The Law Commission

APPENDIX D

EXISTING NON-LOCAL AUTHORITY POWERS OF INQUIRY AND INSPECTION

D.1 This appendix describes the powers that already exist for bodies other than a local authority to establish an inquiry.

1 Tribunals of Inquiry Act inquiries

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

Where it has been resolved … by both Houses of Parliament that it is expedient that a tribunal be established for inquiring into a definite matter described in the Resolution as of urgent public importance, and in pursuance of the Resolution a tribunal is appointed for the purpose either by His Majesty or a Secretary of State, the instrument by which the tribunal is appointed or any instrument supplemental thereto may provide that this Act shall apply, and in such case the tribunal shall have all such powers, rights, and privileges as are vested in the High Court, or in Scotland the Court of Session, or a judge of either such court, on the occasion of an action in respect of the following matters:–

(a) The enforcing the attendance of witnesses and examining them on oath, affirmation, or otherwise;

(b) The compelling the production of documents;

(c) Subject to rules of court, the issuing of a commission or request to examine witnesses abroad;

and a summons signed by one or more of the members of the tribunal may be substituted for and shall be equivalent to any formal process capable of being issued in any action for enforcing the attendance of witnesses and compelling the production of documents.

D.2 Thus a Tribunals of Inquiry Act inquiry will possess the power to summon witnesses in a similar manner to a ministerial inquiry. The difference between the two types is the instigator. Whereas the ministerial inquiry merely needs government approval, a Tribunals of Inquiry Act inquiry needs Parliamentary support.

D.3 Recent inquiries established under this power include the Bloody Sunday inquiry into the Events of 30 January 1972 chaired by Lord Saville of Newdigate^[1] and the Inquiry into the Dunblane Shootings chaired by Lord Cullen.^[2] The Waterhouse Report itself was similarly a Tribunals of Inquiry Act inquiry.^[3] Prior to this spate of inquiries, the 1921 Act had not been engaged since the Crown Agents inquiry in 1977.^[4]

2 Inquiries ordered by a minister

D.1 These may be pursuant to an express statutory provision, possible under a power which may be implied into a more general provision, or ad hoc.

3 Express statutory inquiries

D.1 Statutes often contain an enabling provision allowing for the relevant minister to hold an inquiry into the subject-matter of the legislation.^[5] This power arises most frequently in areas where although the minister may exercise some central control, day to day work is carried out by other bodies.

D.2 The inquiries examined here are those which have been ordered by a minister where an express statutory procedure regulates their conduct. Where an inquiry has been ordered by a minister under his or her implied statutory powers there will be neither statutory powers nor regulation of the procedure.^[6]

D.3 With the exception of the Health and Safety at Work etc Act 1974 (examined in the section below), the enabling statutes replicate either all or most of the powers of the ministerial inquiry laid out in section 250 Local Government Act 1972.^[7] The most common Acts of Parliament used to establish inquiries are:

(1) Section 49 of the Police Act 1996; this was used to establish the Stephen Lawrence Inquiry.^[8]

(2) Section 84 of the National Health Service Act 1977; this was used to establish the Bristol Royal Infirmary Inquiry.^[9]

(3) Section 81 of the Children Act 1989.

The Victoria Climbié inquiry was established under all three of these provisions.^[10]

D.4 Under the Police Act 1996, only subsections 250(2) and (3) of the Local Government Act 1972 are applicable.^[11] For inquiries established under the NHS 1977 Act, subsections (2) – (5) are reproduced. For Children Act inquiries, subsections (2) – (5) are applicable.^[12]

4 Section 250 Local Government Act 1972 inquiries

D.1 A general power to instigate a local authority inquiry is found in section 250(1) of the Local Government Act 1972. This can be used by any minister who is authorised to "determine any difference, to make or confirm any order, to frame any scheme, or to give any consent, confirmation, sanction or approval to any matter, or otherwise to act under the Act, or under any other Act affecting local authority functions."^[13] This power is mainly used in the context of planning, licensing, and educational inquiries, but can be used where the minister considers that an authority is failing to comply with its duties under the Best Value scheme.^[14]

D.2 The powers available under section 250 Local Government Act 1972, will now be examined.

D.3 Section 250(1) enables the powers described below to be engaged where the Secretary of State is authorised to hold an inquiry, either under the Act itself or under any other enactment relating to the functions of a local authority.

D.4 Section 250(2) grants the minister the power to

(1) issue witness summons

(2) require witnesses to give evidence

(3) require witnesses to produce documents

(4) administer and take evidence on oath

where the witness is refunded for the expenditure incurred. The power cannot be used to require production of title of land not belonging to the local authority.

D.5 Section 250(3) allows for fines of up to £1000, and / or a prison sentence for up to six months for:

(1) refusal to attend in accordance with the summons

(2) deliberate failure to attend in accordance with the summons

(3) deliberate alteration, suppression, concealment, destruction or refusal to produce book or document required or is liable to be required to be produced.

