The Law Commission

PART VIII

LOCAL AUTHORITY SPECIAL INQUIRIES

8.1     In the previous Part we explained why we recommend a new form of inquiry for local authorities and the need for it to include procedural safeguards. In this Part we describe in detail the new form of local authority inquiry that we recommend. 

1 Introduction: the purpose of an inquiry

8.2     An inquiry can serve a number of different functions: 

to establish facts

to answer the questions of the complainant and family

to look at associated cases

to establish systemic failings to make recommendations or

to ascribe individual liability/responsibility (but not criminal culpability).

8.3     The Family Law Bar Association noted in their response that not all inquiries involve uncovering further facts; some entail assessing the implications of facts which are already known.^[1] 
8.4     There is scope for dispute as to how far it is appropriate to expect an inquiry to go beyond establishing facts or making recommendations. Some consider such purposes as providing a sense of catharsis for the affected community or even answering the questions of the family of the victim as axiomatic. 
8.5     Others take a different view. For example Sir Cecil Clothier wrote^[2] 

Although it may sound rather hard it must be remembered that it is not the sole or even the main purpose of an inquiry into disaster to offer solace to the victims. There are better ways of doing this. The report is not made to the victims but to those representatives of society who have the power to make things happen on behalf of us all. And the primary purpose of the inquiry to my mind is to enable society through its mechanisms to take whatever steps seem good to prevent a recurrence of some great disaster and its consequent suffering not merely for the benefit of the victims (for whom it comes too late anyway) but for the future good of everyone. I believe that an inquiry is a learning tool and the allocation of blame is merely an incidental if sometime inevitable side effect. The expiation of wrong-doing is for those agencies including where appropriate the judicial system wherein resides the power of retribution.^[3]

8.6     It must be recognised that "we have never succeeded in finding the perfect form of inquiry."^[4] An inquiry is a multi-faceted process discharging many functions of different importance to those involved in it. It is impossible and unrealistic for the inquiry process fully to satisfy everyone. What is most important is that the inquiry is as thorough and effective as possible while respecting the rules of natural justice for all involved. Statutory powers are only one aspect of a successful inquiry. 
8.7     Bearing these caveats in mind we now describe the new form of inquiry which we recommend. 
8.8     In brief we recommend that a local authority should be able to establish an inquiry with the inquiry having the power to apply to the High Court for an order compelling the attendance of a witness to answer questions and/or to produce documents in those circumstances which fall outside the scope of other specific statutory inquiry powers. The new form of inquiry would thus enable a local authority to order a full investigation of a serious failure in the exercise of its functions in those circumstances where an ad hoc inquiry would not be adequate without being dependent on obtaining either ministerial or parliamentary support. 
8.9     There are three principal parts to effecting the change: the powers of the local authority to set up a special inquiry;^[5] the powers need to run the inquiry;^[6] and the powers of the inquiry to apply to the the High Court.^[7] Enforcement of the High Court orders is discussed at paragraphs 8.115 – 8.125 below. 

2 The power for a local authority to establish a special inquiry

8.10     In the following paragraphs we discuss the cirumstances in which local authorities may establish the special inquiry that we propose; how the special inquiry may be establised; some of the practical matters that must be considered. 

3 The pre-conditions to establishing a special inquiry

8.11     There are three conditions that must be satisfied before a local authority will be able to establish a special inquiry: 

(1) serious failure;

(2) no other statutory power of inquiry; and

(3) appropriateness.

4 A serious failure

8.12     The Bill provides that the commissioning authority must have reason to believe that there has been or that there may have been a serious^[8] failure in the exercise of its functions. The authority can act whether or not a complaint has been made. 
8.13     There are different ways in which a failure in the exercise of a local authority's functions might be regarded as serious: 

because of the degree of harm caused to a person; or

because of the scale of the loss caused; or

because of the number of people potentially affected; or

because of the wider implications of the issue to be inquired into either for the authority as a whole or for other local authorities.

8.14     It will still be possible for a local authority to establish a special inquiry where it has delegated the carrying out of its functions to another body but the satisfactory execution of those functions remains the responsibility of the local authority.^[9] 
8.15     Clearly the authority will not have to investigate and come to a conclusion as to precisely what occurred before making the decision about whether there should be an inquiry into it. But the authority will have to work on the information that it has so in many cases some preliminary inquiry will have to be undertaken before the authority can make its decision. 

5 Lack of any other specific power of inquiry

8.16     The Bill further provides that the power to establish the new form of inquiry should not arise where the circumstances already fall within the scope of a specific statutory power of inquiry. For example once the provisions of the Children Bill 2004 are enacted and in force inquiries into serious failures in the provision of services to children will be undertaken under the provisions of that Act not under the form of inquiry recommended here. The reason for this limitation is that it would not be appropriate or proportionate for there to be two potentially rival statutory forms of inquiry which could arrive at opposite conclusions on the same issue. 

6 Appropriateness

8.17     The Bill also provides that the local authority must consider that a special inquiry would be appropriate. As the special inquiry that we recommend will in essence be a statutory adjunct to the existing power of the local authority to establish an ad hoc inquiry ^[10] this implies that the power should be used in situations where the authority fears that an ad hoc inquiry will not be effective. 
8.18     The need to for the authority to regard it as appropriate to establish a special inquiry should prevent the authority setting up a special inquiry into a trivial matter or one which is going to be or has been adequately investigated.^[11] The special inquiry will also have costs implications. 
8.19     As the power to ask the Court to compel witnesses to give evidence before it is potentially intrusive it should not be used oppressively. A local authority will only wish to use the power proposed where an ad hoc inquiry will not suffice. Where the authority anticipated full co-operation from all those involved then its ad hoc powers of inquiry should suffice. 
8.20     Use of the new form of inquiry would be appropriate where it was likely that key people would not come forward voluntarily for example where potential witnesses were no longer employed by the authority or had moved away from the area or abroad; or had indicated that they would not co-operate. Similarly if key documents were likely to be withheld from the inquiry such as the terms of a contract with a care supplier or documents for which the authority claimed public interest immunity this would justify use of the new power. 

7 Authorities with power to set up a special inquiry

8 Principal local authority^[12]

8.21     A principal local authority is to have the power acting on its own or jointly with any other principal local authority whose functions are to be investigated. 

9 Joint working

8.22     Where two or more principal authorities wish to establish a special inquiry jointly the conditions must be satisfied in respect of each of them. In other words each joint commissioning authority must believe that there has been a serious failure in the exercise of its functions or that there are good grounds for thinking that may have been the case. This might be appropriate where for example there had been failures in the function of child protection and the child in question was first in the care of one authority and then in the care of another. Here a joint inquiry might be preferable especially if one of the causes of failure was the handover from one to another. It does not however have to be the same kind of function which failed or seems to have failed in each authority. 
8.23     It will not be possible under the draft Bill for any other body to join formally with the commissioning authority in establishing a special inquiry. That said co-operation is possible in a number of ways and at a number of different levels. There would be no reason for a commissioning authority not to engage with other bodies in whatever way was appropriate. For example it might enlist expert advice from another body co-opt a member of another body onto a sub-committee responsible for overseeing the inquiry ^[13] or accept a financial contribution from another body towards the cost of the inquiry. 

