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8. Other Legislation

Inquiries Act 2005

1.  In May 2004, by way of response to a paper published by the Public Administration Select Committee, the Department for Constitutional Affairs issued a consultation paper entitled "Effective Inquiries". The consultation paper was concerned with inquiries established by Ministers to investigate particular, controversial events giving rise to public concern. Such inquiries have been of various types. Some have been wholly non-statutory. Some have been governed by the Tribunals of Inquiry (Evidence) Act 1921 following a resolution of both Houses of Parliament. And others have been set up under subject-specific legislation dealing with such matters as children, police or the National Health Service. The consultation paper proposed a general statutory power for Ministers to set up inquiries into matters that have caused or have potential to cause public concern.

2.  With one or two exceptions, inquiries of this kind fall outside our statutory remit. However, we have on occasion been asked to advise on them, notably in 1996 after the Scott Inquiry into Exports of Defence Equipment to Iraq (see our Annual Report for 1995/96, Appendix A). Many of the issues raised in the consultation paper were in fact considered in our 1996 advice, to which the paper made several references.

3.  The consultation paper was an exceptionally thorough and comprehensive document. In responding to it we did not seek to address every issue raised, particularly as our views as expressed in 1996 were well known to the Department. We agreed with the general consensus that the Tribunals of Inquiry (Evidence) Act 1921 was outmoded. We thought that a general power for Ministers to set up inquiries into matters that have caused or have potential to cause public concern would represent a useful modernisation, rationalisation and clarification of the existing position.

4.  We agreed with the paper that the choice of inquiry chair and panel members should remain with Ministers. While the need for independence and suitability could be provided for in statute, we did not favour the establishment of a trained panel of prospective inquiry panel members. The composition of the inquiry should depend on the nature of the matters being inquired into. A senior judicial figure, or other senior lawyer, may often be a suitable chair, but in some inquiries consideration should be given to the appointment of a non-lawyer of manifest independence and integrity with the required skills and experience. Consideration should always be given to appointing additional panel members with relevant expertise.

5.  We agreed that there should be formal powers to compel the attendance of witnesses and the production of evidence, with sanctions for non-compliance, and power to take evidence under oath. We adhered to our opinion, as expressed in 1996, that a single comprehensive set of rules was not feasible for inquiries of this kind. However, a power to make statutory rules of procedure covering such basic matters as parties and witnesses, legal representation and its funding, costs, the giving of evidence, the appointment of assessors, public and private hearings and so on could be useful. Alternatively or additionally, if there were to be a dedicated central inquiries unit as was suggested, the unit could develop a code, some of which might be standard and some of which might offer alternatives. This code could then evolve to reflect developing law and practice. We said that we would be glad to offer assistance in the development of any such code.

6.  Inquiries of this nature perform an investigative function and their procedures are essentially inquisitorial. However, we pointed out, as we had in 1996, that in the interests of fairness (and sometimes efficiency too) it may on occasion be desirable to introduce elements more closely associated with adversarial procedures, such as cross-examination by one 'party' of another's witnesses. The extent to which this should be allowed might vary according to whether Counsel to the inquiry has been appointed. In our view the appointment of Counsel to the inquiry to ask questions of witnesses is often a very effective way of eliciting the relevant facts without imposing too heavy a burden on the panel.

7.  We thought that a dedicated central inquiries unit would be a great asset. It could provide valuable advice and experience and so avoid the need to re-think the core structural and administrative issues afresh each time. It could be charged with keeping abreast of and indeed pioneering developments in information and communication technology. Recent instances have shown what an important part the latest technology can now play in a successful inquiry. The unit could also give advice on the interplay with other proceedings, for example if evidence of criminality emerges in the course of the inquiry.

8.  An Inquiries Bill was introduced in November 2004, which broadly reflected the proposals in the consultation paper. The Bill as introduced specifically precluded the application of the Tribunals and Inquiries Act 1992 to inquiries under the Bill. This would have perpetuated the position whereby inquiries of the kind the Bill was concerned with are for the most part outside our remit. However, after discussions between ourselves and the Department, the Government agreed an amendment to the Bill to remove the specific disapplication of the 1992 Act. This would not automatically bring inquiries under the Bill within our remit but it leaves open that possibility for the future. The Government also assured us that we would be consulted on procedural rules made by the Lord Chancellor for these inquiries.

9.  The Bill also provided for the holding of inquiries by the devolved administrations and the making of procedural rules by them. The Chairman of our Scottish Committee gave evidence on the Bill to the Justice 2 Committee of the Scottish Parliament. The Bill received the Royal Assent shortly before the dissolution of Parliament in April 2005.

Other measures

10.  Among other measures to engage our attention during the Parliamentary session 20042005 we mention the Gambling Bill, the Charities Bill and the Consumer Credit Bill. Each of them provided for new appeal tribunals to be brought under our supervision: the Gambling Appeal Tribunal to hear appeals from various decisions of the new Gambling Commission; the Charity Appeal Tribunal to hear appeals from certain decisions of the Charity Commission (the body that would replace the Charity Commissioners for England and Wales); and the Consumer Credit Appeals Tribunal to hear appeals from decisions of the Office of Fair Trading in relation to consumer credit and hire businesses and ancillary credit businesses. In each case we examined the provisions for the new tribunals and were content with them. It is the intention that the tribunals should be brought within the unified Tribunals Service.

11.  In the event, only the Gambling Bill received Royal Assent before the dissolution of Parliament in April 2005. The Charities Bill and the Consumer Credit Bill fell with the dissolution but were re-introduced shortly after the opening of the new Parliament in May 2005.

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