D.6 Subsections (4) and (5) provide for the determination of costs as between the local authority (or other body subject to the inquiry) and the minister. Although these two subsections are not explicitly made available to Police Act inquiries, the Police Act does provide for costs of the inquiry to be met.^[15] It also grants the relevant minister the power to make public a summary of the findings and conclusions where the whole report is not published, so far as it appears to him consistent with the public interest. ^[16]

D.7 These types of inquiry normally arise where a minister, acting under powers conferred upon the minister by statute, orders the local authority to conduct an inquiry. An example of this is the current inquiry into the death of Victoria Climbié, which was set up by the Secretary of State for Health,^[17] and the Secretary of State for the Home Department^[18] under the chairmanship of Lord Laming. Inquiries established by statute normally have power to order witness attendance and compel disclosure to the inquiry.^[19]

5 Health and Safety at Work etc Act 1974

D.1 Express statutory inquiries may also be established under the Health and Safety at Work etc Act 1974. The power to conduct an inquiry under the Act arises where the Health and Safety Commission thinks it "necessary or expedient" to investigate any accident, occurrence, situation or other matter whatsoever.^[20] It is irrelevant whether or not the Health and Safety Executive is responsible for the enforcement of any statutory provisions regulating the matter.^[21] However, the matter to be investigated must be for any of the general purposes to which the Part of the Act relates.^[22]

D.2

D.3

D.4 The general purposes are:

(1) securing the health, safety and welfare of persons at work;^[23]

(2) protecting persons other than persons at work against risks to health or safety arising out of or in connection with the activities of persons at work;^[24]

(3) controlling the keeping and use of explosive or highly flammable or otherwise dangerous substances, and generally preventing the unlawful acquisition, possession and use of such substances.^[25]

D.5 Section 14(2) provides for two forms of inquiry. Section 14(2)(a) provides that an "investigation" can be held on the direction of the Commission by the Executive. Section 14(2)(b) stipulates that an "inquiry" may be held into any such matter, where the Secretary of State has given his consent.

D.6 Inquiries under section 14(2)(b) are directed to be held in accordance with regulations laid down by the Secretary of State, and are to be held in public, except to the extent that the regulations provide otherwise.^[26] The regulations may in particular include powers of entry and inspection,^[27] power to summon witnesses and take evidence on and administer oaths,^[28] and provision relating to the inquiry being held in public.^[29]

D.7 The procedure of these inquiries is governed by the Health and Safety Inquiries (Procedure) Regulations 1975.^[30] In addition to providing details for notification ^[31] and representation^[32] at the inquiry, the person appointed to hold the inquiry is granted the power to:

(1) serve notice to require the attendance of witnesses or the production of documents (either at his own volition or on the application of anyone entitled or likely to appear);^[33]

(2) determine the procedure to be adopted at the inquiry;^[34]

(3) administer and take evidence on oath.^[35]

D.8 Unless the minister considers that matters of national security are in issue, or the appointed person thinks that the evidence to be received will disclose trade secrets, the inquiry is held in public.^[36] If witnesses fail to give evidence or produce documents, or intentionally to obstruct any person in the exercise of his powers under that section they are liable on summary conviction to a fine not exceeding £400.^[37]

D.9 There is thus a distinction in terms of powers between Health and Safety investigations under section 14(2)(a) and inquiries ordered by the Commission under section 14(2)(b). Inquiries dependent on the consent of the Secretary of State can compel witnesses to attend and produce documentation.

6 Implied statutory inquiries

D.1 In addition to inquiries set up in pursuance of an express statutory provision, ministers may also establish inquiries under general provisions often contained in an Act of Parliament.

D.2 Hence, the Inquiry into the Royal Liverpool Children's Hospital^[38] was not set up under an express ministerial inquiry power. It was established as an "Independent Confidential Inquiry"^[39] under the general supervisory power in section 2 National Health Service Act 1977. The section states:

Without prejudice to the Secretary of State's powers apart from this section, he has power–

(a) to provide such services as he considers appropriate for the purpose of discharging any duty imposed on him by this Act; and

(b) to do any other thing whatsoever which is calculated to facilitate, or is conducive or incidental to, the discharge of such a duty.

D.3 Another recent example is the Bichard Inquiry.^[40] The Home Secretary has ordered an independent inquiry apparently under his general duties contained in section 36 of the Police Act 1996. This section states:

(1) The Secretary of State shall exercise his powers under the provisions of this Act referred to in subsection (2) in such a manner and to such an extent as appears to him to be best calculated to promote the efficiency and effectiveness of the police.

D.4 The Home Secretary has stated that he expects full cooperation from all the parties and that if the Chairman of the inquiry reports to him that this is not forthcoming, that he will not hesitate to exercise his powers under section 49 of the Police Act 1996 to allow the inquiry to summon and question witnesses.^[41] This statement demonstrates the importance of the attendance and cooperation of witnesses in order to guarantee an effective inquiry.

