The Law Commission

APPENDIX B

EXTRACTS FROM 'GETTING IT RIGHT', SOLACE GUIDANCE ON THE CONDUCT OF EFFECTIVE AND FAIR AD HOC INQUIRIES

1 The Review Group

During 2001, a number of Chief Executives who had been involved in the commissioning of ad hoc local inquiries for their authorities thought it would be opportune to look again at the practice and procedures of such inquiries and to re-visit the report published by the Society of Local Authority Chief Executives and Senior Managers (SOLACE) and the Royal Institute of Public Administration (RIPA) in 1978. That report had been followed by the then Local Authority Associations who published a paper on the same topic in 1980.

A representative review group was established of local government officers from various disciplines, which was joined by observers from some Government departments, the Law Commission and the Council on Tribunals.

The terms of reference for the group were:

To consider the current experience of local authorities in the conduct of ad hoc local inquiries and internal investigations, taking account of the SOLACE/RIPA paper published in 1978 and the Local Authority Association paper published in 1980, and the developments in the law since then.

To identify good practice and to prepare guidance for local authorities and their Chief Executives on the practical issues to be faced when proposing to convene an ad hoc inquiry or internal investigation.

2 Facing the issues

Before launching an inquiry, it is important to think carefully about the following issues:

What exactly is the purpose of the inquiry?

Have terms of reference been clearly established?

Who will chair the inquiry? Should he/she be external to the authority?

Who else should be on the inquiry team?

Will the inquiry be held in public or private?

What support will be needed – finance; administration; legal?

Have procedures for conducting the inquiry been agreed which:

are fair to all and consistent with natural justice?

avoid trespassing on disciplinary or criminal matters?

What people or bodies will need to be appraised of the inquiry and its progress?

How will the report be delivered?

Will the report be published? How?

What assurances, if any, is it appropriate to give to witnesses about confidentiality or potential disciplinary consequences?

Is there a clear sense of how long the inquiry will take and its likely cost? Is this proportionate to the matters to be considered?

This Guidance seeks to help those authorities considering setting up an inquiry to answer these questions.

3 THE GUIDANCE

4 References

In the report we refer to a number of key texts and decided cases. For ease of reference we list below the full titles and the abbreviated form used hereafter:

Report of Inquiry into Exports of Defence

Equipment to Iraq - Sir Richard Scott (1996) The Scott Report

The Advice of the Council on Tribunals to

the Lord Chancellor on the procedural issues

arising in the conduct of public inquiries set The advice of the

up by Ministers (1996) Council on Tribunals

Lost in Care: Report of the Tribunal of

Inquiry into the abuse of children in care

in the former county council areas of

Gwynedd and Clwyd since 1974 (2000) The Waterhouse Report

The Law Commission: Consultation Paper

No 163 Publication of Local Authority

Reports (2002) The Law Commission

Lillie and Another v Newcastle City Council

[2002] EWHC 1600 (QB) Lillie v Newcastle CC

R (on the application of Persey) v Secretary of State

for Environment Food and Rural Affairs

and others [2002] EWHC 371(Admin)

[2002] 3WLR 704 Persey v SoS EFRA

R (on the application of Howard) v Secretary

of State for Health [2002] EWHC 396

[2002] 3WLR 738 Howard v SoS Health

Edwards v UK [2002] ECHR App 464 77/99 –

Judgement 14 March 2002 Edwards v UK

5 A code of practice or guidance

The term "code of practice" carries with it an implication of rules and prescriptions. What is most marked in the evidence we have received from respondents is the great variety of circumstances in which inquiries are set up by local authorities and the range of purposes served and outcomes anticipated. Many urged us therefore not to be prescriptive.

This view is more widely shared and aptly summarised in the advice of the Council on Tribunals:

It is clear that the infinite variety of circumstances that may give rise to the need for a major public inquiry make it wholly impracticable to devise a single set of model rules or guidelines that will provide for the constitution, procedure and powers of every such inquiry. All that can be done is to set out a number of objects that should be borne in mind when an inquiry is being established, and to offer guidance in support of those objectives according to the circumstances of the particular inquiry.

We therefore respectfully disagree with our predecessors in 1978 who proposed a code of practice and rules of procedure. We have tried instead to frame our guidance, not as a code, but in a way which might assist those advising on the commissioning or conduct of an ad hoc inquiry.

While there inevitably will be some tricky legal points to consider, we have not written a legal treatise. We hope that there are nevertheless sufficient technical references to enable a local authority to ask the appropriate questions and for advisers to research their answers.

It is important to recognise that the onus is on each local authority to make its own decision for its own case. We hope that when an authority does so, it will be alert to the issues which experience suggests will arise and be armed with the arguments and sources to help in resolving them.

What is clear is that there is a wide gradation of inquiry circumstance; each involves an investigation but not every investigation proceeds formally or in public.

Our view is that there is not much to be gained from attempting an exhaustive nomenclature with subtle distinctions. What is important is that those commissioning the activity of investigation or inquiry and giving it a name, are clear themselves as to its nature and proposed procedure and that they make that clear to those taking part, to those to whom its report will be addressed and to the wider public who may be concerned with the issues it examines.

In this review we simply use the term "inquiry" to encompass all the situations.

6 The Guidance - some principles

Although the circumstances of inquiries are many and various, and we do not propose to offer prescriptive advice about their handling, nevertheless there are some basic principles which we think underlie the holding of these inquiries.

7 The First Principle

It is not only within the legal competence of local authorities to establish ad hoc inquiries; it is also in their interest to do so in appropriate circumstances.

Eady J. encapsulated the point of local authority accountability when he said, in Lillie v Newcastle CC, "I believe there is a powerful argument for concluding that a local authority does have an obligation to tell the public (and, in particular, its own chargepayers and the consumers of its public services) what has gone wrong, to account for it and to explain how matters are going to be ordered in the future to avoid similar problems."

