Reasons for non-compliance with a section 21 notice

Reasonableness

By section 21(4), the recipient of a section 21 notice may make a claim that he is unable to comply or that it is not reasonable in all the circumstances to require him to comply. The notice must be a reasonable one and lack of reasonable excuse is part of the failure to comply, rather than a defence to an unreasonable notice. In many cases, only the recipient of the notice will have knowledge of the facts that prevent compliance with the notice and so practically there may reasonably be a evidential burden on the recipient, that is a burden on the recipient to produce the evidence in his defence.

A reasonable request will not be one that infringes any relevant privilege, restriction or immunity. Further, and particularly pertinent where the information is personal, a reasonable request will be one which does not unduly interfere with human rights.

Privilege

Section 22(1) provides that a person may not be required to give any evidence or document which he could not be required to do so if the proceedings were civil proceedings in a court in the relevant part of the United Kingdom or if the requirement would be incompatible with a Community obligation. Absolute privilege is limited but section 22(1)(a) will include evidence that is covered by legal professional privilege, parliamentary privilege, or evidence which will incriminate himself or his spouse or civil partner.

Legal privilege

In respect of legally privileged information, the House of Lords in Three Rivers No.6 stated that legal advice privilege attaches in respect of public inquiries where there is a relevant legal context. The Explanatory Notes to the Inquiries Act, state that “such privilege extends to advice given about the presentation of evidence, since it is given within a relevant legal context”. The Explanatory Notes, while providing guidance, are inadmissible as an aid to construction of the statute. A careful reading of Three Rivers No.6 may rather delimit this privilege to “presentational advice sought from lawyers by any individual or company who believed himself, herself or itself to be at risk or criticism by an inquiry…The defence of personal reputation and integrity is at least as important to many individuals and companies as the pursuit or defence of legal rights whether under private law or public law” (para 44). An inquiry will see many witnesses and not all will be subject to potential criticism. While privilege may extend to advice given about the presentation of evidence, it does not follow that this will be the case for all advice so given. A strict reading of Three Rivers No.6 suggests that only the advice given to witnesses who are to be directly criticised within the terms of reference will be protected by legal privilege.

Parliamentary privilege

Parliamentary privilege has its genesis in the Bill of Rights 1688, namely “that the Freedome of Speech and Debate or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament”. The Explanatory Notes suggest that parliamentary privilege should be limited to what has taken place in Parliament. In Re Paisley [2009] an application under section 36, the Billy Wright Inquiry submitted that this is limited to that which relates to proceedings in the Westminster Parliament and that no such privilege attaches to the Legislative Assembly in Northern Ireland. Therefore, communications between an elected representative and a person should be subject to a balancing exercise between an intrusion into personal communications and the importance of the evidence to the inquiry.

Privilege against self-incrimination

The privilege against self-incrimination entitles a witness to refuse to answer questions or to produce any other evidence that might establish their guilt or liability. English law and Article 6, ECHR tend to restrict this to criminal proceedings. Moreover, in respect of self-incrimination, in some inquiries the Attorney General has given an undertaking, such as that given to the Robert Hamill Inquiry and the Stephen Lawrence Inquiry that:

“in respect of any person who provides evidence to the Inquiry that no evidence he or she may give before the Inquiry, whether orally, or by written statement, nor any written statement made preparatory to giving evidence, not any document or information produced by that person to the Inquiry, will be used in evidence against him or her in criminal proceedings, except in proceedings where he or she is charged with having given false evidence in the course of this Inquiry or having conspired with or procured others to do so.”

Given such an undertaking, it will be difficult to invoke self-incrimination as a reason for non-compliance with a section 21 order or notice. In relation to the incrimination of a spouse, the restriction would be confined to that specific evidence which incriminated the spouse or civil partner

Section 22(1)(b) will include, according to the Explanatory Notes, European Community obligations which prevent a person from disclosing information to others. An example of this is a.30 of the Directive of the European Parliament and of the Council of 20 March 2000 relating to the taking up and pursuit of the business of credit institutions, which is commonly known as the Banking Consolidation Directive.

Public Interest Immunity

As discussed above, public bodies may claim public interest immunity in respect of documents that the inquiry wishes to make public. By section 22(2), the same rules of law under which evidence or documents are permitted or required to be withheld on grounds of public interest immunity apply in relation to an inquiry as they apply in relation to civil proceedings in a court in the relevant part of the United Kingdom. The general principle is that the exposure of the existence or content of a document would be injurious to the public interest. The document may either be in a protected class, or may have protected contents. The contents that may be protected are diverse: Re M (A Minor) (1989) 88 LGR 841).

It is usually the Secretary of State for the affected department who will sign the certificate for public interest immunity. If the public inquiry considers that disclosure is in the public interest, and bearing in mind that an inquiry is held because of public concern, the inquiry or an interested third party, for example a core participant or a witness affected by the failure of disclosure, may apply to the court to have the claim to immunity rejected. The court must balance the concealment against the public interest in the due administration of justice, the openness and independence of the inquiry, bearing in mind that it is open to the inquiry and the Minister to restrict further publication of the evidence under section 19.

A public inquiry is not determining criminal or civil liability, thus the additional safeguards specified in Rowe v United Kingdom (2000) 30 EHRR 1 in respect of withholding evidence in criminal trials will not apply. However, the Chairman, when determining a matter in the terms of reference which infers a likelihood of liability, may proceed with greater caution where there are documents subject to public interest immunity restrictions that may exculpate witnesses or other persons.

In addition to general public interest immunity, section 23 can be invoked if there is risk of damage to the economy. Sub section 23(1) applies where it is submitted to an inquiry Panel, on behalf of the Crown, the Financial Services Authority or the Bank of England, that there is information held by any person which, in order to avoid a risk of damage to the economy, ought not to be revealed. The Explanatory Notes guide that the Inquiry Panel may be able to take the material into account in its deliberations but will not be able to refer to the material (or its existence) publicly. Sub-section 23(2) states that the Panel must not permit or require the information to be revealed, or cause it to be revealed, unless satisfied that the public interest in the information being revealed outweighs the public interest in avoiding a risk of damage to the economy.

Restriction order

The provisions of section 22 are directed at those who have control of evidence which is being withheld from the inquiry, namely that which the inquiry wishes to have sight of, but has not yet seen.

This is explicitly not the case in section 23 where sub section 23(4) defines “revealed” as “revealed to anyone who is not a member of the Inquiry Panel”, thus strongly implying that the Inquiry Panel can have sight of documents which are potentially risky to the economy.

Sub section 22(2) can also be contrasted with section 19. Sub section 19(1)(b) deals with the disclosure or publication of documents which have been “given, produced or provided to an inquiry”, namely not documents which are to be given, produced or provided. Accordingly, a Minister cannot make a restriction order under section 19 to restrict the documents given to a public inquiry. Therefore, the circumstances contained in sub section 19(4), such as the avoidance of harm or damage or considerations as to confidentiality, cannot be used to restrict the documents given to the inquiry.

Only fairness or privilege can prevent disclosure to the inquiry. Steps can of course be taken by the Minister to prevent publication, but there is a strong presumption that the Inquiry Panel should have sight of as much evidence as necessary to determine the terms of reference.