10 Recommendation 7

8.24     Principal local authorities acting alone or together shall have the power to establish a special inquiry where: 

(1) they believe or have reason to believe that there was or may have been a serious failure in the exercise of a function of theirs

(2) the circumstances do not require an inquiry to be set up under any other specific statutory provision and

(3) they consider it is appropriate in all the circumstances.

This power shall be additional to local authorities' existing powers of ad hoc inquiry and investigation.

8.25     As noted at the outset of this report our remit was confined to the sphere of local authorities. Nonetheless the essential features of the special form of inquiry namely that 

it is independent of the commissioning body and

the power to compel witnesses to attend and answer questions is exercisable only with the approval and supervision of the court.

might make it an appropriate for adoption by other classes of public bodies acting jointly with a principal local authority or alone. This is however a matter for Government possibly as part of its current review of inquiries.^[14]

11 Establishing the special inquiry

8.26     To establish a special inquiry the local authority must: 

(1) take the decision at the full council;

(2) take the decision in public;

(3) notify the Minister; and

(4) take reasonable steps to notify the complainant.

12 The decision is to be made by the full council

8.27     The decision to establish a special inquiry may not be delegated but must be taken by the whole authority (that is by the members).^[15] There are a number of instances where a council is prohibited by statute from delegating functions. Many of these concern circumstances where there may have been wrong-doing which must be reported to the council as a whole for it to consider.^[16] We see the situation where a special inquiry may be required as similar. Further the decision to be taken may lead to an expensive course of action for which all members should clearly be responsible.^[17] 
8.28     The power to establish a special inquiry is specifically exempted in the attached Bill from the possibility of delegation contained in section 101 of the 1972 Act. 

13 Limit on powers of delegation under the new executive arrangements

8.29     The Local Government Act 2000 introduced new models of working for local authorities. Instead of a system based upon decision-making by the council and committees these three new models were: (1) a mayor and cabinet executive (2) a leader and cabinet executive and (3) a mayor and council manager executive.^[18] Where a function falls to the executive the LGA 2000 prescribes how it is to be discharged within each of the new possible structures. Our view is that the decision to establish a special inquiry is not to be one of the functions which is to fall to the executive part of the council but must be exercised by the full council. 

14 The decision is to be made in public

8.30     The decision to hold a statutory inquiry should be made in public. Where the subject matter which prompts the call for an inquiry relates to a matter which would normally be discussed in private the item will need to be discussed in both the public and the closed Parts of the council meeting agenda. If the need to go into closed session arises unexpectedly a resolution should be passed to that effect and the item considered in private either immediately or when the meeting gets to the closed Part of the agenda. A local authority council meeting or committee meeting might find it necessary to go into private session to explore some aspect of the issue whether there should be an inquiry. It can rely on the existing provisions to do this. Nevertheless the decision itself must be made during the part of a meeting which is open to the public. 
8.31     A meeting at which such a decision is made may be an annual meeting ^[19] or an extraordinary meeting.^[20] The latter may be held as the council determines. Notice provisions apply.^[21] 

15 Recommendation 8

8.32     The decision to establish a special inquiry shall be taken in public by the full council or each of them if there is more than one. 

16 Requirement to notify the Minister

8.33     When establishing a special inquiry the principal local authority commissioning the inquiry (or one of them if there is more than one) must notify the Minister with responsibility for local government (currently the ODPM) of the decision in writing. If the commissioning authority or one of them is a Welsh local authority then it must notify the National Assembly for Wales too. This may be done by the local authority sending a copy of the Minute of the meeting at which the resolution was passed to the Minister. 
8.34     If a local authority has already petitioned a Minister to hold a Ministerial inquiry which the Minister has declined the requirement to notify the Minister of the local authority's decision is not affected. 

17 Recommendation 9

8.35     The commissioning authority or authorities must notify the Secretary of State and if the commissioning authority or one of them is a Welsh local authority the National Assembly for Wales in writing of the decision to establish a special inquiry. 

18 Requirement to notify the complainant or someone acting on behalf of the complainant

8.36     A complainant is the person affected by the way in which the local authority's function was carried out. Where there is a complainant or a group of complainants and the local authority resolves to establish a special inquiry the local authority should take reasonable steps to notify them of that decision. 
8.37     As with the requirement to notify the Minister this may be fulfilled by sending a copy of the Minute of the meeting at which the decision was made. If this is not appropriate the method of notification is for the authority to determine taking into account any rules regarding such notifications that may have been made by the Secretary of State.^[22] 
8.38     Where a special inquiry is discontinued by the Secretary of State^[23] then the same people should be notified as were notified when it was established. 

19 Who is to be notified on the complainant's behalf?

8.39     It may be that the notification should be sent to someone on behalf of the complainant instead for example where the complainant is under 18 has a mental disability or has since died. The choice of who is to be notified on behalf of the complainant should be left to the judgement of the authority. 
8.40     It would be hoped that by the time an authority is setting up an inquiry of this nature it will already know about the family circumstances of the complainant and therefore know which people will want to be informed and by what method. Offence and distress can be caused by failure to communicate at all or by communicating with some but not others. 
8.41     As the decision to hold an inquiry must be taken in public ^[24] this aspect of the policy aims to ensure that those most affected are informed about the decision. It is not intended to restrict notification or dissemination of the decision. For example if there is doubt in a particular case as to whether the partner or the parents of a deceased complainant ought to be notified then the authority should not consider itself inhibited from notifying all those who claim to be close. There is no need for the authority to try and decide for itself who has a "better" claim to be close to the complainant. 
8.42     If for whatever reason notification is sent to one person but not to another and that other asks for a copy of the minute then he or she ought to be provided with access as required under existing statutory provisions.^[25] 

20 Recommendation 10

8.43     The commissioning authority or authorities shall take reasonable steps to notify a complainant (or a person acting on behalf of the complainant) of the decision to establish a special inquiry and if it occurs that the inquiry is to be or has been discontinued on direction of the Secretary of State. 

21 Running the inquiry: practical matters

8.44     Many of the matters relating to the running of the inquiry are not prescribed in the Bill but are nevertheless matters which must be taken into account when establishing a special inquiry.^[26] Decisions on how to run the inquiry will be primarily for the inquiry. Nonetheless there will be matters which in practice will require early negotiation between the inquiry and the authority such as whether it is to be conducted in public or private and the budget.^[27] 

22 Terms of reference

8.45     Appropriate terms of reference are the key to a successful inquiry outcome. The authority as the commissioning body will set the terms of reference. The terms of reference and the interpretation of those terms of reference must be consistent with the Bill which sets out the power to establish the inquiry. 

23 Appointments

8.46     The local authority will appoint the person(s) to conduct the special inquiry. The authority must ensure that the person appointed will be regarded as independent of the authority and has the relevant skills and knowledge to conduct a successful inquiry. 