We also believe that local authorities are now operating in a climate which encourages them not only to be accountable in the sense described, but also to take a very wide representative view of their communities, not constrained by the statutory powers governing the provision of particular services or limited to the extent of those services. Section 2 of the Local Government Act 2000 recognises this in conferring very wide powers to do anything which a council considers likely to promote or improve the economic, social or environmental well being of its area.

We expect that local authorities will wish to hold inquiries from time to time concerning a whole range of issues affecting their area, and not merely to explain things which have gone wrong. The versatility, flexibility and adaptability of the ad hoc inquiry are its strengths and are of great value to local authorities.

8 The Second Principle

When commissioning an inquiry, the local authority and the person(s) conducting it are masters of their own procedure. The procedures they adopt must respect the rights of individuals and must be fair and consistent with natural justice.

Lord Denning MR described the investigating role robustly in R v Race Relations Board ex p Selvarajan [1975] 1WLR 1686, "the investigating body is… master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not allow lawyers. It need not put every detail of the case against a man. Suffice it if the broad grounds are given. It need not name informants. It can give the substance only. Moreover it need not do everything itself. It can employ secretaries and assistants to do all the preliminary work and leave much to them. But, in the end, the investigating body must come to its own decisions and make its own report".

Although an ad hoc inquiry cannot and should not replace the procedural arrangements already in place to deal with, for example, disciplinary matters, individuals may nevertheless be affected by the potential or actual findings of an inquiry. If they are employees of the local authority, they are entitled also to expect that the employer will not unnecessarily damage the relationship of confidence and trust between employer and employee. And whether or not they are employees, if they are likely to be adversely affected by the findings of an inquiry, procedural safeguards must be adopted at the outset or during the proceedings to ensure fairness to them when the inquiry is reported.

The advice of the Council on Tribunals put it this way:

The need here is for the procedures of the inquiry to be fair to witnesses and to others whose interests may be affected by the work of the inquiry and by its conclusions.

Fairness will include, for example, being impartial or unbiased, receiving and taking account of evidence on both sides of a case, putting a witness who has been criticised or maybe blamed on notice of any allegations and protecting such a witness from self-incrimination.

The procedures put in place should nevertheless in our view be proportionate to the nature and seriousness of the matter in hand.

9 The Third Principle

Local authorities should have as key objectives those described by the Council on Tribunals in 1996: not only fairness, but also effectiveness, speed and economy.

The Council said:

Effectiveness

The need here is for the constitution, procedure and powers of the inquiry to be such as to enable it to fulfil the purpose for which it is being set up. In other words, the inquiry must be properly equipped to investigate the issues thoroughly, ascertain all the relevant facts and reach a conclusion.

Speed

The need here is for the proceedings of the inquiry to be completed with as much expedition as is practicable.

Economy

The need here is for the proceedings of the inquiry to be completed without losing sight of the time and money that the proceedings will involve, whether for the taxpayer or for individuals involved in the inquiry.

The extent to which these objectives [including fairness] are met for a particular inquiry will be determined by decisions taken early on as to the setting-up, procedure and powers of the inquiry. Suffice it to say that the objectives of effectiveness and fairness should not, as a matter of principle, be sacrificed to the interests of speed and economy.

10 Some preliminary matters

The topics we now discuss are set out broadly chronologically following the likely course of an inquiry. But the issues are not necessarily to be decided sequentially: some matters may have to be considered together because they have an inevitable interaction.

11 What are the purposes of the inquiry? Or, why are we doing this?

The pressure to establish and announce the holding of an inquiry may obscure the purpose for doing so. Considering carefully the purpose may, however, assist in defining the terms of reference and may affect the procedures for conducting the inquiry. And at the same time, it may be sensible to assess objectively the relative seriousness of the matter. The nature of the inquiry should, in principle, as we have said, be proportionate to the matter in hand; that includes an early assessment of its likely duration and cost.

An inquiry may have a cathartic purpose, seeking to remove or allay public anger or fear, aiming to restore public confidence and, at the same time, making proposals to improve future performance. All inquiries will normally be concerned at least with establishing some facts. They may have some straightforward questions in mind, "what happened and why"; or an inquiry may be expected to, or find itself obliged to, attribute personal responsibility to something which has happened as the facts are uncovered.

Those setting up an inquiry should, in our view, consider at the outset if the nature of the matter is likely to include expressly or by implication blame. If so, then particular attention should be paid to the form and structure of proceedings, to avoid things going wrong later. Having, therefore, at the outset a good sense of the general purpose, the weight and seriousness of the matter and potential outcomes will assist the authority in shaping the inquiry.

12 Are there powers to do it?

Our evidence is that the power of a local authority to set up an ad hoc inquiry has not caused difficulty in practice.

Andrew Arden QC told us, "I do not believe that it is necessary to affirm the power of the local authority to conduct such investigations. I do not think it can seriously be in doubt". This view was confirmed by the Court of Appeal in R v Broadland DC (ex p Lashley) [2001] 3LGLR 25.

In Lillie v Newcastle CC, Eady J. said "There is a wide discretion under s.111 of the Local Government Act 1972 to do anything calculated to facilitate the discharge of a local authority's statutory functions. If the circumstances warrant it, a local authority may thus commission and fund a public inquiry".

Section 2 of the Local Government Act 2000 also enables a local authority to do anything which they consider likely to promote or improve the economic, social and environmental well being of their areas. An ad hoc inquiry may assist an authority in realising these objectives and the power is wide enough to set one up.

In addition, there are specific powers in Social Services legislation which require the investigation of complaints (section 7B of the Local Authority Social Services Act 1970, and section 26(3) of the Children Act 1989). It was under these powers that Newcastle City Council set up the review team which resulted in the case we have referred to.

13 Drafting terms of reference

The terms of reference will reflect the purpose of the inquiry. They are very important as they not only set the direction of the inquiry, but they also set the limits of the inquiry. The terms of reference are the responsibility of the commissioning local authority.

