Inquiries Act 2005 (Select Committee Report)

Lord Shutt of Greetland Excerpts

Thursday 19th March 2015 Lords Chamber

Moved by

[Lord Shutt of Greetland]

That this House takes note of the report of the Select Committee on the Inquiries Act 2005 (Session 2013–14, HL Paper 143).

[Lord Shutt of Greetland (LD)]

My Lords, I invite the House to take note of the report of the Select Committee on the Inquiries Act 2005. I received several wry smiles while undertaking the chairmanship of the committee, when people asked what I was doing in the House of Lords and I said I was inquiring into the Inquiries Act. I believe it has been a useful piece of work to do.

We are privileged in this debate today to hear the noble Viscount, Lord Tenby, give his valedictory speech. We will all be able to say that we were present when the last Lloyd George—for the present, at any rate—concludes service in Parliament. We look forward to his contribution and wish him well in his new life.

I thank my colleagues who served with me on the committee. We had members who have set up inquiries and members who have chaired inquiries as well as those who have been scarred by inquiries. But we also had an abundance of lawyers. We have been well served by our clerk, Michael Collon, assisted by Emily Greenwood and our special adviser, Professor Carol Harlow. I also thank the witnesses who have given their time and talents, both in written and in oral form, to assist in our work.

I believe that the committee has produced a thorough piece of work, based on much evidence. We have also had the benefit of our own visit to the only inquiry that was taking place at that time—the Al-Sweady inquiry. We were concerned to take evidence and meet not only people who had chaired inquiries and had been counsel or panel members but also secretaries, solicitors and assessors, co-participants, academics, legal specialists, interest groups and others. We endeavoured to look at all participants in the inquiry process.

Inquiries are usually set up because of an overwhelming concern at an event, or a series of events, in the public domain that has gone wrong and something serious must be done for confidence in that area of work to return. One of our witnesses, Robert Francis QC, now Sir Robert, set out his summary of the reasons for holding a public inquiry. He concluded that the reasons include:

“establishing the facts leading up to a matter of concern; determining the explanations for and causes of things which have gone wrong; identifying those responsible for deficiencies or performance failures; establishing the lessons to be learned from what has happened; making recommendations intended to correct the deficiencies for the future”.

In our post-legislative scrutiny of the Act we have tried to see how objectives such as those can be achieved.

Our report contains 33 recommendations which come very much from our consideration of the evidence. These recommendations follow the sequence of the report, and, of course, some are more vital than others. I want to highlight three of the main recommendations.

The first is that, although we recommend some improvements, the Inquiries Act 2005 is a good Act and should be used. We were surprised to find that, on so many occasions, Ministers had set up inquiries other than under the Act. All our evidence was that, except in circumstances concerning security matters, the Act should be used. We note that since we reported back in March 2014, two new inquiries have been announced under the Act. Perhaps a lesson has been learnt a little, but we hope to learn more about that.

The second of our recommendations that I would like to speak about is recommendation 12, where we recommend the setting up of a unit. We suggested that it should be under Her Majesty’s Courts and Tribunals Service and serve as the centre of excellence and expertise for all the practical details of setting up an inquiry. It is the existence of the unit that is important; it may be appropriate to put it somewhere else in government, but we suggested that particular department. The unit would be responsible for making clear the location of premises that could be used for inquiries, their infrastructure and the necessary IT. We heard many stories of inappropriate IT procurement and cost. The unit should also look at staffing and work closely with the chairman and the secretary of each inquiry. We heard much evidence from people responsible for setting up the administration of inquiries. They said that when they had started, it was a matter of reinventing the wheel, as if there had never been an inquiry before. We also believe that the unit should be a place where lessons-learnt papers should be placed so that best practice can be distilled and updated. Indeed, the unit could retain vital contacts for future involvement. We were shocked that that information, which is supposed to be kept somewhere, was just not kept.

Recommendation 25, which is the third matter that I want to raise, relates to warning letters. The evidence led us to recommend that inquiry Rules 13 to 15 of the Inquiry Rules 2006 should be withdrawn. Several chairmen raised this issue with us and we became aware that the use of these rules prolonged inquiries by several months, with the consequent delay in publication of the inquiry report. We must always remember that when we have inquiries, people are desperate to learn their results and do not want to wait and wait. I am sure that other members—and I am delighted that nine of the 12 of us are listed to speak today—will highlight other elements of the report that they believe are particularly important.

