacy and credibility”. On such occasions “we would concur with any move
to consult on the terms of reference before finalising them”.
83. Lord Hutton gave us a significant insight into the impact of wider discussion on terms
of reference from the opposite standpoint:
“I think there was so much public debate and public concern that, if there had been
public discussion or a period of time to consider the terms of reference, it would
simply have enhanced the public concern and one might have had a public debate
about what the terms of reference should be. I might have been drawn into that, I
might have been asked to express my views and I do not think that would have been
beneficial”.!**
84. It should be possible both to have a degree of discussion and deliberation on terms of
reference and then to agree precise language. In their evidence to us the Government
conceded there could often be a case for announcing the final terms of reference after a set
period, perhaps of a few weeks, to allow for discussion and preliminary investigation, and
to enable individuals or organisations with an interest to make representations to the
Q 282
1 Q 568
HC 51-I1, GBI06, Ev 11 and Response to Consultation, CP 12/04
2 Ibid.
™Q29
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34 Government by Inquiry
Minister setting up the inquiry.'* Sir Tan Kennedy drew “a distinction between the
principle you would wish the inquiry to look into and the precise words you use, which
may need some adjustment. I think it would be appropriate for a committee such as this to
say, ‘If there were an inquiry, we would be insisting it look at X, Y and Z”.'”* Sir Louis
Blom-Cooper QC could “not see why, if the terms of reference are agreed between, say, the
minister and the chairman, that should not go before Parliament for Parliament’s approval.
It seems to me Parliament is perfectly entitled to say, ‘Minister, you have got this right’, or
‘You have got this wrong”.'” Lord Howe believed that on consulting about the terms of
reference “I think that any prudent Government would want to do that, [...] and, if one has
the possibility of parliamentary access to that as well, [...] I think you are more likely to get
it right. But there is still going to be an element of discretion in the hands of the Chairman
with these wingmen [ ...]”.*
85. It is essential that the terms of reference enjoy broad consensus and are drawn up in
a way which allows full and proper examination of the facts and do not fetter the
inquiry in its task. We recommend that the chair of an inquiry should have the ability
to negotiate the precise terms of reference before agreeing to undertake the inquiry. We
also recommend that the Inquiries Bill should provide specifically for a short period of
consultation after any announcement to ensure that the final terms of reference meet
the expectations of a particular inquiry. This should include appropriate parliamentary
involvement.
Public versus private
86. Lord Salmon’s observation on public versus private evidence gathering was succinct:
“Secrecy increases the quantity of the evidence but debases its quality”.!? The Council on
Tribunals considered that “In principle, it seems right that an inquiry into a matter of
public concern should itself be conducted in public, unless there is a strong public interest
in the inquiry, or part of it, being held in private for reasons such as national security. [...]
Aside from any other consideration, public hearings go a long way towards reassuring the
public that the subject matter of the inquiry has been fully investigated and that there has
been no ‘cover-up”.!” However it went on to suggest that on certain occasions there might
be advantages in holding inquiries in private as long as its report was published:
“Sometimes it may be easier to elicit the truth when questioning is not conducted in the full
glare of publicity”.*! The Government’s memorandum adduces four main reasons for
sometimes holding proceedings in private: national security; statutory barriers to
disclosure and legal and commercial confidentiality; personal privacy, unnecessary
intrusion or distress to witnesses; and simpler, faster procedures.”
5 HC 606-ii, GBI09, Ev 24
© Q 668 [Sir lan Kennedy]
¥ Q 668 [Sir Louis Blom-Cooper]
¥ Q 430
™ Cmnd 3121, p20, para 40
1° HC (1995-96) 114, para 7.4
* Ibid., para 7.5
? HC 606-ii, GBI 09, Ev 39
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Government by Inquiry 35
87. This is also a question on which the courts have been asked to intervene with greater
frequency. The decision of the Secretary of State for Health that the initial Shipman
Inquiry, chaired by Lord Laming, should sit in private was successfully challenged by
victim’s families. They argued this contravened Article 10 of the ECHR as an unjustified
governmental interference with the reception of information that others wish or may be
willing to impart. Ministers then set up a new inquiry under the 1921 Act. Subsequently
other judgements have upheld Ministerial decisions to hold inquiries in private, including
the Persey case on the Foot and Mouth Disease 2001: Lessons to be Learned Inquiry in
2003. The judge ruled that there was no legal presumption of openness and the decision
was one essentially for ministers, The speed and cost of a public inquiry, the frankness of
witnesses, the purpose of the inquiry (fact-finding or lesson-learning) and the fact that
Article 10 of the ECHR does not require the State to facilitate freedom of expression by
providing an open forum were factors which influenced the decision. However, the
Freedom of Information (Fol) Act 2000 creates a “right to know” and a public interest test
on the disclosure of even certain exempt categories of information.
88. The original text of the 1921 Act gave power to the tribunal to exclude the public but
was amended so that the eventual Act creates a presumption in favour of openness subject
to a public interest test. The Government’s new Inquiries Bill creates a new power for
Ministers or chairs to impose indefinite restriction notices or orders on public access to the
proceedings and the evidence of an inquiry. The Bill also makes the obligation of public
access subordinate to this power of restriction. This subverts the presumption of openness
in the 1921 Act.
89, The evidence we received suggested that, in certain circumstances, holding sessions in
private might be necessary. Sir Cecil Clothier QC (Allitt Inquiry) told the Committee: “The
unquestionable advantage of this method was that in the absence of friends, colleagues,
parents, press and other embarrassments, witnesses gradually began to speak with a
frankness which was at times startling”.'** Frank Dobson MP also told the Committee:
“[ ...] two of the inquiries that I referred to which had looked into quite important
scandals within the NHS and had far-reaching consequences, were not public
inquiries. They were conducted in private. Nobody challenges that they got to the
bottom of the thing, and nobody so far as I know has challenged the processes, and
none of the patients or their friends or supporters, even their lawyers, have ever said
that those inquiries were in any way inferior to a public inquiry”, adding “I do think
that there is quite a bit of merit in many circumstances in a private inquiry with a
published report”.!**
90. Lord Howe concurred: “I am not arguing for secrecy, but there is a case to be made for
the hearing to be conducted in secret in many of those more intimate cases as long as the
public know it is going on, as long as they know they can give evidence, as long as the result
is going to be published”.'* Dr Iain Macdonald, former Chief Medical Officer in the
Scottish Office, and a witness in the BSE Inquiry, was attracted by a two part inquiry
process:
™ HC 51-11, GBI 14, Ev 29
™Q 639
"5 Q 398
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36 Government by Inquiry
“the first phase, concerned with establishing facts, could be held in private, while the
second phase could remain public if that is necessary or expedient. In a privately held
first phase, witnesses would be freed from the burden of knowing that in answering
questions in public they are also providing material for tomorrow's newspaper
headlines, That undoubtedly influences how a witness responds, or does not
respond, in public and it would be idle to pretend otherwise”.'**
91, Sir Liam Donaldson set out the dilemma clearly:
“The first is that there is a concern that if it is not in public the full truth will not
come out, the second is that if you do not hold it in public then there is no public
scrutiny of people’s actions, as compared to the inquiry’s own scrutiny, and the third
is that the public do not get the chance to hear various people’s opinions on the
events, which the inquiry does get the chance to hear. I think the trouble is that it
always sounds very bad publicly to say that you will not have a public inquiry,
because it sounds as if you are trying to withhold the truth or facts from people and
you are protecting people from being properly examined in the way that they are ina
public hearing with the media reporting on events, and so on”.*”
92. He agreed with the view that public inquiries would not necessarily elicit the full
evidence." In his view:
“the absolute key element in that is the independence of the Chair. If you appoint the
right person who is independently minded, although it does not, as I say, look
acceptable to the public, you could have a win-win in that they delve much deeper
than they would have done in a public inquiry and they put it all out in a public
report afterwards”.'”
93, Alun Evans was of a similar view. He explained how the Foot and Mouth Disease 2001:
Lessons to be Learned Inquiry:
-. was not a public inquiry, [but] we had to do everything we could to give the
image and reality that this was going to be a full, open and independent inquiry and I
think we managed that. Certainly the judgement of the High Court was that the
integrity and independence of our chairman could not be questioned and that
argument went away”.'
94. Lord Butler reiterated the question of trust in independent chairs of an inquiry: “As
Privy Counsellors, we were able to look into the details of intelligence which, for perfectly
good and important reasons, cannot be made public. We have to be trusted on that. If you
do not trust us on that, that machinery has failed, but I think you can trust us on it”."!
6 HC 51-11, GBI 11, Ev 28
"7 Q 583
¥°Q 583
Q 585
9 Q 353
"1Q507
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Government by Inquiry 37
95, There is also a significant cost imperative in deciding whether to have a public or
private inquiry. Sir Liam Donaldson told us:
“the bottom line is that a public inquiry will cost you £20 million and a private
inquiry will cost you £3 million, and then six months as compared to two and a half
to three years. Those factors, although they sound rather crude nuts and bolts things
when you are talking about victims, are an important thing to bear in mind when
you are looking at public funds which could be used for other beneficial purposes.”
96. However, others were in favour of as full openness as possible. Lord Hutton recalled
how:
“I decided at a very early stage [...] before the evidence was given, that I wished the
inquiry to be in public, that I wanted the public to hear every word that was spoken
and to see every document that was put in evidence. [...] My intention always was
that the transcript could be published, that the media could publish every word
P83
97, Lee Hughes, secretary to the Hutton Inquiry, amplified this in written evidence: “I gave
evidence to the Inquiry on 21 August 2003 in which I stated that we followed, as far as
practicable, the exemptions in the Code of Practice on Access to Government Information
when deciding what information should be disclosed or withheld”.'“ He went on to note
that:
“both the Code and the [FoI] Act have a public interest override on exemptions. In
the case of the Inquiry there was widespread consensus that the public interest in
disclosure was very great and therefore there was a great deal of information
disclosed, on public interest grounds, where in less exceptional circumstances, an
exemption might apply”.'*
98. Sir Louis Blom-Cooper QC believed that the argument “about people being more
candid in private than in public has its real dangers. Indeed, people will say things in
private when other people have not heard it, and they say things which go beyond what
they ought to be saying. It is very easy to use the occasion for ‘scape-goating”.“° Sir Ian
Kennedy also did
“... not accept the point being made to you about the truthfulness of witnesses. [...]
My view is a constitutional point that if it is in private, you cannot hold the chairman
and the panel to account because you have not seen the evidence. It is all very well,
they may get someone, but how can you know that they are behaving properly? You
have a fundamental obligation to behave in public”.“"”
~Q 584
5 Q 58
HC 51-Il, GBI 16, Ev 34
"5 Ibid,
“Qe67t
7 Q672
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38 Government by Inquiry
99, We recognise that circumstances may sometimes require Inquiries to hold all or
part of their proceedings in private. Ensuring the independence of the inquiry will serve
to reinforce trust in such circumstances. Although the 1921 Act provides for a
presumption of openness we are concerned that the Government’s new Inquiries Bill
creates wide powers for ministers to restrict access to inquiries, making public
accessibility subject to restriction notices. This subverts accepted presumptions of
openness and public interest and we recommend it should be reversed.
Fair play
100, The Salmon Commission was established in response to continuing dissatisfaction
with the fairness of the procedures under the 1921 Act. It was asked to decide “whether the
inquisitorial method followed by Tribunals under the Act is so objectionable in principle
that the Act should be repealed”;'** and it declared that: “The inquisitorial procedure is
alien to the concept of justice generally accepted in the United Kingdom”.'* The Salmon
Commission therefore sought to inject the “longstanding and effective safeguards” of legal
proceedings through six cardinal principles.’ Since then inquiry chairs have tended to
interpret the Salmon principles ‘flexibly’, moving back towards more inquisitorial
procedures, It was Lord Scott who most famously sought to re-write the Salmon principles
in the light of his own inquiry. This issue has yet to be satisfactorily resolved. The Council
on Tribunals, asked specifically to examine procedures post-Scott, somewhat fudged it in
stating “We believe that the differences between the two sets of recommendations are
largely ones of terminology and emphasis”.'*!
101. Only Lord Howe, sharply critical of the Scott inquiry, argued for retention of the full
Salmon principles. He told us:
“The pendulum has swung between Salmon and Scott and back again, but I think the
interesting thing is that Salmon recommended granting legal representation quite
extensively on the basis of his principles, and Lord Scott criticised that because it was
introducing confrontation into inquisitorial tribunals. It was actually designed to do
so—that was the purpose of Salmon. The Salmon Principles are set out in order to
create fair play. We do need to introduce these principles there within reason, and
where it is appropriate”.'?
102. We received extensive evidence from a variety of chairs on the ways their various
inquiries had sought to mitigate the Salmon principles. Sir Louis Blom-Cooper QC wanted
“[...] to get away from the court room. [...] All that lawyers do is to bring all their expertise
of the legal system into the inquiry room, and that simply increases the costs”.'*’ He added
that:
¥ Cmnd 3121, para 24, p 15
1 Ibid, p 16, para 28
1° Ibid.
81 HC (1995-96) 114, para 4.15,
2 Q 397
™Q 649
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Government by Inquiry 39
“If I thought that my professional colleagues actually regarded their function as
primarily assisting the inquiry, then I think Twould be in favour of legal
representatives asking questions. The trouble is that lawyers who are representing
parties will behave as they behave in the court room and they will be adversarial, and
that is fatal”.'**
103. Sir Michael Bichard explained that “We did not have cross-examination. I merely gave
that particular party’s representatives an opportunity, at the end of evidence, to come back
on any points and clarification”.'*° Sir Ian Kennedy was against using judges as chairs
“because I think a public inquiry should not be a court, and judges tend to be familiar with
courts and turn things into courts” and he was against cross examination because it meant
lawyers rather than witnesses were heard.'** For Lord Laming “the so-called Salmon
principles are problematic and not altogether helpful”.!’ Lord Hutton commented that:
“The criticism of the Salmon Report is that, whilst the thrust of the principles is
correct, that one should be fair towards witnesses, that they should be represented by
counsel, that they are given notice of criticisms of them, the Salmon Report sets it out
in rather rigid terms. I think I would agree with Lord Laming in this sense, that the
Salmon principles are not to be applied inflexibly or rigidly and they have to be
adapted to the circumstances of the particular inquiry”.'**
104. Most of these inquiries adopted a similar process: using counsel to the inquiry to act as
the conduit for questions from other interested parties and, in some cases, allowing very
limited cross-examination in a second, post fact-finding stage. The Government expressed
its strong belief “[ ...] that inquiries should be investigatory. The introduction of
adversarial elements into the inquiry process, which are likely to increase costs and have
potential to cause delays, should be avoided wherever possible. Adversarial elements
should not be a significant feature of a process in which the main aim is to learn lessons,
not apportion blame”.'” The Inquiries Bill is in some ways an attempt to redress the worst
excesses of the Salmon principles which have reached their nadir in the Saville Inquiry. The
time has clearly come to reformulate the Salmon principles. We recommend that the
procedures followed by inquiries in the last ten years should be reviewed. In particular
there should be a re-evaluation of how to ensure fairness within the inquisitorial
process while minimising the adversarial, legalistic element of inquiries. Good practice
in this field could be codified, possibly through the rule making powers contained in
the Inquiries Bill.
Access to papers and persons
105. One mark of a good inquiry is its ability to pursue the paper trail. Most inquiries begin
by creating a “core bundle” of written evidence as the basis for their investigation and the
™Q 678
654
+” HC 606-iii, GBI 03, Ev 78
¥8Q 129
+ HC 606-ii, GBI 09 para 10,2
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40 Government by Inquiry
hearing of oral evidence and calling of witnesses. Lord Butler in his evidence to the Public
Service Committee in 1996 believed “... the tradition of accountability, of recording, in the
British Government and in the British Civil Service, goes very deep... When Sir Richard.
Scott looked for the story [on arms exports to Iraq], in all the areas, it was there, a full audit
trail, and I think that is a very valuable asset of the British Government that we want to
maintain”.' He reasserted that belief when he appeared before us.'*!
