Part II

An overview of local authority ad hoc inquiries

2.1                                      In order to address the legal issues arising from our terms of reference we need to examine what are the inquiries that are conducted by, or on behalf of local authorities which fall within our terms of reference.[1] This Part provides the background to the analysis of the legal issues that we discuss in Parts III – VI.

2.2                                      First we explain which local authorities we are addressing. Secondly, we explore the range of inquiries that local authorities may be involved in, including those established under express statutory powers and other formal types of investigations by independent bodies. On the basis of this typology we arrive at a definition of an ad hoc inquiry for the purposes of this consultation paper.[2] Finally we turn our attention to the legal basis for setting up ad hoc inquiries and consider the variety of subject matters that they may address.

Definition of a local authority

2.3                                      Section 270 Local Government Act 1972 defines a local authority, for the purposes of the 1972 Act, as:

a county council, … a district council, a London borough council or a parish council but, in relation to Wales … a county council, county borough council or community council;[3]

2.4                                      In this consultation paper we are only concerned with what are termed principal local authorities; those councils that are charged with responsibility for the vast majority of services that are provided by local government.

2.5                                      Principal local authorities are:

2.6                                      The functions of principal local authorities, including education, housing, planning, social services, transportation, environmental health, waste collection, leisure and sports services,[4] are those which are most susceptible to being the subject of an ad hoc inquiry.

2.7                                      Hence we are not addressing directly inquiries established by either parish or community councils, as the functions that they exercise[5] are not conspicuously amenable to the type of inquiry we have in mind.

2.8                                      Nor are we concerned with Regional Development Agencies.[6] They differ from the local authorities listed in paragraph 2.3 above as their powers and functions relate, in very general terms, to economic promotion and development, of the region they serve, rather than providing specific “front line” services. Moreover as they are not composed of elected representatives they are not subject to the same pressures of democratic accountability.

Definition of an inquiry

2.9                                      The report into “Ad Hoc Inquiries in Local Government” produced by the Society of Local Authority Chief Executives (SOLACE) and the Royal Institute for Public Administration (RIPA) acknowledged the problems of defining a local authority inquiry:

investigations by a local authority vary widely in content from an “inquiry” under an independent chairman and panel to consider a substantial complaint against the authority to an internal “hearing” by a chairman of committee or chief officer into a comparatively minor shortcoming.[7]

2.10                                      The approach we have adopted is:

2.11                                      Local authorities may initiate, participate in, or contribute to many types of inquiries. Not all of these inquiries will face the problems highlighted in the Waterhouse Report.

2.12                                      The SOLACE Report divides local authority inquiries into seven categories.[8] These are: statutory inquiries ordered by a minister; formal inquiries conducted independently; inter-agency inquiries; internal investigations published to the local authority; internal investigations produced for a head of department; investigations in accordance with an established complaints procedure; and formal investigation by the Local Commissioner for Administration (the Ombudsman).

2.13                                      In their study of child abuse inquiries, Corby, Doig and Roberts classify local authority inquiries into three main categories:[9] inquiries ordered by a Secretary of State; inquiries using independent panels; and inquiries carried out internally.

2.14                                      We have identified nine distinct types of inquiry which can be classified as follows.

2.15                                      These types of inquiry normally arise where a minister, acting under powers conferred upon the minister by statute, orders the local authority to conduct an inquiry. An example of this is the current inquiry into the death of Victoria Climbié, which was set up by the Secretary of State for Health,[10] and the Secretary of State for the Home Department[11] under the chairmanship of Lord Laming. Inquiries established by statute normally have power to order witness attendance and compel disclosure to the inquiry.[12]

2.16                                      Inquiries may still be ordered by a minister even though there is no express statutory authority for their formation. The Scott Inquiry[13] into the failure of the Matrix-Churchill prosecutions was set up as an ad hoc public inquiry, but it was made clear to Sir Richard Scott that if he required, the powers available under a Tribunal of Inquiry Act inquiry[14] would be made available to him.[15]

Type 2: Tribunals of Inquiry Act inquiries

2.17                                      Section 1(1) of the Tribunals of Inquiry (Evidence) Act 1921 states:

2.18                                      Thus a Tribunals of Inquiry Act inquiry will possess the power to summon witnesses in a similar manner to a type 1 inquiry. The difference between the two types is the instigator. Whereas the ministerial inquiry merely needs government approval, a Tribunals of Inquiry Act inquiry needs Parliamentary support.