Our evidence is that terms of reference may sometimes be controversial, particularly if the subject-matter is controversial. They may have to be the subject of negotiation with interest groups concerned with the matter; and sometimes they might benefit from being drafted following consultation.

The terms of reference should be in writing and, in our view, make clear in particular what is the aim of the inquiry; if the inquiry is expected to attribute responsibility and appropriate circumstances; if it is expected to make recommendations and, if so, what kind.

While practice clearly varies, in our view, an authority should endeavour to discuss the draft terms of reference with the person appointed to chair the inquiry, as it may avoid later difficulties of interpretation.

Terms of reference should not however be a straitjacket. They should be sufficiently wide to enable the inquiry to explore thoroughly matters which emerge. But if they are too widely drawn, there may be consequences in time and cost to the authority, and the inquiry may stray into areas which, for whatever reason, are not appropriate for it. The local authority should make clear any issues which it does not wish the inquiry to address and be prepared to justify in public any restrictions it imposes of that kind. The inquiry itself may have to interpret its terms of reference and it may be a measure of its independence that it is able to do so; but, if possible, there should be an agreed procedure to allow the terms of reference to be amended if it is found necessary to do so.

Local authorities and those conducting inquiries should be wary of interpretations which may take the inquiry outside its ostensible remit. The discussion and criticism of the terms of reference of the review team in Lillie v Newcastle CC are a warning of the possible consequences.

There may be pressure to decide at the outset of the inquiry whether, and if so in what form, to publish the report of the inquiry. We discuss later the factors to be taken into account by the authority at the time of any actual publication; it may not be possible however to assess the issues in advance of knowing the evidence and the findings. It will therefore be a matter of judgement at the outset of the inquiry what is said about ultimate publication, if anything. However there is likely in most cases to be a desire to publish and we found the formula adopted in one of our practical examples in Annex 3 to be a sensible way of putting it, leaving an assessment of how much to be judged when the report is delivered. "The findings of the inquiry and any recommendations will be made public".

At the same time as considering the formal terms of reference, the authority may wish to add its assessment of a timetable for the inquiry, when it wishes the inquiry to report and, after discussion with the person appointed to conduct it, the authority may wish to set out some other targets for the work of the inquiry. The authority will wish to prepare an estimate of its likely cost.

14 Is the inquiry to be independent and what does the local authority think that means?

The nature of the independence of the inquiry will follow from an assessment of the purpose of the inquiry. While independence is not by itself a cardinal procedural principle, some form of independence distinguishes an inquiry from an internal departmental or managerial investigation. Nevertheless, our evidence is that independence can be expressed in varying degrees of detachment from the local authority. The degree to which the authority will wish to establish independence may relate to the need to demonstrate the strength, integrity and, especially, public plausibility of the process and hence the outcome. The importance of those factors will reflect the circumstances being investigated. Therefore those establishing the inquiry will want to consider this issue and their justification for the nature of the independence of the inquiry.

It may be considered sufficiently independent for an inquiry to be conducted by a chief officer of the authority where that officer is detached from the circumstances. We had evidence of external persons conducting inquiries but supported by a panel of local authority officers or councillors. A perception of independence may therefore be satisfactorily achieved, given local circumstances, even though the inquiry is conducted wholly or in part by persons connected with the authority. Nevertheless, their integrity must be protected by ensuring that once appointed they are free from influence or pressure from the authority.

In other cases, however, the local authority will consider that the true independence of those conducting the inquiry is the only way in which they and their public can be satisfied of a detached and wholly impartial investigation.

It may also follow, when the purpose of the inquiry is being considered, that concerns to establish beyond any reasonable doubt the independence of the inquiry process are so important, that they will have other practical repercussions beyond the appointment of wholly independent persons to the inquiry. For example, it might be considered prudent to ensure that no-one concerned in the conduct of the inquiry has any conflict of, or shared interest with, the individuals or organisations involved with the subject matter, perhaps by requiring them to sign an appropriate declaration of interest. Although lawyers by whomsoever employed have a duty to give impartial advice, it may be found practical to arrange for any legal advice to the inquiry to be given by lawyers not employed by the local authority and it might be appropriate for the inquiry offices to be in, and/or any interviews or hearings to take place in, premises not associated with the local authority.

15 Is the inquiry to take place wholly or partly in private or in public?

Our evidence indicates that the experience from responding officers and chairs is that most local authority ad hoc inquiries have been held in private.

Inquiries ordered by Ministers however are likely to concern significant matters of great public concern and are often held in public. But Ministers also order inquiries which are held in private and their decisions to do so have sometimes been controversial and challenged in the courts, successfully in the Shipman inquiry (R v SoS for Health ex p Wagstaff).

In the absence of any statutory requirement, there is no clear-cut criterion for the decision whether or not to hold an inquiry in public. And the court in Persey v SoS EFRA did not agree that there is any legal presumption that a Ministerial inquiry into a matter of public concern should be held in public.

The arguments advanced in favour of holding inquiries in public may be summarised as follows:

An inquiry into a matter of great public concern should in principle be conducted in public.

Public hearings will reassure the public that the subject matter of the inquiry has been fully, fairly and fearlessly investigated and that there has been no cover-up.

Evidence given in public is less likely to be embellished.

More information may become available where witnesses find out what evidence others have given.

Only when the public is present will there be complete confidence that everything possible has been done for the purpose of arriving at the truth and that lessons will be learned for the future.

A public inquiry provides a stage for a form of communal catharsis which may be offered allowing for the public venting of anger, distress and frustration.

The arguments advanced in favour of holding inquiries in private may be summarised as follows:

Witnesses may be prepared to offer more information if they know that their answers will not be subject to instant reporting in the media.

Inquiries conducted in private are usually quicker and cheaper.