106. However, a number of recent inquiries have lamented the absence of proper records.
Sir Anthony Hammond’s inquiry into the Hinduja passport affair recommended that
Departments review the working practices in their private offices to see whether there
should be more regular monitoring of telephone conversations between Ministers and
better written records of telephone calls between offices. Such a review might extend to
record keeping generally e.g. of minutes issuing from and received by private offices, and
might take into account the impact on record keeping of the widespread introduction of
electronic communications, such as e-mail. He recognised that a balance has to be struck
but believed that, if resources needed to be increased, the case for doing so should be
seriously examined. Lord Hutton, pressed by the Committee on this point, told us that,
“[...] there did not appear to be minutes of discussions in Downing Street but I simply had
to proceed on the material which was before me, which is what I did”.'° Lord Butler too
was also critical in his report of “the informality and circumscribed character of the
Government's procedures”,'® although in his subsequent evidence to us he said this to us
on the matter of record keeping:
“I think the situation that was revealed by Lord Hutton of the events over the
disclosure of Dr Kelly’s name was not very satisfactory, I think that is the case and I
think that lesson was drawn. As for the meetings of which we had details and we
then looked for the record of those meetings on the very important events of the lead
up to war, where one would have expected there to be minutes there were
minutes”.!*
107. Most recently Sir Alan Budd’s report examining the allegations that the then Home
Secretary speeded up a visa application for personal reasons stated that “There is no audit
trail in IND [the Immigration and Nationality Directorate] to allow me to properly
examine the process that led to the changing of the decision on 6 May, and in that respect
the procedures were not followed”.'® In his evidence to us he was more specific:
“T think what I would have expected to find would have been an audit trail—which
was the expression I used—which would have recorded the fact that this was an
inquiry raised by a minister in a case in which the minister had an interest and I
would have expected to have found that on the file of the applicant, Ms Casalme,
1 Public Service Committee, Second Report of Session 1995-96HC 313-iii, Q 805
1Q 474
12Q 113
1 Butler report para 611
1 Q 476
5 An inquiry into an application for indefinite leave to remain, HC 175, p 20, para 4.38
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Government by Inquiry 41
which recorded this interest, recorded the retrieval of the file and recorded the
change in the decision”.!°
108. Sir John Gieve reported to us that:
“In the light of the Hammond report and in the light of further guidance which
Andrew Turnbull [the Cabinet Secretary] sent round more recently about record
keeping in private office, we have a private office handbook, we have rules on what
people should keep. [...] and part of the job of the managers of private office is to
sample the work of different private offices and private secretaries to make sure it
happens”!
109. However, he thought that:
“[....] all [of] government has had a particular problem in maintaining the full trail
since the introduction of the widespread use of electronic communication. [ ... ] The
whole of the Civil Service has had problems about getting consistent rigourous
practice around that. The introduction of Freedom of Information, for example, is
going to put an additional pressure on us to get that right”.'°*
110. In addition, with the imminent entry into force of the Fol Act 2000, there was a flurry
of press speculation at the end of last year about the degree to which unusually large
numbers of papers were beings disposed of under records management reviews.
Maintaining accurate records of events is vital to ensure the audit trail at all levels of
government. It is important the spirit of the Fol Act is not to be undermined, When Sir
Andrew Turnbull gave evidence to the Committee last March the issue of record keeping
came up. He expressed his own surprise at the absence of any codification about minuting
meetings. He said he was giving some thought to establishing some “general principles” on
why information should be kept. One reason he suggested was “because it enables us to
maintain an audit trail of accountability [...]”."°
111. The Cabinet Secretary, having given thought to the matter as he promised us, duly
produced guidance on record keeping last summer. Yet guidance is only of value in so far
as it is properly applied. We welcome the production of guidance by the Cabinet
Secretary on record keeping and recommend that that it should be published alongside
other FoI material such as the publication scheme, and that the level of compliance with
it should be regularly reviewed.
112. Papers not only have to exist, but also to be produced for inquiries. The 1921 Act,
other subject specific legislation and now the Inquiries Bill provide inquiries with powers
to compel the production of documents and for taking evidence on oath. Lord Laming,
despite being vested with statutory powers, gave us three examples where all the
documents were not produced, either through incompetence or judgements about their
relevance.” Lord Norton believed that “There is the legal implication if you then lie under
Q B15
#7. Q 892
¥ Q 893
¥ HC (03-04) 423-i, Q39
9 Qq 290-5
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42 Government by Inquiry
oath, but I would have thought the mere fact of taking the oath itself actually imposes—
even without thinking about the legal considerations—a burden on the individual. So I
think it would impose an important discipline...”.'"" Lord Falconer conceded that
“Separately from crime, giving evidence under oath carries with it some degree of marking
the solemnity of what you are doing and making it clear that this is a matter of real
importance”.!”
113. Some of our witnesses however did not think that taking evidence on oath would have
made any material difference to the information they obtained, largely because with the
mass of papers and evidence from other witnesses meant anyone lying risked being caught
out. Sir Alan Budd thought an oath would “not have made any difference at all”.'” Sir Ian
Kennedy explained that “[... ] regardless of whether one thinks it is right or wrong to tell
the truth, there are contingent reasons in favour of doing so because you are very likely to
be found out if you do not”.'* Sir Michael Bichard agreed with him “that actually when
you have 2,000 documents, [...] several dozen witnesses and several weeks of hearings,
you are likely to get caught out. I think people know that and that does bring some
pressure on them”.'”°
114, Along with other witnesses Lord Hutton was unconvinced of the value oath-taking
would have had in his inquiry “Many of the witnesses were cross-examined and fairly and
thoroughly cross-examined. I had to assess their evidence, and I do not think I would have
been greatly helped if they had been on oath, no”.!”° Lord Falconer tended to Lord Hutton’s
view “[...] in relation to whether or not an oath would have made any difference on this
particular occasion because, remember, I do not think anybody was minded to lie in
relation to what happened and also there were huge amounts of documents, e-mails, et
cetera, et cetera, et cetera. It was pretty possible to put together the basic facts from the
documents that were visible. There were gaps obviously and there were bits that were not
documented but huge amounts of it were”.'” Lord Butler, like Lord Franks in 1982 and
unlike Lord Hutton, used ‘certification’, asking permanent secretaries “to lend their names,
to give their authority, to an assurance that we have had all the papers that we need”,!” as a
means of assuring his Committee that all relevant documents had been made available. He
though it “an effective, informal way of doing it”.” His inquiry unearthed one particularly
significant piece of new evidence, the withdrawal of intelligence assessments in the summer
of 2003, which was not revealed to any of the preceding inquiries nor passed to Lord
Hutton,
115. We pursued this process of certification with senior officials. Sir John Gieve explained
that “What we do is to send out instructions and employ staff to try and find all the papers.
71Q 442
™Q 218
™Q 844
™Q 674
5 Ibid.
MEQ TIS
7 Q 218
8. 525
"3 Ibid,
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Government by Inquiry 43
That can be more or less easy, but the instruction goes out to co-operate with our inquiry,
and people not doing so will be asked why”.'® In subsequent written evidence Sir Brian
Bender noted “major problems in locating all papers for an inquiry like BSE which looked.
at more than 10 years of events”. His predecessor issued instructions to the department to
identify the relevant files, list them and send them to a central point. The department
provided all possible papers and devoted much effort to hunting papers which initially
were thought to be missing. However while he “would never like to be in a position of
being required to certify that every document had been found [i]t would be [...] reasonable
[...] of a Permanent Secretary to certify that the right systems for locating documents have
been used”."® Sir Liam Donaldson agreed with him that:
“certification may not be the answer, although as he suggests, any commitment could
focus on having provided all the available papers rather than every document that
has existed. In this department this process should become better in time as we move
towards electronic filing of all documents, which should help avoid misplacing
papers as well as in the search for what is relevant”.'*”
116. A number of our witnesses saw the administration of an oath or affirmation as
immaterial to the eventual outcome of their inquiries. It also increases the adversarial
element of this essentially inquisitorial procedure. However, on occasion, it is not enough
to rely on or expect the full cooperation of witnesses and administration of the oath carries
a particular significance. Therefore we welcome the powers in the Inquiries Bill enabling
chairs to administer an oath and other powers of compulsion. We recommend that, in
addition to the appropriate statutory powers, inquiries dealing with public bodies
should require the permanent heads of such bodies to certify that rigorous systems have
been applied for the discovery of documents and noting any problems. This ‘certificate’
could form part of the ‘core bundle’ of inquiry documents.
Length of inquiries
117. Asked to define what made an unsuccessful inquiry Sir Brian Bender suggested, “...
one that has lasted five or six years—”.'** The Government memorandum asserted that
“The cost of an inquiry is invariably linked to the length of time it takes—put simply,
lengthy inquiries are more expensive. An inquiry that is unnecessarily long and costly not
only wastes money, it also considerably weakens its outcome”.'™ It is often asserted that the
announcement of an inquiry removes the immediate political pressure on a government,
enabling it to get on with other business or buy time for a beleaguered minister who may
hope that, by the time it reports, public interest will have diminished, he will have moved.
to another position in government, or he will be able to claim that remedial action has
already been taken. Professor Jowell commented:
© Q 607
1 HC 606-vii, GBI 25, Ev 149
1 tbid., 27, Ev 151
© Q 597
™ HC 606-ii, GBI 09, Ev 37
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44 Government by Inquiry
“Hutton reported after a mere eight months, but mostly when the judge eventually
reports matters have moved on, perhaps even into a new government. Or interest in
the issue has waned. Lord Saville’s inquiry into the events surrounding the ‘Bloody
Sunday’ killings has been going on for almost a decade. Asa result, ... Parliament has
not been troubled, or the government embarrassed, by having to revisit those grim
events”.'*5
118, Although as Lord Heseltine observed it can also be “extremely difficult for
government because, having set up an inquiry, you cannot say that the findings are unfair
or wrong because you do not know what they are going to be. Therefore, you have to say
rather hopeless things about waiting for the outcome of an inquiry [...]”.!*° It is, however,
important that the establishment of an inquiry should not, in the words of Lord Norton be
“employed as a means of deflecting or undermining the capacity for Parliament to engage
in scrutiny itself”.'”
119. Currently inquiries tend to be open-ended. The Inquiries Bill introduces certain
saving measures such as limiting scope for judicial review and imposing obligations on
chairs to have regard to costs, and gives Ministers certain powers to end and suspend
inquiries, but is silent on expected duration. Setting a time limit for inquiries is difficult. Sir
Alan Budd explained how his “[ ... ] was supposed to be a very short inquiry which
[would] end quickly; it was not a short inquiry and to make it end quickly it was only
possible because my colleagues and I were working more than16 hours a day to complete
it”.'** However Lord Howe described how the BSE Inquiry did announce a timeframe,
although this was subsequently extended:
“At least it gave a time frame, and it has to be subject of review because you cannot
tell in advance how long it is going to take. In my Ely case there was a built-in time
frame because, not being a Judge, being then a practising QC, and having the
presence of consultant psychiatrists and other people, we had our own mental time
table, we cannot spend more than X weeks on this”.**”
120, Similarly the Butler Inquiry was asked to report by the Parliamentary Summer Recess,
a period of just under six months. In the view of Lord Norton:
“It is good to have a time frame, not fixed in stone, partly for political reasons so that
other bodies know, the public know when it was likely to report. Also another
political reason is so that the issue does not become a dead one because it has
dragged on for so long. I would have thought there were practical reasons for doing
it as well, in terms of not only the support mechanism but those in the inquiry”.'*””
121. In judicial inquiries, as Lord Woolf told us, tying up a judge indefinitely in such a task
would deprive the Bench of their service. Sir Michael Bichard, whose inquiry lasted barely
5 ‘The wrong man for the job’, The Guardian, 3 February 2004
™*Q 620
17 HC 606-v, GBI 13, Ev 106
™Q796
¥ Q 436 [Lord Howe]
¥° Q 436 [Lord Norton]
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Government by Inquiry 45
six months, spoke to us about keeping momentum and of how “[a] sense of urgency was
maintained throughout”."*! He was, however, vehemently against imposed deadlines:
“[...] because I think as soon as you do that then people are going to accuse you of
tailoring the inquiry to hit that deadline. They will accuse you of not having taken
time to consider particular pieces of evidence because you are up against a deadline. I
have said to you how important I think maintaining momentum is but to fix an
artificial deadline at the outset would be disastrous”.'”?
122. Sir Ian Kennedy agreed, but Sir Louis Blom-Cooper QC entered a note of dissent. He
believed:
“that the moment terms of reference are framed and the chairman is chosen, you can
make a rough estimate of how long it will take. In all my recent inquiries, I have
always asked for a deadline, with the caveat that if it extends beyond that, then you
go back to the minister and say, ‘Would you please extend my time?’ I think it is
quite important to let the public know how long the inquiry is likely to take and
when they will get their report. That is very important”.'”*
123. We acknowledge that setting arbitrary deadlines can only be counterproductive in
a process which is intended to establish the facts, provide public reassurance and in
many cases have a healing and cathartic effect. Nonetheless this is not incompatible
with announcing an estimated duration on the model of the BSE or Butler Inquiries.
Such a timescale would be non-binding and open to being revisited in light of
developments and we so recommend.
Inquiry costs
124, The Regulatory Impact Assessment (RIA) attached to the Government’s consultation
document on inquiries suggests that the scale of costs of certain inquiries is weighing
heavily on Ministers’ minds and is one of the spurs to the proposed reform, Section 4 in
particular details some of these costs, A telling figure is the £300m spent on inquiries since
1990. With no statutory or other cap on expenditure, “Inquiries have to rely on the ability
of Chairmen and cooperation of the parties, rather than legislation under which they have
been established to ensure an effective result”."*! The RIA goes on to suggest that even
small savings of about 5% would save some £1m a year on average.
125. On the basis of the DCA’s table, the cost of inquiries since 1990 averages about £7m
per inquiry (excluding the Bloody Sunday Inquiry whose estimated costs double the
average to £14m). '° In addition there will be separate costs to a department itself in terms
of direct and opportunity costs such as the need to handle the Inquiry and its aftermath,
and the redeployment of staff away from other duties,
HC 514i, GBI 21, Ev 162
” Q 681
© Ibid.
* Department for Constitutional Affairs, Final Regulatory Impact Assessment: Inquiries Bill, November 2004,
www.dea.gov.uk
5 HC 606-ii, GBI09, Annex A
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46 Government by Inquiry
126. The new Inquiries Bill contains certain provisions on costs. The Chair is obliged to
have regard to the need to avoid unnecessary costs in how he conducts an Inquiry;
Ministers are not obliged to fund activities that he has certified to the panel as being
outside the inquiry’s terms of reference; and the Minister is required to publish the total
amount spent in respect of the inquiry. It also seeks to reduce the time limit for judicial
reviews of decisions that could delay an inquiry.
127. In contrast the US system may involve Congressional legislation which not only
establishes the inquiry but determines its budget as well. For example the Act establishing
the 9/11 Commission provided for a budget of $3m.'*° While we would not advocate such a
legislative approach here, because it is neither practicable nor in keeping with our
legislative conventions, we are attracted by the principle. We recommend that Ministers
should announce a broad budget figure fairly early on at the start of an inquiry. Any
increases over the announced limits would then need to be publicly explained at the end
of the inquiry when final costs are published.
Inquiry value
128, A separate but related consideration is that inquiries are expensive mechanisms which
impact not just on costs but more widely in terms of resources and time. Sir Liam
Donaldson for example described how:
“the cost of investigations and inquiries has a significant impact on the work of
professionals both in terms of their time spent preparing for and giving evidence and
on their morale. This applies to all grades and professions of staff. [...] But [having
an inquiry] must be balanced against the significant impact such proceedings have
on individuals as well as on the ability of an organisation like the NHS to function
effectively when it is subject to increasingly costly and time-consuming inquiries
which often divert staff from their normal duties”.'"”
129. Sir Brian Bender also acknowledged some impact:
“In terms of resources the diversion from other activities can be important,
particularly for some individuals. It was for this reason that it was agreed with Dr
Anderson that he should not start the FMD Inquiry’s questioning of witnesses until
the outbreak was completely over and appropriate attention could be given to
addressing the needs of the Inquiry. However, beyond those directly involved (and
that may well include the Permanent Secretary) the resource diversion, if set within
the context of a large modern department, is not necessarily significant” .!°*
130, Inquiries therefore need to be used with care and their prospective outcome needs to
be of corresponding value. The Government has argued for a real benefit:
“Effective inquiries procedures can help restore and maintain confidence by
providing reassurance that measures are being taken to prevent recurrence of
© Public Law 107-306 107th Congress Section 611,
¥” HC 606-vii, GBI 27, Ev 151
*° HC 606-vii, GBI 25, Ev 149
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Government by Inquiry 47
damaging events. Maintenance of such confidence is becoming increasingly
important in advanced economies where failure to do so can impose large costs on
the economy and public. [...] A well run system for inquiries can help reduce the
cost burden generated by losses of confidence by making swift, valuable
recommendations”.
131, A number of our witnesses spoke about their concern to ensure that their inquiries
provided good value for money. For example Lord Hutton “was aware of the importance
of conducting the inquiry with expedition and keeping the costs within reasonable
limits” For Lord Laming one mark of a successful inquiry “Was the task handled
efficiently and timely so that it passed the test of value for money?”””' For Sir John Gieve
one criterion of success was “Did it do it cheaply and quickly?”””