7 Ad hoc inquiries

D.1 Ad hoc inquiries can be established by central government even in the absence of express or implied statutory authority. In this regard, central government is fundamentally different from local authorities, which are subject to the rule of ultra vires.

D.2 Ad hoc inquiries are established under the prerogative.^[42] The legal basis is thus the same as for Royal Commissions, upon which Campbell comments:

…the common law does not allow to royal commissioners any greater powers of inquiry than it allows to an ordinary citizen. It denies them coercive powers of any kind. ^[43]

D.3 Hence an ad hoc inquiry established by central government will lack any power to force co-operation with the inquiry. It will rely "entirely upon its powers of persuasion".^[44]

D.4 There is a difference in terminology between "ad hoc" inquiries for central government and local authorities. Local authority ad hoc inquiries, as we explain in Part II,^[45] are those established under implied statutory authority. Ad hoc inquiries set up by central government are those established under the common law prerogative of the executive.

D.5 Ad hoc inquiries have been used for situations where central government itself is under investigation. This may be because there is less need to have the full range of statutory powers where witness attendance and the delivery of documents can be easily secured. Present civil servants can be directed, as a condition of their employment, to co-operate with the inquiry, and documents can be easily gathered from relatively few sources.

D.6 An ad hoc inquiry may also be ordered where other forms of inquiry are unavailable. For instance, a Tribunals of Inquiry Act Inquiry will not be available in Parliamentary recess, unless the Houses have been recalled. Similarly, statutory inquiries, whether express or implied, are dependent on the action of a specifically named minister. Where a matter to be investigated is particularly wide-ranging and potentially ultra vires a statutory provision and Parliament is in recess, the only option is for an ad hoc inquiry without statutory powers.

D.7 Recent examples of ad hoc inquiries established by central government include the Scott inquiry,^[46] the Phillips inquiry into BSE,^[47] Clarke LJ's Thames Inquiry,^[48] and the three inquiries into the handling of the 2001 Foot and Mouth crisis.

D.8 Evidently a ministerial inquiry or a Tribunals of Inquiry Act inquiry may be initiated in response to a request from a local authority, or without any request from the local authority.

8 Audit proceedings

D.1 The role of the District Auditor is to audit the accounts of the local authority. His role and functions are governed by the Audit Commission Act 1998 and the Audit Commission Code of Audit Practice.

D.2 The functions of the auditor are set out in section 5 of the Audit Commission Act 1998.^[49] The focus of a normal audit is to ensure financial regularity in the accounts of the authority. Questions of law arise in so far as the legality of the expenditure is examined. The auditors should not, as stated in the Code of Audit Practice, "admit questions on general matters, such as the audited body's policies, finances or procedures, which are not about the actual accounts for the relevant year."^[50]

D.3 In addition to performing an annual account, the audit process also allows for a report to be produced by the auditor, where it is considered by the auditor that it is in the public interest for the matter to be considered by the body concerned or brought to the attention of the public.^[51] This report can be made either at the conclusion of the audit process or produced immediately.^[52]

D.4 The purpose of such reports is to raise matters to be investigated by the body concerned.^[53] So an auditor's report can be a method by which a local authority can be alerted to a matter of concern which should be probed further. The further investigation by the local authority may complement the auditor's report. For instance, a draft public interest report on Lancashire CC recommended that certain matters, including improper behaviour by the Leader of the Council, be investigated further.^[54] This was taken forward by the Standards Committee commissioning an ethical governance audit,^[55] carried out by an independent investigator.

D.5 Any recommendations made by the auditor in the course of a normal audit, or a public interest report, must be debated by the council in public.^[56] Hence statutory qualified privilege will attach to such reports and recommendations.^[57]

D.6 In addition to the above powers, the Commission may conduct an extraordinary audit. This may be prompted by a public interest report^[58] (see paragraph A.36 above) or by an application from an elector,^[59] or directed by the Secretary of State.^[60]

9 Others

D.1 In addition to audit investigations, other external bodies with statutory functions may investigate how the local authority discharges its responsibilities, such as the Social Services Inspectorate (from April 2004 to be part of the Commission for Social Care Inspection, which will combine the work of the SSI, the SSI/Audit Commission joint review team and the National Care Standards Commission (NCSC)), the Care Standards Boards, the Commissioner for Local Administration (the Ombudsman),^[61] the Children's Commissioner for Wales,^[62] the Health and Safety Executive, the Environment Agency, as well as the Minister.^[63]

D.2 Some of the inquires held by the above will be conducted automatically; others will be triggered by an individual.^[64] The reports they furnish to the local authority on their performance and compliance with standards may well alert the council to a matter it wishes to investigate of its own accord.

D.3 The Independent Police Commission (which replaces the Police Complaints Authority with effect from a date yet to be appointed) will have the powers to require a police chief to produce any document and to inspect any police premises as necessary for the purposes of its investigations.^[65]

10 The Commissioner for Local Administration (the Ombudsman)

D.1 The Commissioner for Local Administration (also known as the local government Ombudsman) deals with complaints with how specified authorities have treated members of the public. The Ombudsman is permitted to investigate written complaints made by or on behalf of a member of the public who claims to have suffered injustice in consequence of maladministration, in connection with action taken or default first arising after 1974.^[66]

D.2 Any complaint must be made by an individual or a member of the council on his or her behalf. It is possible that a non-executive member may well wish to press the cause of the aggrieved member of the public by supporting or referring the complaint in order to hold the executive to account.