It is perceived that inquiries held in public may concentrate on the culpability of individuals and therefore require procedural protection of those individuals thus lengthening the inquiry.

When an inquiry is conducted in private, no witness knows when interviewed how much the inquiry already knows. This facilitates the investigatory process.

The representative from the Department of Health on the review group advised us as follows:

Whilst DH would always make decisions on the basis of the facts of the individual case, our experience has shown that public inquiries have proved to be significantly more costly and time consuming than those held in private. We would normally therefore only recommend full public inquiries in cases where national lessons can be learnt and where there is a very serious issue and significant loss of public confidence. Recent examples have been the Bristol Royal Infirmary Inquiry, the Shipman Inquiry and the Climbié Inquiry. Each of these Inquiries has, or will, cost several million pounds and has taken two to three years to report.

There have been a number of private independent inquiries which have been reported in recent years. These include the Inquiry into the Ashworth Special Hospital, the Alder Hey Inquiry and the Brompton Inquiry. Each has been set up with an independent chair and panel, has taken evidence in private sessions and published full reports. Our experience of these inquiries is that they are less costly and report more swiftly.

We have recently established at national level an inquiry into health service failures which adopts a modified form of private inquiry, whereby the witnesses, or their representatives, can attend all the evidence-taking sessions to satisfy the victims that all the relevant issues have been addressed. We are in the process of setting up a second inquiry in this form. In both these cases, the central issue is the failure of local health services to take account of a number of complaints, over a significant time period, about serious misconduct by doctors. In the circumstances, it was clearly important to recognise the concerns of the victims' groups that the full range of issues should be fully aired.

We also hold a number of statutory inquiries into health service issues which are normally set up by the Regional Director of Public Health (with the agreement of Ministers). Practice to date has been that these inquiries are independent and are conducted in private.

The case-law and arguments are discussed in Persey v SoS EFRA. In that case, a challenge to the Secretary of State's decision to hold the "Lessons Learned" inquiry into the 2001 foot and mouth outbreak in private was not upheld. Contemporaneously, in Howard v SoS Health, a challenge to a decision by the Secretary of State not to hold public inquiries into the activities of two medical practitioners was also not upheld.

Arguments under the Human Rights Act 1998 have also been advanced in support of the argument that inquiries should be held in public. In the cases cited above both courts held that Article 10 (freedom of information) did not apply so as to require the inquiries in question to be held in public. The article prohibits interference with freedom of expression; it does not require its facilitation.

A successful challenge however to the procedure of an inquiry established by a county council with the prisons service and a health authority was made at the European Court of Human Rights under Article 2 (right to life). In Edwards v UK, a completely independent inquiry concerning a death in custody and assisted by independent solicitors heard the evidence in private. The inquiry had no powers to compel witnesses or the production of documents. The European Court found that the lack of power to compel witnesses and the private character of the proceedings in which the applicants were excluded, save, when they were giving evidence, failed to comply in the circumstances with Article 2. It held that while publicity of proceedings or the results of an inquiry may satisfy the article, in the present case, the public interest attaching to the issues was such as to call for the widest exposure possible.

We have noted from some of our evidence that it may be possible in some circumstances for parts of inquiries to be held in public with relatively informal arrangements. In general however, we consider that it is likely only to be in exceptional cases that the public interest will persuade local authorities to hold ad hoc inquiries in public. A local authority should nevertheless ask itself the question at the outset and be prepared with its own arguments in support of the decision it reaches. And it should consider whether it has created a legitimate expectation on the part of the public that the inquiry will be held in public.

16 Is the Human Rights Act engaged in the subject matter of the inquiry?

In Paper 6 in Part 2 of the Guidance, there is a discussion with reference to the developing case law of the situations where the European Convention on Human Rights (ECHR) may be engaged in the conduct of inquiries. We refer above to the arguments which have been advanced in reliance on the Act to challenge decisions concerning the holding of inquiries in private.

Wherever there has been a serious injury or death as a result of the actions of (or failure to act by) a local authority or other public authority, it is important to bear in mind that Articles 2 (right to life) and 3 (right to freedom from inhumane or degrading treatment or punishment) may also be engaged. That is not to say that there is necessarily a breach of these articles by the public authority concerned, but that an arguable case that either of these articles has been breached can be made. If these articles of the ECHR are engaged, then there is an obligation to conduct a thorough investigation of the circumstances. Section 6 of the Human Rights Act 1998 obliges local authorities to comply with these sections of the ECHR. It is hoped that such situations will be rare and to date this has been the experience of local authorities conducting ad hoc inquiries. However, because the law is developing in this area, an authority should ensure it obtains legal advice if, exceptionally, it has to consider holding an inquiry where Articles 2 and 3 may be engaged.

Although case law continues to develop, basically an effective, independent and timely investigation must be carried out. The nature of investigation (or investigations when taken together) would depend on the circumstances of each case and what counts as independence for one situation would not in another. These matters are complex and contingent on other inquiries such as inquests or criminal prosecutions which may be ongoing. But case law does show that good design of an inquiry, perhaps giving greater participation to the victim's family, choosing the right chair, making appropriate early admissions of failure or ensuring that the important witnesses do agree to be interviewed can help to avoid the need for further costly, and sometimes unnecessary, private or even public inquiries.

17 Setting up the inquiry

18 Is the inquiry to be conducted by one person or with others?

A decision must be taken as to whether the inquiry should be conducted or chaired by a single individual or whether he or she should be part of a panel or committee or have the assistance of assessors.

Many inquiries are conducted by a single individual. But a committee or panel can serve a number of purposes. They may, for example, bring a representative role and offer balance if the subject is both contentious and there are potentially conflicting interests concerned with the outcome. They may be appointed to offer technical advice in a complex matter. They may give a breadth of view and, in any case, assist the chair and share the work.

Assessors are generally appointed to offer technical advice but they may also be full members of the inquiry thus, in effect, signing the report contributing to and accepting its conclusions, or they may act simply as advisors.