2.19                                      Recent inquiries established under this power include the Bloody Sunday inquiry into the Events of 30 January 1972 chaired by Lord Saville of Newdigate[16] and the Inquiry into the Dunblane Shootings chaired by Lord Cullen.[17] The Waterhouse Report itself was similarly a Tribunals of Inquiry Act inquiry.[18] Prior to this spate of inquiries, the 1921 Act had not been engaged since the Crown Agents inquiry in 1977.[19]

Type 3: Formal investigations by the Local Commissioner for Administration (the Ombudsman)

2.20                                      Local Commissioners for England and Wales have jurisdiction to act over complaints of injustice in consequence of maladministration in connection with action taken by or on behalf of an authority.[20] Investigations are conducted in private,[21] and the Commissioner has the power to compel attendance of witnesses and the production of documents,[22] but not if that evidence would be inadmissible in the High Court.[23] This effectively prevents the disclosure of legally privileged information.

2.21                                      This type of inquiry is distinguishable from types 1 and 2 in that the instigation of the inquiry arises from a complaint made by a member of the public, and the types of complaint to which the Commissioner will respond are normally of a more routine nature. For example, a finding of injustice in consequence of maladministration may involve inordinate delay,[24] misleading advice,[25] or failure to take action against illegal occupiers of land.[26] In comparison, large-scale statutory inquiries are normally established in response to a specific event, or series of events, of public importance. Investigations by the Local Commissioner are not usually of the same magnitude in terms of degree of public outrage as the ministerial or Tribunals Act inquiries described above.

2.22                                      However, Ombudsmen inquiries are similar to types 1 and 2 in that there is no discretion for the local authority to participate in the inquiry. Where it is subject to a complaint being investigated by the Commissioner, obstructing the investigation without lawful excuse can be certified by the Ombudsman as contempt of court.[27]

Type 4: Standards Boards Investigations

2.23                                      The Local Government Act 2000 created a new ethical framework for local authorities. Local authorities have to draw up Codes of Conduct,[28] to which members must sign up.[29] Local authority Codes must incorporate certain mandatory sections of Model Codes.[30] The Model Codes are laid down by the Secretary of State for English local authorities[31] and the National Assembly of Wales has drawn up a similar Model Code for Welsh local authorities.[32] Local authorities must also establish standards committees,[33] to promote and maintain high standards of conduct within the authority and to assist members of that authority to observe the authority’s code of conduct.[34]

2.24                                      In England, a new body, the Standards Board for England,[35] will appoint ethical monitoring officers to investigate written allegations of a failure to comply with the relevant code.[36] The ethical monitoring officer investigates the complaint,[37] and if the officer concludes that there has been a breach of a code of conduct, he or she must refer the case to the Adjudication Panel for England for a hearing and judgment.[38] In Wales, the written allegation is investigated by the Local Commissioner for Wales,[39] and if the Commissioner concludes that there has been a breach of a code of conduct, the Commissioner may refer the case to the Adjudication Panel for Wales.[40] Matters can also be referred to the Adjudication Panel on an interim basis where the ethical monitoring officer or the Local Commissioner for Wales conclude that a breach of the code is likely to have occurred, and that it would be in the public interest to suspend the member.[41] Three members of the relevant Adjudication Panel are appointed to form the case tribunal.[42] The case tribunal may impose penalties ranging from public censure to disqualification as a councillor for up to five years,[43] subject to a right of appeal to the High Court.[44]

