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FOCUS: How would a Public Inquiry Law work?

FOCUS: How would a Public Inquiry Law work?

Wednesday 03 November 2021

FOCUS: How would a Public Inquiry Law work?

Wednesday 03 November 2021


Amid calls for an independent inquiry into the Government's handling of the pandemic, Ministers have drawn up plans for a new law setting out how major public reviews of island issues should be conducted, funded and recorded.

A public inquiry is an investigation which is able to compel testimony and evidence, finding out the details of an occurrence or situation in the public interest, what can be learnt, who was responsible and how to prevent it happening again.

Jersey's last major public inquiry was the £23m Independent Jersey Care Inquiry, which, while praised for uncovering abuse against children in island institutions spanning decades, also faced criticism for its spiralling costs, particularly the spend on lawyers' fees.

More recently, there have been calls for a public inquiry into covid, including from a Jersey-based Brigadier with experience of dealing with crises.

At present, there is no law governing how public inquiries are conducted, but Ministers want to change this. They've now set out a series of proposals, which Express explores in depth here...

Who can establish a public inquiry?

The consultation states that a draft law would outline that “any Minister may establish an inquiry under the law” - however, it “should require the Minister to determine whether it is in the public interest to establish an inquiry under this law, as opposed to a non-statutory inquiry or an inquiry under another law.”

States Assembly.jpeg

Pictured: Ministers are able to establish inquiries under the law should they feel it in the public interest.

It lists the following factors to consider around public interest:

    • the time that the inquiry may take
    • the circumstances
    • the financial cost of the inquiry
    • the value derived to the public (will inquiry findings justify the expense?)
    • any other factors the Ministers believes may be relevant.”

It states however too that due to the broadness of reasons a public inquiry could be established, “the law should… not be too prescriptive or narrow in providing for the circumstances.”

It adds that “it should set out that the Minister may establish in inquiry when it appears to the Minister that it is in the public interest to do so because” of either events having caused public concern or public concern about events that may have occurred.

A Minister may be requested to establish an inquiry by means fo a backbench proposition to the Assembly, but cannot be compelled to do so - similarly, though the Council of Ministers may give a direction to a Minister on policy, this power does not extend to directing them to make an inquiry.

The Statement

Once a public inquiry has been proposed, a Minister must make a statement to the States Assembly as soon as is practical, and “may” present an accompanying report, which outlines why the inquiry is being made.

A Minister must then provide all information on the following at least two weeks before the inquiry setting up date or the date specified on terms of reference if the inquiry has already started:

  • the anticipated costs / financial and resource implications
  • the terms of reference for the inquiry
  • the anticipated setting up date
  • the anticipated timeframe for the inquiry
  • the name and/or qualifications of the person who the Minister proposes to appoint as Chair
  • whether the Minister proposes to appoint other Panel members and if so, how many Panel members.

Funding 

There would be four options to fund the inquiries: 

  • Option 1- funding is provided through existing departmental budgets (this does not require a decision of the States Assembly) 
  • Option 2 – funding is provided by a transfer from another head of expenditure (as set out in Article 18 of the Public Finances (Jersey) Law 2019) 
  • Option 3 – funding is allocated from the Reserve (as set out in Article 15 of the Public Finances (Jersey) Law 2019 
  • Option 4 – funding is provided by an amendment to the Government Plan.
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Pictured: The consultation lists four potential funding options for an inquiry.

If costs meant an amendment to the Government Plan was needed for the funding, a Minister would have to lodge a proposition.

Terms of Reference

The Minister must set out a Terms of Reference, and then adopt them as a Ministerial decision - before they do this, they must consult with both the persons they wish to appoint Chair, and consider consulting the parties who they determine to be interested, including victims and their families.

However, the consultation is not mandatory, though if the Minister decides against one, they must publish their reasons.

The Minister may also amend the terms of reference at any point if they either consider it in the public interest to do so or are requested to do so by the Chair.

Before amending them, they will have to go through the same process of consulting the chair and considering consulting interested parties, before presenting a report to the Assembly if the Minister thinks the changes are are at such a level they “impact the nature or scope of the inquiry.”

The Panel 

The inquiry would be undertaken by a Panel, which must include either a Chair or a Chair and at least two other panel members, depending on the scale of inquiry.

Meeting.jpeg

Pictured: The Minister must appoint the Chair and any other panel members.

The Minister must appoint the Chair and must appoint the other Panel members if other members are required. 

The key rules for appointing a panel member would be the need to ensure they have the necessary expertise, and are impartial.

A person would be considered impartial if they: 

  • Have a close association with an interested party
  • a direct financial interest in the matters to which the inquiry relates, or
  • an interest in the matters to which the inquiry relates, the extent of which the Minister determines may affect, or may reasonably be considered to effect, their impartiality.

The Minister can also at any time, after consultation with the Chair and presenting a report with two weeks’ notice, appoint a new member of the panel to fill a vacancy or increase the number of members, if that number is not over the terms of reference.

