The Inquiries Act 2005

The Government passed the Inquiries Bill into law in 2005. The Inquiries Act 2005 consolidated and updated inquiries legislation, including repealing the Tribunals of Inquiry (Evidence) Act 1921. The Act received Royal Assent on 7 April 2005 and came into force on 7 June 2005.

Rationale for the Inquiries Act 2005

Much of the momentum for the Inquiries Act 2005 arose from the cost of the Bloody Sunday Inquiry, which had reached £182 million in 2008 with estimates for the final bill up to double this figure. The Government said in the Select Committee Report that it “considers that inquiries have been successful overall but concedes that there have been cases where inquiries have been marred by arguments about procedure, or have taken much longer or cost more than expected. It therefore believes that there is a strong case for considering what steps could be taken to make inquiry procedures faster and more effective and to contain cost escalation. It has now introduced legislation to this end.”

The Government’s view has been put by Baroness Ashton of Upholland in a press release issued when the Inquiries Act came into force:

“The Act consolidates existing inquiries legislation, fills gaps and codifies best practice from past inquiries. For the first time in statute the Act lays down all key stages of the inquiry process - from setting up the inquiry, through appointment of the Panel to publication of reports. The Act does not, as has been suggested, radically shift emphasis towards control of inquiries by Ministers. Instead, it makes clear what the respective roles of the Minister and Chairman are, thereby increasing transparency and accountability.

It also stipulates that proceedings will be in public unless restrictions on access are imposed by either the Minister or the Chairman. Unlike previous legislation, it specifies the grounds on which access can be restricted.

The Act does not give Ministers any power to decide what evidence an inquiry should hear. It gives inquiries full powers to seek out information within their terms of reference.

The Act says that inquiry final reports must be published in full unless there are clear reasons for withholding material and lays down what these reasons can be. Once an inquiry ends any restrictions on public access to any material or evidence will be subject to the Freedom of Information Act 2000.

Reform of inquiries legislation was long overdue and this Act will enable inquiries to get to the truth more quickly and cost-effectively."

Criticism of the Inquiries Act 2005

The Inquiries Act 2005 garnered wide criticism when it passed. There has been particularly vocal criticism that it represented a strengthening of ministerial control over statutory inquiries.

Dr Robert Kaye notes it as “striking that the new Act does not contain the requirement in the 1921 legislation for a resolution in Parliament. One of the chief functions of the legislature is to hold the executive to account. The 1921 Act allowed a fiction that inquiries into Government conduct were held on behalf of parliament. Under the new Act, public inquiries into Government are conducted for Government and report to Government.”

The Joint Committee on Human Rights has expressed concern that certain aspects of the new legislation risked compromising the independence of an inquiry, potentially breaching Article 2 of the European Convention on Human Rights where the subject matter of the inquiry concerned the right to life. These included the power of a Minister:

(a) to bring an inquiry to a conclusion before publication of the report (s.14),

(b) to restrict attendance at an inquiry or to restrict disclosure or publication of evidence (s.19), and

(c) the ‘default position’ on publication whereby a Minister may become responsible for publishing the conclusions of an inquiry and for determining whether any material should be withheld in the public interest (s.25).11

Sir Menzies Campbell commented candidly in his evidence to the Public Administration Select Committee that the Inquiries Act 2005 “gave Ministers responsibilities or powers in relation to the duration of the inquiry, who might attend it, it allowed Ministers to say, "It is time this inquiry came to a conclusion." I think that is a reaction to Saville, and there may be questions of management, but we should not allow questions of management to intrude upon the principle of Parliament being able to hold the Executive to account.”

The Finucane Campaign

In April 2004 an independent report commissioned by the UK and Irish Governments concluded that "only a public inquiry will suffice" into the circumstances surrounding Patrick Finucane's death.

Amnesty International have joined the Finucane family’s voices of protest against the Inquiries Act 2005 criticising the UK executive for, having “in the face of strong criticism and opposition, railroaded the Inquiries Bill through Parliament and managed to have it passed as legislation as the Inquiries Act 2005 on 7 April 2005, the last possible day before Parliament was dissolved. Any inquiry, held under the new Act, would be controlled by the executive which, under it, is empowered to block public scrutiny of state actions.” Amnesty International considered that. “it will affect not only Patrick Finucane's case, but also other major incidents which would warrant public scrutiny of the actions of the state, such as failures of public services, deaths in prisons, rail disasters and army deaths in disputed circumstances.”

The UN Human Rights Committee has recognised this concern in its report on the United Kingdom, stating that “the Inquiries Act 2005 … allows the government Minister who established an inquiry to control important aspects of that inquiry.”

Inquiries held under the Inquiries Act 2005

By establishment under section 1 of the Inquiries Act 2005 or conversion under section 15, there are a number of public inquiries taking place at present. No public inquiry established under the Inquiries Act 2005 has yet reported.

Such public inquiries include: