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Inquiries Act [E/NI/S/W]

The Act is intended to provide a comprehensive statutory framework for inquiries set up by Ministers to look into matters of public concern. It gives effect to proposals contained in a Government consultation paper, dated 6 May 2004 entitled Effective Inquiries, which itself arose out of a memorandum, submitted to the House of Commons Public Administration Select Committee as part of its Government by Inquiry investigation.



TERRITORIAL EXTENT

This Act applies throughout the United Kingdom. Section 28 applies specifically to Scotland, section 29 to Wales and section 30 to Northern Ireland.

SUMMARY

The sections are grouped under 10 cross-headings:

Constitution of inquiry

These sections make provision for Ministers to set up formal, independent inquiries relating to particular events which have caused or have potential to cause public concern, or where there is public concern that particular events may have occurred. These sections also make provision for Ministers to set the terms of reference, to appoint a chairman to conduct the inquiry, and also additional panel members and assessors where appropriate.

Conversion of inquiries

These sections contain provisions that will allow inquiries established otherwise than under this Act to be converted into inquiries under the Act.

Inquiry proceedings

These sections make provision about how inquiries held under this Act are to be conducted. They provide for an inquiry chairman to have powers to require the production of evidence and for the establishing Minister or the chairman, or both, to be able to place restrictions on public access to the inquiry where appropriate.

Inquiry reports

These sections place a duty on the inquiry chairman to deliver a report to the commissioning Minister and set out what the final report may contain. They also contain a provision concerning the publication of the inquiry's report.

Scotland, Wales and Northern Ireland

These sections deal with the respective powers of United Kingdom Ministers, Scottish Ministers, Northern Ireland Ministers and the National Assembly for Wales to set up inquiries under this Act.

Inquiries for which more than one Minister responsible

Contains provisions on inquiries established jointly by two or more Ministers, including cross-border inquiries within the United Kingdom.

Supplementary

These sections create offences and also provide for the enforcement of inquiry orders by the High Court or Court of Session. They also contain provisions which will give members of an inquiry immunity from civil proceedings, place a time limit on bringing an application for judicial review (except in Scotland) and provide for the commissioning Minister to pay the costs of the inquiry panel, any assessors, any counsel and solicitor to the inquiry and anyone engaged to provide assistance to the inquiry. They also contain arrangements for payments of expenses of witnesses, including legal representation, where appropriate.

General

This group of sections contains definitions of words and expressions used in the Act. It also contains a provision which allows the Lord Chancellor, the Scottish Ministers, the National Assembly for Wales and the First Minister and deputy First Minister in Northern Ireland to make procedural rules.

Amendments etc

This group of sections contains amendments to the Financial Services and Markets Act 2000 and to section 23 of the Interpretation Act (Northern Ireland) 1954 and also introduces the Schedules of consequential amendments and repeals.

Final provisions

These include provisions about commencement.

COMMENTARY ON SELECTED SECTIONS

Constitution of inquiry

Section 1: Power to establish inquiry

This section enables any Minister to cause an independent inquiry to be held and sets out the circumstances in which the inquiry may be established. The range of inquiries in the past ten years illustrates that is not possible to specify more precisely the circumstances when an inquiry may be called. The Act is UK-wide. Ministers from the Devolved Administrations will have the power to establish inquiries into matters within their remit.

Section 2: No determination of liability

The purpose of this section is to make clear that inquiries under this Act have no power to determine civil or criminal liability and must not purport to do so. However, as subsection (2) is designed to make clear, it is not intended that the inquiry should be hampered in its investigations by a fear that responsibility may be inferred from a determination of a fact.

Section 3: The inquiry panel

The aim of this section is to provide Ministers with the flexibility to appoint an inquiry panel that is appropriate to the circumstances under investigation. The Minister may appoint either a chairman to sit alone or with one or more panel members. Section 4 ensures that where the chairman will not sit alone the Minister will consult him on the appointment of any other panel members, including any appointed under section 7.