2.25                                      Ethical standards officers and the Local Commissioner for Wales have access to all information held by the local authority which they think necessary for the purpose of conducting the investigation.[45] The procedure, including disclosure of documents, compellability of witnesses and costs, of the case tribunals of the Adjudication Panels is to be governed by regulations laid down by the Secretary of State in England and the National Assembly in Wales.[46]

2.26                                      The Standards Board for England was established on 22 March 2001.[47] There is as yet little guidance as to how it, the Local Commissioner for Wales, and the Adjudication Panels will interact with other forms of inquiry.[48]

Type 5: Inquiries ordered by a local authority, but chaired independently

2.27                                      These are inquiries which are established by the local authority of its own volition but directed by an independent chairman. The inquiry may be conducted by a single individual; equally, a team of investigators or assessors may assist him or her. The panel may sit in private or in public, although we understand that the sensitive nature of these inquiries means most are conducted in private. Both the Cartrefle and Jillings inquiries were of this type: a retired senior officer from another local authority chaired the Cartrefle inquiry, while Jillings himself was a retired Director of Social Services.[49]

2.28                                      The chairman of an inquiry, subject to his or her terms of reference, is ultimately the directing force behind the structure of the inquiry and its subsequent report.

2.29                                      The inquiry will still be classified as independent if members or officers of the authority are co-opted to form part of the investigative panel. For example, in the Devon Foot and Mouth Inquiry the panel included councillors serving on Devon County Council.[50] However, if the chair is a councillor or an officer of the Authority, the fact that there are independent persons participating in the inquiry will not, we consider, make it an independent inquiry. We examine the legal basis of these investigations below.[51]

Type 6: Inquiries ordered by the local authority, but chaired internally

2.30                                      This type of inquiry is set up by the local authority but, in contrast to type 5 above, is chaired by a person connected to the authority. It may be chaired by the Chief Executive Officer, or a Head of Department. Equally it may be undertaken on behalf of an officer of the authority by officers from within the commissioning department or from another department of the authority. Again, we understand that this kind of inquiry is not likely to be open to the public, although it may be.

2.31                                      The type of inquiry that is to be established, whether internal or external, may depend on a number of factors. These may include issues of speed, costs, the availability of witnesses and documents, and public and media pressure.[52] The fact that the inquiry is ad hoc in nature means the authority can respond flexibly to tailor the inquiry to fit its needs best.

2.32                                      Similarly, the decision whether to hold the inquiry in public may be affected by pending criminal trials, the subject-matter of the inquiry, the need for transparency, the likelihood that information will be disclosed to the inquiry about confidential matters, or issues of cost and speed. The legal power to set up this type of inquiry is examined below.[53]

Type 7: Inter-agency inquiries

2.33                                      These can be undertaken by one or more statutory bodies. They may involve local authorities, health authorities, police or other interested parties. They may be ad hoc in nature, or subject to standing procedures.

2.34                                      Where child abuse deaths or child protection issues are likely to attract major public concern a procedure, colloquially known as a Part 8 review, is instigated. Specific guidelines are laid down by the Department of Health, Home Office, Department for Education and Employment.[54] These require each agency which was involved in the issue to review its own conduct. These reviews are then compiled by the Area Child Protection Committee (ACPC) into one report. The decision whether to publish the final report is one for the ACPC itself. We describe these reviews in greater detail in Part VIII.[55] A recent example of a Part 8 publication is the inquiry into the death of John Smith in the care of his foster parents in Brighton and Hove.[56] This was published only his foster carers had been convicted on charges of inflicting cruelty.

Ad hoc inter-agency inquiries

2.35                                      These may be established in response to a particular situation, or where increased co-operation or collaboration is anticipated between various bodies. Again, the directorship of the inquiry will be key in determining whether the inquiry is external or internal to the local authority. Depending on the chairmanship of the inquiry, these multi-party agencies may be included in types 5 or 6 above.

2.36                                      These are undertaken in relation to matters which arise at regular intervals for determination by the local authority. The authority may be under a duty to hold a form of inquiry prior to taking a decision on matters such as school admission appeals and exclusion appeals under the School Standards and Framework Act 1998. However, we also include those inquiries ordered by central government in order to endorse a local authority’s actions, such as the adoption of a new local plan for development and planning control. These are distinct from inquiries established by central government described in type 1. This is because these inquiries are used for examining what decision should be made with reference to future action, rather than a retrospective inquiry to see why something went wrong.