The report was published on 11 March 2014, now over 12 months ago. I understand that the government response was due within two months. I was asked if the Government could have more time to respond. Being of a somewhat generous disposition, I acquiesced to that request. The response was published on 30 June but, sadly, we found it somewhat disappointing. In his foreword to the report, the right honourable Simon Hughes, the Minister of State for Justice and Civil Liberties, said:

“The Inquiries Act potentially touches upon every department of state, and the Government has given careful consideration to the Select Committee’s 33 recommendations, agreeing with the majority of them. We will implement changes as soon as practicable and, where primary legislation is needed, when parliamentary time allows”.

That was not correct arithmetically. I reckon that 10 recommendations were accepted; four were “accepted, but”; 14 were rejected; and five were “rejected, but”. However, we should really look at the weight in terms of importance, and the weight was very much on the rejection side.

With the good will of the by then former members of the committee and our clerk, the committee met again and sought a meeting with Simon Hughes, which was readily agreed to. We met on 29 October and had a full and frank discussion. The Minister asked that he be given a month to see what he could do about our concerns, particularly the three issues I raised earlier. We have been waiting. Very many inquiries have been made. I was told on one occasion that the Ministry of Justice had concluded its work and matters rested with the Cabinet Office. If there is a government turf war, that is very sad. The latest inquiry, made yesterday, brought news that the noble Lord, Lord Faulks, will be addressing concerns today. We look forward to his response. It occurs to me that I am right to ask the noble Lord, Lord Faulks, in the circumstances we find ourselves in, if he will provide a supplementary written response after today.

I have one further thing that I think it is important to raise, not necessarily for the Minister, but for the Chairman of Committees and the Liaison Committee. Our experience leads me to suggest that once a Select Committee has produced its report, as we did in March 2014, the committee should not be laid down but retained in light dormancy in order to respond to further developments and, indeed, not completely laid down before a final meeting after the report has been debated. I have been reading the Hansard report of a debate I witnessed a week ago on the report of the committee of the noble and learned Lord, Lord Hardie, on the Mental Capacity Act 2005. It seems that that committee faced very similar circumstances. It did better than us in that it got a written response from the Minister the day before the debate. Again, it was the noble Lord, Lord Faulks, and he said that the Government were taking a slightly different view—a better view as far as the committee was concerned—from that taken in the government response which had been published earlier.

It has been a privilege to do this work and I commend the report to the House. I beg to move.

--- Later in debate ---

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, I thank my noble friend Lord Shutt for initiating this debate to discuss the Select Committee’s report on the Inquiries Act 2005, and in particular the Government’s much criticised response to its recommendations. I also thank all other noble Lords who have contributed to this debate. If it is to be my last appearance at the Dispatch Box—I am most grateful to the noble Lord, Lord Beecham, for his remarks in that respect—it is a great privilege not only to be involved in a debate of this quality with so many participants of enormous experience, but also to be present on the occasion of the valedictory speech of the noble Viscount, Lord Tenby. I have not had the privilege of knowing him well; I wish I had known him better. I do know, however, that he was the assistant to no fewer than five Convenors of the Cross Benches. Perhaps I could dare this observation: I suspect that that might well have been quite a challenging occupation on some occasions.

Before finally turning to the debate itself, perhaps I may reciprocate the comments of the noble Lord, Lord Beecham. He has been a formidable opponent—not to say a thorn in my side—during the time that I have been standing at the Dispatch Box. He has held the Government to account with tremendous ferocity accompanied at the same time by great wit. I pay tribute to him for that.

The report of the noble Lord, Lord Shutt, received a response from the Government. The noble Lord, Lord Soley, suggested that in the welcome expressed by my ministerial colleague, Simon Hughes, there was a subtext that the Government did not in fact welcome the report. I am here to disabuse him on that particular matter: the Government do indeed welcome the report and know that the committee invested a considerable amount of time and effort in understanding the operation of inquiries both under the Act and otherwise. The committee’s work has undoubtedly prompted a lively and constructive debate today.

