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THE INQUIRIES ACT 2005
The full text of the Act can be found at http://www.opsi.gov.uk/acts/acts2005/20050012.htm
The Explanatory Notes can be found at http://www.opsi.gov.uk/acts/en2005/2005en12.htm
1. summary of the main provisions of the act
reasons for setting up inquiries
Under s. 1 of the Act any government Minister can set up an inquiry if
(a) particular events have caused, or are capable of causing, public concern, or
(b) there is public concern that particular events may have occurred.
powers of inquiries
An inquiry panel does not have the power to determine any person’s civil or criminal liability (s. 2).
The chair has the power to compel witnesses and the production of documents and other evidence (s. 21).
inquiry panels
An inquiry can be conducted by a single chair or a chair sitting with other panel members (s. 3).
Panel members are all appointed by the Minister. If there are more than one panel members, then the person the Minister appoints to chair the inquiry must be consulted about the appointment of the other members. (s. 4) The Minister may at any time appoint further panel members to fill a vacancy or increase the number of panel members (s. 7). In appointing a member of the inquiry panel, the Minister must have regard—
(a) to the need to ensure that the inquiry panel (considered as a whole) has the necessary expertise to undertake the inquiry;
(b) in the case of an inquiry panel consisting of a chairman and one or more other members, to the need for balance (considered against the background of the terms of reference) in the composition of the panel. (s.8)
If a judge is appointed to an inquiry panel, the Minister must first consult the Lord Chief Justice (or his equivalent in other jurisdictions) (s. 10). The Minister may also appoint assessors with the necessary expertise to assist the inquiry panel (s. 11).
The Minister must not appoint a person as a member of the inquiry panel if it appears to the Minister that the person has—
(a) a direct interest in the matters to which the inquiry relates, or
(b) a close association with an interested party,
unless, despite the person’s interest or association, his appointment could not reasonably be regarded as affecting the impartiality of the inquiry panel. (s. 9)
The Minister may at any time terminate the appointment of a member of an inquiry panel—
(a) on the ground that, by reason of physical or mental illness or for any other reason, the member is unable to carry out the duties of a member of the inquiry panel;
(b) on the ground that the member has failed to comply with any duty imposed on him by this Act;
(c) on the ground that the member has—
(i) a direct interest in the matters to which the inquiry relates, or
(ii) a close association with an interested party, such that his membership of the inquiry panel could reasonably be regarded as affecting its impartiality (unless these were known to the Minister at the time of the appointment);
(d) on the ground that the member has, since his appointment, been guilty of any misconduct that makes him unsuited to membership of the inquiry panel.
Before terminating an appointment the Minister must consult the chair, allow the person to make representations, and consult the other panel members if the person so requests. (s. 12)
terms of reference
The Minister decides the terms of reference of an inquiry and may amend them at any time if s/he considers that the public interest so requires. In setting or amending the terms of reference, the Minister must consult the chair, but is not obliged to consult any other person. The terms of reference are defined as including:
(a) the matters to which the inquiry relates;
(b) any particular matters as to which the inquiry panel is to determine the facts;
(c) whether the inquiry panel is to make recommendations;
(d) any other matters relating to the scope of the inquiry that the Minister may specify. (s. 5)
informing parliament
The Minister must as soon as is reasonably practicable make a written or oral statement the relevant Parliament or Assembly, stating
(a) who is to be, or has been, appointed as chairman of the inquiry;
(b) whether the Minister has appointed, or proposes to appoint, any other members to the inquiry panel, and if so how many;
(c) what are to be, or are, the inquiry’s terms of reference.
