An Analysis of
the U.K. Inquiries Bill and U.S. Provisions for Investigating Matters of Urgent
January 2005 --
Impartiality, and Transparency
The United States has no single legislative framework setting out a
process for investigating matters of public concern, but, like the United
Kingdom, U.S. law provides for such investigations through a number of different
measures. Key to these various
mechanisms in the United States are three controlling principles: investigations
must be independent; investigators must be impartial; and the process of the
investigation and the final recommendations must be made public. Even those inquiry-like
investigations that are established by Executive Order are subject to judicial
review and allow for substantial control by members of the investigation team. Once established, they are free from
interference by the executive branch.
The United Kingdom’s Inquiries Bill, proposed on November 25, 2004,
violates these principles in ways that existing legislation, the Tribunals of
Inquiry (Evidence) Act 1921, does not.
The Inquiries Bill grants power to the executive to control all vital
aspects of inquiries, taking the authority to establish inquiries out of the
hands of Parliament and stripping inquiry chairpersons of control over the
processes. By consolidating all
inquiries under this legislation and repealing the 1921 Act, the United Kingdom
would move away from inquiries as the public now knows them. Instead, provisions of the Bill
would undermine the purpose of public inquiries: to investigate publicly matters
of public concern, in an independent and impartial way.
The focus in this report on
independence does not simply refer to an inquiry being independent from
individuals or a department that might be implicated in the public controversy
or matter being investigated.
Instead, inquiries should be independent from the government as a whole once
they are established. In ways both
direct and indirect, obvious and obscure, government action is implicated in
matters subject to inquiries. For
an inquiry to be successful, it should not only be independent but also be seen
to be independent from government as an institution.
A number of the above points were raised in the extensive
debates in the House of Lords on December 9, 2004 and in subsequent discussions. We have reviewed the debates and
agree with concerns expressed by various Lords:
there should have been pre-legislative scrutiny of draft legislation
before the Bill was introduced;
it is cause for concern that the Bill takes power from Parliament to
establish inquiries and gives extensive control over all aspects of an inquiry
to an individual minister;
inquiries should be independent of the minister, and the executive, once
the Bill goes too far in restricting public access to hearings, evidence,
and final reports; and
it could be a danger to give a minister untrammeled power to convert an
existing inquiry into one governed by the Bill.
We hope members of the House of Lords and House of Commons
will take these criticisms into consideration when reviewing the Bill.
We offer this overview in the hope that a comparative
perspective from a discrete yet similar legal system will shed further light on
the strengths and weaknesses of the pending Bill. In particular, this paper reviews
first, U.S. federal mechanisms of inquiry and second, inquiries that have
occurred in New York City to investigate police corruption. We believe these show that
independence and transparency must be cornerstones of a successful inquiry
process. The report also analyzes
provisions of the Inquiries Bill for their adherence to democratic standards
and, in the conclusion, recommends that the Bill not be passed into law.
The Purposes and Characteristics of Inquiries in the United States
The United States has no single legislative framework
establishing an independent process for probing matters of nationwide concern,
but various measures have a similar function.
They include legislative committees, executive advisory commissions,
special prosecutors, Inspector General Offices, and ad hoc, specific-event
public inquiry commissions.
The essential purpose of all government commissions is to
gather information. Such inquiries are useful when the
public’s confidence in the government can be restored only after a thorough,
independent, and impartial examination of the facts and circumstances giving
rise to a particular event or crisis. Commissions are for matters of great
public importance, historically where there are allegations of corruption,
scandal, disaster, or accident caused by government malfeasance and resulting in
a crisis in public confidence. An important dimension of this
fact-finding function is the dispelling of rumors, which tend to heighten the
sense of crisis. The commission must tell the public
what happened and why, and how similar occurrences may be prevented in the
future. These commissions ensure government
accountability by public exposure of the workings of government and the setting
of acceptable standards of public administration.
According to U.S. scholars, for a commission to be truly
independent and impartial, in fact and appearance, as it must be to be credible,
the appointing authority must not control the direction and outcome of the
inquiry. The commission should let the facts
dictate the direction of the inquiry. Individual investigations that have
not adhered to these standards have been publicly discredited.
Congress has used congressional investigations since the
beginning of the republic, and federal, state,
and local legislatures conduct hundreds of investigations each year. At the national level, Congress’s
oversight keeps the executive branch from wielding unchecked powers in
administering the law. Congress
conducts most of its oversight through committees, holding formal as well as
informal hearings on issues of executive agency action. The diversity and scope of issues
addressed by congressional oversight, as well as public awareness of oversight
through the press, make it matchless in its importance. Congressional oversight thus shapes
the way that executive agencies administer the law, which is essential to the checks and
balances in the U.S. system. The publicity engendered by it is
also a significant check on agency action.
Through commissions, Congress has the power to inquire into
the methods by which the executive enforces the laws. The Supreme Court has described this
oversight authority as “an essential and appropriate auxiliary to the
legislative function.” The only limitations on this power
is that Congress may not reach into the “exclusive province” of the executive
branch and investigations must be related to a legitimate legislative task. Separation of powers also prohibits
Congress from usurping the functions of the courts. Even so, most judicial review of
Congressional investigations has been limited to the consideration of the
application of various procedural protections to witnesses appearing before
congressional committees. For example, in
Quinn v. United States, the Supreme
Court ruled that Fifth Amendment protections apply to witnesses testifying
before congressional committees.
The executive faces a high barrier in trying to keep
information from both the legislative and judicial branches. In
United States v. Nixon, for example,
the Court stated: “Absent a claim of need to protect military, diplomatic, or
sensitive national security secrets, we find it difficult to accept the argument
that even the very important interest in confidentiality of Presidential
communications is significantly diminished by production of such material for
in camera inspection with all the protection that a district court
will be obliged to provide.”
Although legislative investigating committees are widely
used, some committees have generated great controversy, such as the McCarthy and
Watergate hearings. Controversy has
often been a function of partisan composition of some committees, which are
composed only of party members with no private citizens. Such factors significantly
diminishes the value of this type of inquiry, and has engendered the need for
In the aftermath of the September 11, 2001 terrorist
attacks, two official government inquiries took place. One was the National
Commission on Terrorist Attacks Upon the United States (“The 9/11 Commission”),
created by congressional legislation (see section C(3) below); the other was a
joint inquiry of the Senate and House intelligence committees. Both issued reports critical of the
nation’s intelligence agencies.
Executive Advisory Commissions
Executive advisory committees have historically provided
pre-policy advice. Participants are generally selected
from the private sector. The widespread use of such
commissions dates back to President Theodore Roosevelt, and hundreds of advisory
commissions have been formed since then.
The U.S. Constitution does not specifically authorize
executive commissions, but the authority is inherent in article II, section 3,
which gives the president the duty to recommend legislative initiatives to
Congress and the obligation to execute the laws. The Federal Advisory Committee Act
of 1972, 5 U.S.C. App. I (1976), regulates and authorizes such commissions
currently. State-level executive inquiries
generally followed the same path of legal recognition, first through inherent
power of the executive and then through legislative authorization.
Executive department and agency heads may be scrutinized in
both non-criminal and criminal investigations.
Non-criminal investigations are conducted by department and agency
Inspectors General. Criminal investigations are
conducted by the Department of Justice (“DOJ”) or a special prosecutor.
In the event that an incident arises where it would be a
conflict of interest for employees of the Attorney General to investigate a
matter, such as a criminal investigation of a high-level government official,
the Attorney General has the power to appoint outside counsel.
Pursuant to statute, the Attorney
General may appoint attorneys to “conduct any kind of legal proceeding . . .
which United States attorneys are authorized by law to conduct,” including
attorneys to assist United States attorneys “when the public interest so
requires” and “subject to removal by the Attorney General.”
In the course of the Watergate investigation, the Attorney
General appointed a special prosecutor within the DOJ with the authority to
investigate and prosecute offenses arising out of the 1972 Presidential
election. The special prosecutor
was to have “the greatest degree of independence that is consistent with the
Attorney General’s statutory accountability for all matters falling within the
jurisdiction of the DOJ.”