I am grateful to all those who have given evidence to the inquiry—both written evidence and in person—including former chairs, panel members, inquiry legal and administrative teams, and others with involvement in inquiries, who provided invaluable knowledge, experience and insight into how inquiry processes and procedures might be improved.

I assure the noble Lord, Lord Shutt, and his committee that their report was well received across government and that careful consideration was given to the recommendations. It is worth making clear to the House that the response submitted by my right honourable friend Simon Hughes, the Minister of State for Justice and Civil Liberties, who has responsibility for this policy area at the Ministry of Justice, reflected opinion across the whole of Whitehall, not just that of our department. As my noble friend Lord King pointed out, the possible need for these inquiries can confront Ministers in different departments with different levels of experience. It is important that there should be—this is very much the burden of one of the recommendations—a degree of sharing of knowledge and experience to enable a proper response to be given by Ministers in different departments to the call, as there often is, for a public inquiry.

For the benefit of those who are not familiar with this aspect of government, the Ministry of Justice works closely with the Cabinet Office in the operation of inquiries. My department has responsibility for the Inquiries Act 2005 and the Inquiry Rules 2006, which underpin the Act. It provides advice on the application of the Act and the rules. The Cabinet Office has responsibility within government for providing guidance on how to establish and conduct inquiries, and provides the main liaison between lead departments and the centre of government.

Regardless of how they are constituted—whether they are statutory or not—and as a number of noble Lords quite rightly said, public inquiries perform an important role in today’s society of holding public bodies to account, as well as bringing to light, and providing answers to, issues and events that cause public concern. Setting up a major public inquiry is a process that of course the Government take extremely seriously. There is a clear requirement in the Ministerial Code reflecting the importance that is attached to major inquiries of this nature. It states that:

“The Prime Minister must be consulted in good time about any proposal to set up … Major public inquiries under the Inquiries Act 2005”.

I know that the noble Lord, Lord Shutt, and his committee colleagues may feel that the Government took a long time to respond to their recommendations. However, as I have alluded to already, the Ministry of Justice consulted widely to make sure that the response was as comprehensive as possible. Some government departments had little experience of running an inquiry while others had much to offer. As it was, and simply for the sake of the record, the committee’s report was published on 11 March and the Government’s response was published on 30 June.

The noble Lord, Lord Shutt, referred, by way of comparison, to the report of the noble and learned Lord, Lord Hardie—another essay in post-legislative consideration—on the Mental Capacity Act. I was the Minister who responded to that debate. Lest it be thought that the Government are serial offenders in late responses, I should correct one slight misunderstanding that my noble friend may have in that respect. We did in fact respond to that report well within time. The letter that I wrote, and which was referred to in the debate, was a response to the noble Lord, Lord Beecham, simply to update the House as to what had been done to implement the various recommendations—I am glad to see the noble Lord nodding to affirm this. It enabled the debate to be much shorter because the House was made aware of the up to date position. The point that my noble friend makes is a valuable one, but it is not an appropriate criticism of the Government in that respect.

Here, the Select Committee’s report reflected a number of concerns about the use and operation of the 2005 Act and contained 33 recommendations. There were three broad areas of concern that my noble friend Lord Shutt focused on. First, the Committee believed that, when considering what form an inquiry should take, it should be Ministers’ practice to start from a presumption that the 2005 Act should be used—a point made forcefully in the course of our debate by the noble Lord, Lord Richard, who referred to the evidence given by my ministerial colleague Shailesh Vara.

The word “presumption” does not appear in the Act. It is an expression familiar to lawyers and it may be that, on many occasions, Ministers would be well advised to look at the 2005 Act first. However, it would be wrong to superimpose some rule of law, from whatever origin, that there is a presumption that the 2005 Act should be used. Whether it is wise, of course, is a matter of opinion, and this particular Act does not contain any mandatory obligation on the part of a Minister to employ the Act.

Secondly, the Committee felt that it would be useful to have a standing central inquiries unit to give practical support to the chair and secretary of inquiries. Thirdly, the committee made a number of recommendations to increase the accountability of government Ministers and limit their powers to act without the consent of the inquiry chair.

I am sorry that the committee did not feel that the Government’s response addressed these points to their satisfaction. The Government accepted over half of its recommendations—19, in fact, although I understand there is slight carping over the mathematics—and we believe that these included the most important recommendations, as I will explain in a moment.