24 The authority may not limit the inquiry's powers to seek a court order

8.47     The authority is not to be able to limit the power of the inquiry to apply to the High Court for an order to secure the attendance of persons or the production of evidence.^[28] 

25 Effect if the inquiry is ultra vires

8.48     The significant difference between a special inquiry and an ad hoc inquiry is the power for the special inquiry to apply to the court for orders to compel the attendance of witnesses or the production of documents. If for example when an application is made to the court for a witness order it transpires that the authority was acting ultra vires when it established the special inquiry the inquiry would have to cease. 
8.49     We considered whether it having been found to be ultra vires the special inquiry could automatically be converted into an ad hoc inquiry. We have concluded that this should not happen automatically. A special inquiry either exists or it does not. If one is stopped by the authority there should be a clean break between the special inquiry and whatever the authority does next. It could of course decide to establish an ad hoc inquiry and even permit such inquiry to adopt material presented to the special inquiry. But we think the authority should be required to take a conscious decision on this matter. 
8.50     Similarly if a local authority sets up an ad hoc inquiry it cannot simply convert that ad hoc inquiry into a special inquiry. If a local authority found that an ad hoc inquiry either was ineffective or was going to be ineffective because of a witness's refusal to co-operate it would have to terminate the ad hoc inquiry and then use the new statutory power we recommend to establish a special inquiry. The reason for this is that we wish to ensure that the requirements for the decision to establish a special inquiry to be taken in public by the full council^[29] should not be circumvented. 

26 Rules of procedure

8.51     The procedure to be adopted is for the inquiry to decide (subject to any rules made by the Secretary of State). The Bill gives the Secretary of State the power to lay down rules of procedure after consultation with the Council on Tribunals. Procedural rules could cover matters such as the treatment of witnesses recording of proceedings communications with complainants or people on their behalf. Where the rules are to apply to special inquiries established by Welsh authorities then the Secretary of State must make the rules jointly with the National Assembly for Wales. The Bill provides that commencement can be delayed until after such rules have been prepared. 

27 Recommendation 11

8.52     The Secretary of State shall have power after consultation with the Council on Tribunals to prescribe rules of procedure for the conduct of special inquiries and if those rules are to apply to special inquiries established by Welsh local authorities then the Secretary of State shall make them jointly with the National Assembly for Wales but subject to any such rules a special inquiry shall be free to determine its own procedure. 

28 Taking evidence on oath/affirmation

8.53     Normally an inquiry undertakes various tasks such as perusing documents inviting witnesses to attend before it putting questions to the witnesses and noting their answers. No form of local authority inquiry allows it to take evidence on oath/affirmation. We do not recommend that a special inquiry should have the power to take evidence on oath/affirmation. 
8.54     A consequence of this is that a person cannot be prosecuted for perjury. However if a person "knowingly and wilfully makes (otherwise than on oath) a statement false in a material particular and the statement is made … in any oral declaration or oral answer which he is required to make by under or in pursuance of any public general Act of Parliament …" then he or she commits a criminal offence under section 5 of the Perjury Act 1911. So if a person gave untrue evidence and it could be proved that he or she had done so deliberately and knowing it to be untrue then in those circumstances he or she could face prosecution even though no oath was taken. 

29 Recommendation 12

8.55     Special inquiries shall not have power to take evidence on oath or affirmation. 

30 Resources

8.56     The authority will have to consider the need: 

(1) to provide (and/or pay for) the remuneration and expenses of those running the inquiry;

(2) to provide (and/or pay for) the cost of legal support to the inquiry;

(3) to provide (and/or pay for) accommodation for the inquiry;

(4) to provide (and/or pay for) secretarial/administrative support for the inquiry;

(5) to pay the other reasonable costs of the inquiry including making applications to the court and any costs which follow from such applications (whether by agreement or by order of the court) and including indemnifying the inquiry panel; and

(6) to pay allowances and/or expenses of those attending the inquiry to give evidence or produce documents or other material;

(7) to pay for the reasonable costs of representation as determined by the inquiry.

31 Indemnifying the inquiry

8.57     As mentioned at paragraph 2.35 above section 111 of the 1972 Act allows the local authority to "do any thing (whether or not involving the expenditure borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate or is conducive or incidental to the discharge of any of their functions". While the case law on whether section 111 permits the giving of an indemnity to persons who are not members or officers such as the members of an inquiry panel ^[30] is not crystal clear we tend to the view that it does. 

32 Recommendation 13

8.58     The commissioning authority or authorities shall have power to pay for: 

(1) the inquiry's expenses including indemnities for the inquiry;

(2) expenses incurred by witnesses in attending before the inquiry.

33 Power to direct payment of the costs of a witness's representation

8.59     One of the procedural questions that an inquiry will address is whether to permit representation of witnesses who give evidence to it. While we envisage that representation should often not be necessary and thus would not need to be paid for it should be possible for such expenses to be met at the discretion of the inquiry. Any costs of representation should only be those that are reasonable in terms of amount. 

34 Recommendation 14

8.60     The inquiry may direct that the cost of representation incurred by a person attending before it shall be paid by the commissioning authority or authorities but only insofar as it is reasonable in amount. 

35 Publication of the report and privilege

8.61     Qualified privilege as a defence in defamation would attach to evidence given to the inquiry as to any other inquiry as a matter of common law.^[31] 
8.62     As regards publication of the report of the special inquiry by the commissioning authority or of a part or a summary of it qualified privilege should be available to the authority as a defence in the same circumstances as those we have recommended in Part VI. Whether it attaches in any given case will depend on whether the "fairness requirements" are or seem to the authority to be satisfied. 

36 Recommendation 15

8.63     Where a commissioning authority publishes the report (or part or a summary of the report) of a special inquiry to the public or a section of it and specified fairness requirements are met (see recommendation 5 above) then statutory qualified privilege shall attach but where the fairness requirements are not satisfied common law privilege and the statutory qualified privileges which apply where a document shall be open to public inspection shall not attach either. 

37 The inquiry's power to apply for an order

8.64     It appears that the High Court does not have the power to issue a witness summons compelling attendance to inquiries except where specifically provided for by statute. The fact that contempt proceedings are provided for under the compulsion provisions in the Tribunals and Inquiries Act 1921 and for example under section 9 of the Parliamentary Commissioners Act 1967 (and other statutes relating to statutory powers of inquiry and investigation and obstruction of functions as if they were before the High Court^[32] with statutory procedures for referral to the court) indicates that existing powers cannot be used to compel witnesses to attend a statutory inquiry. 
8.65     It therefore appears that none of the existing powers or procedures by which the High Court can issue a summons to compel the attendance of a witness is appropriate for a procedure for the court to compel the attendance of a witness before a local authority statutory inquiry. Therefore the Bill contains the framework of a new procedure giving the High Court the power to make the necessary orders and a procedure for the application.^[33] 

38 Power to apply to the High Court

8.66     The special inquiry is to have the power to request an order from the High Court for the attendance of a particular witness to answer questions and/or to produce a particular document or thing. The inquiry is to have the power to incur the costs of making such an application without the approval of the commissioning authority including the costs that it may be ordered to pay by the court.^[34] 
8.67     There would be nothing to prevent the inquiry team applying for an order against an officer of the commissioning authority itself. This might be necessary where the authority was not co-operating or where the authority was withholding documents in order to respect a duty of confidentiality. In that latter case the issue of whether the greater public interest lies in disclosure is best decided by the court. 

