Department of Constitutional Affairs - Draft Inquiry Procedure (UK Inquiries) Rules
Response by Thompsons Solicitors - May 2006
Thompsons is the most experienced trade union and personal injury firm in the UK. It has a network of offices across the UK, including the separate legal jurisdictions of Scotland and Northern Ireland.
Thompsons only acts for trade union members and the victims of injury, never for employers or insurance companies.
Thompsons has represented victims of disasters such as Piper Alpha, Zeebrugge, Hillsborough, The King's Cross Fire and the Clapham and Paddington rail crashes. We acted for the train drivers’ union ASLEF in relation to the Ladbroke Grove inquiry.
The firm participates regularly in government consultations on legislative issues. It is not our intention in this response to deal with every issue that this consultation raises, but rather to address those areas that we believe will have particular impact on our trade union clients.
Thompsons is concerned at the statement contained in this section of the introduction that the application of the Salmon Principles has been problematic and the principles have “often been criticised for causing inquiries to become too adversarial”. This statement does not indicate when the principles have been criticised, or by whom. Justification for reforming a system cannot be based on anecdotal evidence of a need for change. It is extremely difficult to respond to anecdotes. If this section had cited specific examples of criticisms, Thompsons would feel better able to bring its experience of the inquiries procedure to bear in its response.
Inquiry Procedure Rule 4
Whether directions made by the chairman are oral should not depend only on the rule or a decision made by the chairman. A participant should be able to require that directions are written. Written directions are important for clarity and certainty, as well as if an appeal is appropriate.
Inquiry Procedure Rule 11
Delegation of functions
This rule has direct and potentially serious implications on the costs incurred by core participants. It is acknowledged that core participants may wish to instruct counsel for oral hearings and this rule allows the recognised legal representative to delegate functions to another qualified lawyer. For core participants who are paying estimated costs, this could result in a very large bill.
Core participants should not be deterred from taking part in inquiries by the risk of unexpectedly high costs (see our recommendation on rule 14).
Inquiry Procedure Rules 12 and 13
Estimated budget and provisional timetable
Again, we are concerned at the implications for costs that these rules have. We are concerned at how not for profit organisations will be able to afford to take part (see our recommendation below on rule 14), but we are also concerned at the emphasis on proportionality.
We wonder what measure is to be used for proportionality, and particularly how proportionality can be measured when there is no immediate ‘value’ involved in the outcome of an enquiry.
For example, in an inquiry into asbestos pollution from an old factory, it would not be possible to know at the time of the inquiry what impact the pollution had had. Claims for illness caused by exposure might not be made for decades later, given the latency period of asbestos related diseases.
We note the comment that a provisional timetable or budget should not cause the inquiry to have to act too hastily in assessing evidence or curtail investigations to meet estimates, and would welcome a commitment that concern about proportionality of costs will not be used to do this either.
Inquiry Procedure Rule 14
Core participants who are not for profit organisations should not be deterred from taking part in inquiries because of the risk that they will not be able to afford the costs. But as said above, inquiries cannot be allowed to be any less thorough in order to keep within estimated budgets.
The evidence of not for profit organisations, including trade unions, can be crucial in any inquiry involving public and work place safety matters. But for one union which took part in the Ladbroke Grove disaster inquiry, the costs paid were in the region of £750,000.
As a matter of principle bodies that should be represented at inquiries, and it is in the public interest that they do so, should as a matter of course be covered by the public purse.
Thompsons therefore recommends that such organisations have their costs paid in full, in order to ensure their ability to participate.
Inquiry Procedure Rules 15 and 16
Recognised legal representative
A rule that allows joint representation for core participants to be ordered from the chair does not acknowledge that groups with apparently similar interests are not to same. Victims groups and trade unions for example do not share the same aims. This was seen in the Ladbroke Grove inquiry where the victims groups were interested primarily in individual deaths of rail users, while the unions were concerned about the bigger picture of safety on the railways, driver training and future risk.
Trade unions have an ongoing relationship with their membership, and take account of potential future members, which victims groups do not. It would be wrong for an inquiry chair to assume that victims groups and unions can share legal representation.
While inquiries are not adversarial, it would also be wrong for all the victims groups to have shared representation while the corporate side, the rail companies for example, can have their own separate legal representatives, which they can of course afford.
A rule that allows a chairman to “direct” joint representation must take account of appropriate representation at an equivalent level, for all participants, in order to be seen to fair and open.
Inquiry Procedure Rule 19
Opening and closing statements
These could be assisted by the chair giving directions about “skeleton arguments”.
Inquiry Procedure Rule 27 – 36
The proposals on costs contained in these rules leave who should have their costs paid open to wide interpretation.
It makes little sense to limit public funding to individuals who are likely to be criticised by the inquiry and are providing more than background evidence. If an individual is giving material evidence, about the circumstances of an incident for example, then they should be funded.
Not for profit organisations, such as trade unions, should also be funded. The knowledge of their members, officials and staff may provide vital information to the inquiry. Whether or not an individual union member is likely to be criticised by the inquiry, a union still needs legal representation to assist them in giving evidence. If it is deemed to not need public funding, then there is a real risk that a trade union, even though it may represent thousands of people working in the industry around which the inquiry centres, will be excluded.
In any event, if a union member may be criticised by the enquiry, and wishes to be represented by their union, the union should be paid in full with equivalent representation to other parties.
To not do so cannot be good for the credibility of the inquiries process, for the outcome of the inquiry, or for the long term safety of the public and working people.
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