Our evidence is that practice varies but a decision as to the appointment of the panel and its role needs to be made at the outset. If the chair is already appointed, he or she may have a view. But we consider it axiomatic that the chair should take overall responsibility for the conduct of the inquiry.

19 Should the chair be a practising lawyer or legally trained?

Our evidence is not only that practice varies but that there are divisions of opinion. Our understanding is that Government departments, unless they are obliged by statute to engage a member of the judiciary or senior lawyer, often use non-lawyers as chairs with success. However, it is clear that the subject matter or complex nature of some ad hoc inquiries requires a sound grasp of basic procedure, the handling of witnesses under challenge and the ability as the inquiry unfolds to recognise possible legal difficulties. In Lillie v Newcastle CC where an action in defamation against an independent and highly qualified review team appointed by the City Council was successful, no-one with legal training was a member of the team. The judge said, "I wish to make clear that the terms on which the review team was appointed and the methodology adopted were wholly unsuited to the task… the result was that they proceeded to make their findings without any of the elementary safeguards being accorded to two citizens in jeopardy".

If non-lawyers are engaged as chairs and there is a panel with no legal representation, the local authority should ensure that the chair has free access to appropriate legal advice. Although lawyers have a duty to give impartial advice, if perceived independence from the local authority is considered essential, then legal advice can be made available to the chair from an external source.

20 Counsel to the inquiry

In major Ministerial inquiries, it is often the case that Counsel to the inquiry is appointed to assist in laying the relevant evidence before the inquiry. Counsel can take much of the burden of detailed questioning from the inquiry and pursue matters more vigorously than would be appropriate for the inquiry itself, in order to avoid giving the impression that the inquiry has formed a certain view.

It is also the case in such major inquiries where parties are represented by lawyers, in order to avoid extensive cross-examination, Counsel to the inquiry can ensure that any necessary points can be put to witnesses on behalf of the parties.

In the inquiry which lead to the case of Edwards v UK independent solicitors acted as advocates to the inquiry.

Although our evidence from respondents suggests that local authority ad hoc inquiries may only wish to make use of this arrangement in exceptional cases, it is a question which in a major matter an authority will wish to consider and discuss with the appointed chair.

21 Finding the people to do it – assessing the costs

Our evidence is that some difficulty has been experienced in finding people to chair or take part in inquiries as panel members or assessors.

This is an area where we believe that the professional societies in local government can be of help and in Part 2, Annex 10 we list the bodies who will currently offer possible candidates. We would like to see more deliberate efforts made to select and recruit possible candidates by the professional societies.

In Lillie v Newcastle CC, the judge described the selection arrangements for the appointment to the review team concerned in the case. There was an advertisement for candidates and interview and selection from a short list of ten by a panel consisting of a chief officer of the City Council, a senior medical officer nominated by parents, and a project manager from the providers of the Independent Persons Scheme under the Children Act.

It is also important not to overlook an assessment of the likely costs. Experience suggests that some inquiries can be very expensive. The fees to be paid to those concerned with the conduct of any inquiry should be agreed in advance, and other incidental costs should be estimated.

22 Offering an indemnity

Our evidence is that local authorities must be prepared to offer inquiry teams an indemnity in appropriate terms. We are grateful to the Department of Health for allowing us to include a copy of a standard letter of indemnity by way of example as Annex 1 [not reproduced here].

23 Providing administrative support

Our evidence is that sound administrative arrangements are necessary for the efficient running of an inquiry. In simple cases administration may be carried out by the person conducting the inquiry with modest help from the authority. In more complex matters and inquiries of a long duration, a dedicated secretariat may be necessary to order the documentary material, identify and correspond with witnesses, liaise with other parts of the commissioning local authority, for example lawyers, and the media office. The secretariat will maintain a log of events during the inquiry, a timetable and programme of activities, and keep track of the costs.

There should be methods for recording and transcribing oral evidence and for collating key documentary evidence.

Attention should be given to the place or places where the inquiry will work and to the security of the material assembled for it.

The requirement of independence in exceptional cases may suggest that the whole of the administration should be provided outside the local authority. It will be recalled that in the inquiry which lead eventually to the case of Edwards v UK the panel were assisted by an independent firm of solicitors appointed by the commissioning authorities to provide secretarial and administrative support and to arrange for the attendance of witnesses as well as acting as advocates to the inquiry.

24 Employee trade unions^[1]

...

When establishing the inquiry, the authority will need to consider the extent to which employees may be asked to give evidence and the likelihood of criticism of employee conduct emerging.

The authority may wish to consult trade unions at an early stage on the nature of the inquiry and to be prepared to accept representations from the unions on behalf of their members.

This is the responsibility, in our view, of the authority not of the inquiry.

25 Insurers

While considering setting up an ad hoc inquiry, a local authority may need to consider whether any of the issues being considered might be the subject of insurance indemnity...

In Part 2 of this report [not reproduced here], we reproduce the joint guidance of the Local Government Association and Association of British Insurers on this matter and the authority will wish to consider the analysis of the issues and that guidance. The inquiry too should bear it in mind when framing its report in appropriate cases.

26 Complainants and families

Some inquiries are set up to investigate circumstances which are of particular concern and sensitivity to individuals and sometimes their families who may have been affected by things which have gone wrong. When establishing such an inquiry, and during its progress, the authority may want to ensure that those individuals know what is happening and to do so in a sympathetic way. Their concerns may be so serious that the procedures adopted by the inquiry should enable them to participate appropriately.

27 Conducting the inquiry

28 General

An ad hoc inquiry is of an "inquisitorial" character. The inquiry is responsible for gathering evidence, questioning witnesses and determining the progress and direction of its proceedings. There are no "litigants" and "witnesses" have no case to put forward.

Ad hoc inquiries, as we have defined them, have no powers to compel witnesses to attend or to give any evidence and they have no power to compel the disclosure and production of documentary evidence.

