The government has become embroiled in a dispute over the public inquiry into grooming gangs. Several victims of these gangs are now refusing to participate in the inquiry and several prospective chairs have withdrawn their candidacy from the position. Attention has turned to the role of the safeguarding minister, Jess Phillips, in setting up the public inquiry. Victims expressed concerns that the terms of reference for the public inquiry would be changed by either expanding its scope beyond grooming gangs or adopting a regional focus, which prompted Phillips to write to the Home Affairs Committee to deny the veracity of these reports on 20 October. The story has shone a light on an area which receives little legal and constitutional consideration, namely the extraordinary role that the executive plays in establishing public inquiries. In this blog post I will explore the powers that government ministers have to appoint the chairpersons of public inquiries, to set their terms of reference and some of the problems this creates.
Appointment of Chairperson
Under s.4 of the Inquiries Act 2005, the government minister responsible for establishing a public inquiry has the power to appoint the chairperson. As Emma Norris and Marcus Shepheard at the Institute for Government have previously noted, there are very few limitations on the minister’s power to choose who chairs the inquiry except that they “must not appoint a person as a member of the inquiry panel if it appears to the Minister that the person has (a) a direct interest in the matters to which the inquiry relates, or (b) a close association with an interested party”. There is a clear potential conflict of interest here wherein the minister whose department may be criticised by an inquiry retains huge discretion to choose who leads an investigation into it. As Ireton succinctly notes, “the lack of independence of the current process, coupled with its lack of transparency, makes it vulnerable to allegations of politically motivated appointments and raises concern that those appointed lack sufficient independence from the executive and political establishment”. Indeed when the final prospective candidate to chair the grooming inquiry, Jim Gamble, withdrew his candidacy he criticised the process to appoint a chairperson as “toxic” and defined by “vested interests”. This is not the first time that such issues have arisen, the Independent Inquiry into Child Sexual Abuse also had two of its chairpersons, Baroness Butler-Sloss and Dame Fiona Woolf, resign because of perceived conflicts of interest and close proximity to the political parties who appointed them. The government’s capacity to cherry-pick their investigators means the potential for bias is built into the existing system.
Some of the victims of grooming gangs have criticised the proposed appointment of senior police officers and social workers to chair the inquiry because both professions have been accused of participating in a cover-up of abuse. The obvious response is for the government to appoint a judge, or former judge, to chair the inquiry. Jess Phillips confirmed that judges were clearly in consideration for the role in her letter to the Home Affairs Committee. However, appointing a judge throws up a different set of problems. The appointment of judges to public inquiries creates clear issues relating to the separation of powers and maintaining the independence of the judiciary. Jack Beatson, in an article published in the Law Quarterly Review, argued that the appointment of a judge to an inquiry “links” the judge to the government and can embroil judges in political controversies, compromise their independence and expose them to partisan attacks. The exposure of judges to partisan attacks in this context has a long lineage. In 2004, for example, Lord Falconer referred to the members of the Hutton inquiry being “undermined by the monstering that they get from some elements of the press”. It seems highly likely that the inquiry into grooming gangs would embroil any judge who chaired it in significant political controversy given the controversy already surrounding it before it has even been established. Elsewhere Lord Thomas, in an article in Public Law, argued that judicial independence is compromised in two ways by appointment to public inquiries. Firstly, the fact that judges can be questioned by parliament in relation to a public inquiry compromises their independence. Secondly, the executive’s ability to appoint judges to chair inquiries creates the opportunity for the government to stop a specific judge from sitting on cases that might be to the government’s advantage. The possibility that decisions of the inquiry could also be subject to judicial review by judges who are potentially hierarchically inferior to the panel chairs e.g. where a supreme court judge is co-opted to chair an inquiry that is subject to review in the high court, is also clearly problematic.
Terms of Reference
The stories concerning the grooming gangs inquiry have also raised questions about how the terms of reference for a public inquiry are determined. The terms of reference for a public inquiry set out the scope of the inquiry and act as a kind of blueprint for its activities. According to s.5 of the Inquiries Act, the terms of reference of a public inquiry are “(a) the matters to which the inquiry relates, (b) any particular matters as to which the inquiry panel is to determine the facts; (c) whether the inquiry panel is to make recommendations; (d) any other matters relating to the scope of the inquiry that the Minister may specify”. This is another area where ministers retain a huge amount of discretion. While the minister must ostensibly consult the prospective chairperson before setting or amending the terms of reference, the reality of these exchanges appear much less of a conversation and more akin to a government instruction. As Jason Beer noted, the extent to which the chairperson has “meaningful participation” in their formation is relatively limited and “it tends to be a fait accompli”. There is also no express obligation on the minister or chairperson to consult potential victims about the terms of reference, though this can happen occasionally. The chair of the Grenfell Tower inquiry, for example, consulted the victims on its terms of reference. The absence of clear obligations on the government over this issue is clearly resulting in a disparity between expectations and reality. The victims understandably want some input on the scope of the investigation and the absence of any formal role in this process is resulting in harmful speculation for the government and anxiety for the victims.
We are starting to see many of the shortcomings of the process of establishing public inquiries laid bare by this controversy. In any other circumstances the extent of the executive’s influence on these investigations would be unconscionable. Imagine if a person suspected of a crime was allowed pick who investigated it, decide what the investigator was allowed to consider and terminate the investigation at their discretion. No one would consider that to be an impartial and independent investigation, yet that is exactly what the government ministers can do with public inquiries into events of significant importance. The government, its departments/officials and ministers are frequently the object of the investigation but retain control over many facets of the subsequent investigation. The extent of ministerial control over this entire process gives rise to perceptions of bias and risks of undue influence. To counteract this, the government should outsource the appointment of chairs to another body, such as a parliamentary select committee, give greater control to the chairs to determine the terms of reference and create a formal requirement to engage with victims in the process of establishing the terms.
Stuart Wallace.
Stuart Wallace is an Associate Professor at the University of Leeds where he teaches constitutional law and international human rights law. He is a contributing writer for the Constitution Society.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.