As the inquiry proceeded, strong disagreements developed
between the executive and the special prosecutor, and the president directed the
Attorney General to fire the special prosecutor.
Both the Attorney General and his deputy resigned rather than carry out
such an order. The special
prosecutor was ultimately removed by the Acting Attorney General.
As a result of this conflict, the Ethics in Government Act
of 1978 was passed, which included the creation of the “special prosecutor,”
independent from the Attorney General. The special prosecutor provisions of
the Act lapsed in 1999; since then Congress has not acted to renew them. During the time they were in effect,
if the Attorney General uncovered non-frivolous allegations that the President,
Vice President, a member of the cabinet, or any other government officials had
committed a federal crime other than a petty misdemeanor, the Attorney General
could petition for appointment of a special prosecutor by applying to a special
panel of judges of the U.S. Court of Appeals for the District of Columbia
Circuit. Members of the Judiciary Committees
of both Houses of Congress could apply to the Attorney General for the
appointment of a special prosecutor.
Once appointed, the special prosecutor had the authority to
conduct an independent investigation of the charges and either dismiss them or,
if necessary, proceed with the prosecution of the official. He or she was authorized to make
reports to Congress. The Attorney
General could only remove special prosecutors for extraordinary impropriety.
In recent U.S. history, both statutory and non-statutory
special prosecutors have prevented the executive branch from investigating its
own actions and the president from influencing such an investigation.
Offices of Inspector General (“OIGs”) are the lead
organizations responsible for audit oversight of the executive branch. Like special prosecutors, OIGs have
responsibility for conducting special investigations of broad public interest
and importance. But
OIGs are quite different from
special prosecutors because they handle non-criminal matters, focusing on
job-related misconduct by public officials including mismanagement, waste of
funds, abuse of authority, creation or maintenance of dangers to public health
or safety, and prohibited personnel practices. OIGs do not exist for the sole
purpose of conducting a single special investigations, but are instead permanent
institutions subject to meaningful congressional oversight.
The Inspector General Act of 1978, 5 U.S.C. App. 3 (1994),
created a unified and powerful investigative force in the executive departments
and agencies. The Act achieved this by placing
existing auditing and investigative resources under the authority of a
relatively strong and independent Inspector General in each establishment.
The Act codified an idea – and to some extent a practice – that had been around
since the founding of the United States: oversight of agency activity. As a result, the Inspector General
in each department or agency reports fraud, abuse, waste, and mismanagement to
Congress, and can recommend corrective action. If a matter is criminal, an
Inspector General refers the matter to the Justice Department.
Inspectors General are appointed by the President with the
advice and consent of the Senate, “without regard to political affiliation and
solely on the basis of integrity and demonstrated ability in accounting,
auditing, financial analysis, law, management analysis, public administration,
or investigations.” The confirmation process involves
both the Senate Governmental Affairs Committee and the committee having
substantive oversight authority over the individual department or agency in
which the IG is located. There is no term of
years for an IG, providing a safeguard against partisan appointments. The President must justify any
removal to both Houses of Congress.
IGs have substantial autonomy
and no one in the agency is to prevent the IG from carrying out or completing an
audit or investigation. The OIG determines the scope of any
Once a matter comes to our attention and we launch an
investigation, we feel an obligation to conduct the investigation thoroughly and
properly and go wherever the facts take us.
This autonomy and independence may mean that we take the investigation in
different directions from what was originally envisioned by whomever referred it
to us. This is an important aspect
of IG independence and one that must be safeguarded carefully.
Without this OIG independence, top
management’s desire to limit an inquiry into a controversy or potential
controversy so as to minimize potential embarrassment – in other words,
management’s view of the investigation as a form of damage control – could
compromise the integrity of the OIG investigations.
Examples of investigations include: a cover-up of conditions
at Immigration and Naturalization Services facilities; acts of racial and
criminal conduct at an outing called “Good Ol’ Boy Roundup” that was attended by
many federal law enforcement officers over a 16-year period; misconduct within
the FBI Laboratory; and CIA participation in creating the crack epidemic.