Section 5: Setting-up date and terms of reference

An inquiry is set up to investigate a particular set of circumstances. The remit of the inquiry must be set out by the Minister in the terms of reference before the setting-up date. The Minister must consult with the chairman when either setting or changing the terms of reference. The Act does not contain any specific requirement for the Minister to consult other individuals or organisations, but they can be consulted if the Minister considers it appropriate in the particular circumstances. The period of time leading to the setting-up date could be used for consultation. The type of information contained in the terms of reference will vary from inquiry to inquiry. In some cases it might be appropriate to specify a date by which the inquiry is asked to report, or the level of urgency. The definition of terms of reference in this Act is wide in order to allow for appropriate terms of reference to be set for a wide range of inquiries under this section. The Minister must specify whether the inquiry is asked to make recommendations. However the panel may make recommendations even if this was not a requirement in the terms set by the Minister.

Section 11: Assessors

The role of assessors will vary from inquiry to inquiry, but in essence they are experts in their own particular field whose knowledge, where necessary, can provide the panel with the expertise it needs in order to fulfil an inquiry's terms of reference. An assessor could be appointed for the duration of the inquiry, but it would also be possible to appoint an assessor only for part of the inquiry, to assist when evidence on a particular subject was being considered.

Section 13: Power to suspend inquiry

An inquiry may be one of a number of investigations into a particular matter. Often, the respective timing of these is very important; for example, to ensure that an inquiry does not prejudice a criminal prosecution. The results of other investigations may also inform the inquiry and help prevent duplication. In the event that new investigations or proceedings come to light or are commenced after the inquiry has started, it may be necessary to halt the inquiry temporarily. This section sets out the circumstances in which a Minister may, after consulting the chairman, suspend an inquiry to allow other proceedings to be completed.

Section 14: End of inquiry

This section sets out how an inquiry comes to an end. An inquiry is not permanent. It only exists between the setting-up date and the date on which it ends under this section. In most cases an inquiry will end when the chairman has submitted a report to the Minister and has done any further work necessary to wind up the inquiry, such as a costs assessment. However, there might be situations before the submission of the report in which it is no longer necessary or possible for the inquiry to continue. Evidence may emerge that obviates the need to hold an inquiry or demonstrates that the inquiry has the wrong focus, for example, if it emerged during an inquiry that the event being investigated was an act of sabotage rather than failings of a particular system, and ought to be dealt with by the police rather than an inquiry. Other events might occur which also need to be investigated, and it may be more appropriate to set up a single, wider-ranging inquiry, perhaps with a different panel. Something might happen, such as a fire or the death of a witness, which means that an inquiry will no longer have access to the evidence it needs to conduct an effective investigation, and it may no longer be in the public interest for it to continue. Such scenarios are unlikely, but possible. In such cases, and other unforeseen circumstances, the Minister, after consulting the chairman, is able to bring the inquiry to a close.

Conversion of inquiries

Section 15: Power to convert other inquiry into inquiry under this Act

This section enables the Minister to convert an inquiry that is not being held under the Inquiries Act into an inquiry held under the Inquiries Act. In recent non-statutory inquiries, including Hutton and Bichard, the chairmen have stated that if formal powers were required, these would be made available to them by effectively converting to a statutory inquiry. The Minister may, after consulting the chairman, change the terms of reference when converting the inquiry.

Inquiry proceedings

Section 17: Evidence and procedure

Subsection (3) requires the chairman to act fairly throughout the inquiry. This serves to underline the duty that already exists in the common law. In applying this duty the chairman may consider, for example, if certain participants require some form of legal advice or representation. Subsection (3) also ensures that the need to control cost is a valid consideration for the chairman when conducting and planning proceedings. The cost of inquiries will vary according to the complexity of the matters being investigated. The Minister is required, by section 39(3), to meet expenses incurred in holding the inquiry. Each decision to admit evidence, to hold oral hearings, or to allow legal representation adds to the cost of the inquiry. The requirement to have regard to cost will strengthen the chairman's ability to defend decisions in which the need to limit costly elements of an inquiry was a factor.