132. Sir John in his written evidence to us pointed to the variety of inspectors and
regulators to which his Department was subject.” Sir Liam Donaldson argued for a variety
of ‘learning’ tools. He told us about:
“[...] the safety system which we have initiated in the NHS, which is one of the first
in the world, tries to learn lessons, rather like the airline industry, and has the
presumption that, in general, a lot of things that go wrong are honest failures, they
are systems failures, you need to learn from them, but if they were constantly
challenged by the threat of inquiries for all such incidents, the whole system would
grind to a halt”.*
133, Nonetheless research carried out on inquiries in the NHS argues that increasing
demand. for public inquires, at least in the NHS, “probably reflects a lack of public
confidence in the alternative models of inquiry [...]”,””’ and highlights the tendency to see
public inquiries as the gold standard against which other forms of inquiries should be
judged. It demonstrates that, depending on the type of investigative method, the costs and
resources required will vary hugely, with full public inquiries the most costly. It suggested
that “it might be appropriate to think of inquiries as case studies in organisational
failure”. As such it believes “that frameworks developed for evaluating the quality of case
studies may help in both designing and reviewing inquiries”.”” The Centre for Effective
Dispute Resolution also proposed thinking more widely about the use and impact on
inquiries and that: “research should be encouraged into past inquiries with a view to
assessing the outcomes achieved, the other processes that were required to create practical
outcomes, and some broad cost-benefit analysis”. The calculations on costs and the
© Final Regulatory Impact Assessment
7° Q 158
21 HC 606-iii, GBI 03, Ev 78
2” Q 601
3 HC 606-vii, GBI 19, Ev 136
7 Q 654
%5 The use and Impact of Inquiries in the NHS, p. 899
2 Ibid, p 898
2 Ibid.
205 HC 51-II, GBI 08, Ev 23,
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48 Government by Inquiry
assertions about the value of inquiries provided by the Government do not seem to provide
a sufficiently authoritative picture of the cost benefit of this form of investigation. We
recommend that while it is compiling central guidance on the calling, use and
procedures of inquiries, the Government should consider whether research should be
undertaken by an appropriate body, such the National Audit Office, into the value for
money which inquiries represent. This should assess their outcomes and evaluate
alternatives.
Ownership and publication of the report
134, Sir Ian Kennedy was clear about the importance of the “ownership” of a report:
“[...] you have to decide whose report it is, That is an absolutely critical question.
[...] Why do I say that? It is because if it is an independent public inquiry at some
point you have to say, “This is my report and that of my colleagues, which I own and
am giving to you and to the public at the same time’, rather than, ‘It is something I
give to you, Minister, and now you may do with it that which you wish, including
perhaps not publish it at all’, I think that needs to be clarified. My advice would be if
you feel that you are doing something and it is important to persuade others, you
have to have some agreement on that”.”
135, With regard particularly to inquiries held in private, ensuring publication of the report
in full is one of the key measures of public confidence in its outcome. The Inquiries Bill
provides that a report of an inquiry must be delivered to the Minister; lays a duty on either
the Minister or the chair to arrange publication and requires that a report must be
published in full subject to public interest tests. It is important that ministers should not
manipulate the publication date of an inquiry report for their own ends or undermine a
parliamentary debate on its findings by limiting access to it, as was notably the case with Sir
Richard Scott’s report on Arms to Iraq. Recent practice has been good, with chairs keeping
a tight hold on availability of the report to all the parties and making their own press
statements on publication. Even so Lord Hutton admitted he was “[...] very unhappy and
very disappointed” at the leak of his report despite “the solicitors [...] put[ting] into
operation a number of measures which we hoped would ensure that there was no leak”.”"””
Such practices undermine the notion of an inquiry as a mechanism which aids ministers in
fulfilling the requirement of ministerial responsibility and Parliament in holding
government to account, as well as being unfair on those who may be named in a report.
136. We welcome the requirement in the Inquiries Bill for reports to be published in
full. We recommend that the presumption should be for chairs to handle publication.
This should be reflected in the Bill. Publication arrangements should ensure fairness to
all those concerned and the Government should allow adequate time for Parliamentary
consideration and debate.
= Q 654
7° Q 126
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Government by Inquiry 49
Learning lessons
137. As we have seen preventing recurrence through learning lessons is a key success
criterion for inquiries. Yet we came across much evidence that lessons are not always
learned. The Foot and Mouth Disease 2001: Lessons to be Learned Inquiry for example
reported that:
“between 1922 and 1967 there were only two FMD-free years in the whole of Great
Britain. Four epidemics were so severe that they prompted official Government
reports in 1922, 1924, 1954 and 1968, [...]. There is a high degree of continuity in the
central themes of these reports. [...] That is why we say that it is perhaps easier to
> 211
identify lessons than to learn and act upon them”.
138. Research published in the British Medical Journal (BMJ) in 2002 noted that the
recommendations of the inquiry into Fly Hospital, Cardiff in 1967 “eerily parallel the
findings of [...] the Bristol Royal Infirmary [Inquiry], published in 2001”.?” It concluded
that “The consistency with which inquiries highlight similar causes suggests that their
recommendations are either misdirected or not properly implemented”.*'’ We undertook a
comparison of the recommendations in the Franks Review after the Falklands War" and
the Butler Inquiry (see below), Like the Butler Inquiry, the Franks Review considered
questions about the use of intelligence and machinery of government in the run up to the
invasion, Although it is stretching the point somewhat to draw too close a parallel some of
the comments and recommendations made in 1983 bear a striking similarity to those of
Butler.
Falkland Islands Review and Review of Intelligence on WMD: a companion
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At paragraphs 311-313 of the report the Franks Review explained the difficulties and reasons why the
intelligence agencies could not have provided earlier warning of the invasion. Buller likewise described
the limitations on intelligence sources from Iraq, “a major underlying reason for the problems that have
arisen was the difficulty of achieving reliable human intelligence on Iraq.” (Para 443)
When he looked into whether the intelligence assessment machinery had worked effectively Franks was
“surprised that events in the first three months of 1982...did not prompt the Joint Intelligence
Organisation to assess the situation afresh”, (Para 315). Butler was also “...surprised that neither policy-
makers nor the intelligence community, as the generally negative results of UNMOVIC inspections
became increasingly apparent, conducted a formal re-evaluation of the quality of the intelligence and
hence of the assessments made on it,” (Para 362).
Commenting on the relationship between the different agencies, Franks believed there was a “need for a
clearer understanding of the relative roles of the assessments staff, the Foreign and Commonwealth
Office and the Ministry of Defence, and for closer liaison with them” (Para 317). Butler accepted “the
need for careful handling of human intelligence reports to sustain the security of sources. We have,
however, seen evidence of difficulties that arose from the unduly strict ‘compartmentalisation’ of
intelligence. It was wrong that a report which was of significance in the drafting of a document of the
importance of the dossier was not shown to key experts in the DIS who could have commented on the
2" Jain Anderson, Foot and Mouth Disease 2001: Lessons to be Learned Inquiry, HC (2001-02) 888, p 22
2” The Use and Impact of Inquiries in the NHS, p 895
2” Ibid., p 899
2™ Falkland Islands Review, Cmnd 8787, January 1983
50 Government by Inquiry
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validity and credibility of the report. We conclude that arrangements should always be sought to ensure
that the need for protection of sources should not prevent the exposure of reports on technical matters
to the most expert available analysis.” (Paragraphs 452)
139, Graham Mather in his evidence claimed “that inquiries neither effectively attribute
responsibility [...] nor adequately redesign malfunctioning systems...”.2'> Sir Liam
Donaldson was also critical of the ability of inquiries to provide effective and timely
learning and construct realistic recommendations. He told us:
“T think the way in which recommendations of inquiries are framed is very critical.
In my experience, whilst the recommendations of inquiries are very helpful,
sometimes the inquiry does not have the expertise to redesign the system that it is
inquiring into, and very often they try to do that. You are sometimes stuck with
recommendations which, as a manager or a policy-maker, you know would not
work, but, at the same time, you want to take on board the inquiry’s findings”.’'®
140, Our evidence suggested that there was a need for an audit system for ensuring that
relevant recommendations had been implemented, particularly with regard to behavioural
and cultural change, not just the letter of the recommendations. Further, ideas and
potential recommendations should be tested out prior to finalising reports to ensure they
were feasible and workable. The Government stated that “the systems for following up the
recommendations of inquiries will necessarily vary from one inquiry to another, and it
would not be appropriate to put in place a single formal system”.*” It also told us that “An
inquiry is asked to make recommendations to the Minister who commissioned it. When
the Minister receives these recommendations, it will be for him to determine how they
should be addressed”.!* Robert Francis QC however was critical that “Much lip service is
paid to inquiry recommendations when they are published, but often there is little
continuing monitoring to ensure that, once officially accepted, recommendations are
actually implemented”?'? He suggested an audit on the implementation of
recommendations and their effectiveness.’ Although a number of our witnesses were
dubious about the powers and feasibility of an inquiry re-forming itself to check up on
progress, Sir Michael Bichard announced at the end of his inquiry on the Soham murders
on 30 March 2004 that he would reconvene after a period of time to assess the
implementation of his recommendations, He told us:
“T have introduced that [a six-month review]. I have written to those involved and I
am waiting for their response, simply because I have seen too many inquiries with
excellent recommendations not followed up, and I did not want that to happen.
These are serious matters. I have given up six months of my life; lots of other people
have given up a lot of their time. It just seemed to me it was important that we
8 HC 51-Il, GBI 20, Ev 40
26 Q 559
27 HC 606-ii, GBI 09, Ev 42 para 22.3
28 Ibid.
29 HC 51-Il, GBI 06, Ev 16
9 Ibid,
Government by Inquiry 51
reviewed it. The feedback I am getting from senior civil servants is that that has
focused people and that probably more has happened than would otherwise have
> 221
been the case”.
141, Sir Tan Kennedy agreed that:
“[...] one of the fundamental features missing in the current approach to public
inquiries is any procedural mechanism for following things up. The moment that the
inquiry ends and the report is delivered, the inquiry is functus officio; it has ceased to
have any standing. I would recommend, [...] that there may be a requirement for a
procedural device emanating from this committee or others whereby the
government is asked, or the relevant minister is asked, after six or twelve months,
» 222
simply what is being done, which of course concentrates minds” ,”*
142. Some of the most illuminating evidence on this came from senior officials. Sir John
Gieve, Sir Brian Bender and Sir Liam Donaldson all emphasised the need to ensure that
necessary cultural change had taken place rather than simply taking a ‘tick box’ approach
to recommendations, Measuring such change in behaviour was not simple according to Sir
John Gieve: “it is sometimes quite difficult to encapsulate in a pithy sentence a change in
behaviour and you can get into a tick-box mentality. It is very difficult to avoid”.”* Certain
mechanisms were suggested by these officials. The usual channels were described to us by
Sir John Gieve:
“You can ask [the Permanent Secretary] questions; you can ask ministers questions;
you can have access to huge amounts of information under the Freedom of
Information Act; you have the National Audit Office which comes in and inspects
us. [ ...] There are actually quite a large number of ways in which you can get
information [ ...] but a common sense point is that [the allegation of misuse of
ministerial office] was emblazoned all over the news, it was a point of obsessive
interest for three weeks, I cannot imagine a minister anywhere in government or a
private office anywhere in government which is not being extremely careful on these
points”.?**
143. He also noted that for the Bichard Inquiry: “We have an interdepartmental group that
is reporting to ministers on that” and recalled “that since the Lawrence Inquiry the
Secretary of State has chaired [...] a group to follow through recommendations”.”° This
echoed the post-Ely Policy Group which the minister responsible Richard Crossman set up
following Lord Howe’s inquiry in 1966.”° Sir Brian Bender suggested that one useful route
“could be through a select committee saying, ‘let us look at this three or five years on and
have a short inquiry, investigation, into whether not only has the Government done what it
said it would do, but whether it has changed the world’. You would have to set some time
1Q 653
Q 654
4. 603
em Qar4
# Q 603
2° Q 445
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52 Government by Inquiry
period. There is no point doing it a year later. One would need to look back on it
> 227
retrospectively” ’
144, Lord Butler thought “there ought to be a follow-up to inquiries. What we have said in
our report is that we hope that the Intelligence and Security Committee, which is a
parliamentary committee set up in this field, will look into the issues that we raise”.** Lord
Laming hoped, “Parliament would see a role in taking forward the issues, not just on the
floor of the House, but in select committees and the like, to take forward the issues which
emerge from inquiries”. Lord Norton believed that:
“Once the Report is done it is up to the Minister to act on the Report, it is then for
Parliament to call the Minister to account [...]. The Committee has the Report by its
side and it can check what the Minister has done. It is fundamentally a question for
Parliament because the Inquiry itself does not have a democratic legitimacy to come
back and challenge the Minister on what has happened. It is fundamentally a role for
Parliament”,’"
145, Alun Evans was clear that there needed to be:
“[ ...] some type of process within the lead government department or departments
which ensures that inquiries are live even when the subject matter which they have
dealt with is not in the public domain. That is a fairly straightforward management
mechanism. One of the recommendations we made on foot and mouth was that
every two years Defra [Department for Environment, Food and Rural Affairs] should
do a review of the state of exotic animal diseases”.
146. He suggested “[...] either a public statement or public document on their website
every year or two years on the progress of an inquiry or it could even report back to
parliamentary committees”.’? Frank Dobson MP thought that “a good role for select
committees would be in checking up on whether inquiry recommendations had been
followed up, and if not why not”?
147. There is a strong case, we believe, for select committees to take on a specific
responsibility as part of their ‘core tasks’ to follow up inquiry reports. This could be
included in Task No. 9: To examine the implementation of legislation and major policy
initiatives. If inquiries are to have the impact hoped for when they are set up their lessons
must endure. There should be a robust audit mechanism established as part of any inquiry
process to ensure lessons have been learned. This audit process has to go further than
simply ticking off the list of recommendations and must determine whether there has also
been the requisite behavioural and cultural change. We recommend that departments
should have a duty to report on the implementation of recommendations at regular
Ibid,
28 Q 537
% Q 307
29Q 445
751 Q 363
222 Q 364
7 Q 635
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Government by Inquiry 53
intervals, and in any case within the first two years of the end of an inquiry. These
reports should cover the extent to which recommendations have been met and describe
the wider cultural changes which have been brought about as a result. Select
committees are well placed to undertake this kind of assessment on the outcome of an
inquiry on the basis of such departmental reports as part of their core tasks, and we
recommend that the Liaison Committee should support the inclusion of such work in
select committee work programmes.
148, Testing recommendations to ensure practicality was also seen as a key issue. Sir
Michael Bichard described for us how:
“[he] used the period from the end of the evidence to the publication of the report
just to try and test out whether the kinds of recommendations that I was likely to
make were regarded as feasible, nay, even reasonably affordable, and therefore spent
that time building a little bit of a consensus around the recommendations so they
were not immediately rubbished when they were produced. I know you have to
handle that very carefully so that you are not getting yourself in to a situation where
your recommendations are being constrained by what you are hearing, but if you
have the possibility of a couple of options around the way forward and one of them is
going to be achievable and get support and the other is not and there really is not
anything in your mind between the two, I just think it makes commonsense to go for
the one that is going to be likely to be implemented”*
149. This echoed Lord Laming’s evidence that:
“T think the terms of reference were absolutely essential in that I think it gave the
inquiry an authority to take the issues that emerged during phase one in respect of
Victoria [Climbié] and to test out those issues nationally against a whole range of
organisations and people from different backgrounds. I was very keen that the
recommendations of the inquiry should not be based solely upon one girl in one part
of north London, terrible though that was, and therefore I was very keen that phase
two had an authority about it”.*
150. Sir Ian Kennedy said he had reflected a lot upon this because of his commitment to
openness. He had concluded that making recommendations involved moving from the
process of finding facts and establishing the story to forming judgment:
“There is no reason why, in working out the options for your judgment, you should
not test them with people who might have good judgment themselves. They would
not only be members of Her Majesty’s Government—far be it; they might be from a
whole spectrum of people who have to put whatever you might recommend into
operation, let us say about collecting data in a particular way. You would talk to
people from the Royal Statistical Society and ask, ‘is this just mad, or might it work?
They come back and say, ‘If you do it that way, it might work’. Then you go away
and think about that, and it is to help you make judgments”.”*°
7 Q 682
5 Q 301
7 Q 685
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54 Government by Inquiry
151, Dr Tim Baxter described how “Besides taking a lot of evidence from experts on
personality disorders, we also ran several [...] closed seminars of experts to try and get
more access to differing views, and at those events people were presented with the
2937
emerging findings and thoughts of the inquiry panel and were able to input their views”.