More recently, the OIG of the Department of Justice
conducted an investigation into treatment of post-September 11 alien detainees. In June 2004, that report – which
heavily criticized detention conditions and the investigative process – was
released. The Justice Department
had fought any oversight by the judiciary or the media, requesting that the
public trust it in the face of national security threats. Its own Inspector General’s report
demonstrated that government in secret does not foster justice.
According to the report, “The clear lesson is that
government, in its understandable and laudable resolve to protect our security,
cannot be relied on to protect our basic rights and liberties. Public scrutiny and the protections
of our court system are necessary to ensure elemental fairness. Lawrence Goldman, president of the
National Association of Criminal Defense Lawyers, commented that: “This is what
happens when the checks and balances of a democratic system of justice – the
press, the courts, and lawyers for accused – are excluded.”
Ad-Hoc Public Inquiries
Similar to executive advisory commissions, ad-hoc public
inquiries are usually created during times of crisis, scandal, or government
misconduct and are the U.S.
mechanism most like the Tribunals of Inquiry Act 1921. They are created for a shorter
duration and under greater public scrutiny, and their fact-finding function is
more critical than their advisory function.
Important commissions have been created in this fashion. The Roberts Commission, chaired by
Supreme Court Justice Roberts and members of the military, was established to
ascertain and report the facts relating to the Pearl Harbor attacks and
determine responsibility for any U.S. errors. The Warren Commission was created by
President Johnson in an executive order and chaired by Chief Justice Earl
Warren, to determine the facts surrounding President Kennedy’s assassination. This commission, though, failed to
satisfy the public because it did not fix responsibility for the events giving
rise to the assassination.
The National Commission on Terrorist Attacks Upon the United
States (also known as the 9-11 Commission) was an independent, bipartisan
commission created by congressional legislation under the signature of President
George W. Bush in late 2002. The Commission was
chartered to create a full and complete account of the circumstances surrounding
the September 11, 2001, attacks, including the immediate response to the
attacks. The Commission was also mandated to provide recommendations designed to
guard against future attacks.
Separation of powers and procedural protection issues may be
implicated by public inquiries if they usurp the powers of other branches of
government or place fundamental rights of witnesses in jeopardy. Both presidential and other ad-hoc
inquiries have been subject to judicial review in the United States. For
example, two U.S. Courts of Appeals judicially reviewed the President’s
Commission on Organized Crime for constitutionality in light of the fact that
membership on the Commission included federal judges. One court found that the composition
of the Commission violated the separation of powers doctrine; the other found
that it did not. Subpoena powers of local and federal
commissions have also been challenged in court.
Investigations into Police Corruption in New York City
States, cities, and local governments in the United States have created
commissions to analyze certain situations and recommend governmental reforms. In New York City, two public
investigations specifically addressed the problem of police corruption: the
Knapp Commission in the early 1970s and the Mollen Commission in the 1990s.
The Knapp Commission
The Knapp Commission, established in May 1970 by an
Executive Order of Mayor John V. Lindsay, investigated widespread corruption in
the New York Police Department at the time. A series of articles in the media,
based on reports of a few whistleblowers, led the Mayor to create the Commission
and work with the City Council to create an ordinance to secure funding and
subpoena power. Both the mayor’s executive order and
the grant of subpoena power were challenged judicially, but the New York Supreme
Court held that both were valid.
When articles about police corruption first appeared, the
Mayor appointed a committee of public officials, including the District
Attorneys of New York and Bronx Counties, the Commissioner of Investigations,
the Police Commissioner of the City of New York, and Corporation Counsel, to
investigate the matter. The committee reported that the
investigation was too extensive for them to complete, and the Mayor asked the
committee to instead appoint an independent investigative body from the private
sector. The Commission was then
created by an Executive Order. The Order appointed five members,
including Whitman Knapp as Chairman. Knapp later became a federal
district judge in New York. The
Executive Order specified that the Commission would prescribe its own procedures
and staff, within the amounts appropriate for such staff. The Order also directed all
departments and agencies of the City to furnish the Commission with all services
and cooperation it required.
The Mayor subsequently lobbied the City Council to provide
the Commission with investigatory powers.