Sections 19 & 20: Restrictions on public access etc; Further provisions about restriction notices and orders

These two sections set out the extent to which inquiry proceedings can be held in private and evidence can be withheld from the public domain. There may be circumstances in which part or all of an inquiry must be held in private, and over a third of the notable inquiries held in the past fifteen years have had some sort of restrictions on public access. In some past inquiries, it has been the Minister who has specified restrictions, whereas in others the chairman has set the restrictions. Section 19 allows for both. It replaces a range of statutory provisions on public access in the legislation that is repealed by Schedule 2 including, for example, section 81 of the Children Act 1989, which states:

""(2) Before an inquiry is begun, the Secretary of State may direct that it shall be held in private.
(3) When no direction has been given, the person holding the inquiry may if he thinks fit hold it, or any part of it, in private.""

Section 21: Powers of chairman to require production of evidence etc

This section provides inquiries with statutory powers to compel evidence. The powers are exercisable by the chairman, but in a multi-member inquiry he will be exercising them on behalf of the panel.

Section 22: Privileged information etc

Section 22(1) ensures that witnesses before inquiries will have the same privileges, in relation to requests for information, as witnesses in civil proceedings. In particular, this means that a witness will be able to refuse to provide evidence:

(i) because it is covered by legal professional privilege;
(ii) because it might incriminate him or his spouse or civil partner (by virtue of section 84 the Civil Partnerships Act 2004); or
(iii) because it relates to what has taken place in Parliament.

Inquiry reports

Section 24: Submission of reports

Section 24 places a duty on the chairman of an inquiry to report its conclusions to the Minister. If an inquiry has been brought to an end early under section 14(1)(b), the chairman does not have to produce a report but he can do so if he wishes. In the unlikely event that a member of the inquiry panel disagrees with the general conclusions to such a great extent that no amount of modification under section 24(5) will produce a report that he is content to sign, he can release himself from the obligation, under subsection (4), to sign it by resigning from the panel.

Section 25: Publication of reports

Subsection (4)(a) would allow, for example, the person publishing the report to redact personal information (such as medical reports) as required by the Data Protection Act 1998. The factors that the person publishing the report must take into account, when considering whether any redaction is in the public interest under subsection (4)(b), are equivalent to those for restriction notices and restriction orders (see section 19(4)), except for the references to cost, effectiveness and efficiency of the inquiry, which are no longer relevant in the context of reports.

Section 26: Laying of reports before Parliament or Assembly

The report published under section 25 will be the same version required to be laid before the relevant Parliament or Assembly.

Scotland, Wales and Northern Ireland

This group of sections deals with the respective powers of United Kingdom Ministers, of Scottish Ministers, of the National Assembly for Wales and of Northern Ireland Ministers to set up inquiries under this Act. The Act allows Ministers in each administration to set up inquiries in their administration's own areas of responsibility but contains limitations, set out in sections 27 to 30, which reflect the terms of each devolution settlement.

Section 27: United Kingdom inquiries

This section provides that a Minister setting up a United Kingdom inquiry cannot include anything in the terms of reference that would require the inquiry to receive any evidence or make any recommendations that are wholly or primarily concerned with a Scottish, Welsh or Northern Ireland matter without consulting the devolved administration first. It is envisaged that UK Ministers will not usually set up inquiries into devolved matters without the agreement of the relevant devolved administration and that Ministers will consider whether a joint inquiry between the two administrations would be appropriate instead.

The section also places similar constraints on the use of powers of compulsion into devolved matters. If the terms of reference covered devolved areas (and the Minister had therefore already consulted the devolved administration under subsection (2)), the Minister might also need to give the inquiry permission to use its powers of compulsion in all the devolved areas that would be covered by the terms of reference.