Sir Liam Donaldson hoped that:
“[...] in some areas of inquiries’ findings and recommendations they may be
prepared to say, ‘We are minded to make these recommendations for change. We
would now like to have some public discussion before we finalise our
recommendation’. Then somebody could say—it need not be us, but some local
service provider or a patient group—‘That will not work. Why don't you do this
instead?’ but that is not something that is built into the inquiry process”.’*
152,In the opinion of Sir Ian Kennedy “[...] if you are going to make any
recommendations which are likely to serve the public interest by being listened to, then
you must have some understanding of the system into which they are to be inserted”.””
Lord Heseltine explained how he undertook his own checks of select committee
recommendations: “I checked whether the recommendations made sense, and whether we
could do them—should we do them, and would I get colleagues’ agreement to do
them?”.“° In contrast Lord Hutton revealed that “I did not ask for advice on the
conclusions from anyone”. If they are to be successful, recommendations need to be
workable in practice. We recommend that inquiries should be expected and enabled to
test out potential recommendations and proposals prior to finalising their reports,
although nevertheless, chairs of inquiries should not allow this process to undermine
their independence in any way.
Guidance and support
153, Despite the number of inquiries which have been held in recent years we were struck
by the absence of any real guidance or support which exists for inquiry chairs and
secretaries. The BMJ research found the same: “There are no rules or guidelines on how to
run an inquiry—each one is different, shaped by its chair and context—and few
arrangements exist to carry learning about the inquiry process over from one inquiry to
another”. This operates at two levels: the obvious nuts and bolts requirements which Dr
Tim Baxter summarised as “finance, IT, accommodation, legal, setting up an inquiry” and
Alun Evans called the “back office function”.’* Beyond this are questions of procedural
guidance which chairs in particular would find a useful starting point, although as Dr Tim
Baxter rightly pointed out there would be differences of detail “because of the particular
matter in hand and obviously the personality of the Chairman [...]”.* The Cabinet Office
7 Q 386
7 Q 588
> Q 682
Q 633
9 Q 125
28 The Use and Impact of Inquiries in the NHS p 898
78 Q 339
4 Q 374
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Government by Inquiry 55
has put together guidance on inquiries which we understand is subject to further revisions.
It was barely mentioned by our witnesses. Dr Tim Baxter told us “I think the Cabinet
Office has got guidance on inquiries, but I did not have time to try and search it out. There
is knowledge if you know where to look”.’ Sir Michael Bichard “...was struck when T
came to this task at just how little advice and expertise there was available”.“° Sir Ian
Kennedy confirmed that “...there is not a great deal of advice and you do, as it were, have to
make it up as you go along unless you think it through first”
154, Lord Hutton was more positive:
“There is a lot of guidance on the conducting of an inquiry. I looked, for example, at
the Salmon Report by Lord Justice Salmon in 1966 as to how a tribunal should be
conducted. He set out six principles. I read a lecture by Sir Richard Scott, who has
conducted his inquiry and that contained some very helpful guidance. There was a
very helpful statement by Lord Scarman at the start of the Red Lion Inquiry, which I
read, which states that it is for the chairman to run the inquiry and to decide what
witnesses will be called and matters of that sort”.
155. Dr Tim Baxter described this rather ad hoc approach: “They probably all go back to
Salmon and read the Salmon six principles and think, ‘Yes, this is a good guide’. He added:
“It is a moving, dynamic area and certainly it is an area where Government should be
concerned to keep the learning up-to-date”. We agree.
156. Our own inquiry has stimulated the Government to take action on these practical and
procedural matters and the momentum should be maintained. Alun Evans confirmed:
“Tt was only after our various inquiries that your inquiry started off and it was only
after the Department for Constitutional Affairs consultation paper that anyone in
Government drew together all the various inquiries there had been and looked at
issues such as legal powers, scope, funding and staffing, etcetera. So I think this
whole process is helpful”?*°
157. He welcomed giving evidence because “since serving as Secretary for the [Foot and
Mouth Disease 2001: Lessons to be Learned] inquiry, one felt one learnt quite a lot of use
from the inquiry and this has been the first formal opportunity I have had to talk to anyone
about it, so that is interesting in itself”.”*! It was a feeling echoed by Dr Tim Baxter of the
Ashworth Inquiry: “It is a learning experience and one you tend to only want to do once,
but it is one where you would want to pass on your experience to others. So I very much
welcome this opportunity” Lord Norton saw a need for “developing best practice,
developing a framework and then you learn; [...] developing, if you like, institutional
#5 Q 359
* Q 653
*7.Q 654
*Q.110
48 Q 360 [Dr Baxter]
30. 360 [Mr Evans]
251 Q 336 [Mr Evans]
>” Q 336 [Dr Baxter]
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56 Government by Inquiry
memory and generating the best practice from that”. For Lord Howe is was about
“institutional wisdom; departmental memory, so to speak”2**
158. In their evidence to us the Government suggested maintaining a small, dedicated
Inquiries Unit, which could co-ordinate the setting-up and running of new inquiries,
advise on possible candidates to chair inquiries, and also provide assistance with the
practical tasks involved in establishing an inquiry. The Unit could also take on a wider role
in ensuring that lessons are learnt from the conduct and procedures of previous inquiries;
develop and maintain general guidance for the use of inquiry members and staff, keep
abreast of best practice and set up an advice network, and put new inquiry secretaries in
touch with people who had previously served in this role and were ready to give the benefit
of their experience.” Sir Brian Bender conceded that:
“One needs a source of expertise to turn to, The ideas that are being explored at the
moment are having a standing unit to give advice so that each department that is
faced with this is not inventing a wheel. I think that is right, but I am not sure I
personally recommend going a step further and saying you need a standing group of
staff who can always be called upon”.’*
159, Alun Evans believed such a unit “[...] would have taken a lot of weight off my job as
Secretary and it would also have meant in our case that we could have started some of the
work on the inquiry earlier than we did”.”*’ For Dr Tim Baxter, “just getting those kinds of
things set up without in any way undermining that we were an independent inquiry would
have made my life much easier, although quite how you create that organisationally is
another matter”.***
160. Inquiries have traditionally been staffed largely by civil servants, but as Dr Tim Baxter
conceded “There is nothing magical about civil servants doing this work, but I think it does
call on what you might call classic Civil Service skills [...]”.% Alun Evans agreed that
“other people could do the job, but it involves a number of elements. Obviously there is the
administrative element, there is the written element, there is the scrutiny and investigative
element and there was certainly in our case as well the communication skills one needed to
handle the high level of interest in the inquiry”. Nonetheless issues of loyalty can arise.
Dr Tim Baxter explained that “If you move to be secretary to a judicial inquiry, your
primary loyalty is to the chairman of that inquiry [but] there are tensions because one is
dealing from time to time with colleagues back in one’s own department and you have to
remember where your primary loyalty is, but I did not feel it was an insurmountable
problem”.**' Alun Evans observed on this: “I think in practice—and I would not build too
2 Q AIS
= Qait
255 HC 606-ii, GBI 09, Ev 28
* Q 569
257 Q 342 [Mr Evans]
288 Q 342 [Dr Baxter]
> ibid,
289 Q 347
7" Q 343 [Dr Baxter]
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Government by Inquiry 57
much into this—some of us were so aware of the potential danger of the charge that we
were not independent that it made us even more concerned to make sure that we were so
and would challenge the departments as and when necessary”.””
161, We heard from various witnesses that effectively they each had to start from scratch
with their inquiry. Chairs usually make opening statements about procedure, record their
rulings along the way and give lectures about it all afterwards. During our visit to the US
we were given copies of a Senate handbook which brings together the rules of procedure of
every major Senate Committee investigation since Watergate. If inquiries are to be
expeditious, the burdens on chairs and secretaries of many of the administrative functions
associated with the initial establishment of an inquiry should be minimised as far as
possible. A support unit could help with this. We also believe that any support unit should
be demonstrably independent of government and should make use of expertise contained
in the offices of the Comptroller and Auditor General, the Parliamentary Ombudsman
and, perhaps the Committee Offices of the House of Commons or the House of Lords, We
should not keep reinventing the inquiry wheel. We welcome the concept of a support
unit but recommend the Unit’s size and role should be limited and proportional to the
relative infrequency of large inquiries and to the degree of guidance and advice which
can be made available through other means. The accumulated experience of past
inquiries, such as the procedural elements of inquiry reports, subsequent lectures,
presentations and internal notes as well as official guidance should be consolidated and
made available on a publicly accessible website. Given its small size we further
recommend that such a support unit should be co-located with a central government
department such as the Cabinet Office or the Department for Constitutional Affairs.
However, in recognition of the need for independence for inquiries the unit should
operate independently of its host department and should include secondees from
bodies versed in investigatory processes such as the NAO, the Ombudsmen community
and Select Committee staff.
Towards some key principles
162. Despite much talk about Salmon, Scott and the so-called “Maxwellisation” process
(the opportunity for parties to refute criticisms made in the draft report), the principles and
practices during the inquiry process have been confined to ensuring fairness and
protecting parties. No wider principles exist. The Council on Tribunals concluded that the
infinite variety of circumstances only allowed for “a number of objectives that should be
borne in mind when an inquiry is being established [...]”. It had four: effectiveness,
fairness, speed and economy. * Sir Ian Kennedy presented us with a set of guiding
principles. His approach entailed:
— rigour—including the best evidence and the best advice;
— openness—evidence available to all and information facilitated by electronic and other
means;
2 Q 343 [Mr Evans]
263 authority and Rules of Senate Special Investigatory Committees and other Senate Entities, 1973-97, US Congress,
1998
28 HC (1995-96) 114, paras 2.3-2.9
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58 Government by Inquiry
— accessibility—in particular with regard to practical arrangements and the inquiry’s
environment;
— accountability—through openness and feedback; fairness and appropriate procedures,
in particular through inquisitorial rather than adversarial processes;
— service—to different groups from the general public through the media to lawyers;
— emphasis on what the inquiry is or is not about.
163. We also asked witnesses about what made for a successful, or unsuccessful, inquiry.
Dr Tim Baxter felt “it has to contribute to the sense of—we see the problem, we have set
out a way forward, we are mending the reputation”.*® For Alun Evans the inquiry’s
recommendations “[had to] stack up, it makes sense, it is readable and seems to tackle the
problems it set out to do”. Lord Falconer identified the first Bloody Sunday Inquiry as
the obvious unsuccessful inquiry because:
“It was done in six weeks. There was a very profound sense that it was an
unsatisfactory and unfair inquiry and one of the reasons for the second Bloody
Sunday inquiry was that it did not adequately, from the point of view of the public,
and in particular the public in Northern Ireland, address the issues that had led to the
deaths of the people on that day”.”
164, Frank Dobson MP “judged the Scott Inquiry to be a success in the sense that the
outcome of it carried sufficient weight to be generally accepted”. He added that “It may
upset some people, but if the report itself carries with it acceptance by the people who have
been investigated and acceptance by the news media and the public that it has just about
got at the truth, then that must be the best definition of a successful inquiry”.*” Lord
Laming had four criteria against which to judge the success or otherwise of an inquiry:
— was the Inquiry conducted in a way that was fair to everyone and, in particular, were all
witnesses handled by the same standards?
— Does the Report and its findings easily relate to the evidence? Is it a coherent whole?
— Was the task handled efficiently and timely so that it passed the test of value for money?
— Did the Report have an impact on policy and practice??”
165. Officials took a longer view. Sir Liam Donaldson said “it is a longer term judgment. It
is whether the inquiry has improved and changed things and, in some circumstances, made
them safer as a result of its existence”.””' For Sir Brian Bender “The real question of success
would be if one looked back a few years later and not only said ‘What did the inquiry
265 Q 396 [Dr Baxter]
*86 Q 396 [Mr Evans]
29 Q 246
8 Q619
© Q 620
2 HC 606-iii, GBI 03, Ev 78
21 Q 598 [Sir Liam Donaldson]
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Government by Inquiry 59
recommend?’ but also, ‘Is it evident that the lessons have been learned’ in terms of the then
current behaviour, and so on, or was it a rather good report that the Department or the
Government gave a response to and it is now lying on a shelf” Sir John Gieve gave us
three success criteria for an inquiry,
“Did it reach the right conclusions? Did it satisfy the public? Did it do it cheaply and
quickly? [...] I think the question of whether it then changed things is the ultimate
test, but that is obviously a test of the Government and subsequent governments as
much as of the inquiry itself”.
166, Drawing on the foregoing and in the light of the experience now available of the
inquiry process, we believe it should be possible to draw up a set of principles defining
good practice for an inquiry. We recommend the following principles as a basis for
discussion and an exercise:
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Principles of good inquiry practice
Inquiries should:
— Adopt panels as the preferable form as they ensure expertise, provide public
reassurance and reinforce independence;
— Have terms of reference which enjoy the widest possible consensus and are subject to a
period of appropriate deliberation and discussion;
— Have a presumption of openness;
— Set budget limits, publish costs and explain overruns;
— Set time limits in the original announcement and justify extensions publicly;
— Build in procedural lesson—learning and evaluation of the inquiry process;
— Have rigorous, perhaps parliamentary, audit of recommendations and lessons;
— Test emerging findings and proposals for feasibility and practicality;
— Ensure fairness but minimise the use of Counsel for the parties; and
— Ensure access to papers and people by legal/subpoena powers or other informal
assurance systems,
22 Q 598 [Sir Brian Bender]
7 Q 601
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60 Government by Inquiry
5 Accountability and reform
Inquiries and ministerial accountability to Parliament
167. Under the doctrine of ministerial responsibility ministers are accountable to
Parliament for their own actions and those of their departments. This requires them to give
information and explanations and to respond through remedial action and, in extreme
cases, resignation to concerns and criticisms raised in Parliament. In its Report on the Role
of the Civil Service, the Treasury and Civil Service Committee noted that the system of
ministerial accountability depended “upon two vital elements: clarity about who can be
held to account and held responsible when things go wrong; and confidence that
Parliament is able to gain the accurate information required to hold the Executive to
account and to ascertain where responsibility lies”.’“'After the “Arms to Iraq’ inquiry, Lord
Scott indicated that he “would reverse the order in which these ‘two vital elements’ are
stated” arguing that “[t]he key to ministerial accountability must surely be the obligation to
give information”.””* The focus on giving information was supported by the Public Service
Committee (this Committee’s predecessor) in 1996,” It is also found in the March 1997
Resolution on Accountability of both Houses, which states “It is of paramount importance
that Ministers give accurate and truthful information to this House and its Committees
[...]. Ministers should be as open as possible with this House and its Committees [...]”.?””
168. Giving information is essential to the accountability process. However, its provision is
not an end in itself but a means by which government can be held to account. Thus it is
inextricably linked with responsibility, the other “vital element”. Inquiries, set up by
ministers in response to public concern, are important in both respects. First, they provide
the information required by Parliament. As the Government notes, “their findings can be
used to inform wider Parliamentary debate or scrutiny of the relevant policy area”
Second, they may identify or clarify who is responsible. As Professor Bogdanor states of the
Crichel Down (1954), Profumo (1963), Arms to Iraq (1996) and Kelly (2003) inquiries,
their “constitutional purpose was to assist Parliament in pinning responsibility onto a
minister”.”” Lord Butler explained how his inquiry found that “No single individual was to
blame. [...] I After that, I think it is a matter for you in Parliament and for the public to
reach their conclusions about where blame, if they want to place it, lies. What we did was to
give an account of what happened”.** In extreme cases, there may be a need for a minister
to tender his or her resignation. The resignation of Sir Thomas Dugdale, after publication
of the report on Crichel Down, provided the sole example of this occurring. The Budd
Inquiry into the allegation made against the then Home Secretary that he misused his
official position now provides a second.
> Treasury and Civil Service Committee, Report of Session 1993-94, HC 27-1, para 132
5 "Ministerial Accountability’ in Government Accountability; Beyond the Scott Report (CIPFA, 1996) p. 5.
26 HC (1995-96) 313, para 26
2” HC Deb, 19 March 1997, cols 1046-79 and HL Deb, 20 March 1997, cols 1055-62.
7° HC 606-ii, GBI09, Ev 41
2° Response to Consultation, CP 12/04,
° Q500
Government by Inquiry 61
169, More usually, the requirement is for ministers to respond to the findings of an inquiry
by giving full explanations and, where appropriate, by taking remedial action to ensure that
any mistakes identified are not repeated and recommendations are implemented. Lord.