The Local Law, adopted by the Council in response, allowed the Commission
to administer oaths or affirmations, to hold public or private hearings, and to
compel testimony and the production of documents by subpoena.
Pursuant to its investigations, the Commission held a series
of public hearings, during which it interviewed many officers from the police
department. The Commission questioned the Mayor
privately, but Commissioner Knapp publicly defended that decision as being in
the best interest of the Commission’s mission, stating that he wanted to avoid a
“political circus.” In response to questions about
whether the Mayor was interfering or attempting to squash any part of the
investigation, he replied “I can categorically say there are no grounds for such
suspicions.” This independence was evidenced by
the Knapp Commission’s highly critical statements, both during the
investigations and in its final report, regarding the police department
leadership, including Police Commissioners, Commanders, and the Mayor.
Twenty years after the Knapp Commission, credible evidence of
widespread police corruption again surfaced.
Rumors spread about the dishonest and illegal activities of New York
police officers, and public distrust of New York government ran high. Mayor David Dinkins determined
that a citizen’s commission would be the best vehicle to respond to the concerns
of New York’s residents.
Mayor Dinkins created the Mollen Commission by Executive Order on July
24, 1992. The Order described the allegations
of corruption and stated that “an investigation by the Police Department of
these allegations would be subject to question by the public.” Therefore, the Mayor created the
Commission to inquire into and evaluate the practices and procedures of
investigating corruption in the police department and to make recommendations to
improve the integrity of the department.
The Order specified that the Commission could take evidence, administer
oaths, and conduct other activities necessary to ascertaining the facts,
including holding hearings, both public and private, as the Commission “deem[ed]
The Commission was chaired by Milton Mollen, who had
previously served as the presiding justice of the Appellate Division, New York
State Supreme Court, and as a deputy mayor. It was composed of a mixture of
former judges and prosecutors, Democrats and Republicans, including the former
head of the NYPD Civilian Complaint Review Board. All served without compensation.
In order to be effective, the Commission was given access to police
officers and government employees.
It was authorized to require any officer to attend an examination or hearing
related to his or her duties and to request any documents or files of city
agencies. The testimony of the officers could
not be used against them in a criminal prosecution.
Although the Mayor created the Commission, and provided for the full
cooperation of city agencies in his order, he and the Commission itself went to
great lengths to emphasize its total independence from New York’s government.
The understanding of New York’s
residents that the Commission was independent allowed the Commission’s report to
have its full effect and resulted in people from other jurisdictions relying on
its findings for many years. The
Mollen Commission referred to its independence often in statements and press
releases. In the letter that accompanied its
interim report, Judge Mollen thanked Mayor Dinkins for “the total independence”
provided during the investigations, and the final report
specifically noted the freedom afforded to the Commission. As a testament to its independence,
public hearings by the Commission occurred just a few weeks before the mayoral
elections, despite the political harm they likely caused the Mayor.
At the end of an initial investigation, the Mollen Commission presented
its findings at public hearings. It then presented a report to the
Mayor’s office that reviewed the nature of police corruption and the failure of
anti-corruption controls, and made recommendations for reform and more effective
means of combating corruption. The report was widely discussed in
the newspapers. In one New York
Times article, the reporters found the report “particularly powerful in its
criticisms of sergeants and other commanders” and emphasized that a
non-independent commission would not have been able to be as specific or open
about the problems in the system. The report withheld only information
about ongoing investigations by the Commission.
Judge Mollen, in the opening statement of the Commission’s public
hearings, pointed out that, “Mayor Dinkins found it essential, in the public
interest, to appoint this Commission, with a mandate to ascertain the extent of
corruption and to determine and recommend the best means to deal with it most
effectively.” He went to emphasize that “it is
imperative that the members of the public have confidence and faith in the
integrity of the members of the Police Department.” The Mollen Commission, because of
its structure, was able to respond to this mandate and restore public trust.
Commissioners, although appointed by the Mayor, were not directly associated
with local government or the police department.
Neither were the staff of approximately twenty lawyers, analysts, and
investigators hired by the Commission.