39 Who

8.68     The application would be made by the inquiry team (not by the commissioning authority). 
8.69     The local authority would not have any standing in the proceedings in its capacity as commissioning authority. 
8.70     It would be open to the court to entertain representations and evidence from non-parties in the same way as in judicial review proceedings under rule 54.17 of the CPR. 

40 When

8.71     The application could be made at any point during the inquiry from the date it was appointed to the delivery of its report. 
8.72     The inquiry would also have the power to conduct litigation which may follow from an application for an attendance order such as enforcement or appeal proceedings. 

41 Recommendation 16

8.73     A special inquiry shall have the power at any time during the life of the inquiry to apply to the High Court for an order compelling a person to attend before it to answer questions or to produce a document or thing. 

42 The court's powers

43 The order

8.74     The Court is to have power to issue an order for the attendance of a particular witness ("the respondent") before the inquiry to answer questions and/or to produce a specified document or thing to the inquiry on application from such a statutory inquiry and various ancillary powers.^[35] 
8.75     The order will require the named respondent to attend before the inquiry on a specified date(s) and to answer questions put to him or her by or on behalf of the inquiry.^[36] Alternatively or additionally it may require the respondent to produce a specified document(s) or thing(s) before the inquiry by a specified date. 

44 Conditions for issuing the order

8.76     The court is only to issue the order where satisfied: 

(1) that the respondent has material evidence to give to the inquiry which evidence is unlikely to be able to be obtained from any other source;

(2) that the respondent has been given adequate notice of the matters on which the inquiry panel proposes to question him or her;

(3) that the respondent has refused or failed to attend to answer questions or to produce the document or thing voluntarily;

(4) where the order sought is for the production of a document that the document contains matters relevant to the inquiry which evidence is unlikely to be able to be obtained from any other source; and

(5) that in all the circumstances it is just to issue the order.

This last factor would allow the court to review the conduct of the inquiry hitherto and the proposed future conduct. For example the investigation by the court into the proposed conduct of the inquiry might prompt an undertaking from the inquiry.

45 Having material evidence to give

8.77     Under the present witness summons system it appears to be accepted that a party who wishes to compel a witness must be left to judge in the first instance whether the witness can give material evidence. There appears to be a presumption that until the contrary is shown upon a proper application the witness can contribute to the proceedings. 
8.78     These presumptions would not be appropriate for the proposed new procedure. It is a condition of the granting of the order that the witness is likely to be able to give material evidence: this would be a finding by the court prior to issuing the order. 

46 Challenges to the application

8.79     As a matter of ordinary legal principle the court's powers would only be exercisable where it was satisfied that the commissioning body had acted within its powers in establishing the inquiry in the first place. The court must be satisfied as to a certain state of facts before it can proceed to exercise powers dependent on that state of facts in order to be sure that it has jurisdiction. For example in White and Collins v Minister of Health an order of compulsory purchase made by a local authority was quashed by the court because the order could only be made if "the land in question was not part of any park…". Luxmoore LJ said:^[37] 

In such a case it seems almost self-evident that the court which has to consider whether there is jurisdiction to make or confirm the order must be entitled to review the vital findings on which the existence of the jurisdiction relied upon depends.

Thus the court might have to undertake a preliminary inquiry into the decision made by the authority.

8.80     A challenge on the grounds of vires would normally be by way of judicial review.^[38] On such an application the usual principles would apply. The court would interfere with the decision only where it was outside the band of reasonable decisions or had been improperly reached.^[39] 
8.81     Even where a person would not have had the necessary standing or would have had but is outside the time within which the application for judicial review should have been made if an application is made by an inquiry for an order against him or her then the potential witness would be able to raise the question of vires and would be able to do so on the grounds that the court did not have the jurisdiction to exercise the power sought. 
8.82     Thus a person against whom an attendance order was sought could contest the application on the basis that the decision to establish the inquiry was itself unlawful and/or on the basis that any of the necessary conditions (see paragraphs 8.11 - 8.20) was not satisfied. 

47 Recommendation 17

8.83     The High Court shall have the power on application by a special inquiry to issue an order requiring a witness to attend before the special inquiry to answer questions or to produce a document or thing and the court may do so where satisfied that: 

(1) the witness is likely to be able to give material evidence to the inquiry or that the document or thing is likely to be material evidence;

(2) the witness has been given adequate notice of the matters on which the inquiry panel proposes to question him or her;

(3) the respondent has refused or failed to attend to answer questions or to produce the document or thing voluntarily;

(4) the evidence is unlikely to be obtained from any other source; and

(5) that in all the circumstances it is just to issue the order.

48 Answering questions at the inquiry

8.84     It is important that special inquiries can meet the need for an effective investigation where there has been a serious failure in the performance by a local authority of one of its functions. An inquiry may not be effective where evidence cannot be secured. We therefore think it right that when appearing before a special inquiry a person shall have the privileges that would be available in civil proceedings. However he or she may not refuse to answer a question or produce a document or thing solely because to do so would incriminate him or her or a spouse.^[40] 

49 Recommendation 18

8.85     Where a person attends before a special inquiry he or she may not be compelled to answer a question or produce a document or thing that he or she could not be compelled to answer or produce in civil proceedings before the court but that person shall not be excused from answering a question or producing a document or thing solely on the grounds that doing so would incriminate that person or his or her spouse. 
8.86     There are safeguards in the scheme that we recommend against the abuse of compulsion. First an order compelling a person to attend before a special inquiry can only be made by the High Court. Secondly any evidence that is given may not be used against that person in subsequent criminal proceedings as we now explain. 

50 Restricting the use that may be made of evidence given

8.87     The Salmon Report recommended that a witness's evidence should benefit from automatic immunity to encourage witnesses to be as forthcoming as possible in the material they place before an inquiry.^[41] We have followed this lead. We think it should not be possible to use evidence given to the special inquiry to incriminate a person in subsequent criminal proceedings unless he or she had introduced it into those proceedings.^[42] It is our view that Article 6 of the ECHR requires such a safeguard to be in place. 
8.88     The evidence given to the inquiry might prompt further investigation by state authorities who may have another lawful way of obtaining the same information for use in subsequent criminal proceedings. It is quite likely that the same documentation will be produced. The restriction extends only to evidence given not to documents or things produced to the special inquiry. For oral evidence a witness may be quite frank when questioned by the inquiry. Thus an evidence immunity will prevent the transcript of that evidence from being used in a subsequent criminal trial.^[43] Other evidence obtained as a result of the evidence obtained under compulsion would be admissible in criminal proceedings subject to the usual rules applicable in those proceedings. 
8.89     The person who had given the evidence would however be able to use it in any subsequent proceedings. 
8.90     Some witnesses will come forward in response to a request from a special inquiry albeit reluctantly. It does not seem to us that they should be disadvantaged as compared with those who have the means and opportunity to obtain legal advice on whether they have to comply with a request to attend from a special inquiry. Therefore this immunity should be applicable to oral evidence given by all witnesses to the inquiry whether as a result of a court order or not. 
8.91     Immunity of witnesses from prosecution is a different matter. It is an issue which may arise in relation to existing or contemplated criminal proceedings. It may sometimes be desirable for a witness to be guaranteed that he or she will not be prosecuted but this is a matter for a decision in an individual case by the Director of Public Prosecutions after consultation with the Law Officers as appropriate. We do not therefore think that any provision ought to be made to deal with immunity from prosecution. 