D.3 The jurisdiction of the Ombudsman is limited. In addition to certain procedural requirements,^[67] complaints cannot normally be heard if there is recourse to an appeal or tribunal; ^[68] the matter affects all or most of the inhabitants of the area; ^[69] it concerns the action taken by any police authority in connection with the investigation or prevention of crime;^[70] it concerns the conduct of civil or criminal proceedings before any court of law;^[71] it concerns contractual or commercial transactions;^[72]or it is a personnel matter.^[73]

D.4 The Ombudsman nevertheless has the discretion in many of the situations outlined above^[74] to entertain the complaint.

D.5 Recourse to the Ombudsman is not likely to be a mechanism favoured by the local authority. This is because the jurisdiction of the Ombudsman is limited to complaints made by, or on behalf of, a member of the public. The only way the authority can be involved directly in a matter referred to the Ombudsman is if a member of the authority acts on behalf of an aggrieved person. The member of the authority is not likely to be part of the executive or ruling party but may be a back-bencher or a member of an overview and scrutiny committee. In other words, although the member will be part of the council, he or she is not likely to be part of the governing limb of the authority.

D.6 Where a matter comes to the attention of the governing part of the authority they are not likely to engage the Ombudsman procedure and open themselves up to a finding of maladministration with the subsequent bad press this might involve. The procedure is similarly only suitable where the matter is limited to one specific event, rather than a matter that affects the authority's area as a whole. The jurisdiction is limited to the manner in which the authority came to the decision, rather than the policy choices governing the decision reached, or the substance of the decision itself. This is again not likely to satisfy the desire to conduct an investigation into the concerning incident.

D.7 However, the Ombudsman procedure has been described because the authority may wish to engage one of the other mechanisms to inquire into the matter to avoid an aggrieved person having recourse to the Ombudsman.

11 Standards Boards Investigations

D.1 The Local Government Act 2000 created a new ethical framework for local authorities. Local authorities have to draw up Codes of Conduct,^[75] to which members must sign up.^[76] Local authority Codes must incorporate certain mandatory sections of Model Codes.^[77] The Model Codes are laid down by the Secretary of State for English local authorities^[78] and the National Assembly of Wales has drawn up a similar Model Code for Welsh local authorities.^[79] Local authorities must also establish standards committees,^[80] to promote and maintain high standards of conduct within the authority and to assist members of that authority to observe the authority's code of conduct.^[81]

D.2 In England, a new body, the Standards Board for England,^[82] will appoint ethical monitoring officers to investigate written allegations of a failure to comply with the relevant code.^[83] The ethical monitoring officer investigates the complaint,^[84] and if the officer concludes that there has been a breach of a code of conduct, he or she must refer the case to the Adjudication Panel for England for a hearing and judgment.^[85] In Wales, the written allegation is investigated by the Local Commissioner for Wales,^[86] and if the Commissioner concludes that there has been a breach of a code of conduct, the Commissioner may refer the case to the Adjudication Panel for Wales.^[87] Matters can also be referred to the Adjudication Panel on an interim basis where the ethical monitoring officer or the Local Commissioner for Wales conclude that a breach of the code is likely to have occurred, and that it would be in the public interest to suspend the member.^[88] Three members of the relevant Adjudication Panel are appointed to form the case tribunal.^[89] The case tribunal may impose penalties ranging from public censure to disqualification as a councillor for up to five years,^[90] subject to a right of appeal to the High Court.^[91]

D.3 Ethical standards officers and the Local Commissioner for Wales have access to all information held by the local authority which they think necessary for the purpose of conducting the investigation.^[92] The procedure, including disclosure of documents, compellability of witnesses and costs, of the case tribunals of the Adjudication Panels is to be governed by regulations laid down by the Secretary of State in England and the National Assembly in Wales.^[93]

D.4 The Standards Board for England was established on 22 March 2001.^[94] There is as yet little guidance as to how it, the Local Commissioner for Wales, and the Adjudication Panels will interact with other forms of inquiry.^[95]

12 The Children's Commissioner for Wales

D.1 The Children's Commissioner for Wales is an independent office with the task of ensuring the protection of rights of children and young people. It was established following a recommendation in the Waterhouse Report.