A new Mayor, Rudolph Giuliani, took office before the final report was
issued, but in the aftermath of the Mollen Commission’s report, the City Council
and the Mayor created the Commission to Combat Police Corruption, an independent police investigation and audit board based on the Commission’s
recommendations. Many other cities faced with
problems of police corruption have referenced the Mollen Commission’s findings
when creating their responses.
In sum, the separation of powers doctrine has resulted in
the evolution of an inquiry system in the United States that is not formal or
structured, but provides for democratic checks on all public inquiries. Once established, inquiries are
independent of government; efforts are made to ensure impartiality of their
members; and, except in rare circumstances, their processes and final reports
are made public.
The Inquiries Bill As Introduced in the House of Lords
On November 24, 2004, the government laid before the House
of Lords the Inquiries Bill. The
Bill raises serious concerns about the independence and impartiality of future
inquiries in the United Kingdom. If
passed into law, it could also erode two fundamental tenets of democratic
governance – transparency and accountability – and have serious implications for
human rights cases in Northern Ireland and around the United Kingdom.
As drafted, the Inquiries Bill takes away from the
Parliament the ability to establish inquiries into matters of “public concern” and cedes all power
over such inquiries to the executive.
A government minister would have complete authority over the scope of an
inquiry, selection of panel members, public access to the inquiry, and whether
any resultant findings would be made public. Even when the public’s concern is
regarding the conduct of government officials, only a minister could initiate
and administer an inquiry under the proposed Bill. This is disturbing even if the
establishing minister does not seem to have a vested interest in the subject
matter of the inquiry.
The Inquiries Bill represents a retreat from meaningful,
independent, and transparent public inquiries in the United Kingdom. By concentrating power in a single
government official who will have control over the terms of reference and
disclosure of information related to the inquiry, there is loss of accountability necessary to a
successful inquiry. Independence
also suffers when the executive is given discretion to alter the course of an
inquiry, limit the expenses paid, or terminate the appointment of inquiry
members. As a result, inquiries into government misconduct may be manipulated so
that evidence embarrassing to the government could be concealed rather than
revealed. The Bill could have
serious implications for human rights where government actors may perpetrate
abuses, or fail to investigate them, unrestrained by fear of public exposure.
Implication for Human
Rights Cases in Northern Ireland
If passed, the Inquiries Bill could have an impact on human
rights cases in Northern Ireland, including the four public inquiries
recommended by Justice Peter Cory into the murders of Patrick Finucane, Rosemary Nelson,
Robert Hamill, and Billy Wright.
The British government has announced its intention to hold inquires into the
murders of Rosemary Nelson and Robert Hamill under the Police (Northern Ireland)
Act 1998 and into the murder of Billy Wright under the Prison Act (Northern
Ireland) 1953. Under Section 14 of
the proposed Bill, there is the potential that these inquiries, which are
currently stalled, could be converted so that they too are conducted under the
The government has yet to agree to institute any inquiry
into the 15-year-old murder of human rights lawyer Patrick Finucane. It raises serious concerns that the
government is rushing to remake the law governing public inquiries in the United
Kingdom and refusing to initiate an inquiry into the Finucane murder before the
new legislation is in place. Unlike
the 1921 Act or other legislation under which a Finucane inquiry might be
brought, the Inquiries Bill includes provisions that restrict public access and
the autonomy of the inquiry panel.
In so doing, the government can prevent embarrassing information from becoming
public and control an inquiry process that it has acknowledged will be critical
of many of its agencies.
Independent public inquiry into these four murders is
essential so that the people of Northern Ireland may move forward with
confidence in the integrity of the government and its institutions. Any inquiry that is closely
administered by the entity whose alleged misconduct is the subject of the
inquiry will do little to restore public confidence, and its investigations and
findings are likely to be viewed with skepticism.
The Importance of a
An important restraint on government misconduct will be lost
if the inquiry process is administered by the government without a significant
role by members of Parliament.
Parliamentary committee inquiries may not be affected by this legislation, but
they do not necessarily have the same powers as inquiries under the Bill. It is important that Parliament have
the power to establish and determine the scope of inquiries into matters of
utmost public importance.