51 Recommendation 19

8.92     A statement made to a special inquiry shall not be admissible against the person who made it at the behest of the prosecution in criminal proceedings or proceedings before service courts in which that person is charged with an offence (other than an offence under section 5 of the Perjury Act 1911) unless evidence relating to it is adduced or a question relating to it is asked by or on behalf of that person. 

52 Ancillary orders

8.93     The court would have the power to make ancillary orders in respect of: 

(1) any help that a respondent might need when attending before the inquiry such as the need to be accompanied by a friend professional helper or relative being someone who would not answer for the respondent (i.e. not an advocate) but who could help the respondent to answer if required;

(2) any interpreting facilities to be provided to the respondent at the inquiry;

(3) the payment of the respondent's costs in attending the inquiry.^[44] The court would have the power to direct that this should be attached as a condition to the order;

(4) the payment of the costs of the application to the court including representation for the respondent in the application before the court whether the application is granted in whole or in part refused or adjourned. This would normally follow the result but there may be cases where the court finds it just to order the inquiry panel to meet the individual's costs even though the order the inquiry sought has been made (see further para 8.109 below); and

(5) any other order relating to the attendance of the respondent in the court's discretion. This might extend to an order that the inquiry should meet the respondent's costs of legal representation before the inquiry itself.

8.94     The court would also have the power to direct that the witness may give evidence to the inquiry by any means the court considers appropriate. For example it may be more convenient to the witness and adequate for the inquiry for the witness to appear before it by TV link than in person. The court would be able to allow for that in the order. 

53 Recommendation 20

8.95     The court shall have the power to make ancillary orders in respect of: 

(1) any help that a witness might need when attending before the inquiry;

(2) payment of the witness's costs in attending the inquiry;

(3) payment of the costs of the application to the court including representation for the respondent in the application before the court whether the application is granted in whole or in part refused or adjourned; and

(4) any other order relating to the attendance of the witness in the court's discretion.

54 Procedure

8.96     We propose a new procedure to allow special inquiries to apply for an attendance order. This will require an alteration of the Civil Procedure Rules by the Civil Procedure Rule Committee.^[45] We outline our proposed procedure below to demonstrate how it would fit in with and utilise the existing Civil Procedure Rules. We believe that this proposed procedure is accessible fair and efficient. 
8.97     The proposed new procedure is by way of application to the High Court. The procedure envisioned is analogous to that for application for judicial review. As with judicial review there would be no court proceedings already in existence. This is we think a significant difference from the situation where a party to existing proceedings makes use of the procedure provided by Part 34 of the CPR and that difference is the reason we think the new procedure should be modelled on Part 8 rather than on Part 34 of the CPR. 
8.98     Part 8 of the CPR as modified by Part 54 of the CPR read with section 31 of the Supreme Court Act 1981 now contains all the procedural rules governing claims for judicial review. 

55 Pre-action steps - need for a protocol?

8.99     In view of the fact that the kinds of steps which such a protocol might contain are those steps which an inquiry would have to take in any event (such as asking the witness to attend the inquiry) ^[46] we do not propose any pre-action protocol. 

56 The claim form

8.100     Part 8 claims are used when there is no substantial dispute of fact.^[47] A Part 8 claim form must state that Part 8 applies and must set out the question the claimant wants the court to decide or the remedy sought. If a claim is brought pursuant to statute the relevant statute and provision must be stated.^[48] We propose that the remedy to be granted by the court in such applications is a witness summons. The order for attendance for sprecial inquiries can be modelled on form N20. 
8.101     Any evidence the claimant (inquiry) relies on must be filed and served with the claim form.^[49] The claim form should be filed with the Crown Office for allocation to the Administrative Court. As the claim involves the potential interference with the liberty of the person we propose that the claimant (inquiry) use a sworn statement regarding the written evidence that accompanies the claim form. The claim form should state: 

(1) who is making the application and its authority (the statutory authority under which the inquiry was established by whom when and its terms of reference);

(2) what is applied for (the order sought);

(3) against whom (identifying the respondent);

(4) that the respondent has been requested to attend before the inquiry and that he or she has refused or failed to attend;

(5) that the respondent has material evidence to give to the inquiry and that that evidence is unlikely to be obtained from any other source;

(6) where the inquiry wishes the respondent to produce a document what document is required and why.

8.102     The sworn statement would provide the evidence in support of the application namely evidence going to each of the matters which the court must find proved in order for it to issue the order. It will thus have to contain evidence going to: 

(1) the establishment of the inquiry (the resolution of the local authority)

(2) the composition and terms of reference of the inquiry; an inquiry may consider it wise to include some evidence on how the inquiry has been conducted and how it proposes to handle the respondent in order to satisfy the court that it will be fair for the summons to be issued;

(3) how and when notice has been given to the respondent and indicate whether there has been any acknowledgement of being so notified and if so what form that acknowledgement took;

(4) the respondent's refusal or failure to attend;

(5) what evidence it is anticipated the respondent can give (and/or document he or she can produce) and why it is relevant; and

(6) why the evidence is unlikely to be obtained in any other way.

57 Service of the claim form

8.103     The claim form and evidence filed in support should be served on the respondent. After service the respondent has 14 days to acknowledge service.^[50] Under the existing Part 8 procedure a default in the acknowledgement of service leads to a judgement in default and an issuing of a witness summons against the respondent. We do not think that this default pathway to the issue of an attendance order is appropriate for our process because it would avoid any consideration of the merits of the application. It should be precluded. 
8.104     Acknowledgement of service will usually be on the official form Form N210 but may be given informally by letter.^[51] The respondent should be required to indicate whether the order sought will be contested. Respondents must file and serve their evidence when they acknowledge service. This evidence should be given in the form of a sworn statement or witness statement stating the facts in support of the refusal to attend the inquiry for contesting the order sought or other claims such as legal professional privilege. The claimant/applicant may file and serve evidence in reply within 14 days thereafter.^[52] 

58 The decision

8.105     The primary decision on whether to issue a witness summons in accordance with the application is normally under Part 8 made by a judge in chambers on the papers filed with the court. Under our procedure the decision must be made at a hearing at which the parties are present and not on the papers unless the respondent has indicated when acknowledging service that he or she is content for there not to be a hearing and the court is content to decide the matter on the papers. 
8.106     For example the application might be made against a public body which believes it ought to claim public interest immunity for the document the inquiry wishes it to produce. In these circumstances the respondent public body might feel it cannot consent but not believe that a hearing is necessary. The court might nevertheless wish to be addressed and even take evidence on the issue of whether the public interest lies in disclosure or non-disclosure. 

59 Decision on the papers

8.107     If exceptionally there is a decision on the papers (see para 8.105 above) and the judge refuses the application the claimant (inquiry) may apply to the full court for the issue of the attendance order. If on the other hand the judge issues the order the respondent may apply to the full court to vary the order or to set it aside. 