D.2 The office of the Children's Commissioner for Wales was established under section 72 of the Care Standards Act 2000.^[96] The Commissioner's functions include reviewing and monitoring complaints made by service providers, whistleblowing, advocacy, the provision of advice and information, providing other assistance and making reports.^[97]

D.3 The Commissioner has the power to examine cases of particular children by means of a public inquiry if it involves an issue that has a more general application to the lives of children in Wales.^[98] The procedure for such examinations is provided for by Part III of the regulations and the publication of reports by Part VI of the regulations.^[99] For the purposes of such an examination the Commissioner has the same power as the High Court in respect of the attendance and examination of witnesses which includes administration of oaths and the examination of witnesses abroad, the provision of information, and the payment of expenses.^[100]

D.4 In the Annual Report and Accounts of the Commissioner for 2002–2003 the Commissioner states that the inquiry work is expanding and proposes a restructuring of the organisation for 2003–2004.^[101] The Commissioner reports on the inquiry in the Clywch Examination concerning allegations of abuse by the former pupils of John Owen. They identify that this inquiry is to provide for new guidance, and practices and procedures for working with children in teaching. This inquiry was to be completed in November 2003 with a report published in 2004.

D.5 In 2001 the Children's Commissioner for Wales Act extended the Commissioner's role to all children. It also gave the Commissioner the power to review proposed legislation and the policy of the National Assembly for Wales to consider the potential effect that either legislation or policy might have on children in Wales. This review power includes the power to make representations to the National Assembly for Wales about any matter that affects children.^[102] This means that the Commissioner can deal with issues outside the responsibility of the National Assembly for Wales, such as youth justice, the family courts and social security benefits.

D.6 The office of Children's Commissioner also exists in Scotland and Northern Ireland. In England the Government has proposed the establishment of the post of Children's Commissioner in the Green Paper Every Child Matters.^[103] In this paper the Government proposes that the Children's Commissioner for England should have the power to advise the Government and others regarding the impact of decisions and policies on children.^[104] The Government is concerned that the Children's Commissioner should not become too dominated by responding to individual complaints and considers that the Commissioner should focus on strategic matters, with issues of individual complaints being left to other bodies to deal with. However the Government does envisage that the Children's Commissioner for England will have the powers to establish investigations into cases that have a wider relevance on the direction by the Secretary of State.^[105] At present there is no Bill before Parliament concerning the establishment of a Children's Commissioner for England.

13 An action in a court or tribunal

D.1 An authority may be liable where it acts contrary to the common law, for example in breach of contract, or in tort, where it may be liable for the negligent exercise of statutory powers^[106] or statutory duties,^[107] vicariously liable for negligence of employees^[108] or for intentional wrongdoing of its employees,^[109] or for misfeasance in public office.^[110]

D.2 In addition to liability in private law, a local authority's actions and decisions can also be challenged by judicial review. This can arise where it acts beyond the scope of its statutorily defined powers (illegality); or where it exercises its discretion unreasonably (irrationality); or breaches the requirements of natural justice (procedural impropriety).^[111] However, it must be noted that it does not necessarily follow that where a local authority has acted unlawfully in the "public law" sense, it is liable in private law, as the relevant private law cause of action must be made out.^[112]

D.3 The Human Rights Act 1998 makes it unlawful for public bodies to act inconsistently with the ECHR, and empowers the court to give appropriate remedies, including damages, for contravention of Convention rights. Convention rights may be relied on in actions against a local authority (as well as in a judicial review of a local authority decision).^[113] Therefore the acts of a local authority may be scrutinised in the light of private law principles, administrative law principles, and Convention rights.

D.4 The local authority may thus find its procedures under the spotlight in court proceedings. However, court proceedings are binary: X was or was not guilty of an offence; Y was or was not negligent.^[114] Issues of management structure, training, responsibility and flaws in the legislation may not be explored in the courtroom whereas they might fall within the scope of an inquiry's terms of reference. Generally speaking, a courtroom or tribunal is not the appropriate forum for investigation with a view to bringing about change in future practice.

14 The Coroner's courts

D.1 One kind of court is perhaps the exception to this general statement, or could be. The system of inquests has been under review.^[115] The Coroners Review was completed in 2003. If recommendations of the Coroners Review are implemented, the inquest is highly unlikely to retain its current form, and the obligations on the state imposed by Article 2 might be met by the new form of inquiry into death.

Ý
Ü   Þ

Note 1    An Inquiry into the events on Sunday 30 January 1972 which led to loss of life in connection with the procession in Londonderry on that day, taking account of any new information relevant to events on that day, established 29 January 1998.     [Back]

Note 2    The Public Inquiry into the Shooting at Dunblane Primary School on 13 March 1996 (1996–97) Cm 3386.     [Back]

Note 3    The Waterhouse Report, para 1.01.    [Back]

Note 4    Report of the Fay Committee of Inquiry on the Crown Agents on 1 December 1977 (1977–78) Cmnd 49.     [Back]

Note 5    See, for example, The Police Act 1996, the NHS Act 1977, the Children Act 1989; s 17 Gas Act 1965, ss 248–249 Road Traffic Act 1960; s 20 Ministry of Transport Act 1919; s 90 Transport Act 1962; s 10 Care Standards Act 2000; s 16 Coast Protection Act 1949; s 62 Electricity Act 1989; s 15 Local Government Act 1999, Fire Service Act 1947, s 33, Mental Health Act 1983, s 125.    [Back]