Indeed, legislatures and parliaments play a crucial role in
promoting transparency and accountability in government. As the link between the electorate
and the government, they have oversight powers to ensure that mechanisms for
accountability work effectively, that governmental programs are efficient,
corruption is controlled, and the interests, rights and welfare of citizens are
promoted. Likewise, an inquiry
process that is independent and public is an invaluable tool for promoting
transparency and accountability in a democratic society. Parliament should not agree to
surrend its authority over the public inquiry process – it should not forfeit
access to this vital democratic instrument by passing the Inquiries Bill as
Below we present comments on the provisions of the Inquiries
Bill that in our view present the greatest cause for concern regarding damage to
human rights and democracy. Since
its most troublesome aspect is its basic premise – taking power from Parliament
and inquiry panel members, and giving it to the executive – the Bill cannot be
cured by amendment. Rather we
recommend the Bill be rejected in its entirety.
Constitution of Inquiries
The most fundamental change to the inquiry process
implicated by the Bill is the shift of the authority to establish an inquiry
from Parliament to the executive.
This is a major constitutional shift.
The Bill would repeal the Tribunals of Inquiry (Evidence) Act of 1921,
which currently provides that Parliament may establish an independent tribunal
to inquire into matters of public importance, section 46(1), and instead provide
that a government minister may cause an inquiry to be held “where it appears to
him” that there is a matter of
public concern. Section 1(1).
Once set up, the minister would retain control over the
administration of the inquiry and any disclosure or publication of the inquiry’s
findings. The minister would decide
who is to be appointed to the inquiry panel; the minister would appoint the
chairperson and could even
replace the chairperson during the inquiry.
Section 6(3). The required
impartiality of the members of the inquiry panel is also left to the minister’s
discretion, and he or she could appoint a panel member where “in the minister’s
opinion the person’s interest or association would be unlikely to influence his
decisions.” Section 8(1). Thus, there would be nothing beyond
the minister’s discretion to ensure that an impartial and independent panel is
appointed. This clearly could lead
to government-friendly individuals being selected for inquiries, which in turn
would weaken public confidence in any findings made and the inquiry process
The minister also would decide the starting date and the
terms of reference for the inquiry.
Section 5. There is no
requirement that the minister consult with the chairperson or any of the parties
that might have a legitimate interest in the inquiry before setting the terms of
reference for the inquiry. Nor is
there any provision that would permit amendments to the terms of reference
during the course of the inquiry if it became apparent that there were important
matters not included in the initial terms of reference. Under these provisions, there
is a great risk that superficial inquiries into government wrongdoing would be
established, in an attempt to satisfy the public’s demand for an inquiry,
without the possibility that they would effectively investigate and expose
Section 36 affords the minister further control over the
course of an inquiry: it provides that the minister would determine the funding
of the inquiry. The minister “may
agree to pay” the members of the panel and persons engaged to provide assistance
to the panel. He or she must meet
other expenses reasonably incurred in holding the inquiry, including publishing
the report. But, the minister would
not be obliged to pay the expenses where he or she decides that the panel was
operating outside the terms of reference.
Thus, the minister could cut off funding for the inquiry when he or she
does not approve the course of the investigation.
Section 12 provides that the minister could suspend the
inquiry at any time. Section 13
provides that he or she could end the inquiry by providing notice to the
chairperson even before the investigation is completed. The proposed Bill makes no reference
to this being an exceptional recourse or to the circumstances in which this
power might be invoked.
Presumably, the minister could choose to end an inquiry where the panel’s
findings might prove problematic or embarrassing for the government.
Conversion of Inquiries
Section 14 extends to the minister the power to convert any
ongoing inquiry established under current legislation to an inquiry under the proposed Bill once
passed, subject only to the consent of the person who originally caused the
pending inquiry to be held. It
would allow the minister to change the terms of reference of inquiries commenced
before the passing of this legislation, as well as change the conditions under
which members were appointed and alter agreed procedures and conditions. Although ministers may intend to use
this provision to benefit the public interest – by providing greater powers to
already established inquiries, for example – the Bill does not ensure that it
won’t be used to limit an ongoing inquiry.