Even if the terms of reference mentioned only reserved areas (and no consultation had been necessary under subsection (2)), the panel might consider it necessary to take evidence on certain devolved matters in order to fulfil them. For example, suppose that a United Kingdom inquiry had been established to investigate an incident relating to gun control. The inquiry might need to take medical evidence from a Scottish hospital in relation to injuries caused. If the panel believes the evidence is relevant to its terms of reference, it is entitled to consider it, provided that the hospital is willing to provide it. Similarly devolved inquiries are entitled to take evidence on reserved and excepted areas (except as prohibited by section 30(7)) provided it is relevant to the terms of reference and is willingly given. However, there might be occasions when a person is unable or unwilling to provide evidence without a notice under section 21, compelling him to do so. For United Kingdom inquiries, this is dealt with by section 27(3). (A different approach is taken for the devolved administrations, and is described in the notes on section 28.) The inquiry can apply to the Minister for permission to use its powers of compulsion in devolved areas. Before granting permission, the Minister would have to consult the devolved administration. It is envisaged that UK Ministers will not usually grant permission without the agreement of the relevant devolved administration.

Subsection (6) is needed to prevent a possible gap in coverage between the powers of inquiries set up by UK Ministers and by Northern Ireland Ministers, which arises out of the way in which ""Northern Ireland matter"" has been defined.

Section 28: Scottish inquiries

As explained above, a Scottish inquiry may take evidence on reserved matters, if the panel considers that it is relevant to the terms of reference. However, it cannot compel that evidence, except in so far as it is allowed by subsection (3). Subsection (3)(b) has the effect of allowing Scottish inquiries to compel evidence on reserved matters if this is for the purpose of inquiring into something that is wholly or primarily a Scottish matter.

However, it would not be possible for a Scottish inquiry to compel evidence under subsection (3)(b) from any member of the United Kingdom Government (including Government Ministers and the Departments acting on their behalf), or of the other administrations, because of the prohibition in subsection (4).

Section 29: Welsh inquiries

The provisions on Welsh inquiries mirror those on Scottish inquiries.

Section 30: Northern Ireland inquiries

The provisions on Northern Ireland inquiries are similar to those on Scottish inquiries described above, but reflect the differing circumstances of Northern Ireland and its devolution settlement.

The definition of ""Northern Ireland matter"" in section 30(8) covers some reserved matters in relation to which Northern Ireland Ministers have functions (see paragraph (b)), as well as transferred matters. However, section 30(6) creates some exceptions to the circumstances in which Northern Ireland inquiries can exercise their powers of compulsion in relation to those matters, in order to make the scope of inquiries' powers equivalent to the scope of the Northern Ireland Assembly's powers to summon witnesses and compel evidence. Since those exceptions are in section 30(6), rather than in the definition of ""Northern Ireland matter"", section 27(6) is needed to ensure that they are not also excluded from the scope of inquiries established by United Kingdom Ministers.

In addition to the general restrictions on terms of reference and powers of compulsion, subsection (7) provides that an inquiry established by a Northern Ireland Minister must not receive evidence or make any recommendations on matters falling within paragraph 17 of Schedule 2 to the Northern Ireland Act 1998, which deals with national security.

Whilst there is a suspension of devolved government in Northern Ireland, functions conferred on a Northern Ireland Minister may be discharged by the Secretary of State for Northern Ireland, by virtue of section 45.

Section 31: The relevant part of the United Kingdom and the applicable rules

Subsection (1) provides that when an inquiry is set up, the Minister or Ministers who established it must specify what is ""the relevant part of the United Kingdom"" for the purposes of those provisions of the Act that use this expression. This will determine, for example, which law on privilege will apply and which court should have the powers to enforce orders of the inquiry. It will not necessarily correspond to the administration setting up the inquiry. For example, if a United Kingdom Ministers were to establish an inquiry into a reserved matter in Scotland, which conducted its hearings mainly in Scotland, it would make sense for the relevant part of the United Kingdom to be Scotland. The relevant part of the United Kingdom will usually be the part in which the inquiry is being held, but it is possible that an inquiry may have several venues so for clarity it is important that the Minister or Ministers specify which part it is to be.