As we have discussed above and return to later, ad hoc inquiries have a responsibility to be fair. The Scott Report described the inquiry process as follows:

Those responsible for the conduct of any Inquiry must, at an early stage, take decisions as to the procedure to be adopted for the taking of evidence. The objects to be served by the procedures will be threefold: first, the need to be fair and to be seen to be fair to witnesses and others whose interests may be affected by the work of the Inquiry: second, the need for the Inquiry's work to be conducted with efficiency and as much expedition as is practicable: third, the need for the cost of the proceedings to be kept within reasonable bounds. While the second and third of these objects must never be allowed to submerge the need to be fair, there is an inevitable tension between, on the one hand the requirements of fairness and, on the other, the need for an efficient process.

In deciding on the procedures to be adopted, the nature of the Inquiry is all important. Most inquiries are of an inquisitorial character. The contrast is with proceedings of an adversarial character such as civil and, in this country, criminal litigation. Procedures customary in or apt for adversarial litigation will not necessarily be appropriate in inquisitorial proceedings. In an inquisitorial Inquiry there are no litigants. Witnesses have no "case" to promote: their role is to assist the inquiry to establish the facts. They may have an interest in protecting their reputations, in protecting themselves from possible criticism and in answering as cogently and comprehensively as possible allegations made against them. But they have no "case" in the adversarial sense. Similarly, until the stage has been reached at which an inquisitorial Inquiry reaches provisional conclusions which are critical of an individual, the Inquiry does not have a "case" against any individual.

29 Opening the proceedings

It may be helpful for the local authority to publicise the setting up of the inquiry and to indicate the manner in which its work will proceed. The inquiry itself may choose to open its proceedings in public, even if thereafter its work will be wholly or mostly in private.

A commencement of this kind may be a useful way of appealing for evidence if the issues require it.

30 Obtaining the evidence

The inquiry may have the benefit at the outset of a large number of reports or written accounts of the matter and issues. These are likely to suggest immediate lines of inquiry, the identity of those who may assist and the local authority files which may need to be examined. And nowadays, it will be prudent to arrange for e-mail correspondence to be tracked and copied.

However, the inquiry may have painstakingly to identify material and initial witnesses and may only build up a picture piecemeal. Advertising generally, or to a particular constituency, for written submissions and people to meet the inquiry is often used.

While we discuss below the procedural safeguards for witnesses which it may be necessary to introduce, it is also the case that, in the circumstances of many inquiries, they can be successfully completed after relatively informal interviews and without calling into question all the procedural arrangements we suggest may need sometimes to be addressed.

During the early period of an inquiry, a number of hypotheses will emerge to be tested later. One of our respondents reminded us that this process may take time, not simply because the witnesses can not be easily timetabled, but because of the iterative route an inquiry has to take and because of the "sheer grind of establishing every relevant detail so that it can not be controverted".

Effective management of the inquiry, helped with appropriate administrative support, should ensure that key documents are assembled, filed and referenced along with the records of witness statements. In due course, the inquiry will have to satisfy itself that narrative account and conclusions can be substantiated point by point with the evidence it has received. The risk of failing to do so properly is chronicled in Lillie v Newcastle CC.

31 Witnesses – generally

We refer to "witnesses" in this report as the term is well understood even though it carries undertones of the court and the adversarial process. We simply mean anyone who helps the inquiry in writing or orally by agreeing to answer questions or offer comment.

In the early stages of evidence gathering, nothing or little may be known and witnesses may simply be asked if they have any relevant information to give. They may do so in writing, or be invited for interview. The interview may be very informal and it need not be in an inquiry setting and might be at the home or workplace of the witness or even by telephone. At that stage, all that the witness may need to be told is the nature of the inquiry, the arrangements for the interview including, for example, (if appropriate) that the witness may be accompanied, and that expenses will be paid and any understandings concerning confidentiality.

In ad hoc inquiries witnesses can not be compelled to give evidence or to attend. Our evidence however is that it is customary to offer travel and subsistence payments to those who are not employees of the commissioning local authority, although this may not always be necessary.

Depending on the nature of the matter, witnesses may be encouraged to bring a friend or adviser in support, though not to act as an advocate. We discuss later the additional arrangements to assist witnesses which are necessary if the inquiry adopts procedures to protect those who may be the subject of criticism.

Our evidence suggests that time and care should be taken with witnesses at all stages of any inquiry. We received from one of our respondents a sample letter he sent to invite witnesses to an inquiry established by a health authority [not reproduced here]...

Another respondent told us that, when chairing an inquiry, he thinks it best to work out a carefully prepared written and sympathetic introduction to be read out when any witness is interviewed. The statement might include references to the procedure being adopted, to the voluntary nature of the attendance of the witness and what might happen next.

If the witness asks, the inquiry may agree that their evidence will be treated as confidential, that is to say not reproduced or identified in any report without their consent. If the circumstances of the matter require it however, confidentiality may have to be subject to some exceptions. For example, evidence given in confidence disclosing the possibility of an alleged serious offence. And it may be prudent to obtain legal advice before giving guarantees of confidentiality to any witness.

32 Employees as witnesses

Although the inquiry will identify employees of the local authority whom it wishes to interview, it is the responsibility of the local authority, in our view, to establish the terms on which employees will attend. In appropriate cases, the authority will have had discussions with trade unions to which we have already referred...

Here we set out some of the critical issues for consideration by the authority:

1. Although the inquiry will not have powers to compel attendance, the local authority may consider that a request to attend is a reasonable instruction within the terms expressed or implied of the employee's contract of employment.

2. Employees should be assured that no action will be taken against them for providing information in good faith to an inquiry. That is not to say, however, that subsequent action might not be taken if it is found that, as a result of the inquiry, a disciplinary offence may have been committed.

