Setting and amending the terms of reference

The importance of getting the terms of reference right

The Government in its evidence to the Public Administration Select Committee on Government by Inquiry explained that the “terms of reference are a crucial factor in determining [a public inquiry’s] ambit, length, complexity, cost and, ultimately, its success”

The Council on Tribunals in its examination of the issues after the Scott Inquiry warned that: “ …care should be taken to ensure that the terms of reference go no wider than is necessary to fulfil the specific need which the Minister has in mind when setting up the inquiry. If the terms of reference are too wide then this may result in unnecessary cost and delay and may introduce questions which merely confuse the essential issues”. The Council noted that the Salmon Commission considered that terms of reference “should be drawn as precisely as possible”. That is because public inquiries were not intended to satisfy idle public curiosity in pursuit of general allegation and rumour. However, the Commission added that “It is essential that Tribunals should not be fettered by terms of reference which are too narrowly drawn”

How to get the terms of reference right

Evidence given to the Select Committee emphasised the value of the Chairman of an inquiry being involved in agreeing the terms of reference. Sir Ian Kennedy described them as “your relationship with the Minister or with the Government”. He added that, “of course it is for Government to indicate what they want you to look into but it is perfectly open to the Chairman to say, ‘I am not going to do it if that is what you want me to do’”. Sir Liam Donaldson told Select Committee that “…the civil servants, drawing in Ministers at the end of the process in consultation with the Chairman of the Inquiry, would usually draw up the terms of reference”. And Sir Brian Bender added that “…certainly the terms of reference cannot be finalised without the agreement of the Chairman”. Lord Falconer acknowledged that it is for the Chairman of an inquiry to negotiate his terms of reference. Speaking hypothetically about the Hutton Inquiry he said that “If he had said in order to get to the truth of what happened leading up to Dr Kelly’s death, I [Lord Hutton] need different forms of terms of reference, I would have readily agreed”. Lord Butler was not directly involved in agreeing terms of reference but “…was satisfied that they would enable the inquiry to do the things which I thought it would be necessary at that stage for it to do”

Sir Michael Bichard told the Select Committee that “… the very first thing I did was to involve myself in a discussion about the terms of reference”. The Select Committee regarded the reason as telling: “You will regret it hugely if you do not do that [be clear on terms of reference] when you come to make recommendations or draw conclusions and find that actually you are excluded from doing so because of your terms of reference and the lawyers […] are then threatening you with judicial reviews and injunctions. So, get it right at the beginning”. He believed that for those reasons terms of reference are therefore “[ …] not something just to be nodded through”

Sir John Gieve told the Select Committee that he believed terms of reference were usually drawn widely enough to avoid difficulties of interpretation. In recent public inquiries he had been involved with: “They [the terms of reference] have been quite permissive. Generally: ‘Here is an incident. Look into why it happened and what are the lessons for the future.’ Most terms of reference have something like that in them, and there is no problem about them” He recounted his experience of the first Shipman Inquiry when such a shared view about terms of reference was absent:” He said that “[T]he basic conflict was that there were those who wanted a full-blown public inquiry, which was wide-ranging in respect of the activities of Dr Shipman but, more than that, the activities of the agencies from the day on which virtually he began to practise until his conviction. They wanted a full-blown inquiry to look at a wide range of things. What I was asked to do was something much more narrow, which was to look at the safeguards that exist in the system in respect of what GPs do with their patients and to see how those safeguards could be strengthened. As I said, the Secretary of State was judicially reviewed and he lost and so an inquiry was set up very much along the lines requested by the people who brought the successful judicial review”.

The Robert Hamill Inquiry did not benefit from informed discussions between the Minister, the Chairman and Counsel to the Inquiry prior to the setting of its terms of reference. As a result it attracted a judicial review over them brought by Robert Hamill’s family. The terms of reference did not explicitly address concerns about the DPP for Northern Ireland and the family asked for them to be extended to do so. The Minister refused but his decision was then quashed. He subsequently reconsidered the decision and prior to the public hearings of evidence he declared that the existing terms of reference were apt to cover an investigation into the DPP.

Sir Liam Donaldson reinforced the desirability of consultation in giving evidence to the Select Committee. He said that “… effectively, within a broad umbrella of terms of reference, the specific areas of initial inquiry are usually on the basis of some discussion with those most involved and the stakeholders, as well as, if it is a legally based inquiry, Counsel to the Inquiry having gone through all the documents and picked out the key issues”.

Robert Francis QC and the General Medical Council have suggested a wider consultation, with Ministers, the Chairman, Parliament and others with a particular interest in the inquiry engaging in a dialogue about the terms before the inquiry commences. The Committee on the Administration of Justice argued to the Select Committee that when an inquiry is established “precisely because of a lack of trust, or a need for closer scrutiny, of the exercise of ministerial functions […], it seems unlikely that an inquiry composed by appointees of the Minister and working to terms of reference established by the Minister could ensure the necessary legitimacy and credibility”. On such occasions “we would concur with any move to consult on the terms of reference before finalising them”.