As noted in the Government’s response, the Select Committee’s report was very much welcomed. My department had carried out post-legislative scrutiny of the Act in 2010, in line with the then new regime of departments scrutinising their legislation between three and five years after implementation. The 2010 scrutiny concluded that the Act was working well but that the 2006 rules presented a number of concerns. The work of the committee was therefore timely. When it reported in March last year, four years had elapsed since that post-legislative scrutiny. At that point, 17 inquiries, under the Act or otherwise, had reported since the implementation. Since the scrutiny, three further inquiries have either been set up under the 2005 Act or been converted to run under the Act. This includes the most recent independent inquiry into child sex abuse, to be chaired by Justice Lowell Goddard.

At the end of October, as he told the House, my noble friend Lord Shutt and members of the committee met my colleague the Minister of State for Justice and Civil Liberties. I understand that many of the committee’s concerns were addressed. There were, however, a few points on which the Government committed to respond—around the role of the Cabinet Office, as I understand it. Perhaps I may take this opportunity to apologise to the noble Lord and his colleagues for the delay in responding to those points. In response to the committee’s report, and to further helpful discussion with committee members, we have looked again at the guidance available and the role that the Cabinet Office can play in supporting departments. I will say a little more about that in due course.

As to the question of whether to establish an inquiry under the 2005 Act, the government response looked in some detail at how Ministers decide what kind of inquiry to establish. At the October meeting, my ministerial colleague addressed the committee’s concerns about the consideration given by government departments to establishing inquiries under the Act. However, for the benefit of the House, I will explain that Ministers will in fact always consider the suitability of the 2005 Act when deciding to establish a public inquiry—it will always be the starting point.

Ministers will, however, also want to consider whether another vehicle would be more appropriate and effective, bearing in mind time and cost. This could be a non-statutory inquiry—I note that the noble and learned Lord, Lord Morris, drew on his experience of non-statutory inquiries and said that they could be useful; an independent review; a parliamentary inquiry; an inquiry of privy counsellors; an investigation with a public hearings element overseen by a judge or QC; an independent review with a public hearings element; or, in a very limited number of cases, an inquiry established under other legislation, such as the Financial Services Act 2012 or the Merchant Shipping Act 1995.

Across government there was consensus that Ministers must retain the option of deciding whether or not to use the Act. It is essential to adopt what is the right approach under all circumstances. It should also be noted—some noble Lords might already be aware of this—that Section 1(1) of the Act gives Ministers discretion to decide whether or not to use the Act. This clearly indicates that Parliament was mindful of the potential of other, non-statutory, approaches.

The House should not lose sight, either, of the fact that there is always the option to convert an inquest or other form of inquiry, investigation or review, into a 2005 Act inquiry in the event that powers under the Act—such as those to compel witnesses—are felt to be required. Very often, witnesses do not need compelling, but recently this has been the case in the investigation into the death of Alexander Litvinenko. On 22 July 2014, the Home Secretary announced that the inquest would be converted into an inquiry—the noble Lord, Lord Soley, referred to this—under the 2005 Act to give the chair the power he needs to consider sensitive material.

On the point about a central inquiries unit and guidance—an important part of the report—I fully understand the concerns behind the committee’s recommendation that a central inquiries unit should be established within central government. Government departments considering establishing an inquiry—as well as potential inquiry chairs and teams, both administrative and legal—will want to be assured that there is resource and experience available to them, rather than having to reinvent the wheel, to use the terminology employed by the committee, with every new inquiry. However, as the Government’s response sets out, we do not accept the need to create a new standing team. The MoJ and Cabinet Office already work closely with departments to provide guidance and assistance at various stages of inquiries, from the point at which Ministers consider whether an inquiry is required, through set-up and on to the final publication of reports, to closing down inquiries and learning lessons.

We absolutely accept that more can be done to improve this service, and to ensure that we learn lessons from inquiries. However, it is essential that any central resource provided for inquiries work is proportionate to the number of inquiries and reflects the need from departments. In this vein, and since the Government’s response last June, the Cabinet Office revisited its approach in this area and identified dedicated resource to build the nature and profile of support available. The Cabinet Office also revisited the draft guidance to departments on establishing an inquiry, taking account of the views of the committee and feedback from departments. This will be a more streamlined document, providing the necessary signposts for those involved in inquiries and ensuring that there is complete clarity around additional sources of information and support.