60 Decision after a hearing

8.108     There could be a hearing to decide the application at which evidence could be given. Witnesses could be called at the request of either party or at the instigation of the court. If a party wished to summons a witness to this hearing Civil Procedure Rules Part 34 would provide the appropriate process. 

61 Costs of the application

8.109     If the judge issues the attendance order then the costs of the application should normally be awarded against the respondent. If the judge refuses the application the costs will normally be awarded against the claimant (inquiry). However it is to be open to the court to require the claimant (inquiry) to meet the costs of the respondent even if successful. The liability of the parties for costs should be clearly stated on the claim form. 
8.110     The usual procedures concerning the issue and service of the attendance order should then be followed and supervised by the Administrative Court. 

62 Funding of the respondent's legal representation before the court

8.111     Under the proposed scheme the respondent may have to bear his or her own costs of the application or even those of the inquiry making the application. Public funding should be available on a means and merits-tested basis via the Community Legal Fund administered by the Legal Services Commission under the Access to Justice Act 1999 ("AJA 1999"). 
8.112     Section 6 of the AJA 1999 specifies the legal services which may be funded by the Community Legal Service ("CLS"). Subject to section 6(1) of the AJA 1999 and to section 6(6) the services which the Legal Services Commission may fund as part of the CLS are those that the Commission considers appropriate. (It is possible that the Commission in the exercise of this discretion may consider that it is not appropriate to fund the proceedings we specify. Also the Lord Chancellor may direct the Commission not to fund such proceedings by virtue of the power specified in section 6(1). We see no reason why either of these might be invoked.) 
8.113     Section 6(6) together with Schedule 2 specifies cases which the CLS may not fund.^[53] Schedule 2 to the Act lists a number of services which may not be funded none of which covers the kind of proceedings we have in mind. Schedule 2 also excludes provision of advocacy in any proceedings except concerning proceedings in (amongst others) the High Court Court of Appeal and House of Lords. 

63 Appeals

8.114     Both parties are to have the right of appeal in accordance with rule 52 of the CPR. Permission to appeal has to be sought from the High Court and grounds must be made out. If permission is refused the party may appeal against that refusal to the Court of Appeal. If permission is granted the Court of Appeal hears the appeal. Appeal from a determination of the Court of Appeal on the appeal from the High Court is to the House of Lords. 

64 Enforcement of the order of the court: civil contempt

8.115     Failure to comply with an order issued by the High Court is prima facie punishable as a contempt of court. Civil contempt is not a criminal offence^[54] but the standard of proof in all forms of contempt is to the criminal standard beyond a reasonable doubt.^[55] The chief instance of civil contempt or "contempt in procedure" is disobeying an order of the court by a party to the proceedings. Although in practice there is little to distinguish between civil and criminal contempt the distinction remains in force in relation to 

(1) privilege from arrest;

(2) the principle that the prerogative of the Crown extends to remission of a sentence for criminal but not civil contempt; and

(3) the principle that a civil contempt can be waived for if the party for whose benefit an order was made is content that it should not be performed the court has generally no interest in interfering with this decision.^[56]

65 Mens rea for civil contempt

8.116     As the order we propose is in form and substance an order from the court once it has been served it must be obeyed subject to a reason for non-compliance being made out. For the purposes of contempt it is not necessary to demonstrate on the part of the person served any specific intention as to the consequences of their non-attendance for the administration of justice. Thus the mens rea for contempt of an order of the court can comprise:^[57] wilful disregard ^[58] recklessness or negligence. 
8.117     A witness may be able to show that they had a reasonable excuse for their non-attendance. Thus a witness would not be in contempt if they were genuinely too ill to attend or otherwise prevented from attending by means beyond their control. The duty to attend court takes precedence over other public duties. 

66 Powers of court once contempt is proved

8.118     A range of sanctions is available: 

(1) imprisonment;

(2) a fine up to £1000; or

(3) an injunction which may be useful to restrain further non-attendance. Such a sanction may encourage attendance without having to initiate a new application for an attendance order.

8.119     The court's power to punish for contempt of court may be exercised by an order for committal to prison or by other means such as a fine. However in punishing for contempt the court's powers are limited and the full range of sentencing options available to a criminal court are not available. For example the court has no power to impose a community penalty. The term of imprisonment must be for a fixed term which cannot exceed 2 years.^[59] 
8.120     In the case of a coroner's court a coroner can impose a maximum fine of £1000 on a witness who fails to attend a hearing.^[60] A similar level of fine can be imposed by inquiries established under the Tribunal and Inquiries Act or imprisonment up to a maximum of 6 months. 
8.121     Where a local inquiry has been set up under section 250 of the 1972 Act section 250(3) allows for fines of up to £1000 and/or a prison sentence for up to six months for refusal or deliberate failure to attend in accordance with the summons or deliberate alteration suppression concealment destruction or refusal to produce a book or document as required. 
8.122     On the basis of parity with similar powers the maximum period of imprisonment for contempt under our scheme should be 6 months and the maximum fine £1000. 
8.123     It seems to us appropriate for the normal procedure for an application for an order of committal to apply. (We do not think that any process of certification of contempt by the inquiry would be appropriate for example because the contempt is disobedience of a court order not contempt of the inquiry.)^[61] 
8.124     The court has the power to discharge a person found guilty of contempt prior to the completion of their sentence. There is a right of appeal in the case of civil contempt available to both the applicant and contemnor.^[62] Permission to appeal is not required for an appeal against a committal order.^[63] The rules are supplemented by a Practice Direction – Committal Applications which applies to any application for an order of committal of a person to prison for contempt. 

67 Recommendation 21

8.125     Failure to comply with an order made by the High Court to attend before a special inquiry shall be punishable as contempt of court with maximum penalties of 6 months' imprisonment and/or a fine at level 3 on the standard scale. 

68 The Minister's power to stop a special inquiry

8.126     There is one circumstance where a special inquiry ought to be stopped: where its work is being or will be duplicated by some other national inquiry. Therefore if the subject of the special inquiry is or will be the subject of an inquiry established by the Minister under express or implied powers to establish a Ministerial inquiry or the prerogative ^[64] or a 1921 Act inquiry ^[65] a Health and Safety Commission inquiry ^[66] or an inquiry established by the National Assembly for Wales then the Minister may terminate the local authority statutory inquiry. 
8.127     If the commissioning authority or one of them is a Welsh local authority the Secretary of State must consult the National Assembly for Wales before directing a local authority to stop a special inquiry. 
8.128     The Minister is only to have the power to halt the local authority inquiry where the matter is being investigated as described in paragraph 8.24 above. 
8.129     There should be no statutory impediment to the inquiry established by the local authority beginning its work nor delay built into the system. In practice the local authority is likely to have been in communication with the relevant department from an earlier stage and will therefore know whether the Minister or the Assembly is minded to take it over. 

69 Recommendation 22

8.130     If in the view of the Secretary of State (after consultation with the National Assembly for Wales where appropriate) all or substantially all of the matters which are or will be the subject of a special inquiry are or will be the subject of one of the following forms of inquiry then the Secretary of State may direct the commissioning authority or authorities to stop the inquiry at any time before the inquiry submits its final report and the authority/ies shall do so without delay. 
8.131     The forms of inquiry are: 

(1) a Tribunals of Inquiry (Evidence) Act 1921 inquiry;

(2) an inquiry established by a Minister of the Crown under an explicit power an implied power or the prerogative;

(3) an inquiry established by the Health and Safety Commission under section 14(2)(b) of the Health and Safety at Work etc. Act 1974; or

(4) an inquiry established by the National Assembly for Wales under any enactment.