Any converted inquiry, regardless of what was agreed when it
was established, will be held under the terms of the new Act. This is a very disturbing
ex post facto provision; such laws
are constitutionally prohibited in most democracies. Under Section 14, the inquiries
slated to begin into the Nelson, Hamill, and Wright cases could be converted
into inquiries under the new legislation.
It is conceivable that the minister could redefine the terms of
reference, limit public access to the inquiries, and keep secret crucial
findings, thus undermining the central goals of public inquiries in these cases.
Section 17 of the Bill allows the minister to restrict
public access to inquiries once they are underway. Attendance at an inquiry, or
the disclosure or publication of evidence, could be restricted at the minister’s
discretion as “necessary in the
public interest.” Section 17(3)(b). The minister could issue a
restriction notice to the chair at any time before the ending of the inquiry or
issue a restriction order, which can continue indefinitely. When issuing a restriction order,
the minister may consider: how the restriction might inhibit the allaying of
public concern, the risk of harm or damage that could be avoided or reduced by a
restriction; whether conditions of confidentiality apply; and the extent to
which not imposing a restriction would delay or impair the efficiency or
effectiveness of the inquiry or result in additional costs.
Thus under the Bill, the grounds on which a minister could
choose to restrict public access or disclosure of information are extremely
broad. They include any risk of
damage to national security or international relations, and damage to the
economic interests of the United Kingdom.
A minister’s interpretation of these terms might be broad enough to
preclude disclosure of information critical of the government. This provision could allow
inquiry-related information to be kept from the public at the discretion of one
individual and one branch of government, without regard to the view of the
inquiry panel members.
At the end of an inquiry, the chairperson must submit a report signed by
every member of the panel to the minister.
If the report is not unanimous, it must reflect the points of
disagreement. There is no provision
for a dissenting member of a panel to publish a minority report; a member who
disagrees with the panel and will not sign the report has only one alternative –
Under the Bill, the minister may decide whether the
chairperson or the minister will have responsibility for publishing any report
and may withhold material in the report from publication as he or she considers
it necessary in the public interest.
The grounds upon which the minister could choose to withhold material
from publication include any risk of damage to national security or
international relations and damage to the economic interests of the United
Kingdom or any part of the United Kingdom.
Again, the minister’s interpretation of
any of these terms could well be broad enough to preclude disclosure of
information that may embarrass the government.
The minister would have the authority to suppress the entire report in
the interest of national security, for example, regardless of the wishes of the
chairman and members of the inquiry panel.
The purpose of public inquiries is to investigate matters of
great or urgent public importance, generally in the event of a scandal,
accident, or disaster, or where the government has been accused of misconduct,
corruption, or a failure to act. To
restore public confidence in the face of one of these incidents, inquiries must
be independent and transparent.
Public exposure ensures accountability, and independence guarantees that the
facts dictate the outcome of the inquiry and bias does not color the
These principles have been central to inquiry-like
mechanisms in the United States, whether they are local, national, legislative,
or executive measures. In all of
the examples covered here – ad-hoc inquiries, legislative committees, and
executive commissions and appointments – transparency, independence, and checks
by way of substantive judicial review or congressional oversight have prevented
the executive from maintaining control over inquiries once they are established.
The conduct of the government – in small or large part –
will almost always be implicated in a case that is subject to a public inquiry. As a consequence, the government
should not play a role in inquiries beyond establishing them. Indeed, where government is involved
in the workings of an inquiry, the integrity of that proceeding is compromised. It was surprising and unsettling,
therefore, that the Inquiries Bill was written to allow for ministerial control
at every conceivable stage of the inquiry process.
We recommend that the Bill as a whole not be passed into law
and that there be further consultation on reforming inquiry legislation. We understand that the Grand
Committee of the House of Lords and the government have discussed possible
amendments to the Bill. In the event that the Bill is revised, we respectfully
recommend that great care is taken to ensure that independence and transparency
New York, N.Y., City Council, Int.
No. 961, Local Law 91 of 1997 (Nov. 25, 1997);
New York, NY, City Charter, Ch.
18-B, §§ 450 – 458.