The guidance will take account of the recommendations made by the noble Lord and his committee, of what has been said in today’s debate and also of the recently published guidance by the Centre for Effective Dispute Resolution—with which I know the noble and learned Lord, Lord Woolf, has been involved—on setting up and running a public inquiry. It will also take account of lessons learnt from inquiries that have completed or are underway, including the recent data loss from the Robert Hamill and Azelle Rodney inquiries. The Cabinet Office official responsible for this area of work instructed me to say that she would be very willing to meet my noble friend Lord Shutt to discuss this ongoing work before it is finalised.

Alongside this, the Cabinet Office is engaging with key officials across Whitehall to ensure that the cross-Whitehall officials group on inquiries operates as effectively as possible. In addition, we are establishing a network of former inquiry secretaries to provide a further repository of expertise and experience. We absolutely accept the committee’s concerns regarding the completion of lessons learnt exercises, and the Cabinet Office will ensure that these are completed with greater consistency than they have been to date, and that the lessons arising are cascaded appropriately and are used to continue to inform guidance to departments.

Like my department’s post-legislative review in 2010, the committee concluded that, generally speaking—and notwithstanding its various recommendations—the 2005 Act continues to work pretty well. However, the committee also agreed that there is a need to improve the rules. The committee recommended four amendments to the rules, of which the Government accepted three. Unfortunately, we have been unable to make these amendments in the current parliamentary Session. However, work is in hand to progress these changes at the earliest opportunity under the new Parliament. The changes are in no way controversial.

I now come to what is much more controversial: the question why Her Majesty’s Government rejected the committee’s recommendation that Rules 13 to 15 on warning letters should be revoked and substituted with a rule giving chairs greater discretion. Of course, on warning letters, a 2005 Act inquiry cannot apportion civil or criminal liability—although I note the observation of the noble and learned Lord, Lord Woolf, that more use might be made of the findings of inquiries in civil proceedings. The warning letter provides a mechanism to inform someone of the fact that they have been or may be criticised during the course of the inquiry. Rule 13 contains a discretion to send warning letters. The warning letter also provides that individual or body with the opportunity to respond to the inquiry chairman and provide any additional information. To that extent, warning letters can—as acknowledged in the debate—assist in the effectiveness of inquiries by encouraging engagement and allowing the inquiry to consider any response from that individual before reporting.

The next paragraph I will share with the House reflects the letter to my noble friend Lady Buscombe but contains a further comment. Her Majesty’s Government consider that Rule 13 strikes the right balance, affording individuals the opportunity to take legal advice and, if necessary, to respond to criticism. A departure from the current approach could lead to a loss of that opportunity with a corresponding impact on the involvement of witnesses.

During the course of this very helpful debate, there have been useful observations from the noble and learned Lords, Lord Woolf, Lord Cullen and Lord Morris, and the noble Lord, Lord Pannick. In the helpful comments of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, he provided the useful quotation from Sir Richard Scott—as he then was—stressing the need for flexibility and how so often this process has got out of hand. I can tell the House, notwithstanding the official response, that the Government—although considering, on the face of it, that there should be sufficient discretion for chairmen to avoid some of the undesirable features of the Salmonisation or Maxwellisation process so helpfully identified in this debate—are none the less much impressed by the strength of the argument today and consider that it may well be necessary to reconsider these particular rules to give greater clarity to chairmen so as to avoid some of those undesirable features. The House will realise that I cannot go further than that but I hope that that will provide some comfort to those who participated in the debate.

I assure the noble Lord, Lord Shutt, and his colleagues that, since the Government published their response, the Ministry of Justice and the Cabinet Office have worked closely together, and will continue to do so, to make sure that the committee’s recommendations are implemented. As I said, work has progressed on the support provided to those considering establishing an inquiry. The Cabinet Office is currently working with departments to ensure that this guidance reflects their needs, and will of course take account of all that has been said.

I was asked to deal specifically with a number of matters. I will do so very briefly given the time that has already elapsed in my response—although I was asked by my noble friend Lord King to give a full response, and I am endeavouring to do so.