The draft law would not require the Jersey Appointments Commission (JAC) to oversee the slection process, it states that a duty should be placed on a Minister to consider requesting the JAC’s oversight, with the Chair of the JAC determining whether to concede or not.

The power to require evidence

The draft law would need to provide power to compel people to provide evidence, with the consultation saying that 189. The draft law therefore needs to provide that “the Chair may, by notice, require a person to attend the inquiry, at a time and place stated in the notice, to:

  • Give evidence
  • Produce any documents in that person’s custody or under that person’s control (i.e.,
    if the documents are in that person’s possession or the person has a right to possession of those documents) that relate to a matter in question at the inquiry
  • Produce any other thing in that person’s custody or under that person’s control for inspection, examination or testing by or on behalf of the inquiry Panel.

Indeed, the consultation reads that the “law should provide for offences,” including that it is an offence for a person to do fail, without reasonable excuse, to do something that is required by the Chair by notice.

Assessors

The law allows one or more persons to be appointed as assessors - the role would “vary from inquiry to inquiry, but in essence they are experts in their own particular field whose knowledge can provide the Panel with the expertise it needs in order to fulfil an inquiry’s terms of reference.”

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Pictured: One or more persons can be appointed as an assessor, who helps in an expert advisory capacity.

They would not be Inquiry Panel members and would not be responsible for any report or findings, and “may be appointed for the duration of the inquiry or for part of the inquiry, for example to assist when evidence on a particular subject was being considered.” 

Converting a separate inquiry into a public inquiry

Other forms of inquiry and investigation established under a separate law could also be converted into a public inquiry, suggesting a non-exhaustive list of reasons including that “there needs to be powers to be able to compel witnesses to give evidence” or “the other inquiry will not sufficiently address the issues of concern.”

It would require the Minister to think a particular event involved in the inquiry had caused public concern, was capable of causing public concern or that there is a public concern certain events may have occurred. 

This would not include other inquiries such as planning inquiries, as they are “used to set forward the case for or against a decision, rather than an investigation into an event or events causing public concern.”

Public Access

The consultation says that the draft law must provide the Chair - subject to any restrictions imposed - must take what they judge as reasonable steps to ensure members of the public are able to: 

  • attend the inquiry or to see and hear a simultaneous transmission of the inquiry proceedings, and
  • obtain or view a record of evidence and documents given, produced or provided to the inquiry.

Newspaper.jpeg

Pictured: Journalists are part of those who should be able to attend or hear proceedings, unless restrictions are placed upon them.

It adds that “whilst the emphasis should always be on the ‘public’ nature of the inquiry it is the case that, in some circumstances, part or all of an inquiry may need to be held in private,” such as where a Chair has issued a notice restricting attendance to anyone but the witness.

In terms of these restrictions, it says that consideration is being given as to whether a draft law should impose similar public interest and harm tests to Freedom of Information laws.

It was also envisaged that the inquiries’ power of compulsion may override laws which prevent people from usually disclosing confidential information, but noted that it may result in a “range of negative consequences, such as a potential violation” of human rights.

End of Inquiry

An inquiry would end when the Chair has submitted the report to the Minister - however, the draft law notes that there are other situations where it could no longer be possible, such as if evidence emerged that events should be investigated in a different way (such as a criminal one), or an unforeseen event occurs, such as the death of a witness which means evidence is no longer available.

Though a Minister may disagree with a Chair on the closure of an inquiry, the law does not let the Minister refuse their closure, as “the Chair should be trusted to determined when the inquiry has fulfilled its terms of reference.”

The Final Report

The law should provide that the Chair must give the Minister a report outlining the facts found by the Panel and their recommendations.

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Pictured: Though an archivist would have management of the records of inquiry once it is finished, the Minister would remain Data Controller.

The draft law would also state that the Chair can also deliver an interim report too, to allow for recommendations to be adopted in the shortest possible timeframe to help prevent reoccurrence.

Once the report is done, the Minister must arrange for it to be published - this could also be the duty of the Chair if it was agreed beforehand and the Chair accepted it.

It must be published in full, with no information redacted, unless it’s required by law, or it is considered necessary in the public interest.

Transfer to the archive

Once the record of the inquiry is transferred to the Archivist, they would have management of the inquiry record - however, whilst the Archivist will hold and manage those records, the Minister would remain data controller under the Data Protection Law.

Following up on actions

The consultation states that the Minister must “lay a report before the States Assembly setting out his response” to the initial inquiry report, and that this should be presented tot he Assembly within no more than 3 month of the date on which the Inquiry report was laid.

Share your views on the proposed law by getting involved in the consultation HERE.

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Comments

Comments on this story express the views of the commentator only, not Bailiwick Publishing. We are unable to guarantee the accuracy of any of those comments.

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Posted by Scott Mills on
Please no more money to be spend on reports of how they did. Won't change anything, because the banks and finance global corps, only want stable non moving gov's. Jersey perfect for that, always there for people with money in the island, but don't live on the island, but provide SFA for it's people.
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