Norton stated that “Ministerial accountability is retained in that ministers establish the
inquiries and—while they may not have ownership of the reports—are answerable for
action taken, or not taken, in the light of those reports”.’*' A similar point was made by Sir
Brian Bender, who believed there should not be too much separation between an inquiry
and the minister. “Ministers are ultimately accountable to the public and to Parliament. It
seems to me that separating it out calls into question to some extent their accountability to
the electorate and Parliament”.”* Robert Francis QC also considered that providing “the
result of the inquiry is made available to Parliament, either directly, or through general
publication, they can only enhance democratic accountability by making facts known.
which might otherwise remain unknown and enabling politicians to make judgments”.*?
170. Inquiries, which Graham Mather describes as the “ultimate backstop of
accountability”, can therefore be seen as an adjunct to ministerial responsibility.** They are
not a substitute for political accountability, which is to, and through, Parliament, but a
mechanism which can aid the process. Parliament can hold the minister accountable not
only for the inquiry’s findings but also for giving effect to any recommendations that are
made. As Lord Norton told us “it is up to Parliament to act on the information that been
put in the public domain through the inquiry”. This includes “call[ing] the Minister to
account... [and] check[ing] what the Minister has done”.’** It is therefore important that
inquiries are not seen as a substitute for ministerial responsibility. They provide factual
information and may identify where responsibility lies but they do not hold the
government, or individual ministers, to account. This is Parliament’s role or in Sir Michael
Quinlan’s analogy an inquiry provides the searchlight to assist Parliament’s anti-aircraft
batteries.”
A new model for inquiries
171. The consultation paper “Effective Inquiries” was published by the Government on 6
May 2004.** Tt took the form of a response to our Issues and Questions paper and
underpinned the evidence given to us by Lord Falconer on 25 May 2004. In the paper the
Government told us it believed, “that there is a strong case for considering what steps could
be taken to make inquiry procedures faster and more effective, and to contain cost
escalation”. It wondered “whether current legislation provides a suitable basis for
appropriate and effective inquiries” and thought that, “one option would be to create a new
statutory framework for [...] inquiries set up by Ministers to look into matters that have
281 HC 606-v, GBI 13, Ev 105
*® Q 606
2 Response to Consultation, CP 12/04
2% HC 51-I1, GBI 20, Ev 40
785.426
2° Q 446
2 Sir Michael Quinlan, ‘Lessons for Governmental Process’ in Hutton and Butler—Lifting the Lid on the Workings of
Power, W.G. Runciman ed. (OUP/British Academy, 2004) p 123
28° “Effective Inquiries” Department for Constitutional Affairs February 2004 and HC 606-ii, GBI 09
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62 Government by Inquiry
caused or have potential to cause public concern”. The Government has now introduced.
legislation in the House of Lords.
172, The main feature of this new model for inquiries envisages a wider general power for
Ministers which would revoke and replace existing powers under the 1921 Act and in
subject specific legislation such as the NHS Act 1977 and the Police Act 1996 under which
inquiries such as Climbié and Lawrence have been held. Ministers would still be able to call
ad hoc inquiries. It redefines the current conventions that it is for chairs of inquiries to
determine how they will proceed.
173, Under the terms of the Inquiries Bill, Ministers would have the power to be able to
commission inquiries, when they are necessary and to choose its panel membership and
terms of reference in each case, However there would now be a statutory requirement for
the Minister commissioning an inquiry to have regard to the need for impartiality and
expertise in panel members. In addition, the Minister, as well as the Chair, would have a
power to determine whether some or all of the inquiry should be taken wholly or partly in
private. Ministers would gain the new power to suspend or end an inquiry or suspend its
funds if the consider the terms of reference have been exceeded. There would be no
requirement for the chairman to be a judge, but nor is this excluded.
174. There would also be other measures to help ‘streamline’ inquiries, such as an
obligation on the inquiry panel to have regard to the costs to all those involved, and a
reduced time limit on applications for judicial review of decisions relating to inquiries. The
report of the inquiry would be published to the extent practicable with either the Minister
or the chair able to take responsibility for this. The cost of the inquiry would also be
published. Statutory inquiries would have the power to require witnesses to attend or to
provide documents or other written evidence. Failure to comply or hinder the inquiry
would become summary offences. The Lord Chancellor would have the power to
determine rules of procedure for inquiries.
The Government's Inquiries Bill: Strengths and weaknesses
175. Putting the exercise of prerogative powers such as the initiation of inquiries onto a
statutory footing is generally a highly desirable goal for which we have already expressed
support. In so far as the intention of the Inquiries Bill is to provide a more cost-efficient
and effective way of conducting inquiries through a comprehensive statutory power which
consolidates the 1921 Act and other subject specific legislation and fills in the gaps, it is
welcome. However, the Bill as it stands raises a number of serious concerns:
a) By abolishing the 1921 Act it finally removes the opportunity for formal parliamentary
involvement in inquiries.
b) It strengthens the Executive’s position by enabling ministers not just to decide on the
form and personnel of an inquiry before it has begun but also influence its operation.
For example in creating powers to end or suspend inquiries (clauses 12 & 13), as well as
2 HC 606-ii, GBI 09 Ev 20
2° Fourth report of Session 2003-04, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament HC
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°c)
d)
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Government by Inquiry 63
to withdraw funding in cases where ministers believe an inquiry is going beyond its
terms of reference, it calls into question the independence of inquiries and means that
ministers rather than chairs, as now, are the interpreters of the terms of reference. In so
doing the new legislation subverts the safeguards which were introduced when the
original 1921 Act was debated.
The legislation does not address the wider questions we posed at the beginning of this
report about the purpose and nature of inquiries,
Asa result it does nothing to address the broader, more constitutional, issues about the
circumstances in which Ministers should call an inquiry and determine its terms of
reference and form. There is an assumption that one size fits all despite the
acknowledgment of the wide variety of circumstances which apply.
Abolishing the 1921 Act
176. The 1921 Act was enacted very rapidly. Bonar Law agreed to the demand for an
inquiry and a proposal for statutory underpinning on 22 February 1921." The Bill was
introduced on 4 March and received Royal Assent on 24 March”, Nonetheless in the
space of barely two weeks of Parliamentary consideration, a number of significant issues
were dealt with and resolved. The original text of the Bill provided for the establishment of
an inquiry either by a Resolution of either House or by a ministerial undertaking; a power
to the tribunal to exclude the public and the power to commit a person to gaol for three
months for contempt. In the ensuing debate, the Bill received some important
amendments which, as the table below shows, are in marked contrast to the proposed
provisions of the Government's current Inquiries Bill.
Tribunal of Inquiries (Evidence) Bill 1921 Inquiries Bill 2004
— the power of ministers to set up an I — the draft legislation would restore this while
inquiry under the act by means of an at the same time removing the requirement
undertaking was removed; for a parliamentary Resolution;
the power to commit a person directly I — the new legislation introduces summary
to prison for contempt was qualified by offences for non-compliance with an
referral to a High Court for inquiry;
punishment;
the power to sit in private was I— ministerial restrictions may apply, subject
overturned in favour of a presumption to which chairs are required to ensure
of openness subject to a public interest reasonable public access to the evidence.
test.
21 CJ (1920-21) Cols 881 and 882
2 CJ (1920-21) Cols 2169 and CJ (1920-21) Col 2849
64 Government by Inquiry
177, In addition there are certain points of detail which puts the new Bill at odds with the
trend of evidence that we have been receiving. For example, there is no obligation on
Ministers to consult on terms of reference despite the Government telling us that they “can
see that there could often be a case for announcing the final terms of reference after a set
period, perhaps of a few weeks, to allow for discussion and preliminary investigation, and
to enable individuals or organisations with an interest to make representations to the
Minister setting up the inquiry”.**> The Government also conceded that, “Inquiries can
assist Parliament, because their findings can be used to inform any wider Parliamentary
debate or scrutiny of the relevant policy area”, but the Bill removes one of the most direct
means by which Parliament can influence the terms of such debate.
The need to amend the Inquiries Bill.
178. We are deeply concerned that the Government’s Inquiries Bill threatens the last
remaining role for Parliament in the inquiry process. Nonetheless it also provides an
opportunity to update the current provision contained in the 1921 Act to reflect our
recommendations for parliamentary involvement. To achieve this we propose that Clause
1 should be amended by means of an additional sub-clause to provide that, where the
public concern relates to the conduct, actions or inactions of government—ministers or
officials, the Minister will cause an inquiry to be called on the basis of a Resolution of both
Houses of Parliament. We set out a suggested amendment at Annex 2. Individual motions
for the Resolution could provide for: the form the inquiry should take; its terms of
reference; any powers considered necessary; follow-up to the inquiry’s report, including a
requirement that the report will be debated in Parliament on a substantive motion; and
remission, as appropriate, to a select committee for auditing, in due course, of the degree to
which an inquiry report’s recommendations have been implemented and changes
wrought. This procedural framework should itself ideally be enshrined in a Resolution
which would contain a presumption in favour of a parliamentary commission (see
paragraphs 208-215 below) as the most appropriate form for an inquiry of this kind.
Accordingly we recommend that Clause 1 should be amended to provide for
parliamentary resolutions where the events causing public concern which may have
occurred involve the conduct of ministers. We further recommend that the procedural
framework for an inquiry called under this new sub-clause which we have described
should be the subject of a Parliamentary Resolution once the Bill has passed into law.
Criteria and taxonomy
179. In its written evidence to us the Government has said that “There is no standard
blueprint for the type of circumstances in which an inquiry might be needed. Matters
triggering inquiries are, by their nature, difficult to foresee” adding that “A common theme
tends to be that the subject matter of the inquiry has exposed some possible failing in
systems or services, and so has shaken public confidence in these systems or services, either
locally or nationally”.”* Speaking in the Lords second reading debate on the Inquiries Bill,
the Parliamentary Under-Secretary for the Department for Constitutional Affairs,
» HC 606-ii, GBI 09, Ev 24
2 Ibid.,
5 Ibid, Ev 21
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Government by Inquiry 65
Baroness Ashton of Upholland, believed it was difficult to identify criteria “partly because
of the wide difference in the nature of inquiries. They are fundamentally different”. She
was, “not sure whether we would capture everything that needed to be considered”. Sir
Louis Blom-Cooper QC concurred, “I think it is not possible to define whether a public
inquiry should be set up or not, My general approach has always been: if there is a national
scandal or a national disaster and public opinion will only be allayed by having an
independent inquiry, then that should satisfy the criteria for setting it up”.”
180. Advice is therefore unclear. Frank Dobson revealed (and Sir Liam Donaldson
confirmed) “that I was strongly advised not to hold a public inquiry. I felt this was partly
because many involved knew it was likely to reveal an embarrassing ‘can of worms”, ** Sir
Liam Donaldson acknowledged the difficulties but thought “we should have a try at it
[establishing criteria], because at the moment it is just being done on judgment, experience
and intuition, and I think it would be very helpful not least to have an auditable process:
because increasingly we have judicial reviews calling for inquiries when departments might
think that the inquiry is not the appropriate mechanism”.*”
181. Some of those who gave evidence to us did try and come up with a checklist of criteria.
Lord Norton told us that:
“There should, in effect, be a checklist for determining whether an inquiry is the
most appropriate mechanism, The checklist would cover such questions as: Is the
problem clearly defined? Does it have clear implications for public policy? Is the level
of public concern sufficient as to justify triggering a public inquiry? Is there any
established alternative available? Have other possible avenues been exhausted? Do
the potential benefits of an inquiry justify the costs? These criteria could, if necessary,
be embodied in a schedule to any new legislation [...] governing the establishment
and conduct of public inquiries”.
182, Alun Evans, secretary to the Foot and Mouth Disease 2001: Lessons to be Learned
Inquiry thought the “suggestion of some type of menu which goes through a process of
thinking does it fit within this, does it fit within that or is the inquiry not appropriate,
would be worth doing”. He saw:
“a number of elements which might call you to have a public inquiry: first, that
something has demonstrably and seriously gone wrong, a big failing somewhere;
second, that in a part of that there were either political, administrative or managerial
failings or all three; and third, that the public or parts of the public have suffered
harm in some way as a result of that failing. I think those type of areas would be the
ones where you would then say do we need an inquiry separate from government to
look into why this happened?”*?
26 HL Deb, 9 December 2004, Col 1013.
7 Q 665
8 HC 606-vii, GBI 18, Ev 152
2 Q571
5° HC 606-v, GBI 13, Ev 105
1 Q 360
3 Q 361 [Mr Evans]
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66 Government by Inquiry
183, Dr Tim Baxter, secretary to the Ashworth Inquiry, added another: where “there is a
reputation issue for the future of that area of public life”.“ Sir Ian Kennedy offered us
further possible criteria: public confidence and trust in government or a public service
cannot otherwise be restored; the integrity of system of justice is under challenge;
misfeasance by government; a major disaster with loss of many lives; an issue of significant
importance which also raises matters of wider public concern; value is added, i.e. issue
cannot be examined as appropriately in any other way that is less expensive, less elaborate,
and more speedy; or where new or poorly understood issues of major public concern are
involved.
184, Sir Ian Kennedy proposed “a gateway review, [...] that you would have to go through
before you are going to commit large amounts of public money to a particular way of
looking into something because you would have to be satisfied that more efficient, more
effective, more timely or less expensive means had been considered and found wanting”.
While it is possible that an inquiry would not be called even where many of the criteria are
met, we believe the time has come for setting out what such criteria are in order to improve
clarity about the circumstances in which decisions to call inquiries are taken. We
recommend that Ministers should justify their decisions whether to hold an inquiry or
not on the basis of a published set of criteria and propose the following as a possible
basis for this:
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— Can the nature of the problem be clearly described (e.g. a serious financial or economic
loss, a major accident possibly involving fatalities, serious physical harm or death to
one or more persons; a serious and demonstrable failure of public policy)?
— Was it likely that political, administrative or managerial failings were a factor?
— Are there clear implications for public policy including new or poorly understood
issues?
— Is there a high and continuing level of public concern over the problem?
— Is there likely to be an adverse impact on public confidence in this area which cannot
otherwise be satisfactorily resolved?
— Are any established alternatives available (e.g. the legal system; the complaint and.
redress system; internal and external regulatory systems)?
— Have these alternatives been exhausted or are they considered insufficient or
inappropriate to meet the level of public concern?
— Do the potential benefits outweigh the estimated costs (financial and other) of an
inquiry?
2” Q 361 [Dr Baxter]
> Private presentation
5 Q 670
Government by Inquiry 67
Types of inquiries
185. It follows from the above that, once the decision is taken to hold an inquiry, the next
question must be: what sort of inquiry to have? The traditional taxonomy of inquiries is
well understood, At the top of the tree is the tribunal of inquiry under the Tribunal of
Inquiry (Evidence) Act 1921, which the Salmon Commission proposed should “always be
confined to matters of vital public importance concerning which there is something in the
nature of a nation-wide crisis of confidence”.** Below this are other statutory public
inquiries which either impose obligations on Ministers to set up an inquiry or provide
powers for them to do so. Schedule 3 to the Inquiries Bill sets out the scale of legislation
concerned. There are also non-statutory or ad hoc inquiries, held either in public or private
and essentially reliant on the cooperation of those involved. These have therefore tended to
be used mainly where Government or public bodies are under investigation. Other variants
include the now rare Royal Commissions; Committees of Privy Counsellors, which have
resembled traditional inquiries as with the Franks and Butler reviews and over the years
have included such topics as ‘D notices’, Ministerial Memoirs and review of the Anti-
Terrorism, Crime and Security Act 2001 stipulated in the Act itself; and Departmental
Inquiries, which tend to consider various matters of policy. In addition to all these there are
the parliamentary select committees.
