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An Analysis of Legal and Political Influence on the Form and Nature of Post-2005 Public Inquiries and Their Significance

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An Analysis of Legal and Political Influence on the Form and Nature of Post-2005 Public Inquiries and Their Significance AN ANALYSIS OF LEGAL AND POLITICAL INFLUENCE ON THE FORM AND NATURE OF POST-2005 PUBLIC INQUIRIES AND THEIR SIGNIFICANCE EMMA IRETON A thesis submitted in partial fulfilment of the requirements of Nottingham Trent University for the degree of Doctor of Philosophy July 2020 1 The copyright in this work is held by the author. You may copy up to 5% of this work for private study, or personal, non-commercial research. Any re-use of the information contained within this document should be fully referenced, quoting the author, title, university, degree level and pagination. Queries or requests for any other use, or if a more substantial copy is required, should be directed to the author. 2 Abstract Public inquiries are major instruments of accountability, convened to address matters of public concern. Every time a new inquiry is convened, decisions are made by government ministers and inquiry chairs to determine their form and nature, which in turn affect their independence, powers, subject matter, and openness to public scrutiny. This research is a systematic, library-based analysis of: witness evidence to the 2013-14 House of Lords Select Committee on the Inquiries Act on the law and practice of public inquiries, legislation, case law and other documentary sources to observe, in practice, what political and legal influence is being exerted on the form and nature of public inquiries, by whom, and to what effect. The research uses a mixed-method approach of inductive analysis and critical examination of secondary data; doctrinal legal research; and broader desk-based research. The research found that attempts by parliamentary committees to reform the decision- making process have been largely unsuccessful, with successive governments rejecting attempts to restrict the power of the minister. The courts’ involvement has been restricted to clarifying the legal requirements for an effective inquiry. There is a statutory framework for public inquiries. However, the research found that the form and nature of public inquiries has been evolving within and outside that statutory framework, not through legislative change, nor directly because of action through the courts, but through political pressure exerted at the level of individual inquiries, often due to conflicting expectations about the role of an inquiry. The research concludes that: this provides an arbitrary and inconsistent source of scrutiny; the conflicting expectations must be addressed; and the recent move towards greater formal consultation is welcome. It recommends that future reviews of the public inquiry process be addressed not only to government but more widely and urges greater public education to enhance wider public scrutiny. 3 Acknowledgments I would like to express my very sincere thanks to my supervisors, Professor Robert Lee and Professor Jonathan Doak for their extremely insightful guidance, valuable feedback and constant support throughout. I would also like to thank Professor Jane Ching, Professor Tom Lewis and Professor Jane Jarman for their comments, suggestions, positivity, and encouragement. Last, but certainly not least, I would like to express my gratitude to my husband, John, and my family, without whose patience and support this would not have been possible. 4 Table of Contents Chapter One - Introduction 1.1 Introduction .................................................................................................................... 11 1.2 The choice of the research topic and the research questions ........................................ 12 1.3 Focus of the thesis........................................................................................................... 13 1.4 Methodology ................................................................................................................... 15 1.4.1 Data collection and inductive analysis ..................................................................... 16 1.4.2 Doctrinal analysis ..................................................................................................... 19 1.4.3 Desk-based research beyond the doctrinal analysis ................................................ 20 1.5 Structure of the thesis ..................................................................................................... 21 1.6 Contribution to scholarship............................................................................................. 23 1.7 Conclusion ....................................................................................................................... 25 Chapter Two – Context and Theoretical Framework 2.1 What are public inquiries into matters of public concern? ............................................ 27 2.2 The importance and distinctiveness of public inquiries .................................................. 30 2. 3 The evolution of inquiries: select committees, royal commissions, tribunals and public inquiries ............................................................................................................... 31 2.4 Conflicting tensions over the power of the minister and the role of Parliament ........... 35 2.5 Conflicting tensions over the role of a public inquiry ..................................................... 37 2.6 Political and legal influence............................................................................................. 38 2.6.1 Political influence ..................................................................................................... 38 2.6.2 Legal influence ......................................................................................................... 41 2.7 Conclusion ....................................................................................................................... 43 Chapter Three – Convening a Public Inquiry 3.1 Introduction .................................................................................................................... 44 3.1.1 Pressure for a public inquiry .................................................................................... 44 3.1.2 The power of the minister ....................................................................................... 46 Influence over the Process as a Whole: 3.2 Conflicts of interest ......................................................................................................... 47 3.3 The role of Parliament..................................................................................................... 51 3.4 Focus on openness and transparency ............................................................................. 56 3.4.1 Criteria – is there a need? ........................................................................................ 57 3.4.2 The giving of reasons ............................................................................................... 61 Influence over Individual Inquiries: 5 3.5 Political Influence ............................................................................................................ 62 3.5.1 The contaminated blood scandal – an example of successful Parliamentary influence on an individual inquiry ............................................................................ 63 3.5.2 The importance of the cooperation of participants ................................................ 64 3.5.3 The influence of campaign groups ........................................................................... 66 3.6 Legal influence ................................................................................................................ 67 3.6.1 Judicial review generally .......................................................................................... 67 3.6.2 Alternative forms of inquiry – the three core cases ................................................ 68 3.6.3 The Mid Staffordshire NHS Foundation Trust Public Inquiry and July 2005 bombings – discontinued judicial review ................................................................................ 70 3.6.4 Challenges brought under the ECHR ........................................................................ 72 3.6.5 Amin: the Mubarek Inquiry- the requirements of the investigative duty ............... 73 3.6.6 Al-Skeini: the Baha Mousa Inquiry – the territorial application of the ECHR .......... 74 3.6.7 Al-Sweady – concern about the motivation behind calls for an inquiry .................. 75 3.6.8 Ali Zaki Mousa- discharging investigative obligations by other means ................... 76 3.6.9 Litvinenko- the legitimacy of the court’s intervention in the political decision-making process .......................................................................................... 78 3.7 Conclusion ....................................................................................................................... 79 Chapter Four – Statutory or Non-statutory? 4.1 Introduction .................................................................................................................... 84 4.2 The significance of statutory powers .............................................................................. 85 4.3 Argument put forward for and against the use of statutory and non-statutory inquiries .................................................................................................... 86 4.3.1 Powers of compulsion and the taking of evidence on oath .................................... 86 4.3.2 Where witnesses can be otherwise required to attend
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