The noble Lord, Lord Trefgarne, was concerned about the need for representation. Of course, he will be aware that it is provided for by Section 40 of the Act that the chair can award reasonable costs, but he was right to draw attention to the fact that he departed somewhat from the rest of the committee given his particular experience, having been before the Scott inquiry.

The noble and learned Lord, Lord Cullen, referred to the appointment of counsel. He will be aware that the cost of legal teams is one of the biggest cost drivers in inquiries, so it is right, in the Government’s view, that—important though the role of counsel is, for the reasons that he gave——Ministers should protect the power to be involved in the appointment of counsel. In the Government’s view, that should not be for the chairman alone, although one imagines that the chairman often has considerable influence in the identification of appropriate counsel.

My noble friend Lord Trimble referred to the question of inquests—whether there were inquests rather than inquiries, in a reference to Article 2 of the European convention. There is a slight difference. Of course, there has to be an inquest as a matter of law in certain circumstances but there is always discretion whether to call an inquiry. As he will know, all inquests have to comply with Article 2. I understand that the inquest system in Northern Ireland is somewhat different, and inquests there have been held by the ECHR not to comply with Article 2 of the European convention. He also referred to the on-the-runs inquiry. He said that that was a private inquiry. I am instructed that in fact it was not private, but was an independent review under the chairmanship of Lady Justice Hallett. No public evidence sessions were held, given the nature of the issues—of which my noble friend will be well aware—but a full report was published on 17 July 2014.

In conclusion, I hope that the House will be assured from my remarks today that the committee’s recommendations were well received and that work is progressing—perhaps not at the pace that the committee would like but at a pace that is realistic given the many other pressures, especially now as we approach the end of the Parliament.

The noble Lords, Lord Soley and Lord Richard, and the noble Baroness, Lady Stern, all rightly emphasised the importance that public inquiries exercise in the public mind as a reassurance when, sometimes, confidence in politicians is not quite what it might be. The noble Baronesses, Lady Stern and Lady O’Loan, emphasised the absolute need for the paramountcy of independence where inquiries are concerned. I entirely agree.

I think that the noble Lord, Lord Shutt, and his committee colleagues have accepted that given the nature of public inquiries there needs to be a degree of flexibility. One size plainly will not fit all. As we know, every time that an issue arises, there is a call for an inquiry. Consideration must be given to the most suitable approach that will deliver the answers and limit the possibility of the event happening again, but in a cost-efficient and timely manner.

The report, and this debate, have been an extremely valuable contribution to what is and will remain a very important topic. I thank all who have taken part very much.

[Lord Shutt of Greetland]

My Lords, before the noble Lord sits down, can he confirm whether we are to cull from Hansard some of the important things that he has had to say, or whether there will be what we might call a supplementary government response to the report?

[Lord Faulks]

I will not to commit to a supplementary government response, but I will look through Hansard to see whether there are any particular matters that I did not deal with in the course of the debate.

[Lord Shutt of Greetland]

My Lords, I thank the noble Lord, Lord Faulks, for his response. He said that the Government had welcomed our report, and perhaps they have, although it did not seem like it at the time. I am delighted that he said today that in looking at inquiries under the Act, the Act will always be considered: it is on the agenda of the Minister bringing in an inquiry. Secondly, whether it is a central inquiries unit or a discrete department of the Cabinet Office, it sounds to me as though we are going down the right track. That is also helpful.

We will see what happens. There will be a Ministry of Justice Bill at some point in a subsequent Parliament. Amendments may well arise in connection with such a Bill. I thank the Minister for his work during this period in government.

I also thank everyone who has taken part in this debate and I am grateful for the very kind remarks that have been made. It is quite splendid that 10 of the 12 members of the committee have spoken today. That says to me that there has been a real weight of support for what we did and the recommendations that we made. We will read Hansard to take in the debate further, and there may be supplementary information, but as for the inquiry rules in connection with warning letters, not only did the committee hear witnesses and take a view, that has been enhanced by the debate today. It has been further embraced by serious, solid, senior lawyers—amazingly to me—that there can be a real saving in time and money. I should have thought that that was something to be grabbed by government. I hope that what the Minister said will be embraced in a supplementary report or is dealt with later. I thank everyone for taking part today.

Motion agreed.