Inquiries for which more than one minister responsible

Section 32: Joint inquiries

In practice, this section would probably be used in situations where the subject matter of the inquiry fell within the responsibilities of more than one Minister. For example, the Victoria Climbie, inquiry was established by the Home Secretary and the Secretary of State for Health. Sometimes, a joint inquiry might involve Ministers from more than one administration. For example, if devolution had been in place at the time of the Dunblane inquiry, which related both to firearms (a reserved issue) and safety in schools (a devolved one), the Scottish and UK Ministers might have chosen to set up a joint inquiry.

Section 33: Inquiries involving more than one jurisdiction

This section applies specifically to joint inquiries for which the responsibility is shared between two (or more) administrations - for example a joint inquiry set up by a United Kingdom Minister and the Welsh Assembly, or even a joint inquiry set up by the Scottish Ministers and the Northern Ireland Assembly. (The wording of subsection (1) reflects the fact that there are several United Kingdom Ministers and several Northern Ireland Ministers, whereas the Scottish Ministers and the National Assembly for Wales are each a single legal entity.)

Section 34: Change of responsibility for inquiry

This section might be used if it became clear, during the course of the inquiry, that its focus was more properly within the responsibilities of a Minister other than the commissioning Minister. For example, if a United Kingdom Minister had established an inquiry into events in Scotland that was expected to examine primarily reserved matters, and it subsequently became clear that there were significant implications for devolved matters, the establishing Minister might agree with the Scottish Ministers to share responsibility for the inquiry, making it an inquiry to which section 33 applied. This section might also be used to pass responsibility for an inquiry from one Minister to another within the same administration.

Supplementary

Section 36: Enforcement by High Court or Court of Session

This section provides for an appropriate court (the High Court or Court of Session) to enforce notices issued under powers of compulsion, restriction notices and any orders of the inquiry, including restriction orders.

Section 37: Immunity from suit

This section provides immunity for the inquiry panel, the inquiry's legal advisers and assessors, and other people engaged to assist it, from any civil action for anything done or said in the course of carrying out their duty to the inquiry.

Section 39: Payment of inquiry expenses by Minister

This section sets out what the establishing Minister is obliged to fund and what he has discretion to fund.

Section 40: Expenses of witnesses etc

Legal costs of participants often constitute the most significant part of the total cost of an inquiry. The non-statutory position adopted in recent inquiries has been for the Minister to decide, in consultation with the chairman, to fund those participating in the inquiry who are considered to have such a direct interest in the inquiry that they require representation but who may be unable to pay for representation themselves. The Government would not normally meet the costs of large organisations. This section enables this practice to continue. The chairman automatically has the power to pay costs, but the Minister can place qualifications on that power. The Minister will generally set out any broad conditions under which payment may be granted, and the chairman will then take the individual decisions.

General

Section 41: Rules

It is envisaged that the Lord Chancellor will make procedural rules for United Kingdom inquiries under this section. There is however no requirement for such rules to have been made before an inquiry may be established under the Act.

It is for the devolved administrations to make rules for their own inquiries. The rules will generally be subject to annulment by the relevant legislative body, as explained in subsections (5) and (6). However, there is no need for subsection (5) to make provision for Wales, because sections 66(2) and 67(3) of the Government of Wales Act 1998 set out the procedures for all general subordinate legislation made by the National Assembly for Wales.

Section 45: Suspension of devolved government in Northern Ireland

This section ensures that during suspension of devolved government, the Secretary of State for Northern Ireland can exercise the powers of Northern Ireland Ministers to establish Northern Ireland Inquiries under section 30 and to make rules of procedure under section 41. The Secretary of State will be consulted, in place of the Northern Ireland Ministers, when consultation is required under section 27 or section 51.

Commencement

The provisions in the Act will come into force on a day appointed by the Lord Chancellor by order, after consultation with the devolved admi

Further Information

  1. Inquiries Act Explanatory Notes
  2. Inquiries Act