To / Diana R Johnson MP
From / Gail Bartlett
Parliament and Constitution Centre
/ Ref
Date / 2017/7/99-PCC
14 July 2017
Public inquiries under the Inquiries Act 2005 compared to the Hillsborough Independent Panel
This information is provided to Members of Parliament in support of their parliamentary duties and is not intended to address the specific circumstances of any particular individual. It should not be relied upon as legal or professional advice, or as a substitute for it. A suitably qualified professional should be consulted if specific advice or information is required.

Contents

1.Summary

1.1Differences between inquiries and the Hillsborough Independent Panel

2.The Hillsborough Independent Panel

2.1What was the Hillsborough Independent Panel?

2.2The remit of the HIP

3.Aspects of the Hillsborough Independent Panel you seek to reproduce

3.1What was “families first” and can it be reproduced in an Inquiries Act inquiry?

Early disclosure of documents to families

Disclosure to the public

3.2Consulting with affected families and communities

In general

Appointment of the panel and chair

4.Differences in the countries of the UK

4.1Compelling witnesses across the UK

5.Contaminated blood investigations in other countries

6.Other aspects of inquiries

6.1Oral evidence procedure – compared

6.2Hearings in public or private – compared

6.3Compelling documents to be produced or witnesses to attend - compared

6.4Maxwellisation – compared

7.Appendix: “Core participants” in Inquiries Act inquiries

1.Summary

Inquiries Act 2005 inquiries have been described as a “gold standard” for public inquiries. There is no area in which a non-statutory public inquiry has more powers to seek evidence. A non-statutory public inquiry has no set procedure and few legal requirements—and no legal powers.

There have been non-statutory public inquiries into health matters previously. One such example was the Morecambe Bay Investigation, the chair of which was Dr Bill Kirkup, a doctor rather than a judge. While this type of inquiry does not have to follow the restrictions of the Inquiries Act 2005, it cannot have powers to compel the attendance of witnesses or the production of documents. This briefing includes references to such non-statutory public inquiries for comparison.

The Hillsborough Independent Panel was not a public inquiry, statutory or otherwise. It was appointed primarily to oversee the disclosure process, and to produce a report on how the disclosed information added to public understanding of the tragedy. The setup of the Hillsborough Independent Panel is not suitable for an inquiry that aims to be truly investigative and, importantly, that seeks to take witness statements and oral evidence. It is also not possible to have the powers of compulsion—of witnesses or documents—without taking on the additional requirements of the 2005 Act. It is not possible to choose to have the powers of compulsion and to disregard certain parts of the 2005 Act that aren’t wanted. This would require ad hoc legislation. Part 2 of this briefing describes the remit of the Hillsborough Independent Panel, and how that differs from a public inquiry.

You asked whether a “hybrid” of the Hillsborough Independent Panel and an Inquiries Act 2005inquiry could be set up. This is not possible, as it is not possible to pick and choose which parts of the Act to take effect.However, the aspects of the HIP which you seek to reproduce can, in some cases, be reproduced in an Inquiries Act inquiry. The “families first” disclosure policy used in the Hillsborough Independent Inquiry could potentially be emulated in the disclosure protocol of a statutory inquiry, as an inquiry is free to decide its own procedures, but it would likely not be able to be exactly the same as the HIP disclosure protocol. An inquiry would need to put the integrity of the inquiry, and fairness to its participants, first and foremost in its concerns. Part 3 of this briefing looks at the aspects that you seek to reproduce, and how these might be reproduced in a public inquiry.

You asked whether there were jurisdiction implications for a UK-wide inquiry. In short, as long as the Government consulted with the devolved administrations and gave permission to the inquiry chairman to use the powers to compel UK-wide, a “United Kingdom inquiry” could be set up with full powers to compel the production of evidence and witnesses across the UK, despite NHS provision being a devolved matter. Part 4 of this briefing provides information on how the Inquiries Act 2005 operates in inquiries across jurisdictions in the UK.

You asked how investigations into contaminated blood were carried out in other countries. Part 5 of this briefing provides information on these investigations. This section will follow later this morning.

There are a number of other differences between statutory and non-statutory inquiries, and the Hillsborough Independent Panel. Four of these differences that may be relevant to you are expanded on in Part 6 of this briefing.

The Inquiries Act 2005 introduces the concept of “core participants” to an inquiry, who are given special status and rights. An appendix to this briefing includes some of the specific rights given to “core participants” of inquiries under the Inquiries Act 2005.

1.1Differences between inquiries and the Hillsborough Independent Panel

An Inquiries Act 2005 inquiry is bound by the rules of the Act and the rules contained in the Inquiry Rules 2006. A non-statutory public inquiry is set up ad hoc and is not bound by the Act, but does not receive any of the attendant powers. The Hillsborough Independent Panel was a sui generis entity which was not, strictly speaking, an inquiry.