A statement must also be made if the terms of reference are amended. (s. 6) Parliament does not have the power to debate this statement
The Minister sets the date when the inquiry will start, and the inquiry may not begin its deliberations before that date (s. 5).
suspension of an inquiry
The Minister may at any time, after consulting the chair, suspend an inquiry for such period as appears to him to be necessary to allow for—
(a) the completion of any other investigation relating to any of the matters to which the inquiry relates, or
(b) the determination of any civil or criminal proceedings (including proceedings before a disciplinary tribunal) arising out of any of those matters. (s.13)
The Minister must give reasons for suspending the inquiry and lay a copy of the notice, as soon as is reasonably practicable, before the relevant Parliament or Assembly. (s.13)
termination of an inquiry
The Minister may terminate an inquiry at any time. If s/he does so before the inquiry has delivered its report, the Minister must consult the chair, set out the reasons, and notify Parliament. (s.14)
conversion of inquiries
Any inquiry set up under other arrangements can be converted into an inquiry under the Inquiries Act provided the person who set up the original inquiry (who may, of course, be the same Minister) consents. The Minister may also, with the consent of the chair, amend the inquiry’s original terms of reference. S/he can also appoint different panel members. (s.15)
practice and procedure
The procedure and conduct of an inquiry are to be decided by the chair, who has the power to hear evidence under oath. The chair must act with fairness and with regard also to the need to avoid any unnecessary cost. (s. 17) However, the Lord Chancellor (and other office-holders in other jurisdictions) has the power to make rules for practice and procedures during inquiries (s.41). The Department of Constitutional Affairs has put out a document discussing potential rules and says it will carry out a consultation exercise in 2005.
public access
The chair must take such reasonable steps to enable members of the public and reporters to attend the inquiry or to see and hear a simultaneous transmission of proceedings at the inquiry, and to obtain or to view a record of evidence and documents given, produced or provided to the inquiry or inquiry panel (s. 18). However, the chair has the power to issue a restriction order limiting or preventing
(a) attendance at an inquiry, or at any particular part of an inquiry;
(b) disclosure or publication of any evidence or documents given, produced or provided to an inquiry.
The Minister has the same powers, by issuing a restriction notice. (s. 18)
restriction orders and notices
Any restriction notice or order must be conducive to the inquiry fulfilling its terms of reference or be necessary in the public interest. The person issuing the notice or order must have regard to:
(a) the extent to which any restriction on attendance, disclosure or publication might inhibit the allaying of public concern;
(b) any risk of harm or damage that could be avoided or reduced by any such restriction; “Harm or damage” includes:
(i) death or injury;
(ii) damage to national security or international relations;
(iii) damage to the economic interests of the United Kingdom or of any part of the United Kingdom (unless the public interest in the information being revealed outweighs the public interest in avoiding a risk of damage to the economy –
s. 23);
(iv) damage caused by disclosure of commercially sensitive information.
(c) any conditions as to confidentiality subject to which a person acquired information that he is to give, or has given, to the inquiry;
(d) the extent to which not imposing any particular restriction would be
likely—
(i) to cause delay or to impair the efficiency or effectiveness of the inquiry, or
(ii) otherwise to result in additional cost (whether to public funds or to witnesses or others). (s.18)
After the end of an inquiry the Minister may
(a) revoke a restriction order or restriction notice containing disclosure restrictions that are still in force, or
(b) vary it so as to remove or relax any of the restrictions. (s. 20)
Equally, restriction notices and orders may remain in force indefinitely.
public interest immunity
The rules on public interest immunity apply to inquiries in the same way as they do in the civil courts (s. 22).
reports
Inquiries must deliver a report to the Minister setting out the facts determined by the inquiry panel and their recommendations. There is no provision for dissenting reports, but if the panel is not unanimous the report must reasonably reflect any disagreements. (s. 23) The chair is responsible for publishing the report, unless the Minister decides to take over that responsibility. Reports should be published in full but the person responsible for publishing a report may withhold material
(a) as is required by any statutory provision, enforceable Community obligation or rule of law, or
(b) as the person considers to be necessary in the public interest.