70 Commencement

8.132     The provisions in the attached Bill would come into force on a date to be appointed. (The necessary procedural rules would need to be in place before the provisions came into force.) 
8.133     There is not to be any restriction on the exercise of the new statutory power in terms of when an incident occurred or a complaint was made. Thus once the power is exercisable a principal authority may establish a statutory inquiry into a matter that arose before the power became available. 

71 Convention-compatibility of our recommendations in this part

8.134     As indicated at paragraphs 7.45 – 7.74 above one of the principal considerations behind the recommendations in this Part is to promote compliance with the ECHR in particular the investigative duties which arise under Article 2 and Article 3. 
8.135     We have also taken account of the significance of Article 6 and therefore although a witness may be compelled to give evidence to a special inquiry that evidence may not subsequently be used against him or her in criminal proceedings unless he or she introduces it in those proceedings. 
Ý
Ü   Þ

Note 1    They wrote: We think it may be important to distinguish between two types of major inquiry in this field. In some such as the North Wales Inquiry there is a real fact finding exercise to be done. Allegations are made by one or more residents in a care home whether for children the elderly the mentally or physically ill or disabled that they have been abused by staff. One of the main tasks of such inquiries is to establish whether other residents have been abused and if so over what period of time. The other type of inquiry involves the death or serious mishandling of a case involving an individual family. Usually there will be a case file in which the major events are set out. Inquiries of this type do not commonly uncover fresh facts about the main events since often the only recollection which those involved have of the case is what they wrote at the time. The focus of such inquiries is on why those individuals acted as they did or failed to act when they should have done.    [Back]

Note 2    Sir Cecil Clothier KCB QC was inter alia was the PCA (Ombudsman) the Chair of the Police Complaints Authority and Chairman of the Council on Tribunals. He also chaired the Allitt Inquiry.    [Back]

Note 3    Sir Cecil Clothier “Ruminations on Inquiries” in J Peay (ed.) Inquiries after Homicide (1996) p 52.    [Back]

Note 4    Sir Edward Heath Hansard HC (1982) Vol 27 col 494 July 8 1982.    [Back]

Note 5    Paras 8.10 – 8.43 below.    [Back]

Note 6    Paras 8.43 – 8.63 below.    [Back]

Note 7    Paras 8.64 – 8.114 below.    [Back]

Note 8    “Serious” harm or loss would mean the harm or loss was significant (more than trivial).    [Back]

Note 9    For example where a local authority’s functions are carried out by a private sector company. It has been held that “functions” embraces all the duties and powers of a local authority; the sum total of the activities Parliament has entrusted to it. Those activities are its functions. Hazell v Hammersmith and Fulham LBC [1992] 2 AC 1 29 per Lord Templeman.    [Back]

Note 10    Discussed above Part II.    [Back]

Note 11    For example an authority may well have a complaints procedure which is appropriate to deal with individual complaints. If the complaint concerns an allegation of improper conduct by a member then the Standards Board may be the appropriate inquiring body.    [Back]

Note 12    The definition can be found at para 2.3 – 2.5 above.    [Back]

Note 13    A committee or sub-committee of an authority other than committees regulating or controlling the finances of the authority may co-opt members of the appointing authority or authorities under section 102(3) of the Local Government Act 1972. Advisory committees and sub-committees may also include co-opted members under section 102(4) of the LGA 1972. See the 1972 Act s 102 and the Local Government (Wales) Act 1994 ss 30(11) (13) 31(9) (11).    [Back]

Note 14    See Effective Inquiries: A Consultation Paper from the DCA CP 12/04 May 2004.    [Back]

Note 15    In practice it may well be that the proposal to hold an inquiry originates with one or other of the committees of the authority such as the Overview and Scrutiny Committee but it need not.    [Back]

Note 16    Eg the chief finance officer may be obliged to make a report to the authority and the authority may not delegate consideration of it: Local Government Finance Act 1988 s 114 114(A) and 115. The same applies to a monitoring officer’s report under Local Government and Housing Act 1989 s 5(5) and a public interest report by the external auditor under Audit Commission Act 1998 ss 8 and 11.    [Back]

Note 17    There must be at least a quarter of the total number of members present for the meeting to be quorate: 1972 Act Sched 12 para 6. A decision at a local authority meeting is made by voting on a resolution. For the resolution to be passed it must be approved by a majority unless otherwise provided with the person presiding having a second or casting vote: 1972 Act Sched 12 para 39.    [Back]

Note 18    Local Government Act 2000 ss 10 11 and 12.    [Back]

Note 19    LGA 1972 Sched 12 para 1.    [Back]

Note 20    LGA 1972 Sched 12 para 2.    [Back]

Note 21    Five clear days’ public notice are required for meetings of a principal council (including committees or sub-committees thereof) which are open to the public: LGA 1972 s 100A(6)(a). Detailed provisions about notice of such meetings to members and who is to preside are contained in Part I of Sched 12 to the 1972 Act. (Strangely the notice to members remains at three days (as it used to be for notice to the public) not five days: para 4(2) although the Secretary of State has power to amend para 4(2).)    [Back]

Note 22    See clause 4(5) of the Bill.    [Back]

Note 23    See para 8.126 below.    [Back]

Note 24    See para 8.30 above.    [Back]

Note 25    See para 5.19 above.    [Back]

Note 26    Most of these points are common sense; see also the discussion in Effective Inquiries: A Consultation Paper produced by the Department for Constitutional Affairs (May 2004) paras 45–57.    [Back]

Note 27    See section 3.5 of the SOLACE Report Getting it right.    [Back]

Note 28    As the point of this kind of inquiry will be that it has the power to make such an application it might be thought that a local authority would never wish to set it up with one hand but restrict its powers with the other but this is not inconceivable. An authority might for example wish to limit the powers to compel witnesses of a particular group or see a way of keeping its costs down while announcing that it was undertaking the most thorough kind of inquiry open to it.    [Back]

Note 29    On which see paras 8.30 above.    [Back]

Note 30    The ODPM has recently issued a consultation document in relation to indemnities for officers and members. ODPM propose to give local authorities the power to indemnify their members and officers where they act honestly and in good faith. As they build on existing law in relation to members and officers and we are here concerned with indemnifying others the proposals are not directly relevant here. “Providing Indemnities to Relevant Authority Officers and Members” July 2003. In the document ODPM write: …section 111(1) of the Local Government Act 1972 provides ancillary powers that may permit the offer of an indemnity by an authority if to do so facilitates or is incidental or conducive to the discharge of a function of the authority. Doubts have arisen however about the extent to which authorities can provide indemnities particularly where individuals incur personal liability for their actions on external bodies to which they have been appointed by their authority and the scope to cover actions that are ultra vires or involve negligence. [R v Westminster City Council ex p Union of Managerial and Professional Officers [2000] LGR 611] …made it clear that a reasonably wide ranging indemnity was lawful within the provisions of section 111 in certain instances. However some uncertainty remains as to the extent of existing powers. Insofar as this helps at all it points to the broad interpretation of section 111.    [Back]

