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URL: http://www.bailii.org/ew/other/EWLC/2004/289(9).html
Cite as: [2004] EWLC 289(8)

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PART IX

SUMMARY OF RECOMMENDATIONS

1 Qualified privilege

2 Recommendation 1

Where:

(1) an Overview and Scrutiny Committee or a local authority whether acting alone or with another local authority or other public body establishes an ad hoc inquiry because it has reason to believe there was or may have been a failure in the exercise of one of its functions and

(2) a report or part of a report or a summary of a report of the inquiry is "published" to the public or a section of it by a principal local authority being one which established the inquiry and

(3) specified fairness requirements are met

then statutory qualified privilege shall attach to the report except to the extent that the report relates to matters that have no connection with the subject of the inquiry.

3 Recommendation 2

9.2

Statutory qualified privilege shall also attach to the report of a local authority special inquiry.

4 Recommendation 3

9.3

An inquiry (or other review or investigation) is not ad hoc if it is required to be held by or under any enactment.

5 Recommendation 4

9.4

Where the fairness requirements are not satisfied neither common law privilege nor the statutory qualified privileges which apply where a document shall be open to public inspection shall attach either.

6 Recommendation 5

9.5

The fairness requirements are that:

(1) the inquiry has been fairly conducted or the local authority has taken all reasonable steps to check that it has been fairly conducted and

(2) the report meets the following conditions:

(a) it reaches conclusions based on findings of fact and

(b) it only contains criticisms of people which where practicable have been put to them in advance of publication with an opportunity for them to respond and subject to the requirements of observing confidentiality those responses are fairly represented in the report.

7 Recommendation 6

9.6

In any proceedings for defamation any question as to whether or not the fairness requirements have been met shall be determined by the judge.

8 Local authority special inquiries

9 Recommendation 7

9.7

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.

10 Recommendation 8

9.8

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.

11 Recommendation 9

9.9

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.

12 Recommendation 10

9.10

The commissioning authority or authorities shall take reasonable steps to notify a complainant (or a person 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.

13 Recommendation 11

9.11

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.

14 Recommendation 12

9.12

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

15 Recommendation 13

9.13

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

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

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

16 Recommendation 14

9.14

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

17 Recommendation 15

9.15

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.

18 Recommendation 16

9.16

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.

19 Recommendation 17

9.17

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.

20 Recommendation 18

9.18

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.

21 Recommendation 19

9.19

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.

22 Recommendation 20

9.20

The court shall have the power to make ancilliary 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.

23 Recommendation 21

9.21

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.

24 Recommendation 22

9.22

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.

9.23

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.

(Signed) ROGER TOULSON Chairman
HUGH BEALE
STUART BRIDGE
MARTIN PARTINGTON
ALAN WILKIE

STEVE HUMPHREYS Chief Executive

17 May 2004

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