2.37                                      A general power to instigate a local authority inquiry is found in section 250(1) of the Local Government Act 1972. This can be used by any minister who is authorised to “determine any difference, to make or confirm any order, to frame any scheme, or to give any consent, confirmation, sanction or approval to any matter, or otherwise to act under the Act, or under any other Act affecting local authority functions.”[57] This power is mainly used in the context of planning, licensing, and educational inquiries, but can be used where the minister considers that an authority is failing to comply with its duties under the Best Value scheme.[58]

2.38                                      Again, these inquiries are regulated by very specific procedures which prescribe the admissibility of evidence, whether the inquiry sits in public, and the reimbursement of costs to parties.[59]

Type 9: Investigations dealt with in accordance with the authority’s complaints procedure

2.39                                      Internal grievance procedures are the more routine types of inquiry, not strictly ad hoc in nature because they are conducted in accordance with standing guidelines which regulate the procedure. The guidelines regulate the vast majority of complaints received by the authority. These will vary from authority to authority, but their common features, we believe, will include standing orders or locally agreed arrangements on who is to deal with the complaint, the time scale for responses and comments on the decision. Complaints procedures are similar to type 8 (routine inquiries) described above.

2.40                                      The approach we have adopted in reaching our definition of an ad hoc inquiry is to consider, in light of the above typology, what we are excluding from our definition in order to distil what we are including within this project.[60]

“Public” inquiries

2.41                                      We are not considering inquiries set up either in pursuance of a express statutory power, or under the prerogative of central government, which are held in public. This is because the statutory powers considered above already regulate to a considerable degree the problems of disclosure, confidentiality, defamation and the like. Even where there is no express regulation of these matters, such as in the Scott Inquiry, these inquiries do not give rise to the same problems as addressed in the Waterhouse Report. The authority is merely a participant in the inquiry, not the instigator of it. Thus there is no option for the authority not to co-operate; indeed, a failure to do so might amount to contempt of court. Hence we are not directly addressing the reports of ministerial inquiries (type 1) or inquiries set up under the Tribunals of Inquiry Act 1921 (type 2).

2.42                                      Investigations by the Local Commissioner and the new ethical monitoring bodies are similarly excluded from the scope of this consultation exercise. The procedures by which the Local Commissioner, (type 3) and the Standards Board for England (type 4) exercise their functions are already covered by statute and guidance. Where there are procedures that the local authority is under a duty either to follow or have regard to, these should govern the inquiry. Again, there is an element of compulsion; the local authority cannot choose not to be subjected to these investigations because they are compulsory.

2.43                                      Where the authority has standing procedures in place to deal with the investigation of complaints, these procedures should regulate the investigation. Thus an ad hoc inquiry (of type 5 or 6 above) will only be established where these procedures are in some way unsuited to the handling of the complaint; for example, the severity of the complaint or allegation, the breadth of the subject matter or the complexity of the issues raised.

2.44                                      We have excluded from our considerations routine inquiries (type 8) and mechanisms that deal with everyday complaints (type 9). Equally we consider that we are not charged with examining inter-agency inquiries like Part 8 reviews for child care as the considerations raised by such reviews are already subject to detailed guidance (type 7 – regulated) though many of the procedural issues which we consider in this report may well apply to them.

2.45                                      The SOLACE report defined ad hoc inquiries as “inquiries into exceptional circumstances, either involving substantial complaints against the authority or a substantial failure in its services.”[61] The dictionary definition of “ad hoc” is “for a particular, usually exclusive purpose.”[62]

2.46                                      For our purposes we believe that our terms of reference require us to adopt a broader definition of an ad hoc inquiry than the SOLACE report. An ad hoc inquiry may, we consider, be established even though there has been no substantial failure in the services provided by the local authority. Similarly the circumstances need not be exceptional in order for an ad hoc inquiry to be established.