186. A problem is that one form of inquiry is often indistinguishable from another with
regard to the nature of the investigation, its sensitivity, and therefore how best to constitute
its membership and terms of reference. In its guidance on inquiries the Council on
Tribunals noted that “Ministers sometimes decide to set up a judicial inquiry without
invoking the 1921 Act, notwithstanding the fact that the subject matter of the inquiry
would fall within the Salmon criterion. The Scott Inquiry is an example. Such inquiries do
not seem to differ from the 1921 Act inquiries save in respect of their powers”.*”
Politically Sensitive Inquii
es
187. The categorisation of inquiries for the purposes of defining which should be the
subject of our proposed principles and criteria should be straightforward. The Council on
Tribunals was given a clear definition in their terms of reference when they were asked to
provide guidance on inquiries after Scott, “inquiries set up by Ministers to investigate
particular matters of public concern”.* Although this definition is perfectly workable it
does not deal with the matter which was of concern to Lord Woolf among others and
which we are concerned to define more closely, i.e. those inquiries which for various
reasons are considered to be politically sensitive. The concern for Lord Woolf was that
“Whilst some inquiries are appropriate for a judge to sit on, other inquiries are of a highly
politically sensitive nature and it is not appropriate for a judge to be involved. The Lord
Chief Justice should be entitled to say not only who, but whether, a judge should conduct
the inquiry at all” It is a matter of concern to us too that where inquiries are “politically
sensitive” Parliament should be able to exercise a legitimate role,
> Cmnd 3121, p 16, para 27
2°” HC (1995-96) 114, para 5.9
°° Ibid., para 1.7
309 HC 51-ii, GBI 22, Ev 182
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68 Government by Inquiry
188. Sir Ian Kennedy also saw circumstances where calling a public inquiry was not only
inappropriate but even damaging:
“We have had Scott, we have had Hutton, we have had Butler, all of which were
chaired by eminent people whose eminence was more highly regarded before than
after, as it were. The moment they said whatever they said, they were in areas of
clearly partisan politics where it struck me that whatever they were going to say,
some would inevitably, for reasons that they perceive to be good, disagree. It follows
that you would not necessarily advance public understanding and you would bring
into disrepute the procedure of public inquiries”"°
189. He thought the BSE Inquiry illustrated:
“...the distinction I am trying to draw between where you are talking about the
actions of government or a department and the actions of local authorities and all
sorts of other disparate organisations. In my view, BSE does illustrate that where you
have other players besides government, and lots of people were engaged, that may
argue for it fitting within a public inquiry where it is not merely a government
department having failed or not failed to meet whatever the government objectives
might be. It is really a lot about the science and how much you knew, at what point
you knew, and whether we can know it all. It was good to put that into the public
domain” *"'
190. His conclusion, with reference to the Budd Inquiry, was that the “notion of a public
inquiry, as we have experience of it [...] is not a device which is suited to looking at l’affaire
Blunkett. It is a matter for Parliament or others to find ways of looking at it”?
191, Sir Michael Bichard portrayed it as a continuum:
“[At one end are] circumstances of fact which are not government-related, and may
not even be local government-related, but they are issues of fact. Going a bit further
along the continuum, there are issues of fact which also will cover issues of
competence, but mostly official competence, whether it is central or local. [...] If you
go a bit further along the continuum, you will get facts with strong political
overtones. If you go to the other end of the continuum, and you are actually talking
about politically contentious issues with some facts. I think you should become more
cautious about setting up an inquiry the further along that continuum you go. If you
get to the far end of the continuum, then my view is it is a matter for Parliament to
deal with these issues rather than to set up a public inquiry of the kind that we are
representing here”, *!°
192. Inquiries which could be considered to have a strong political element would include,
for example, the Budd Inquiry, the Butler Inquiry, the Hutton Inquiry, the Sierra Leone
Inquiry, the Franks Review, the Profumo Inquiry, and the Crichel Down investigation. A.
2 Q 655
51 Q 656
2? Q657
PQ 663
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Government by Inquiry 69
number of definitions have been offered for such inquiries. Sir Michael Quinlan described
them as “...investigation into the doings of central government in major matters”. Lord
Scott, giving evidence to our predecessor committee said of his inquiry:
“[It] was not an inquiry of the cataclysmic event type. It was not a Hillsborough, it
was not an Aberfan, it was not a King’s Cross inquiry where an event has happened
and an inquiry is instituted to find out about it. It was an inquiry into the conduct of
government in a particular area”.*"°
193, Lord Heseltine talked of them “inquiries by government into the central
machinery”.** Sir Ian Kennedy provided a simple categorisation: Type A: those that
involve the action or inaction of government, present or past. Type B: those that do not
directly involve the action or inaction of government.*!” We acknowledge that this is not a
straightforward exercise but it is clearly necessary to distinguish between those inquiries
which may result in the conduct or actions of ministers being criticised directly and those
which do not. We recommend the development of clear criteria for calling inquiries and
a simple categorisation establishing a distinction between those which are politically
sensitive and those which are not, on the basis of our exemplars, to ensure that calls for
judicial public inquiries and the appropriate involvement of Parliament can be
properly assessed and decisions on form can be taken on that basis.
3% “Lessons for Governmental Process” p 118
31 HC (95-96) 313-II1 Q 398
36 Q 627
>”’ private presentation
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70 Government by Inquiry
6 Parliament's Role
Where should Parliament have a role?
194, Despite Parliament contracting out much of its inquiry function in 1921 the idea that
Parliament should retain a role in investigating at least those cases relating to the conduct
of Ministers and members of the House has survived. Even if not necessarily by means of
select committees. For example in 1936 in the debate on the resolution to establish the
Budget Leak tribunal under the 1921 Act which eventually led to the resignation of two
MPs (one a minister) , the Leader of the Opposition, Clement Attlee believed the affair to
be a “House of Commons matter”, it was the Government who were “in the dock” and it
was a question of accountability for Parliament to address.*"* Giving evidence to the Public
Services Committee in 1996 Lord Scott, believed that, “[...] It would be a remedy to a
number of the problems that there are, as it seems to me, at the moment in regard to
Ministerial accountability, if Select Committees were treated in the same way as my own
Inquiry was treated. [...] If it had been the case that Select Committees had been able to
obtain all the advantages of documents and evidence and witnesses who had it to give that I
was able to obtain, I do think a Select Committee might have been a better form for the
Inquiry to have taken”»!? We believe that in those inquiries where public concern is
centred on the conduct, actions or inactions of government and ministers, Parliament
should be directly involved.
Select Committees: Redressing the balance
195. Since 1979 select committees have grown as an important tool for investigation and
parliamentary scrutiny of the government can be a distinctive part of the discovery process.
They also embody the concept of representation which inquiries set up by ministers do
not. Despite the frustrations and limitations of its inquiry into the war in Iraq which caused.
them to publish a special report, the Foreign Affairs Committee was the first of what
eventually became four investigations into the issues and the Government cites it as one of
four independent inquiries into the matter.’ We ourselves carried out a short inquiry
examining a series of events which occurred in the former Department for Transport,
Local Government and the Regions between September 2001 and May 2002 relating to
communications and special advisers which led eventually to a wholesale review and
reorganisation of the Government Information and Communication Service.
196. Select Committees have undertaken, with some success, a post-hoc assessment of the
outcome of Inquiries. For example the Health Committee examined Lord Laming
following his report into the death of Victoria Climbié and made a series of
recommendations. Our own predecessor committee on Public Services looked at matters
3 Barry Winetrobe, ‘Inquiries after Scott—the return of the tribunal of inquiry’, Public Law, 1997, p 28
2" Public Service Committee, Second Report of the Session 1995-96, Ministerial Accountability and Responsibility, HC 313-
IQ 398
29 Foreign Affairs Committee, First Special Report of Session 2003-04, Implications for the work of the House and its
committees of the Government's Lack of Co-operation wit the Foreign Affairs Committee's Inquiry into the Decision
to go to War in Iraq, HC 440
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Government by Inquiry 71
of ministerial accountability after the Scott Inquiry which led to the 1997 Resolution on
Ministerial Accountability and the ongoing scrutiny of unanswered PQs.
197, Select Committees have also proved adept at filling in gaps in those cases where
government has refused or felt unwilling to hold an inquiry. The Trade and Industry
Committee’s investigation into the BMARC and export licences to Iraq followed Lord
Heseltine’s clear indication that he and his department would cooperate with any
investigation which the committee might undertake. At present the Defence Committee is
inquiring into Duty of Care as part of the continuing controversy over the deaths of
soldiers in Deepcut Barracks. Moreover in recent years, and despite the growth of ad hoc
inquiries set up by ministers, when matters become highly political (often in relation to
intelligence) Government has resorted to quasi-parliamentary devices in the form of Privy
Counsellor Committees made up largely or entirely of Parliamentarians from both Houses
most recently over the Butler Inquiry.
Limitations on Select Committees
198. Essentially the work and structure of select committees are geared towards scrutiny of
the Government and departments rather than towards specialised investigations into
particular events. Our witnesses did not perceive the select committee system as the right
vehicle for Parliament to retake a role in these types of inquiries for three main reasons.
i. Government cooperation
199. The so-called Osmotherly Rules which govern the relationship of Ministers and civil
servants with committees place a limit on witnesses and information to which they may
have access and, in reality, no government could provide unrestricted access to persons
and papers on a continuing basis and hope to conduct their business in an effective
manner. As Lord Butler put it “...it is inevitable the governments will have their secrets
and should have their secrets”.*”' But even attempts to investigate into particular matters
have been frustrated or blunted by the Government's refusal to cooperate fully. The paper
published last January by the Liaison Committee provides recent examples of refusals from
Ministers for access to persons and papers.”
ii. Perceptions of partisanship
200. The Salmon Commission’s assessment of “(t]he record of such [select] Committees
appointed to investigate allegations of public misconduct [was], to say the least,
unfortunate...” and therefore to go back to their use would in its view have been “...a
retrograde step”. Being politically partisan and made up according to party strength in the
House, “it may tend in its report to reflect the views of the party having the majority of
members...” This perception still holds in many quarters. Lord Howe thought “...that
history has played a very big part. Marconi has dominated our historic school of
instruction, so to speak, and the 1921 Act filled that gap... I think they [select committees]
1Q.534
22 Scrutiny of Government: Select Committees after Hutton, Note by the Clerks, www.parliament.uk
> Cmnd 3121, p 18 para 35
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72 Government by Inquiry
are much less suitable for the personal guilt type of inquiry, which Marconi was”.***
Speaking about the failure of the select committee to follow up on the Westland Affair,
Lord Heseltine set out the problem in blunt terms, “Parliament is actually run by a
government and the whips are very powerful and Members of Parliament are very
ambitious. If you tell me how to turn human nature on its head—I have no way of coping
with that”. Frank Dobson agreed “So long as we have a parliamentary democracy, that
dilemma will be permanently present, and we will not get the degree of independence that
the United States Senate or House of Representative committees manage to establish”.*
He also believed that the need to ensure due process would lead to “a transformation of the
whole [select committee] system”.**” Lord Hutton was concerned “... whether in highly-
charged political matters if a decision was made which, [...] might result in the downfall of
a government, there would be the risk that there would be suggestions that the decision
was come to by Members of the Committee having regard, at least to some extent, to
political concerns. I think that is a possible disadvantage”.** Lord Butler explained the
problem, “I think there is a difficulty for select committees in this respect and that is [...]
that select committees inevitably bring in the party political aspect and governments are
less confident about revealing very sensitive papers to select committees that contain
members of other political parties”? He emphasised the point that “the government will
be a bit more wary of committees that contain an almost equal number of their political
opponents”.>”
iii Structure and role
201. The Salmon Commission looked at the option of reverting to select committee
investigations in his review of the 1921 Act but considered it a defect that committees did
not normally hear Counsel and many “... of its members will have had no experience of
taking of evidence or of cross-examining witnesses”.
202. Lord Howe concurred:
“...the other problem about Parliament is that, [...] parliamentarians are not
accustomed to truth-seeking interrogation, they are more inclined to grand-standing
as interrogators, and they are very seldom able to ask a question, which is often the
most important one, ‘Perhaps now you would be kind enough to answer the
question I originally put’, because you have got twelve competing interrogators, Each
is given a ration of two or three sentences, and then another bounds after a different
rabbit. I think they are ill-constructed for truth-seeking inquiries” **
%* Q 402
25 Q 647 [Lord Heseltine]
© Q 647 [Mr Dobson]
2” Ibid.
Q 149
7 Q532
39 Q539
2" Cmnd 3121, p 19, para 35
* Q 403
Government by Inquiry 73
203. Lord Hutton was of a similar view:
“a disadvantage in the [select committee] system is that if a witness is being
examined on a particular point, the fact that various members of the committee put
various questions to him in succession means that there is not a consistent line of
questioning. It might be more effective if only one person had a longer time to put a
series of questions and [...] whether in some cases it would be advantageous for
acommittee to instruct counsel, particularly when they want to investigate a
particular point, to follow a particular line of questioning”.»*
204, He was also concerned about practical constraints on Members “It [an inquiry] is very
time-consuming, I suppose there is a question whether the members of the select
committee would have time to do that” *
Finding a parliamentary alternative
205. Sir Michael Bichard was forthright “I think the current system around select
committees [...] [is] flawed. I do not know what else really exists to inquire into the kinds
of things [political events] that I was putting at the far end of the continuum, so I am not
sure that anything does yet exist”.*** Lord Norton considered:
“the tendency is for Parliament to engage in scrutiny, public policy and not really to
have a tradition or have the mechanisms for fault-finding. If you look at the
occasions when it has tried it through a parliamentary committee, it has not really
worked, so it has not really acquired that structure and therefore that tradition”. **°
206, Sir Ian Kennedy thought that “...it is open to Parliament to take a much greater role
in many of the things. It would have to win back the confidence, however, that it can do it
responsibly”.*” He added that “I think we are left with you guys getting it straight, with the
greatest respect, because I think it is a matter for Parliament properly organising itself in
many of these issues”.** Lord Norton, too, thought “Parliament cannot look to somebody
else to give it power to make those changes. If you are not willing to push for those
changes, then you are not going to deliver them”.*”
207. But if Parliament is to undertake this sort of investigation effectively it is will need to
overcome the perceptions about its limitations, These include: constraints on Members’
time to devote to an inquiry in addition to their other duties in the House and in
constituencies; sufficient resources to support Members in this task; ensuring due process;
flexibility of form to handle differing circumstances; the requirement to concern
themselves with those classes of inquiries properly and directly within the purview of
Q 145
3 Q 146
* Q 665
3°Q 401
3 Q 666
**Q 659
* Q 609
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74 Government by Inquiry
ministerial accountability to Parliament and to overcome perceptions of partisanship. We
believe that history shows it can be done.
A Parliamentary Commission of Inquiry
208. Evaluating its own experience in the BMARC case the Trade and Industry Committee
believed that detailed inquiries involving examination of a very large number of documents
and witnesses posed difficulties for select committees because the demand on Members’
time risked important aspects of committees’ current work becoming neglected, Instead
the Committee proposed that the House or committees should be able to instigate their
own external inquiries in order to establish factual information on complex subjects which
would otherwise occupy too much committee time. They took as their model the
relationship between the National Audit Office and the Public Accounts Committee. Such
a “parliamentary commission” would proceed independently of a committee, Its results
would then be examined by the committee which would itself make a report to the
House.” The Public Service Committee when it considered the whole question of
accountability and select committees as part of its post-Scott Inquiry scrutiny endorsed this
proposal, noting that the procedure provided for in the Tribunals of Inquiry (Evidence)
Act 1921, might be adapted to provide the necessary mechanism for this.*”
The precedents
209. Until 1921 the usual method of investigating events giving rise to public concern over
the alleged conduct of ministers or other public servants was through parliamentary select
committees, Even so as early as 1888 when serious allegations were made against Charles
Stewart Parnell, leader of the Irish Nationalists in Parliament, a Special Commission with
the powers of the High Court was set up by the Special Commission Act 1888." Similarly
when Asquith demanded a select committee to inquire into the operations in Mesopotamia
and the Dardanelles in 1916, the Government appointed instead a statutory Special
Commission, because “a Government may... prefer to adopt an intermediate course and to
assent to the appointment of a body which, though consisting largely of members of one or
both Houses, contains also an outside element, and is therefore in the nature of an
independent tribunal and less likely to be influenced by party bias”.** Members of
Parliament have also been appointed as members of tribunals of inquiry under the 1921
Act
Rhodesian Oil Sanctions Special Commission
210, The best and most recent example dates from 1978-9. After the Bingham Inquiry
revealed the failure of the oil sanctions policy against the white minority Rhodesian
government in the late1960s and the early 1970s in particular through the use of the ‘swap’
3" Trade & Industry Committee, Third Report of Session 1995-96, Export Licensing and BMARC, HC 87-I, para 171
* Public Service Committee, Second Report of Session 1995-96, Ministerial Accountability and Responsibility, HC 3134,
para 133
38 Cmnd 3121, p 11-12, para 12
38 Anson, I, 400, op.cit.
> Interrogation of Miss Irene Savidge by the Metropolitan Police, 1928
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Government by Inquiry 75
arrangements involving South Africa, there was pressure for a further inquiry to determine
any ministerial or official knowledge. Leading the charge was the former Prime Minister
Harold Wilson who sought full disclosure of papers from the current and previous
administrations by means of a parliamentary inquiry during the debate on the Loyal
Address in November 1978.*** In the debate on the second day of the Queen’s Speech the
Attorney General stated that the Government's view was “that ministerial responsibility
and the workings of government are essentially questions for Parliament...”.**° He went on
to note that “if [...] a further inquiry is needed [...] to bring further into the open these
matters of ministerial policy, ministerial responsibility, the responsibility of officials [...]
that must, of course have an important bearing on the nature of any further inquiry which
would be appropriate. ..”.°*”
211, The Attorney General then rehearsed the various possible options turning last to a
parliamentary inquiry “which could take the form of a Select Committee or of a joint
Committee of both Houses invested with whatever powers and its procedures adapted if
necessary to allow legal representation.’ The Attorney General saw “many attractions” in
this arrangement “particularly if its role is to investigate questions of policy and ministerial
responsibility—a role which such Committees are well used to playing. Such a Committee
would report direct to Parliament which would be in a position to consider its findings.*”
The disadvantages were those which Lord Salmon had described in 1966.