Note 6    See para A.24 below.    [Back]

Note 7    The Southall, Ladbroke Grove, and joint inquiry into Train Safety Issues were all set up under Health and Safety at Work etc Act 1974, s 14(2)(b).    [Back]

Note 8    The Stephen Lawrence Inquiry (1999) Cmnd 4262–I.    [Back]

Note 9    Learning from Bristol: Report of the Public Inquiry into Children’s Heart Surgery at the Bristol Royal Infirmary (2001) Cmnd 5207. The Secretary of State has indicated that he will only use the power to establish a public inquiry where the matter raises serious public concern, important ethical questions or fundamental issues of health policy: Department of Health, “Building a Safer NHS for patients: implementing an organisation with memory - Report of an expert group on learning from adverse events in the NHS chaired by the Chief Medical Officer” para 42.    [Back]

Note 10    It is believed to be the first public inquiry set up under three express statutory provisions; see para 8 of the opening speech to the Inquiry by Lord Laming 31 May 2001.    [Back]

Note 11    Section 49(3), Police Act 1996.    [Back]

Note 12    Section 81(4), Children Act 1989.    [Back]

Note 13    See generally A Arden, Local Government Constitutional and Administrative Law (1999) paras 8.4.1 – 8.4.16.    [Back]

Note 14    Local Government Act 1999, s 5(4).    [Back]

Note 15    Section 49(5), Police Act 1996.    [Back]

Note 16    Section 49(4), Police Act 1996.    [Back]

Note 17    In exercise of his powers under the Children Act 1989, s 81 and under the National Health Service Act 1977, s 84.    [Back]

Note 18    In exercise of his powers under the Police Act 1996, s 49.    [Back]

Note 19    See eg, Children Act 1989, s 81(4), National Health Service Act 1977, s 84(2)(a) and Police Act 1996, s 49(3) for the Victoria Climbié inquiry.    [Back]

Note 20    Section 14(1), Health and Safety at Work etc Act 1974. The Health and Safety Commission is composed of nine members, nominated by organisations representing employers, employees, local authorities and others. It has general oversight of the work of the Health and Safety Executive: see note 21 below.     [Back]

Note 21    Section 14(1), Health and Safety at Work etc Act 1974. The Health and Safety Executive is composed of three board members. The Executive is entrusted with ensuring that risks to people's health and safety from work activities are properly controlled.    [Back]

Note 22    Section 14(1), Health and Safety at Work etc Act 1974.    [Back]

Note 23    Section 1(1)(a), Health and Safety at Work etc Act 1974.    [Back]

Note 24    Section 1(1)(b), Health and Safety at Work etc Act 1974.    [Back]

Note 25    Section 1(1)(c), Health and Safety at Work etc Act 1974.    [Back]

Note 26    Section 14(3), Health and Safety at Work etc Act 1974. This provision is not applicable to investigations under s 14(2)(a).     [Back]

Note 27    Section 14(4)(a), Health and Safety at Work etc Act 1974.    [Back]

Note 28    Section 14(4)(b), Health and Safety at Work etc Act 1974.    [Back]

Note 29    Section 14(4)(c), Health and Safety at Work etc Act 1974.    [Back]

Note 30    SI 1975 No 335.    [Back]

Note 31    See Reg 4 and 5 SI 1975 No 335 Health and Safety Inquiries (Procedure) Regulations 1975.    [Back]

Note 32    See Reg 6 SI 1975 No 335 Health and Safety Inquiries (Procedure) Regulations 1975.    [Back]

Note 33    Regulation 7(1) SI 1975 No 335 Health and Safety Inquiries (Procedure) Regulations 1975.    [Back]

Note 34    Regulation 8(1) SI 1975 No 335 Health and Safety Inquiries (Procedure) Regulations 1975.    [Back]

Note 35    Regulation 8(6) SI 1975 No 335 Health and Safety Inquiries (Procedure) Regulations 1975.    [Back]

Note 36    Regulation 8(3) SI 1975 No 335 Health and Safety Inquiries (Procedure) Regulations 1975.    [Back]

Note 37    Regulation 7(3) SI 1975 No 335 Health and Safety Inquiries (Procedure) Regulations 1975; s 33 Health and Safety at Work etc Act 1974.    [Back]

Note 38    The Royal Liverpool Children’s Inquiry Report (2001).    [Back]

Note 39    The Royal Liverpool Children’s Inquiry Report (2001) ch 1 para 2.1.    [Back]

Note 40    See www.bichardinquiry.org.uk    [Back]

Note 41    Home Office Press Release, 18 December 2003, (see www.homeoffice.gov.uk/docs2/bichard_statement.html).    [Back]

Note 42    Ian Leigh, “Matrix Churchill, Supergun and the Scott Inquiry” [1993 ] PL 630, 642.    [Back]

Note 43    Enid Campbell, “Contempt of Royal Commissions” (1984), p 4.    [Back]