Inquiries Act 2005 inquiry / Non-statutory public inquiry / The Hillsborough Independent Panel
A minister sets the terms of reference / A minister sets the terms of reference / The Home Secretary set the terms of reference
Cannot determine civil or criminal liability[1] / Cannot determine civil or criminal liability / Could not determine civil or criminal liability
The inquiry can be undertakenby a panel or a single person[2] / The inquiry can be undertaken by a panel or a single person / Operated as a panel
Ability to adopt own procedure is limited by the Act and the Rules[3] / Can adopt its own procedures / The Home Secretary set the disclosure protocol
Presumption that the inquiry will sit in public[4] / Could potentially sit in private / Not applicable – did not take oral evidence
May compel witnesses to attend or documents to be produced, with criminal sanctions for non-compliance[5] / May not compel the production of documents or the attendance of witnesses / Could not compel the production of documents
May take evidence on oath[6] / May not take evidence on oath / Not applicable – did not take oral evidence
Maxwellisation must take place by sending “warning letters”.[7] / Maxwellisation is generally expected to take place / No Maxwellisation process
Statutory duty to take steps to secure public access to documents[8] / No inherent duty of public access to documents. / Terms of reference entirely based around disclosure of documents
May not be “converted” into a non-statutory inquiry / May be converted into a Inquiries Act inquiry[9] / Remained non-statutory throughout its lifetime

2.The Hillsborough Independent Panel

2.1What was the Hillsborough Independent Panel?

You asked for the Hillsborough Independent Panel to be used as a point of comparison.

The Hillsborough Independent Panel was not a public inquiry as it is commonly thought of. It did not take evidence and did not examine or cross-examine bodies which submitted documents. The panel followed a disclosure process. Disclosed documents were submitted to the independent panel, and the panel was asked to produce a report of how the documents added to the understanding of the Hillsborough Disaster.

The HIP followed a protocol on Disclosure of Information set by the Home Secretary.

The Panel had four tasks, which it delegated to sub-groups:

  • Disclosure: collecting disclosed information from relevant bodies;
  • Research and report: drafting the report on what the disclosed material added to knowledge regarding the disaster;
  • Permanent archive: ensuring that material was stored permanently;
  • Consulting families: ensuring that families were consulted first before documents were disclosed to the public.

The most recent investigation into the Hillsborough Disaster was a number of inquests sitting together. Inquests are generally used where the cause of death needs to be determined, and tend to have a far narrower remit than inquiries. The differences between an inquest and a public inquiry are set out in the library briefing paper Inquests and public inquiries.

Hillsborough investigations

There were multiple investigations into the Hillsborough disaster. These were:

  • The Taylor inquiry (reported January 1990);

─A non-statutory single-judge inquiry

  • The first inquests (returned a verdict March 1991);

─Inquests are a legal requirement in the event of violent or unnatural death

  • The Stuart-Smith Scrutiny (reported February 1998);

─A non-statutory single-judge scrutiny process

  • The Hillsborough Independent Panel (reported September 2012);

─A non-statutory panel investigation. It had a remit to receive disclosed material and to write a report on what that material added to what was already known about the disaster.

  • The second inquests (returned a verdict April 2016)

─These inquests were held following the Panel’s report and the verdicts of the initial inquests being quashed following an application by the Government to the High Court.

2.2The remit of the HIP

The Hillsborough Independent Panel has six items in its remit which illustrate that it was intended to reach a fundamentally different outcome to a public inquiry.[10]

Remit to oversee full public disclosure
  1. oversee full public disclosure of relevant government and local information within the limited constraints set out in the accompanying protocol;

Item 1, focusing on the disclosure of information, is very different to a typical public inquiry term of reference. It does not provide any remit to make an examination of events beyond the disclosed documents, or to make recommendations for change. Both of these are typical of public inquiries.

Remit to consult with the affected families, and to disclose information to them first
  1. consult with the Hillsborough families to ensure that the views of those most affected by the tragedy are taken into account;
  2. manage the process of public disclosure, ensuring that it takes place initially to the Hillsborough families and other involved parties, in an agreed manner and within a reasonable timescale, before information is made more widely available;

Items 2 and 3 are not typical of a public inquiry under the 2005 Act, although inquiries would usually take evidence from affected individuals or their families, if deceased. The Mid Staffordshire NHS trust inquiry also took steps to support patients or their families giving evidence, an act that it was free to do as a statutory inquiry can decide its own process.

The disclosure protocol in item 3 could potentially be reproduced in a public inquiry, provided it did not inhibit the inquiry’s ability to inquire effectively. Inquiries have developed ad hoc “disclosure protocols” under an inquiry’s ability to decide its own processes. How this might be emulated is explored further in Part 3.

Remit to prepare an archive of Hillsborough documentation
  1. in line with established practice, work with the Keeper of Public Records in preparing options for establishing an archive of Hillsborough documentation, including a catalogue of all central Governmental and local public agency information and a commentary on any information withheld for the benefit of the families or on legal or other grounds;

The duty under item 4 could easily be replicated in a public inquiry under the 2005 Act. The chairman of an inquiry has a duty under rule 18(3) to transfer custody of the inquiry record in accordance with the minister’s direction.