3. The local authority should agree with the inquiry what arrangements should be in place to offer confidentiality for employee evidence in the context of that offered to other witnesses.

4. We do not think that local authorities will wish normally to give general guarantees or undertakings to employees, for example that no disciplinary action will be taken against them, as a condition for such evidence being given.

5. Employees giving evidence should be allowed to bring a representative to advise them, but not to answer questions or act as an advocate.

6. There is a relationship of confidence and trust between an employer and employee. The local authority as employer owes a duty at common law to act in such a way that it does not breach that duty, whether an employee may be subject to disciplinary proceedings or otherwise. This may have an impact on the way in which evidence is given by or about an employee; how that evidence is referred to in the report of an inquiry and as to whether officers are identified by name in any report which is published.

33 Other procedural safeguards for witnesses

It is important to recognise not only the wide variety of subject matter of ad hoc inquiries and therefore of relative seriousness, but also that the inquiry process itself may move from a straightforward assembling of the facts to a more detailed and critical examination of what has been exposed. The risk that the actions of an employee may become the subject of more extensive scrutiny and criticism may not be apparent until the inquiry has been underway for some time.

Some inquiries may therefore have in effect two main stages. The first stage is the collection and consideration of the initial evidence and the framing of some hypotheses; the second stage being the testing of those hypotheses, including the establishing of responsibilities.

Because of the iterative process of establishing the facts it may prove necessary to invite some witnesses to return again. The safeguards which are offered to witnesses are central, in our view, to the fairness of an ad hoc inquiry. It is for each inquiry to determine from the nature of the subject matter and the evidence already available the safeguards which should be applied at the outset, or at a point when the evidence subsequently revealed requires it.

Reference is often made to the six cardinal principles of procedure recommended in the Report of the Royal Commission on Tribunals of Inquiry in 1966 – the Salmon Report.

We note that those principles, while very influential, were proposed to protect citizens called to give evidence before formal tribunals of inquiry established under the 1921 Act, of which there have been relatively few. Moreover, the Government has not sought to enact them and they remain recommendations, not rules of law.

The Scott Report and Sir Louis Blom-Cooper commented critically on the principles suggesting that they carried strong overtones of ordinary adversarial litigation.

As a consequence of that report, the Council on Tribunals prepared its advice for the Lord Chancellor and the Government subsequently accepted it. We have found it very helpful in our consideration of the issues confronting local authorities.

34 Putting the witness on notice

If the inquiry is already aware of the matters which might make a witness vulnerable to criticism, the witness should be put on notice and the matter should be set out to enable the witness to reply. The same applies to a witness who, having previously given evidence, has become subsequently the subject of adverse criticism or allegations. The witness may need to be advised that answers need not be given to questions and especially not to questions which might lead to self-incrimination.

If other proceedings might be in contemplation or seem a reasonably likely outcome, then witnesses concerned should be protected when giving evidence if indeed they are prepared to do so. If no guarantees about immunity from action can or should be given by the local authority, the inquiry can nevertheless excuse the witness from answering particular questions or disclosing particular documents on the grounds of confidentiality or privilege, or the witness may be allowed to give evidence in private on a non-attributable basis. In reaching their findings, even if critical, the inquiry should be very careful not to reach any judgement which should properly be made in other proceedings.

35 Access to transcripts and final report

While it is generally sensible in many inquiries to check with every witness a transcript of what they have said, when a witness is responding to criticism or an allegation they should be shown a transcript of their evidence as a matter of course. They should be allowed to correct or comment on it. If they are to be the subject of criticism in a published report, they should be able to see and comment on the relevant draft extracts if they have not already had an opportunity to respond to a proposed conclusion.

We think it unlikely that local authorities will wish to publish the transcripts of evidence in full otherwise than insofar as it is referred to or quoted in the final report.

36 Legal representation

We have suggested above that at any stage a witness should be allowed to bring a "friend" to advise but not to act as an advocate or respond to questions.

It may however be clear at the outset, or it may emerge, that there are serious allegations or criticisms of individuals. If they are invited or recalled to give evidence implicitly to reply, consideration should be given by the inquiry as to whether legal representation should be encouraged and, if so, on what basis and by the local authority as to whether it will meet the cost. We do not think it appropriate to suggest that legal representation should always be made available in local authority ad hoc inquiries, nor that it should always be allowed.

If legal representation is allowed in any case, the inquiry will have to decide the extent to which lawyers will participate. As the Council on Tribunals points out, the inquiry must retain a discretion over the way in which evidence is given, the extent of all submissions and any cross-examination. We note that the Scott Report did not consider that adversarial practice should be incorporated into the procedures at an inquisitorial inquiry.

37 Some practical examples

Our attention was helpfully drawn to some practical examples of how chairs of inquiries had addressed some of these issues. We set out in Annex 3 [not reproduced here] procedures adopted in three inquiries. One was conducted by a former local authority Chief Executive for a health authority, one was conducted for a local authority (The London Borough of Hammersmith and Fulham "Interest Rate Swaps Inquiry" chaired by V V Veeder QC); and the third is from the major public inquiry into the Bristol Royal Infirmary chaired by Professor Kennedy.

38 Relationships with others

Before, during and after an ad hoc inquiry there may be other investigations by other agencies. The inquiry may have to consider how to handle these relationships.

In the case of local authorities, those most likely to be or become involved are the police, the council's external auditors and the Ombudsman. Other agencies may also be considering action, for example the Health and Safety Executive and the Environment Agency. There is also the possibility that the local authority itself will have already conducted, or is proposing to conduct, disciplinary proceedings.

In each case, discussions with the agency concerned may be necessary, particularly to avoid prejudicing the conduct of other proceedings.

An extreme case where the local authority had previously conducted disciplinary proceedings, resulting in a dismissal of two employees who were subsequently acquitted in criminal proceedings, arose in Lillie v Newcastle CC. The effect on the subsequent review commissioned by the City Council was significant. The failure properly to recognise the implications of the previous proceedings was a contributory factor in the successful action for defamation brought by the dismissed employees against the review team.