The public interest is defined in the same way as it is for the purposes of restriction notices and orders. (s. 25) Reports must be laid before Parliament (s. 26). There is is no provision for debating such reports.
judicial review
Any judicial review of a decision made by a Minister in relation to an inquiry or by the inquiry itself must be lodged within 14 days, which is shorter than the usual time limit of 3 months.
withholding the costs of an inquiry
If a Minister thinks an inquiry has acted outside its terms of reference, s/he can refuse to pay for that aspect of the inquiry (s. 39).
limitations on inquiries in scotland and wales
Inquiries which are the responsibility of the Scottish Ministers may not determine any fact or make any recommendation that is not wholly or primarily concerned with a Scottish matter. The Chair’s powers to compel witnesses and disclosure of documents apply only to Scottish matters. (s. 28) There are identical provisions in respect of an inquiry that is the responsibility of the National Assembly for Wales (s. 29).
limitations on inquiries in northern ireland
Similar provisions apply in Northern Ireland where a Northern Ireland Minister is responsible for the inquiry. Additionally, a Northern Ireland Minister may not order an inquiry into any event occurring prior to 2nd December 1999, when devolution took place in Northern Ireland, or during any period when the Northern Ireland Assembly was suspended. Northern Ireland inquiries may only deal with matters that have been transferred to Northern Ireland under devolution; they cannot look into excepted matters such as national security. (s. 30)
repeal of other legislation governing inquiries
The Inquiries Act repeals other legislation previously governing inquiries, most notably the Tribunals of Inquiry (Evidence) Act 1921, which governed public inquiries.
2. CRITIQUE OF THE INQUIRIES ACT
The Inquiries Act has brought about a fundamental shift in the manner in which the actions of government and public bodies can be subjected to scrutiny in the United Kingdom. The powers of independent chairs to control inquiries has been usurped and those powers have been placed in the hands of government Ministers. The Minister:
· decides whether there should be an inquiry
· sets its terms of reference
· can amend its terms of reference
· appoints its members
· can restrict public access to inquiries
· can prevent the publication of evidence placed before an inquiry
· can prevent the publication of the inquiry’s report
· can suspend or terminate an inquiry
· can withhold the costs of any part of an inquiry which strays beyond the terms of reference set by the Minister.
Parliament’s role has been reduced to that of the passive recipient of information about inquiries, whereas under the 1921 Act reports of public inquiries were made to Parliament. Now, not only is there no guarantee that any inquiry will be public, but inquiry reports will go to the Minister.
The Minister’s role is particularly troubling where the actions of that Minister or those of his or her department, or those of the government, are in question. In effect, the state will be investigating itself. In our view, the Inquiries Act is at odds with the United Nations’ Updated Set of principles for the protection and promotion of human rights through action to combat impunity.
Where Article 2 of the European Convention on Human Rights (which protects the right to life) is engaged, the Inquiries Act is at variance with the United Nations’ Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions. Indeed, we doubt that the Inquiries Act can deliver an effective investigation in compliance with Article 2. The Minister’s powers to interfere in every important aspect of an inquiry robs it of any independence. Even if a Minister were to refrain from exercising those powers that are discretionary, s/he still has absolute power over whether there should be an inquiry at all and over its terms of reference. There is no scope for victims to be involved in or even consulted about the process.
Lord Saville, who chaired one of the most complex public inquiries in UK legal history, the Bloody Sunday Inquiry, has expressed grave reservations about the Act. In a letter to Baroness Ashton at the Department of Constitutional Affairs, dated 26th January 2005, he voiced particular concern about restriction notices and orders, saying:
“I take the view that this provision makes a very serious inroad into the independence of any inquiry and is likely to damage or destroy public confidence in the inquiry and its findings, especially in cases where the conduct of the authorities may be in question.”
He added that such ministerial interference with a judge’s ability to act impartially and independently of government would be unjustifiable. He further stated that neither he nor his fellow judges on the BSI would be prepared to be appointed as a member of an inquiry that was subject to a provision of that kind.
Lord Norton, who is Professor of Government at the University of Hull, said during parliamentary debate about the Inquiries Bill:
“Given the powers vested in a Minister, one has to wonder who would accept appointment to serve on an inquiry if independence were not guaranteed.”[1]
JUNE 2005
For Peace Justice & Human Rights