2.47                                      Hence our working definition of a local authority ad hoc inquiry is one which is established by a principal local authority, in circumstances which are not already governed by a statutory or other procedural code, involving serious complaints against the authority or a failure in its services.

2.48                                      Therefore this consultation paper is aimed primarily at types 5 and 6 – where a local authority, in response to a particular incident, has established an ad hoc inquiry. This will also include those types of multi-agency inquiries which are not already regulated by statute or government guidance (un-regulated type 7 inquiries).

2.49                                      It is a general principle of local government law that a council cannot act unless Parliament has conferred power upon it to act.[63] Therefore if a local authority wishes to establish an ad hoc inquiry, it must demonstrate that it has the necessary statutory power.

The situation prior to the Local Government Act 2000

2.50                                      Prior to the Local Government Act 2000 the statutory powers to establish and fund an inquiry were found in sections 111(1) and 137 of the Local Government Act 1972.

2.51                                      Section 111 states:

2.52                                      Thus where the establishment of the inquiry was calculated to facilitate, or was incidental to, the discharge of their function, section 111 provided the necessary power. The inquiry needed to be incidental to the statutory functions of the authority. Where the inquiry related to a function, such as housing, social services, or education the section provided adequate authority. However, if an inquiry was not incidental to a function, the council might have lacked the necessary vires. For example, if the authority conducted an inquiry into health provision in its area, but was not a health authority, the council might have acted beyond its powers.

2.53                                      Section 137 granted local authorities the power to incur expenditure for the direct benefit of all or some of its inhabitants, if the expenditure was commensurate to the benefit. The power was only to be exercised where there was no other statutory prohibition preventing expenditure.[64]

The situation after the Local Government Act 2000

2.54                                      Section 137 was repealed for principal local authorities by the Local Government Act 2000.[65] In its place a new power has been introduced, which enables principal local authorities to do anything[66] which they consider likely to promote or improve the economic, social and environmental well-being of their areas.[67] This came into force on 18 October 2000[68] for English local authorities, and 9 April 2001 for Welsh local authorities.[69]

2.55                                      Thus where the establishment of an ad hoc inquiry will improve or promote these objectives the power will provide the necessary legal framework. The wide drafting of the power means that the authority can choose simply to use the section 2(1) power both to establish and fund the inquiry,[70] in furtherance of the well-being of the community. Similarly, the authority could continue to invoke section 111 Local Government Act 1972 to establish the inquiry in conjunction with the new power to authorise the necessary expenditure. However, where the inquiry is not incidental to a function of the authority (for instance, the health example set out above) the new power will have to be relied upon to create and finance it. This is particularly important where authorities collaborate with other local stakeholders.

Subject matter of inquiries

2.56                                      Although our reference stems from an inquiry into deeply disturbing incidents of child abuse, the flexibility of local authority ad hoc inquiries means they are a vehicle for investigating many kinds of complaint or failure. The fact that inquiries are often held into matters of heightened public concern should not mask the range of subjects that can be examined by an ad hoc inquiry. We are aware of inquiries being held into diverse subjects such as fires in rented accommodation in multiple occupation, allegations of misconduct against councillors and members, child abuse in local authority-run care homes, and aspects of the Foot and Mouth Disease outbreak.[71] It is however impossible to provide a full list of such inquiries, as there is no published central register.

2.57                                      It is clear that local authority ad hoc inquiries may cover not only a wide range of subjects, but also that they will vary in seriousness. It seems also, therefore, that the procedures and the degree of formality which will be appropriate for an inquiry panel will vary considerably.[72] In the SOLACE Report we have referred to,[73] there is a proposal for a new power for local authorities to establish a formal inquiry. We consider this proposal at the end of this paper.[74] For now we simply emphasise that our working definition encompasses ad hoc inquiries within types 5, 6 and 7 as we have described, and of any degree of formality.

2.58                                      We now turn to examine the legal issues raised by local authority ad hoc inquiries.