212. In light of the debate, the Prime Minister, James Callaghan announced on 15
December 1978 that the Government had decided to recommend to Parliament the setting
up by Joint resolution, a ‘Special Commission of Inquiry’ comprising members of both
Houses and chaired by a Law Lord who would filter Cabinet papers for relevance. The
Resolution would provide the Committee with its powers including sending for papers and
persons, to hear counsel, examine witnesses on oath, sit in private and appoint persons to
carry out work for it. It would publish its findings but not the evidence. It terms of
reference were instructive. “To consider, following the Report of the Bingham Inquiry, the
part played by those concerned in the development and application of the policy of oil
sanctions against Rhodesia with a view to determining whether Parliament or Ministers
were misled, intentionally or otherwise, and to report”.
213. In the subsequent debate on the Resolution the Attorney General explained that the
terms of reference would “enable the Special Commission to concentrate upon the issue of
political responsibility...” and it would be for the Commission “to investigate the way
successive governments pursued the oil sanctions policy [...] to ascertain and report
whether Parliament and Ministers were misled concerning that policy”. If so it would have
“the further task of seeking to determine the responsibility of those whether Ministers,
officials, or persons outside Government, who were providing, or failing to provide,
information”.**' Winding up the debate the then Leader of the House, Michael Foot,
3 CJ (1978-79) Col 756
34 CJ (1978-79) Col 976
2 Ibid.
38 Ibid., col 987
% Ibid., col 988
39 CJ (1978-79) col 1183
1 CJ (1978-79) col 1713-4
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76 Government by Inquiry
assured Members that in proposing the membership “The names that we propose will have
to be brought before and approved by the House” adding “I believe that this is the proper
way to proceed”.*” In the event the Joint Resolution was agreed in the Commons without a
Division but was roundly defeated in the Lords, Despite this political failure at the last
hurdle, the story of the Rhodesian Sanctions commission makes a very important
constitutional point. Investigation of possible ministerial failure can and should, wherever
practical, be based on a parliamentary foundation and not on the foundation of ministers’
own powers.
214, Parliament has at its disposal huge expertise and a degree of resource to draw on to
conduct inquiries should it wish to, The select committee system has endowed Members
with an inquiry habit. Members also participate in supervisory committees based on statute
such as the Intelligence and Security Committee and the Privy Counsellors required to
review the Anti-Terrorism, Crime and Security Act 2001. A number of successful chairs of
inquiries are also parliamentarians themselves. Specialist advisers can and are recruited to
provide expertise and support and the House is of course accustomed to the Comptroller
and Auditor General, the Parliamentary Ombudsman and the Parliamentary
Commissioner for Standards undertaking investigations its behalf and reporting to it.
Parliament itself has unfettered powers to summon person papers and records which it can
delegate at will. It is entirely possible therefore for Parliament to put together an
investigatory mechanism which meets the requirements we identify in paragraph 207
above.
215, The temporary Butler Committee and the permanent Committee on Standards Public
Life are good examples of a mixed membership harnessing the knowledge and
experience—and the political tensions—of both Houses and of outside expertise to good
effect in matters of some controversy and sensitivity, Asked whether, with some
modification, his committee might have been brought into a parliamentary context, Lord
Butler agreed “Indeed. Four out of the five members of our committee were Members of
Parliament, two Lords and two members of the Commons”.** The similarity in form of
the Franks and Butler Committees with that of a Joint Committee is striking but, as
Committees of Privy Counsellors, their nature is fundamentally different and, from a
constitutional point of view, less satisfactory. We recommend that in future inquiries
into the conduct and actions of government should exercise their authority through the
legitimacy of Parliament in the form of a Parliamentary Commission of Inquiry
composed of parliamentarians and others, rather than by the exercise of the prerogative
power of the Executive.
3° Ibid., col 1808
7. Q 540
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Government by Inquiry 77
7 Ensuring a role for Parliament
The failure to call inquiries
216, The Government stated “[I]t is right that the responsibility for setting up inquiries
should lie with Government Ministers, both because they have ultimate responsibility for
investigation and because they are responsible for deciding what is needed in the public
interest as a result of their accountability to Parliament and the electorate”. This
responsibility is incorporated into the Inquiries Bill, currently before Parliament. However,
it may result in a failure to set up an inquiry when there is a strong, but perhaps politically
inconvenient, case for doing so. For example Sir Andrew Turnbull, the Cabinet Secretary
revealed that Ministers had no appetite for an inquiry over Iraq. “There was a discussion,
but the idea was dismissed pretty quickly. The Prime Minister and Ministers did not want
an inquiry, did not think it was necessary. They thought they had set out their case to
Parliament”.** As Lord Heseltine told the Committee, where issues relate to the machinery
of government, ministers “will only concede the inquiry if they are forced, or it suits
them”.*° The Government's answer to the concern that ministers do not always yield to
parliamentary and public demands for an inquiry, is that “Ministers should explain
publicly any decision to establish, or not to establish, an inquiry. Ministers can be, and
often are, called to justify such decisions to Parliament and this practice will undoubtedly
continue, This is Ministers’ basic constitutional accountability”?
217. It is right that the Government should not automatically give way to every demand for
a public inquiry. The armed forces minister, Adam Ingram, originally rejected calls for an
inquiry into the deaths at Deepcut Barracks saying “We cannot run the Government on the
basis of public inquiries. They may be good for lawyers, but they are not good for the
governance of this country”.** In so doing, however, he was refusing an inquiry despite
pressure from the families for one. Similarly papers released by the National Archives
recently, suggest that John Major’s Government did not wish to have an inquiry into
Robert Maxwell’s death for fear of offending Spain and the attendant media circus. Frank
Dobson told the Committee and Sir Liam Donaldson confirmed that officials had advised
against the Bristol Inquiry. For Lord Heseltine inquiries are a measure of last resort “No
government wants inquiries; they are usually in circumstances where the government is in
trouble, where it is felt there is something to be found beneath the bland spin-doctoring of
national politics, and so governments will do their best to avoid inquiries”.*® This has led
on occasion to a recourse to the law and, in the case of Gulf War Syndrome, the
establishment of an inquiry chaired by a retired law lord, Lord Lloyd of Berwick, without
Government support or cooperation.
2" HC 606-ii, GBI 09, Ev 22
255 HC (2003-04) 423-i, Q 52
256 Q 624
257 Response to Consultation, CP 12/04,
28 HC Deb, 24 May 2004, Col 1318
*Q615
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78 Government by Inquiry
Parliament as initiator: using the Liaison Committee?
218. As has become apparent during our investigation there is no agreement about the
conditions that need to exist for an inquiry to be established. We have described the
category of inquiry where there should be parliamentary involvement. We have
recommended a consequent amendment to the Inquiries Bill, We have proposed the
form—the Parliamentary Commission—which that involvement should take. We have
also set out possible criteria for calling inquiries but as Lord Norton acknowledges:
“Even if the criteria for an inquiry are satisfied, there is no formal obligation on a
minister to establish one. Parliament should, I believe, consider a mechanism—in
effect, a default mechanism—by which a public inquiry can be triggered by either
House of Parliament”.*
219. British Irish Rights Watch went further, believing that: “Minister(s) responsible for an
issue giving rise to an inquiry should have no hand in setting up the inquiry” as the
“temptation to indulge in a damage limitation exercise is too great”. They therefore
proposed that:
“any MP or Peer should be able to move a resolution for an independent inquiry...
Such a resolution would still require the support of both houses of Parliament, and
we would envisage that inquiries would therefore remain rare events. However, such
a mechanism would remove inquiries from Ministerial, and thus government,
control. ... [T]hose outside Parliament should also be able to apply to the High
Court for an order establishing an inquiry”.
220. Professor Anthony Barker likewise argued that it would be:
“more constitutionally proper for the House of Commons, rather than the executive,
to be seen as the fount of official ‘public inquiry effort, broadly defined—whether on
any particular public policy issues or on alleged failures or misconduct in the central
government or other public services. All major commissioners, committees and
other types of inquiry should, therefore, be appointed and supervised by, and should
report to, the House of Commons via a new senior select committee or
commission”>?
221, Dr Matthew Flinders put forward a similar proposal, arguing for “a process that
facilitates the creation of an official (i.e. publicly funded) inquiry without necessarily being
reliant on the support of the government of the day”. This, he believed, “would help foster
public confidence, The process might take the form of a parliamentary public inquiry that
reported back to a select committee or the House of Commons as a whole. The creation of
an inquiry would be based on a vote in the House being supported by a certain percentage
of members”.** Yet the Government continues to argue that establishing an inquiry is a
ministerial function. Moreover, while noting that “[iJt is for Parliament to consider the
2 HC 606-v, GBI 13, Ev 105
21 Response to Consultation, CP 12/04,
3® Professor Anthony Barker, ‘Public Policy Inquiry and Advice as an Aspect of Constitutional Reform’ The Journal of
Legislative Studies, Vol. 4, No 2, (1998) pp 107-127 at 124.
> Response to Consultation, CP 12/04,
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Government by Inquiry 79
question of whether it might establish its own inquiries”, it continues; “Many questions
would arise regarding the mechanisms for appointing and funding such inquiries”**
While the foregoing ideas have merit and are consistent with the argument we have
advanced, giving Parliament a direct role in initiating inquiries should be a practical
proposition which reflects the realities of our parliamentary system.
222. The House has appointed the Liaison Committee, which includes the chairs of all the
select committees, to provide, among other things, a body of expertise to oversee the
scrutiny role exercised by parliamentary select committees in respect of Ministers and their
Departments. We believe, therefore, that it would provide a suitable forum for arriving at a
considered view on the need for an inquiry into matters of public concern in a particular
area. The Liaison Committee would act, in effect, as a filter against the risk of excessive
demands for inquiries. We recommend that Standing Order No. 145 should be amended
to enable the Liaison Committee to consider the value of a proposal that a specific
matter of public concern should be the subject of a formal inquiry and, if so, to report a
Resolution to the House for its consideration. The House would then come to a final
decision.
Policing the Ministerial Code
223, We have considered the investigation of government conduct in particular areas
which, in our view should be undertaken by Parliament by delegation to a commission.
There is also the matter of the conduct of individual ministers with regard to their
obligations under the Ministerial Code. We pursued the question of how to police the
Ministerial Code with Sir Alan Budd and Sir John Gieve. Although he acknowledged that
his “[ ...] inquiry clearly had implications relating to whether a minister had observed the
Ministerial Code of Conduct” Sir Alan Budd regarded “the Ministerial Code of Conduct
and inquiries relating to such matters as a special topic to be dealt with in a special way by
special bodies whose job it is to make such inquiries”.** Pressed on whether it might be
simpler to have a piece of machinery akin to that of the Parliamentary Commissioner for
Standards in respect of the Code, Sir Alan Budd expressed his liking for:
“the British genius for improvisation and variety and those sorts of things so that you
do not have a set solution; you try to find a solution that is particularly appropriate so
Tam torn so far as this is concerned. However, I can see that the lines along which
you are thinking may be correct, whether it is one person, a panel of people or what
it is”%°°
224. Sir John Gieve provided us with an insight into the makeshift arrangements for
choosing an investigator:
“With the Prime Minister’s agreement [the Home Secretary] said he would ask me to
find an independent investigator, That was announced on the Sunday. I discussed
that with Andrew Turnbull [the Cabinet Secretary] as to who that might be and did
he have a list of potential runners, On the Monday morning I started making some
3% Response to Consultation, CP 12/04
7 Q 808
* Q 866
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80 Government by Inquiry
phone calls to the potential runners to see who was available and willing to do it.
Alan Budd was available, able and willing so he got the job”**” Adding “He [Sir Alan]
was not the first person I rang up but in these circumstances you have a few hours in
which to find someone and you cannot just go for one person”.**
225. The Budd Inquiry was clearly about the Ministerial Code but was not formally so. It
was also set up by the Department and the Minister whose alleged behaviour was an issue.
The arrangements were also hasty and haphazard. None of this is satisfactory and it is time
to consider how the Ministerial Code should be properly policed.
226. In her written evidence to us the Ombudsman, Ann Abraham, argued that extending
her powers into inquiries would be inappropriate and that there are a range of more
appropriate mechanisms, subject to certain criteria being met. In her oral evidence she was
slightly more open to the possibility. She was concerned about the potential that, “if we
were to take on ministerial code-type investigations [they would risk] ... diverting
attention and the attention of this Committee and the attention of the media from the
issues that certainly our stakeholders say they want us to be about as an office seems to me
to be a risk that certainly at present I would not want to take on”.*® But she added “I am.
not saying it is not something that the Ombudsman from time to time could not usefully
do?”
227. The Ombudsman and her staff have certain advantages: expertise and skills in
conducting inquiries mostly into areas of Government actions; powers akin to those of a
High Court judge to compel witnesses and call for evidence and statutory independence.
There are other examples of Ombudsmen undertaking inquiries. Sir Cecil Clothier QC
undertook the Allitt inquiry in 1993 after leaving office The Prisons Ombudsman
conducted an inquiry into the fire at Yarl’s Wood Detention Centre in 2003. As Ann
Abraham indicated in Wales and Northern Ireland the public service ombudsmen have
additional responsibilities with regard to investigating possible breaches in local
government standards,*”
228. This Committee has recommended before that, on referral from the Prime Minister,
or by a resolution of the House the Parliamentary Ombudsman should be empowered to
conduct independent investigations on alleged breaches of the Ministerial Code and to
report to the Prime Minister and to the House.” The Committee believed then that it
could provide greater transparency and accountability to the process of dealing with
complaints against Ministers. An independent parliamentary mechanism for complaints,
such as the Ombudsman, was seen to offer substantial benefits. It would carry greater
weight than the judgement of the Minister, the Prime Minister or the Cabinet Secretary.
That applied both where there is a breach of the Code but it also applies where a Minister
has not transgressed and deserves to be cleared in the most transparent and authoritative
37 Q 869
5° Q.870
3 HC 50, Q5
Ibid. QA
2" Ibid.
>” Third Report of Session 2000-01, The Ministerial Code: Improving the Rule Book, HC 235, para 30
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Government by Inquiry 81
manner. In light of recent events we believe that the time is now right for the
Government to reconsider its view that it would be undesirable to fetter the Prime
Minister's freedom to decide how individual cases should be handled. Accordingly we
recommend that the Parliamentary Ombudsman should be empowered to investigate
alleged breaches of the Ministerial Code and other allegations about the conduct of
individual Ministers.
Conclusion
229, It is because inquiries play an important role in the public life of this country, as part
of the armoury of accountability, that they deserve to be taken seriously. This means
reviewing their operation from time to time to ensure that they are working effectively and
efficiently for the purposes for which they are established. That is what we have set out to
do in this report. It is also why we welcome the Government's proposal to bring inquiries
under a unifying statute. However we have suggested a number of ways in which we
believe the Inquiries Bill can be improved. We also do not want to see Parliament removed
from the picture altogether, as a consequence of the repeal of the Tribunals of Inquiry
(Evidence) Act 1921. That is why we are proposing that there should be a special
mechanism, called a Parliamentary Commission, established as the appropriate form of
inquiry for certain major political issues involving ministers and their departments.
Parliament now has to decide whether it wants to reclaim territory it has lost as far as
inquiries of this kind are concerned, becoming once again the Grand Inquest of the Nation,
or whether it is content to abandon the field to others, and to the executive. If it chooses the
former, then this report offers a means of doing so.