Lord Hutton gave the Select Committee a significant insight into the impact of wider discussion on terms of reference from the opposite standpoint: “I think there was so much public debate and public concern that, if there had been public discussion or a period of time to consider the terms of reference, it would simply have enhanced the public concern and one might have had a public debate about what the terms of reference should be. I might have been drawn into that, I might have been asked to express my views and I do not think that would have been beneficial”.

The Select Committee concluded that it should be possible both to have a degree of discussion and deliberation on terms of reference and then to agree precise language. In their evidence to the Select Committee the Government had conceded there could often be a case for announcing the final terms of reference after a set period, perhaps of a few weeks, to allow for discussion and preliminary investigation, and to enable individuals or organisations with an interest to make representations to the Minister setting up the inquiry. It went on to say: “We recommend that the Chairman of an inquiry should have the ability to negotiate the precise terms of reference before agreeing to undertake the inquiry.”

The function of terms of reference

Broadly speaking, the purpose of a public inquiry will be to allay the public concern that led to it being established. However, the specific objective of a public inquiry, and that which its success or failure should be measured against by its sponsor, is to fulfil its terms of reference – which will be to investigate specified matters and to report and make recommendations in the light of those restricted investigations.

The function of the terms of reference is therefore to bridge the gap between the allaying of the public concern which led to the establishment of the inquiry and the specific task of the Panel, which is to investigate into, report on and make recommendations about the specific matters which it is required to address. Any gap between a technically successful exercise of fulfilling the terms of reference and an allaying public concern is likely to be because of an omission in the terms of reference. A striking example of such a gap was the Hutton Inquiry. That was widely praised in its operation, particularly for the clear and bold way in which it gathered and tested the evidence. There was widespread disappointment at the report, however, because it was perceived as pulling its punches. In reality the report was merely constrained by the limited terms of reference.

It is for a public inquiry to construe its own terms of reference, in the first instance. Of course, in doing so it cannot create a jurisdiction for itself that the terms of reference do not, on a proper construction, confer. If an issue arises whether the public inquiry has misconstrued them then prudence suggests that the sponsoring Minister should be asked to rule on the issue. If he declines then judicial review would be available for anyone with a sufficient interest in the matter. There is a long line of authority concerning arbitrators which suggests that a court would consider the issue as one of precedent fact. That is, the court would seek to construe the terms of reference for itself rather than confine itself to a Wednesbury review of the public inquiry’s own view about construction.

Setting the terms of reference under the Inquiries Act 2005

Section 5 of the Act prescribes the sequence of events concerned with establishing the public inquiry and setting its terms of reference:

The Minister must consult the person he proposes to appoint, or has appointed as Chairman, before setting out the terms of reference: section 5(4)

The Minister must specify a setting up date, and prior to that date he must set out the terms of reference: section 5(1)

The public inquiry must not begin considering evidence before the setting-up date: section 5(2).

It follows that the consultation with the actual or prospective Chairman must take place prior to the setting-up date and accordingly prior to the consideration of evidence. There is no obligation to consult with others, such as interested parties or Counsel to the Inquiry, nor is there any obligation to allow the Chairman the opportunity to consider materials which have been gathered prior to the consultation exercise. Nonetheless the Minister plainly has power to enlarge the consultation exercise in that way.

Amendment of the terms of reference

There are two situations in which it is likely that the terms of reference for a public inquiry will require amendment. The first of those is where they were initially set without consultation and are subsequently demonstrated to be ambiguous or inadequate. Thus, in the case of the Rosemary Nelson Inquiry the terms of reference were enlarged some months after materials were first gathered, so as to include “any other state agency”.

The second is where, prior to the report being delivered, circumstances change in such a way as to make it desirable that they are revised. The need to have regard to changed circumstances can arise in a number of ways. Where the public inquiry is investigating a disaster, such as the collapse of a block of flats, the terms of reference may focus on the apparent cause, such the gas installation. However, after the terms of reference are set there may be another similar disaster and it may become apparent that construction defects could have contributed to the first. In those circumstances it may be desirable to enlarge the terms of reference of the public inquiry, either to encompass the further possibility or to consider the subsequent disaster.

As set out above it is highly desirable for terms of reference to be set after consultation, at least with the Chairman and with Counsel to the Inquiry. In a public inquiry under the Inquiries Act 2005 the Minister may at any time after setting out the terms of reference amend them if he considers that the public interest so requires under section 5(3), and there is a statutory obligation to consult.

The preferable course is to have a period for discussion with interested parties prior to the final setting of the terms, so as to allow for an informed process. However, that may not be possible, for example where there is a very urgent need for the public inquiry to be established. There may also be circumstances, as outlined by Lord Hutton in his evidence to the Select Committee where to hold a debate about the precise terms of reference may be counterproductive. In such cases it may nonetheless be desirable to keep the terms of reference under review during the course of the public inquiry and it may be right to amend them to take into account what emerges during the evidence gathering exercise or the public hearings.