Note 31    Adam v Ward [1917] AC 309 334. However if an inquiry is judicial in nature then absolute privilege applies: Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892] 1 QB 431 442 per Lord Esher MR which is said to state the law on this subject accurately: O’Connor v Waldron [1935] AC 76 81 per Lord Atkin (PC).    [Back]

Note 32    In addition to the Parliamentary Commissioner Act 1967 s 9 see also the Care Standards Act 2000 s 75 obstruction of the functions of the Children’s Commissioner for Wales section 436 of the Companies Act 1985 obstruction of inspectors and investigation section 18 of the Financial Services and Markets Act 2000 inquiries under s 15. For comparison see section 14 of the Scottish Public Services Ombudsman Act 2002. These are distinct from the limited powers of compulsion of a Coroner’s Court under section 10 of the Coroners Act 1988.    [Back]

Note 33    There are precedents where contempt is committed by obstruction of an inquiry (see n 63 below) but we do not think such a process would offer the requisite supervision by the Administrative Court and the range of remedies.    [Back]

Note 34    See para 8.95 below.    [Back]

Note 35    Arbitration powers in the Commercial Court provide some analogy in that the parties to the arbitration can go to court for a witness summons: Arbitration Act 1996 ss 43 and 44. The application for the summons is made in accordance with Part 34 of the Civil Procedure Rules (to the Admiralty and Commercial Registry or the appropriate District Registry).    [Back]

Note 36    The inquiry will not be empowered to take evidence on oath/affirmation; see above paras 8.53 – 8.55.    [Back]

Note 37    In re Ripon (Highfield) Housing Confirmation Order 1938. White and Collins v Minister of Health [1939] 2 KB 838 855 – 6.    [Back]

Note 38    An application for judicial review is subject to limitations as to standing of the applicant (Supreme Court Act 1981 s 31(3)) and compliance with time limits. Proceedings must be brought promptly and within any event within 3 months of the act complained of.    [Back]

Note 39    See e.g. R v Lancashire CC Police Authority ex p Hook [1980] QB 603 626 in which Waller LJ said: The question then remains whether or not it can be said that the conclusion to which the committee came is one at which no reasonable committee could properly arrive. I have come to the conclusion that the applicant has failed to show that no reasonable council committee could come to the conclusion at which this committee arrived and I would dismiss this appeal.     [Back]

Note 40    We anticipate that legislation will be forthcoming which may put civil partners on the same footing as husbands and wives in this respect. This would indeed have implications for clause 6 but it is not appropriate for our Bill to anticipate that change.    [Back]

Note 41    The Royal Commission on Tribunals of Inquiry Report of the Commission under the Chairmanship of the Rt Hon Lord Justice Salmon “The Salmon Report” (1966) Cmnd 3121 para 63.    [Back]

Note 42    If however a person were to be prosecuted for knowingly and willingly making a false statement under s 5 of the Perjury Act 1911 on the basis of evidence given in compliance with an order from the High Court to answer questions from a special inquiry then the evidence given to the inquiry would have to form part of the evidence against him or her.    [Back]

Note 43    Nevertheless an inquiry should not give undertakings as to confidentiality and immunity because it does not have the power to enforce it – disclosure is ultimately in the hands of the courts.    [Back]

Note 44    The Civil Procedure Rules provide a model. They allow for payment of the witness’s reasonable travel expenses by the inquiry including providing that the sum for the travel expenses (also called conduct money) is to be paid or offered to the witness before he or she attends the court (in our case attends the inquiry: CPR rule 34.7 and Practice Direction 34 “Depositions and Court Attendance by Witnesses” para 3.1.    [Back]

Note 45    Amendment to the Civil Procedure Rules would be made by statutory instrument made under the Civil Procedure Act 1997 section 1 and Schedule 1 thereto. Rules are made by the Civil Procedure Rule Committee under section 2 of the Civil Procedure Act 1997 after consulting in accordance with section 2(6)(a) of that Act.    [Back]

Note 46    See para 8.83 where the conditions for issuing an order are set out.    [Back]

Note 47    CPR r 8.1(2)(a).    [Back]

Note 48    CPR r 8.2.    [Back]

Note 49    CPR r 8.5(1) (2).    [Back]

Note 50    CPR r 8.3(1).    [Back]

Note 51    PD 8 para 3.2.    [Back]

Note 52    CPR r 8.5(5) (6).    [Back]

Note 53    This is subject to amendment by statutory instrument by AJA 1999 s 6(7) and by direction or authorisation of the provision of services excluded in Schedule 2 by the Lord Chancellor under AJA 1999 s 6(8). The Lord Chancellor issued a Direction on 2 April 2001 “Scope of the Community Legal Service Fund Exceptions to the Exclusions”. Details are not provided here because advocacy before the High Court is not prohibited and the kind of proceedings we envisage do not fall within the exclusions.    [Back]

Note 54    Cobra Golf Inc and another v Rata and another [1998] Ch 109.    [Back]

Note 55    Dean v Dean [1987] 1 FLR 517; A-G v Newspaper Publishing plc [1988] Ch 333.    [Back]

Note 56    Roberts v Albert Bridge Co. (1873) LR 8 Ch App 753; Woodward v Twinaine (1839) 9 Sim 301.    [Back]

Note 57    Arlidge Eady & Smith on Contempt (2001) para 11 – 100.    [Back]

Note 58    Arlidge Eady & Smith on Contempt (2001) para 11 – 99.    [Back]

Note 59    Contempt of Court Act 1981 s 14.    [Back]

Note 60    Coroners Act 1988 s 10. The coroner also retains the power to apply for a summons when there is a substantial interest in the witness attending. The coroner does not himself have the power to imprison a person for failure to attend. The coroner can apply to the High Court for a witness summons and thereafter for committal to prison if the witness fails to attend the inquest in response to the summons. The coroner’s position is akin to what we are recommending for an inquiry.    [Back]

Note 61    Certification is the process used in an inquiry established under the Tribunals and Inquiries Act 1921. An example is the Bloody Sunday inquiry which encountered difficulties securing the attendance of the Rev Iain Paisley. He failed to attend the Tribunal as specified in a subpoena; the Tribunal ruled that unless the witness attended the inquiry the next morning he would be certified as in contempt of the Tribunal. He did then attend the next day. The Bloody Sunday Inquiry Transcript of Main Hearing Day 204 07/05/02 p 130 lines 19 – 21 and 205 08/05/02 p 2 – 151.    [Back]

Note 62    Administration of Justice Act 1960 s 13.    [Back]

Note 63    CPR r 52.3(1)(a).    [Back]

Note 64    On Ministerial powers to establish an inquiry see paras D. 5 – D. 35 in Appendix D below.    [Back]

Note 65    I.e. one established under the Tribunals of Inquiry (Evidence) Act 1921.    [Back]

Note 66    I.e. one established under the Health and Safety at Work etc. Act 1974 s 14(2)(b).    [Back]