Note 44    Brian McHenry, “The Public Inquiry Solicitor” (1999) 169 NLJ No 6914, 1772, 1773.    [Back]

Note 45    See paras 2.61 – 2.69 above.    [Back]

Note 46    Report of the Inquiry into Exports of Defence Equipment and Dual-Use Goods to Iraq and Related Prosecutions (1995-1996) HC 115.    [Back]

Note 47    Report of the Inquiry into BSE and variant CJD in the United Kingdom (2000).    [Back]

Note 48    Thames Safety Inquiry: Final Report by Lord Justice Clarke (2000) Cmnd 4558.    [Back]

Note 49    Section 5 states: (1) In auditing accounts required to be audited in accordance with this Act, an auditor shall by examination of the accounts and otherwise satisfy himself– (a) if they are accounts of a health service body, that they are prepared in accordance with directions under subsection (2), [or (2B)] of section 98 of the National Health Service Act 1977; (b) in any other case, that they are prepared in accordance with regulations under section 27; (c) that they comply with the requirements of all other statutory provisions applicable to the accounts; (d) that proper practices have been observed in the compilation of the accounts; (e) that the body whose accounts are being audited has made proper arrangements for securing economy, efficiency and effectiveness in its use of resources; and (f) that that body if required to publish information in pursuance of a direction under section 44 (performance information), has made such arrangements for collecting and recording the information and for publishing it as are required for the performance of its duties under that section. (2) The auditor shall comply with the code of audit practice applicable to the accounts being audited as that code is for the time being in force.    [Back]

Note 50    The Audit Commission, “Code of Audit Practice” (March 2002), para S1.7.    [Back]

Note 51    Section 8(a), Audit Commission Act 1998.    [Back]

Note 52    Section 8(b), Audit Commission Act 1998.    [Back]

Note 53    Encyclopaedia of Local Government Law para 3–999.1115.    [Back]

Note 54    KPMG, “Lincolnshire County Council Report in the Public Interest Audit 1998/1999 and 1999/2000” (2 May 2002).    [Back]

Note 55    Lincolnshire County Council, “Ethical Governance Audit: Report of Rodney Brooke CBE DL” (14 June 2002).    [Back]

Note 56    Sections 10, 11, Audit Commission Act 1998.    [Back]

Note 57    Section 100H(5)(b), Local Government Act 1974.    [Back]

Note 58    Audit Commission Act 1998, s 25(1).    [Back]

Note 59    Ibid.    [Back]

Note 60    Audit Commission Act 1998, s 25(2).    [Back]

Note 61    Described in more detail at paras A.44 – A.50 below.    [Back]

Note 62    Care Standards Act 2000, s 74 and Children Commissioner for Wales Regulations 2001, regs 4–9, 13, 14.    [Back]

Note 63    The Secretary of State may conduct a Best Value Inquiry where a local authority is failing to comply with the requirements of Best Value. It is ordered by the Secretary of State and benefits from the powers laid out in subsections 250(2) – (5) Local Government Act 2000. Rather than being used merely as a method of investigation, it is used as a sanction in order that the Secretary of State can take further punitive measures.    [Back]

Note 64    For example, The GSCC is responsible for investigating complaints about registered social workers that might affect their suitability as social workers. Such complaints or referrals are investigated and the GSCC’s Conduct Committee has the authority to suspend or remove a registered worker from the Social Care Register, if it finds that there has been misconduct.    [Back]

Note 65    Police Reform Act 2002, ss 15, 17 and 18.    [Back]

Note 66    Section 26(1), Local Government Act 1974.    [Back]

Note 67    Section 26(2), (4), (5), Local Government Act: complaints not to be entertained if not in writing, the aggrieved person has not consented, more than 12 months have elapsed, the complaints procedure of the local authority has not been used,     [Back]

Note 68    Section 26(6)(a), Local Government Act 1974.    [Back]

Note 69    Section 27(c), Local Government Act 1974.    [Back]

Note 70    Section 28, Local Government Act 1974, Schedule 5 para 2.    [Back]

Note 71    Section 28, Local Government Act 1974, Schedule 5 para 1.    [Back]

Note 72    Section 28, Local Government Act 1974, Schedule 5 para 3(1), save certain transactions listed in para 3(3).    [Back]

Note 73    Section 28, Local Government Act 1974, Schedule 5 para 4.    [Back]

Note 74    See for exclusion 2, s 26(3); exclusion 3, s 26(4); exclusions 5 – 7 s 26(6). Exclusions 1, 4, 8 – 12 confer no discretion to entertain the complaint. However s 26(10) Local Government Act 1974 provides that at all times the Ombudsman should act at discretion, but subject to the preceding provisions of the section. One Ombudsman has admitted that many of the complaints received and entertained by the Ombudsmen could indeed be dealt with by way of judicial review - Edward Smothersby CB, “The Local Government Ombudsman as an alternative to judicial review” (undated from website), p 2.    [Back]

Note 75    Local Government Act 2000, s 51.    [Back]

Note 76    Ibid, s 52(1)(a).    [Back]