If proceedings of whatever kind have already taken place against an individual concerned in the subject matter of an ad hoc inquiry, that inquiry should not directly or indirectly attempt a "re-trial". The individual, if a witness and willing to give evidence, should be protected appropriately when doing so and the inquiry must take particular care when recording the evidence on which it relies and reaching its conclusions.

If the inquiry uncovers evidence which discloses possible criminal offences, then the person conducting the inquiry should consider whether, and at what stage, to disclose the material to the police. In a serious case, the inquiry might have to be adjourned pending police inquiries so as not to prejudice them.

39 The report

40 The text

Arrangements for drafting the final report may vary according to the nature of the complexity of the matter and the volume of material. Our evidence suggests that the chair very often undertakes most or all of the drafting. Whatever arrangement is adopted, in our view, the ultimate responsibility for the text of the report remains with the person appointed to conduct the inquiry, even if others have contributed to its preparations. If the inquiry is conducted by a panel or committee, depending on the role established for their participation, they and the chair will be collectively responsible for the whole report when submitted to the local authority.

41 Some elementary points

When the draft is being prepared and finalised there are some points to be kept in mind:

The report should address the terms of reference and should describe the methods adopted by the inquiry.

While being prepared, findings and conclusions to be included in the report should be carefully cross-checked against the evidence, statements of fact should be directly referable to the statements or documents considered by the inquiry and, if the inquiry has to decide on the balance of probabilities where the truth lies, it should make clear the reasoning.

Care should be taken not to pre-empt decisions about responsibility which may properly be the subject of other proceedings. It follows that subjective judgements should generally be avoided. The facts will speak for themselves.

Where discussions have taken place with the local authority's insurers, the inquiry should take account of this.

The inquiry should take care to respect any undertakings reached regarding confidentiality and the references to individuals made in the text.

The inquiry should consider whether people and places should be anonymised for their benefit, especially children and vulnerable adults.

The inquiry will wish to consider the arrangements which may have been made with or by the local authority regarding the delivery and ultimate publication of the report (to which we also refer below).

It is instructive to read the detailed analysis and criticism of the report of the review team made by the judge in Lillie v Newcastle CC. We are grateful to the Department of Health for allowing us to reproduce at Annex 4 [in this report set out in Appendix C] advice prepared following legal advice to those conducting investigations and inquiries in the Health Service.

42 Recommendations in the report

The terms of reference should have defined the matters where the local authority would like recommendations to be made by the inquiry. Our evidence is that drafting recommendations is not necessarily found to be very easy. One respondent pointed out to us that, although an inquiry may produce an executive summary, many will only read the recommendations. As a consequence of this, in his view, the recommendations should be drafted very carefully.

There is a risk that recommendations may be too prescriptive, too detailed thus losing the main messages; that they do not keep within the framework of the inquiry; that they are unrealistic or, for example, they propose detailed changes of procedure or practice which the local authority is much better placed to develop and consider for itself.

One respondent suggested to us, "the best kind of recommendations are those which give a starting point to a review based on the report".

43 Sharing the draft

Some witnesses may or should be shown some draft extracts referring to them; but practice apparently varies as to whether the whole draft report should be shared more widely outside the inquiry before it is delivered.

On the one hand, the perception of independence required by the circumstances or the degree of possible culpability of the local authority as such might make sharing the reported draft impossible without prejudicing its integrity. On the other hand, securing the intelligibility of the report in its local context and the realism of the recommendations proposed may suggest, in less controversial circumstances, that a limited showing of a draft to, say, the Chief Executive of the local authority (assuming he or she is not the subject of the inquiry) may be useful.

44 Delivery and publication

It is for the local authority to determine to whom the report of the inquiry is to be addressed and delivered; it is also for the local authority to decide what arrangements will be made for disclosing the report and in what form, to members of the council and other parties concerned, including those who may have given evidence.

While on the face of it things may be straightforward, a number of serious problems may be encountered which the local authority will have to address. Summarised they are:

The manner in which the report will be presented within the formal processes of the council.

The implications of the statutory provisions for the convening of meetings, giving notice of business and providing documents including access to background papers (or excluding them on the grounds of confidentiality) – Part V a of the Local Government Act 1972.

The implications of the Data Protection Act 1998 and the Freedom of Information Act 2000 (when both are fully implemented) may also require consideration. This will particularly be the case when an inquiry is held in private, when the detailed evidence, for example, witness statements or interviews, is not published and when, for example, the report is published only in part or in summary. An individual might seek access to a witness transcript if it contained evidence about them. A member of the public may wish to have access to general information by the local authority which in the case of an inquiry could include records of evidence heard privately.

There is a detailed analysis of the implications of the provisions of Part V a of the Local Government Act 1972 in Lillie v Newcastle CC.

The implications of the law of defamation and the nature of any defences available to the inquiry and local authority (who are likely to also have indemnified the inquiry members).

Our conclusion is that a commissioning local authority is now clearly on notice that it will have to assess its position in relation to publication of an inquiry report with some care. It should do so, in our view, early in the process and not under the pressure of events and should be clear what steps it is going to take when the report is delivered. We believe however that these are not issues which should inhibit authorities from exercising their public responsibilities; rather they impose a valuable discipline on authorities and on inquiries to ensure the procedures are fair and that inquiry reports have proper and defensible integrity.

45 Publicity

The local authority may wish to publicise the report of an inquiry and may wish, for example, to hold a press conference. If it does so, it should take account of the possible risks arising from publication which we have referred to above. It will wish to discuss with the chair and members of any inquiry team whether and, if so, to what extent they take part in any such publicity.

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Note 1    The issues which the authority will need to consider in relation to the giving of evidence by their employees are considered in a more detailed paper in Part 2, not reproduced here.    [Back]