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82 Government by Inquiry
Conclusions and recommendations
1. We agree with Lord Woolfs concerns over the current provisions in the Inquiries
Bill and recommend that decisions about the appointment of judges to undertake
inquiries should be taken co-equally by the Government and the Lord Chief Justice
or senior law lord. (Paragraph 58)
2. We agree with and endorse the view that the use of ‘wing members’ brings expertise,
reassurance, support and protection to inquiry chairs. We particularly recommend
the use of panels in politically sensitive cases as a non-statutory means of enhancing
the perception of fairness and impartiality in the inquiry process. We also
recommend that where judges are seen as the most appropriate chairs, they should
usually be appointed as part of a panel or be assisted by expert assessors or wing
members. (Paragraph 73)
3. It is essential that the terms of reference enjoy broad consensus and are drawn up in
a way which allows full and proper examination of the facts and do not fetter the
inquiry in its task. We recommend that the chair of an inquiry should have the
ability to negotiate the precise terms of reference before agreeing to undertake the
inquiry. We also recommend that the Inquiries Bill should provide specifically for a
short period of consultation after any announcement to ensure that the final terms of
reference meet the expectations of a particular inquiry. This should include
appropriate parliamentary involvement. (Paragraph 85)
4, — We recognise that circumstances may sometimes require Inquiries to hold all or part
of their proceedings in private. Ensuring the independence of the inquiry will serve
to reinforce trust in such circumstances. Although the 1921 Act provides for a
presumption of openness we are concerned that the Government’s new Inquiries Bill
creates wide powers for ministers to restrict access to inquiries, making public
accessibility subject to restriction notices. This subverts accepted presumptions of
openness and public interest and we recommend it should be reversed, (Paragraph
99)
5. The time has clearly come to reformulate the Salmon principles. We recommend
that the procedures followed by inquiries in the last ten years should be reviewed. In
particular there should be a re-evaluation of how to ensure fairness within the
inquisitorial process while minimising the adversarial, legalistic element of inquiries.
Good practice in this field could be codified, possibly through the rule making
powers contained in the Inquiries Bill. (Paragraph 104)
6. We welcome the production of guidance by the Cabinet Secretary on record keeping
and recommend that that it should be published alongside other Fol material such as
the publication scheme, and that the level of compliance with it should be regularly
reviewed, (Paragraph 111)
7. We welcome the powers in the Inquiries Bill enabling chairs to administer an oath
and other powers of compulsion. We recommend that, in addition to the
appropriate statutory powers, inquiries dealing with public bodies should require the
10.
il.
12.
13.
4,
Government by Inquiry 83
permanent heads of such bodies to certify that rigorous systems have been applied
for the discovery of documents and noting any problems. This ‘certificate’ could
form part of the ‘core bundle’ of inquiry documents. (Paragraph 116)
We acknowledge that setting arbitrary deadlines can only be counterproductive in a
process which is intended to establish the facts, provide public reassurance and in
many cases have a healing and cathartic effect. Nonetheless this is not incompatible
with announcing an estimated duration on the model of the BSE or Butler Inquiries,
Such a timescale would be non-binding and open to being revisited in light of
developments and we so recommend. (Paragraph 123)
We recommend that Ministers should announce a broad budget figure fairly early on
at the start of an inquiry. Any increases over the announced limits would then need
to be publicly explained at the end of the inquiry when final costs are published.
(Paragraph 127)
We recommend that while it is compiling central guidance on the calling, use and
procedures of inquiries, the Government should consider whether research should
be undertaken by an appropriate body, such the National Audit Office, into the value
for money which inquiries represent. This should assess their outcomes and evaluate
alternatives. (Paragraph 133)
We welcome the requirement in the Inquiries Bill for reports to be published in full.
We recommend that the presumption should be for chairs to handle publication.
This should be reflected in the Bill. Publication arrangements should ensure fairness
to all those concerned and the Government should allow adequate time for
Parliamentary consideration and debate. (Paragraph 136)
We recommend that departments should have a duty to report on the
implementation of recommendations at regular intervals, and in any case within the
first two years of the end of an inquiry, These reports should cover the extent to
which recommendations have been met and describe the wider cultural changes
which have been brought about as a result. Select committees are well placed to
undertake this kind of assessment on the outcome of an inquiry on the basis of such
departmental reports as part of their core tasks, and we recommend that the Liaison
Committee should support the inclusion of such work in select committee work
programmes. (Paragraph 147)
If they are to be successful, recommendations need to be workable in practice. We
recommend that inquiries should be expected and enabled to test out potential
recommendations and proposals prior to finalising their reports, although
nevertheless, chairs of inquiries should not allow this process to undermine their
independence in any way. (Paragraph 152)
We should not keep reinventing the inquiry wheel. We welcome the concept of a
support unit but recommend the Unit’s size and role should be limited and
proportional to the relative infrequency of large inquiries and to the degree of
guidance and advice which can be made available through other means. The
accumulated experience of past inquiries, such as the procedural elements of inquiry
reports, subsequent lectures, presentations and internal notes as well as official
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84 Government by Inquiry
15.
16.
17.
18.
19,
20.
21.
guidance should be consolidated and made available on a publicly accessible website.
Given its small size we further recommend that such a support unit should be co-
located with a central government department such as the Cabinet Office or the
Department for Constitutional Affairs. However, in recognition of the need for
independence for inquiries the unit should operate independently of its host
department and should include secondees from bodies versed in investigatory
processes such as the NAO, the Ombudsmen community and Select Committee
staff. (Paragraph 161)
Drawing on the foregoing and in the light of the experience now available of the
inquiry process, we believe it should be possible to draw up a set of principles
defining good practice for an inquiry (Paragraph 166)
We recommend the following principles as a basis for discussion and an exercise.
(Paragraph 166)
We recommend that Clause 1 of the Inquiries Bill should be amended to provide for
parliamentary resolutions where the events causing public concern which may have
occurred involve the conduct of ministers. We further recommend that the
procedural framework for an inquiry called under this new sub-clause which we have
described should be the subject of a Parliamentary Resolution once the Bill has
passed into law. (Paragraph 178)
We recommend that Ministers should justify their decisions whether to hold an
inquiry or not on the basis of a published set of criteria and propose the following as
a possible basis for this (Paragraph 184)
We recommend the development of clear criteria for calling inquiries and
straightforward categorisation establishing a distinction between those which are
politically sensitive and those which are not, on the basis of our exemplars, to ensure
that calls for judicial public inquiries and the appropriate involvement of Parliament
can be properly assessed and decisions on form can be taken on that basis.
(Paragraph 193)
The similarity in form of the Franks and Butler Committees with that of a Joint
Committee is striking but, as Committees of Privy Counsellors, their nature is
fundamentally different and, from a constitutional point of view, less satisfactory.
We recommend that in future inquiries into the conduct and actions of government
should exercise their authority through the legitimacy of Parliament in the form of a
Parliamentary Commission of Inquiry composed of parliamentarians and others,
rather than by the exercise of the prerogative power of the Executive. (Paragraph
215)
We recommend that Standing Order No. 145 should be amended to enable the
Liaison Committee to consider the value of a proposal that a specific matter of public
concern should be the subject of a formal inquiry and, if so, to report a Resolution to
the House for its consideration, The House would then come to a final decision.
(Paragraph 222)
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22.
Government by Inquiry 85
In light of recent events we believe that the time is now right for the Government to
reconsider its view that it would be undesirable to fetter the Prime Minister's
freedom to decide how individual cases should be handled. Accordingly we
recommend that the Parliamentary Ombudsman should be empowered to
investigate alleged breaches of the Ministerial Code and other allegations about the
conduct of individual Ministers. (Paragraph 228)
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86 Government by Inquiry
Annex 1
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88 Government by Inquiry
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90 Government by Inquiry
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92 Government by Inquiry
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94 Government by Inquiry
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Government by Inquiry 95
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96 Government by Inquiry
Annex 2
INQUIRIES BILL [HL]—DRAFT NEW CLAUSES & AMENDMENTS
Clause 1
Page 1, line 7, at end insert—
“(1A) But subsection (1) shall not apply where the events referred to involve the conduct of any Minister
of the Crown”,
After Clause 1
Insert the following new Clause—
“Inquiry involving conduct of Minister of the Crown
(1) Where—
(a) particular events have caused, or are capable of causing, public concern, or
(b) there is public concern that particular events may have occurred, and
(c) the events that have occurred or may have occurred involve the conduct of any
Minister of the Crown,
Her Majesty may, by Order in Council, cause an inquiry to be held under this Act.
(2) An Order under this section shall include—
(a) the terms of the instrument appointing the chairman of the inquiry;
(b) the date that is to be the setting-up date for the purposes of this Act;
(©) the terms of reference of the inquiry; andthe names of any other members of the
inquiry panel.
(3) An Order under this section may provide that the inquiry shall have all such powers, rights and
privileges as are vested in the High Court of England and Wales or of Northern Ireland or, in
Scotland, in the Court of Session, or in a judge of such court in respect of—
(a
enforcing the attendance of witnesses and examining them on oath, affirmation or
otherwise;
(b) compelling the production of documents; and
(c) subject to the rules of court, issuing commissions or requests to examine witnesses
abroad,
(4) An Order in Council made under this section may be revoked, amended or varied by a
subsequent Order.
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Government by Inquiry 97
(5) Before any Order in Council is made under this section, a draft of it shall be laid before each
House of Parliament.
(6) An Order under this section shall not have effect unless both Houses of Parliament by resolution
approve the draft or, if any modifications to it are agreed to by both Houses, shall not have effect
except as so modified.
(7) Sections 7, 8 and 9 of this Act shall not apply to inquiries established under this section.
Insert a new Clause as a consequential amendment concerning an Inquiry involving the conduct of
Scottish Ministers, Assembly Secretaries of the National Assembly for Wales or Northern Ireland
Minister.
Clause 40
Page 21, line 17, after “inquiry” insert “not being an inquiry pursuant to section (inquiry involving
conduct of Minister of the Crown)”.
Page 21, line 18, at end insert—
“(4A) References in this Act to “the Minister”, in relation to an inquiry pursuant to section (inquiry
involving conduct of Minister of the Crown), are to be read as references to Her Majesty in
Council”.
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98 Government by Inquiry
Annex 3
The Salmon Principles
1, Before any person becomes involved in an inquiry, the Tribunal must be satisfied that
there are circumstances which affect him and which the Tribunal proposes to investigate.
2. Before any person who is involved in an inquiry is called as a witness, he should be
informed of any allegations which are made against him and the substance of the evidence
in support of them.
3. (a) He should be given an adequate opportunity of preparing his case and of being
assisted by his legal advisers. (b) His legal expenses should normally be met out of public
funds.
4, He should have the opportunity of being examined by his own solicitor or counsel and
of stating his case in public at the inquiry.
5, Any material witness he wishes called at the inquiry should, if reasonably practicable, be
heard.
6. He should have the opportunity of testing by cross-examination conducted by his own
solicitor or counsel any evidence which may affect him,
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Government by Inquiry 99
Formal minutes
Thursday 27 January 2005
Members present:
Tony Wright, in the Chair
Mrs Anne Campbell Mr Kelvin Hopkins
Mr David Heyes Mr Gordon Prentice
The Committee deliberated.
Draft Report (Government by Inquiry), proposed by the Chairman, brought up and read.
Ordered, That the Chairman’s draft Report be read a second time, paragraph by paragraph.
Paragraphs 1 to 229 read and agreed to,
Summary agreed to,
Annexes agreed to.
Resolved, That the Report be the First Report of the Committee to the House.
Ordered, That the Chairman do make the Report to the House.
Ordered, That the provisions of Standing Order No. 134 (Select committees (reports)) be
applied to the Report.
[Adjourned till Thursday 3 February at 9.30am
100 Government by Inquiry
Witnesses
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Thursday 13 May 2004 (HC 606-i)
Rt Hon Lord Hutton
Thursday 25 May 2004 (HC 606-ii)
Rt Hon Lord Falconer of Thoroton QC, Secretary of State for Constitutional
Affairs and Lord Chancellor
Tuesday 15 June 2004 (HC 606-iii)
Lord Laming CBE DL
Tuesday 22 June 2004 (HC 606-iv)
Dr Tim Baxter, former Secretary to the Ashworth Hospital Inquiry and Mr
Alun Evans, former Secretary to the Foot and Mouth Lessons Learned
Inquiry
Tuesday 13 July 2004 (HC 606-v)
Rt Hon Lord Howe of Aberavon CH QC and Professor Lord Norton of Louth
Thursday 21 October 2004 (HC 606-vi)
Rt Hon Lord Butler of Brockwell KG GCB CVO
Thursday 11 November 2004 (HC 606-vii)
Sir John Gieve KCB, Sir Brian Bender KCB and Professor Sir Liam Donaldson
Rt Hon Frank Dobson MP and Rt Hon Lord Heseltine CH
Thursday 9 December 2004 (HC 51-i)
Sir Michael Bichard KCB, Sir Louis Blom-Cooper QC and Sir lan Kennedy
Rt Hon Lord Morris of Manchester AO QSO
Tuesday 14 December (HC 51-ii)
Rt Hon Lord Woolf of Barnes, Lord Chief Justice
Wednesday 12 January 2005
Sir Alan Budd
Sir John Gieve KCB, Permanent Secretary, Home Office
Ev 61
Ev79
Ev 91
Ev 107
Ev 120
Ev 138
Ev 154
Ev 165
Ev 177
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Ev 194
Ev 202
Government by Inquiry 101
List of written evidence
Mrs S Grapes (GBI 01)
The Reverend A Pyke (GBI 02)
PIELLE Consulting Group (GBI 04)
Law Reform Commission of Ireland (GBI 05)
Robert Francis Q.C (GBI 06)
Ann Abraham, Parliamentary and Health Service Ombudsman (GBI 07)
Centre for Effective Dispute Resolution (CEDR) (GBI 08)
Dr lain S MacDonald CB (GBI 11)
David Hinchliffe MP, Chair of the Health Committee (GBI 12)
Sir Cecil Clothier (GBI 14)
Roger Masterman, University of Durham (GBI 15)
Lee Hughes CBE, Head of Judicial Competitions (Courts) Division (GBI 16)
Professor Jeffrey Jowell QC (GBI 17)
Graham Mather, President, European Policy Forum (GBI 20)
National Foot and Mouth Group (GBI 23)
lain McLean, Professor of Politics, Oxford University (GBI 26)
Ev1
Ev1
Evi
Ev7
Ev8
Ev 20
Ev 22
Ev 26
Ev 28
Ev 28
Ev 28
Ev 34
Ev 39
Ev 39
Ev 42
Ev 44
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102 Government by Inquiry
Reports from the Public Administration
Select Committee since 2001
Session 2004-05
First Report
Session 2003-04
First Report
Second Report
Third Report
Fourth Report
Fifth Report
First Special Report
Session 2002-03
First Special Report
First Report
Second Report
Third Report
Fourth Report
Fifth Report
Sixth Report
Session 2001-02
First Report
Second Report
Third Report
Government by Inquiry
A Draft Civil Service Bill: Completing the Reform
The Work of the Committee in 2003
Ministerial Accountability and Parliamentary
Questions
Taming the Prerogative: Strengthening Ministerial
Accountability to Parliament
A Matter of Honour: Reforming the Honours System
Ministerial Accountability and Parliamentary
Questions: Government Response to the Committee’s
Third Report of Session 2003-04"
The Public Service Ethos: Government's Response to
the Committee's Seventh Report of Session 2001-02
Ministerial Accountability and Parliamentary
Questions: The Government Response to the Ninth
Report from the Committee (Session 2001-02)
The Work of the Committee in 2002
Ombudsman Issues
Government By Appointment: Opening up the
Patronage State
On Target? Government By Measurement
On Target? Government By Measurement: the
Government's Response to the Committee's Fifth
Report
Public Participation: Issues and Innovations: The
Government Response to the Committee's Sixth
Report of Session 2000-01
The Ministerial Code: Improving the Rule Book: The
Government Response to the Committee's Third
Report of Session 2000-01
Special Advisers: Boon or Bane: The Government
Response to the Committee's Fourth Report of
Session 2000-01
HC 51-1
HC 128-1
HC 229
HC 355 (HC 1262)
HC 422 (Cm 6187)
HC 212-1
HC 1262
HC 61
HC 136
HC 447
HC 448 (Cm 5890)
HC 165-1
HC 62-1 (HC 1264)
HC 1264
HC 334
HC 439
HC 463
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Fourth Report
Fifth Report
Sixth Report
Seventh Report
Eighth Report
Ninth Report
Ministerial Accountability and Parliamentary
Questions: The Government Response to the
Committee's Second Report of Session 2000-01
The Second Chamber:
ontinuing the Reform
The Second Chamber: Continuing the Reform: The
Government Response to the Committee's Fifth
Report
The Public Service Ethos
“These Unfortunate Events”: Lessons of Recent
Events at the Former DTLR
Ministerial Accountability and Parliamentary
Questions
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Government by Inquiry 103
HC 464
HC 494-1 (HC 794)
HC 794
HC 263-1 (HC 61)
HC 303-1 (Cm 5756)
HC 1086 (HC 136)
The response to the report is printed in brackets after the HC printing number,
Printed in the United Kingdom by The Stationery Office Limited
2/2005 994252 19585