Note 77    Ibid, s 51(4)(a).    [Back]

Note 78    Local Government Act 2000, s 50(1); The Local Authorities (Model Code of Conduct) (England) Order 2001 SI 2001 No 3575.    [Back]

Note 79    Ibid, s 50(2); The Conduct of Members (Model Code of Conduct) (Wales) Order 2001 SI 2001 No 2289 (W 177).    [Back]

Note 80    Ibid, s 53(1).    [Back]

Note 81    Ibid, s 54(1).    [Back]

Note 82    Ibid, s 57(1).    [Back]

Note 83    Ibid, s 58(2).    [Back]

Note 84    Ibid, s 59(1)(a).    [Back]

Note 85    Ibid, s 59(4)(d); s 64(3).    [Back]

Note 86    Ibid, s 69(1)(a).    [Back]

Note 87    Ibid, s 69(4)(d); s 71(3).    [Back]

Note 88    Ibid, s 65(3),(4); s 72(3),(4).    [Back]

Note 89    Ibid, s 76(1),(2).    [Back]

Note 90    Ibid, s 78(1); s 79(4),(6).    [Back]

Note 91    Ibid, s 78(10); s 79(15).    [Back]

Note 92    Ibid, s 62(1), s 70(1); SI 2001 No 2286 (W 174) The Local Commissioner in Wales (Standards Investigations) Order 2001, art 2, Sched 1.    [Back]

Note 93    Local Government Act 2000, s 77(2)–(6); SI 2001 No 2288 (W 176) Adjudications by Case Tribunals and Interim Case Tribunals (Wales) Regulations 2001. As yet, no regulations have been made for England.    [Back]

Note 94    See http://www.local-regions.dtlr.gov.uk/ethical/board/index.htm     [Back]

Note 95    There are provisions enabling the bodies involved in the new ethical framework to refer matters on between themselves; see, eg, Local Government Act 2000, s 67.    [Back]

Note 96    See also The Children’s Commissioner for Wales Regulations 2001, SI 2001 No 2787 (W237).    [Back]

Note 97    Care Standards Act 2000, ss 73 and 76.    [Back]

Note 98    Care Standards Act 2000, s 74.    [Back]

Note 99    The Children’s Commissioner for Wales Regulations 2001, SI 2001 No 2787 (W.237).    [Back]

Note 100    Care Standards Act 2000, s 74 (4), (5) and (6).    [Back]

Note 101    Children’s Commissioner for Wales Annual Report and Accounts 2002–2003, p 8.    [Back]

Note 102    Care Standards Act 2000, s 72A, B and 75A.    [Back]

Note 103    Cm 5860, published Sept 2003.    [Back]

Note 104    Ibid, para 5.50.    [Back]

Note 105    Ibid, para 5.51.    [Back]

Note 106    Stovin v Wise [1996] AC 923.     [Back]

Note 107    X v Bedfordshire CC [1995] 2 AC 633; Barrett v Enfield LBC [2001] 2 AC 550; W v Essex CC [2001] 2 AC 592; Phelps v Hillingdon BC [2001] 2 AC 619.    [Back]

Note 108    Phelps v Hillingdon BC [2001] 2 AC 619.    [Back]

Note 109    As per Lord Steyn: “the law of vicarious liability sometimes may embrace intentional wrongdoing by an employee” in Lister v Hesley Hall Ltd [2001] UKHL 22 para [16]; [2001] 2 WLR 1311, 1317, where the torts of the employee “were so closely connected with his employment that it w[as] fair and just to hold the employers vicariously liable”: [2001] UKHL 22 para [28]; [2001] 2 WLR 1311, 1323. See further paras 3.10 – 3.16 below.    [Back]

Note 110    Racz v Home Office [1994] 2 AC 45; Three Rivers DC v Bank of England (No 3) [2000] 2 WLR 1220.    [Back]

Note 111    This classification is taken from Lord Diplock’s speech in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410.    [Back]

Note 112    X v Bedfordshire CC [1995] 2 AC 633.    [Back]

Note 113    See, eg, K Markus and M Westgate, “Recent Developments in Public Law” Legal Action [2001] Nov 25, 26–27.    [Back]

Note 114    See further, Mavis Maclean, “How does an Inquiry Inquire? A Brief Note on the Working Methods of the Bristol Royal Infirmary Inquiry” (2001) 28 Journal of Law and Society, 590, 596.    [Back]

Note 115    There have been numerous calls over recent years for reform of the inquest process. Eg, in the report of the inquiry into the death of Paul Wright while in the custody of HM Prison Service, the author recommended “It should be part of the conditions of service of prison service staff that they co-operate with inquiries into deaths in custody, in particular with the new ‘independent’ element which I recommend”: Dr J Davies, “Report on the death of Paul Wright” (2002), para 6.1. He wished to see “the operation of small panels of independently-led ‘inquisitors’, operating outside the formal law court system, but perhaps in parallel with the Coroner’s Courts” (para 6.3).    [Back]