Remit to produce a report of how the information adds to public understanding of the tragedy and its aftermath
  1. produce a report explaining the work of the panel. The panel’s report will also illustrate how the information disclosed adds to public understanding of the tragedy and its aftermath.

This is fundamentally different from a typical public inquiry report, which will analyse the evidence, weigh up judgements, and make recommendations. The report of the panel answered only two things – what was previously known, and what has been added to the understanding. It made no comment on what should happen next, which a public inquiry can do.

3.Aspects of the Hillsborough Independent Panel you seek to reproduce

3.1What was “families first” and can it be reproduced in an Inquiries Act inquiry?

In the emergency debate, you mentioned the protocol of “families first” used by the Hillsborough Independent Panel, and said that this should be reproduced in any contaminated blood inquiry.

Early disclosure of documents to families

The principle of “families first” in the work of the Hillsborough Independent Panel specifically referred to the disclosure of documents to families and other involved parties before they were disclosed to the public:

The terms of reference oblige the Panel to disclose documents and other material ‘initially to the Hillsborough families and other involved parties ... before information is made more widely available’. This is the principle of ‘families first’.[11]

This principle was described by the Home Secretary as ensuring that the families had access to the papers “not filtered through politicians and the media”.[12]

Because the Hillsborough Independent Panel was not an inquiry, it did not have to consider whether any future evidence statements would be prejudiced by early disclosure. It collected existing information and documents, and did not take witness statements. There was no concern about early disclosure of certain documents prejudicing or altering later witness statements. In an inquiry, the purpose of the inquiry to fulfil its terms of reference (usually to investigate and inquire) will always need to take priority.

Potential issues with emulating an early disclosure protocol

Inquiries set their own procedure, and inquiries under the 2005 Act have previously set up “disclosure protocols” indicating how information will be disclosed. However, a problem could ariseif attempting to emulate the HIP entirely, because the very nature of a public inquiry is not entirely compatible with immediate disclosure.

An inquiry will, typically, take written and oral evidence, and question witnesses over several weeks at least. The inquiry will then take time to generate a report. There are good arguments for restricting disclosure of all relevant inquiry material until after the completion of the process of taking witness statements. For example, if all material is disclosed before that time, difficulties can be caused by witnesses seeing documents that affect the contents of their own statements. The chairman of the inquiry is under a legal duty to ensure that there is no unfairness to participants in the inquiry.

So, while an inquiry could implement a system that is similar to “families first”, this can only ever take place when it does not inhibit the inquiry’s investigative process and did not breach the duty of fairness to participants.[13] It’s unlikely that an inquiry would be able to make a blanket commitment to disclose documents to families at the earliest opportunity.

Disclosure to the public

Section 18 of the 2005 Act imposes specific duties on an inquiry as to the disclosure of documents and evidence to members of the public. The chairman must take reasonable steps to secure that members of the public are able to obtain or to view a record of evidence and documents given to the inquiry.

The duty under Section 18 doesn’t specify when the public need to be given access to evidence and documents given to the inquiry. Therefore, emulating the “families first” policy put in place by the Hillsborough Independent Panel does not necessarily contravene the duty under Section 18, as long as the chairman takes reasonable steps to subsequently ensure that the public as a whole have access to the documents.

3.2Consulting with affected families and communities

In the emergency debate, you said that you any contaminated blood inquiry should consult with affected families and communities, and that such affected groups should be consulted regarding the appointment of the chair and panel.

In general

The Hillsborough Independent Panel’s remit required it to “consult with the Hillsborough families to ensure that the views of those most affected by the tragedy are taken into account”. The Panel met with the families of the people killed at Hillsborough stadium like so:

We decided to meet with the three established groups on the very first day that we met as a Panel. Our meetings with the groups that day were the foundation of the Panel’s work in the intervening two and a half years. In that period, we have made contact with at least one member of each of the families bereaved by Hillsborough. This includes a number of families who are not affiliated to any of the established groups.[14]

While similar actions are rare in public inquiries set up under the 2005 Act, it is not unheard of for an inquiry to perform some actions to engage with families affected by the matter being inquired into.

How previous Inquiries Act inquiries have worked with affected families

For example, in the ICL inquiry the bereaved families and injured survivors of the explosion were afforded some assistance to pay for legal representation. If they were on a low income, in receipt of benefits, or could demonstrate a lack of disposable income, the chairman agreed to consider making an award of costs of financial representation. The chairman also made a statement that he was willing to take these on a case-by-case basis even in cases where the participant’s income exceeded the threshold.[15] The chairman also allowed any bereaved family members or injured survivors to approach the inquiry secretariat with suggested questions.[16] This is similar to the rights given to “core participants” (see Appendix) but was done so under the direction of the chairman, rather than as a requirement under the Act.