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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Wagstaff & Anor, R (on the application of) v Secretary of State for Health [2000] EWHC 634 (Admin) (20 July 2000)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/634.html
Cite as: [2001] 1 WLR 292, [2000] EWHC 634 (Admin)

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BAILII Citation Number: [2000] EWHC 634 (Admin)
Case No: CO/1653/00 & CO/1757/00

IN THE SUPREME COURT OF JUDICATURE
DIVISIONAL COURT


Royal Courts of Justice
Strand, London, WC2A 2LL
20th July 2000

B e f o r e :

LORD JUSTICE KENNEDY
and
MR JUSTICE JACKSON

____________________

R V SECRETARY OF STATE FOR HEALTH EX PARTE WAGSTAFF

- and -

R V SECRETARY OF STATE FOR HEALTH EX PARTE ASSOCIATED NEWSPAPERS LTD.

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)

____________________

A. Ullstein QC, N. Bowen & Miss G. Ward (instructed by Alexander Harris, Altrincham for Wagstaff & families)
D. Browne QC & M. Nicklin (instructed by Swepstone Walsh for Associated Newspapers Ltd)
D. Elvin QC & J. Maurici (instructed by Office of the Solicitor, Department of Health for the Secretary of State)
R. Gordon QC & L. Browne (instructed by the Treasury Solicitors for Lord Laming)

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    LORD JUSTICE KENNEDY:

    Introduction

    We have before us two applications for judicial review of decisions made by the Secretary of State and Lord Laming of Tewin. One application is made by Peter Wagstaff and the Tameside Families Support Group, and the other application is made by bodies which represent most of the daily and Sunday press and the B.B.C.. The decisions under challenge are decisions of the Secretary of State for Health to require that an Inquiry appointed immediately after the conviction of Dr Harold Shipman shall take evidence in private, and decisions of the Secretary of State and of Lord Laming, who chairs the inquiry, as to the cost of legal representation or assistance. This is the judgment of the court.

    Background Facts

    The background is well-known. On 31st January 2000, at Preston Crown Court, after a lengthy and highly publicised trial, Dr Harold Shipman was found guilty on 15 counts of murder. The verdicts made it clear that he had grossly abused his position as general practitioner to his victims, and there were at least 23 other deaths which could have been the subject of further counts. Naturally there was considerable public concern, not only for the victims and their families, but also as to how these crimes could have been perpetrated by Dr Shipman for so long. There were questions, not central to the criminal trial but which called for an answer, such as how did he manage to stockpile the drugs he used, and why did no one notice that to an unusual extent patients died in his surgery or soon after seeing him.

    Even before the trial came to an end the first respondent decided that if Dr Shipman was convicted it would be appropriate to hold an inquiry, and no one criticises that decision. On 27th January 2000 the Secretary of State met the second respondent, Lord Laming, who from 1991 to 1998 had been Chief Inspector of the Social Services Inspectorate. The Secretary of State told Lord Laming of his decision and, it seems, invited Lord Laming to chair the Inquiry. According to the statement in these proceedings of Michael Farrar, a senior civil servant in the Department of Health, the Secretary of State had already formed the view that "the Inquiry should take place in private but that it would publish its findings and a final report." The Inquiry could also publish verbatim "any part of a witness's evidence that was considered relevant to the Inquiry's conclusions". As is clear from his statement Lord Laming was told of the decision of the Secretary of State as to the way in which the Inquiry would proceed. He was not consulted. Paragraph 3 of his statement reads -

    "When I was appointed as the Inquiry Chairman, the Secretary of State told me that he had decided that the Inquiry would be independent, its evidence would be heard in private, and its report and recommendations published. The Secretary of State also made clear that appointments to the Inquiry were matters for me."

    The principal issue in these proceedings is the propriety of the decision of the Secretary of State that evidence would be heard in private, a decision which he subsequently reconsidered but maintained.

    On 1st February 2000, the day after the jury returned verdicts, the Secretary of State made a statement in the House of Commons on which the applicants place considerable reliance. The Secretary of State referred to the trust which should exist between doctor and patient, and the generally good reputation of general practitioners. He said that systems for regulation and self regulation would have to be strengthened, and changed. He continued -

    "Members of Parliament and members of the public will want to be reassured about whether these awful events could have been foreseen and avoided. Whether the early signs could have been detected sooner, and whether action to halt Harold Shipman could have been taken earlier. It is to answer those and other questions in a careful and considered way that I intend to establish an independent inquiry into the issues raised by the murder of patients by Harold Shipman.

    I am establishing the inquiry using the powers I have as Secretary of State as defined in section 2 of the National Health Service Act 1977, and with the support of my Right Honourable friend the Home Secretary. The Inquiry will be comprehensive and inclusive. The victims' relatives in particular will be able to present their views and experiences to the Inquiry. The report of the Inquiry will be made public. I am publishing the terms of reference for the Inquiry today: a copy has been placed in the Library of the House. Given the issues of confidence raised by the Shipman case, the Inquiry must act thoroughly and speedily. It will report in the Autumn. It will be chaired by Lord Laming of Tewin, a former Chief Inspector of Social Services.

    The Inquiry's primary purpose will be to make recommendations as to how best patients can be safeguarded in the future. It will look at the role played by all the agencies involved in the Shipman case, including the coroner, the registrar, the police and health services. It will examine all relevant issues, including the measures needed to safeguard against the risks of isolated professional medical practice, G.P's access to controlled drugs and the role of the NHS Tribunal."

    Having dealt with other matters the Secretary of State concluded -

    "We owe it to the relatives and friends of those murdered by Harold Shipman to identify and implement whatever steps are necessary to prevent a repetition of the terrible events witnessed in Hyde. ...... Having betrayed the trust of his own patients, Harold Shipman should not be allowed to break the trust that exists between a patient and a General Practitioner. The action that I have outlined today is intended to strengthen that bond of trust. It expresses the government's determination to apply the lessons of the Shipman case to ensure that patients have the protection that they deserve."

    The first thing to be said about the statement is that it was not ex tempore. Dr Liam Fox, the opposition spokesman for Health, was given a copy in advance. The second thing to be said is that the statement was silent on what is now the principal issue in these proceedings, even though the Secretary of State had already decided that issue, and told Lord Laming what his decision was. Dr Fox understood that what was being set up was a "full and open inquiry" and he, in his response, welcomed "the public inquiry". The Secretary of State did not comment on that. Later Mr Kevin Barron MP asked the Secretary of State -

    "Will my Right Honourable friend confirm that the public inquiry will examine not only the role of the General Medical Council in this dreadful affair, but its current responsibilities and whether there have to be any changes?"

    The Secretary of State replied "Yes, it will". He did not comment on Mr Barron's use of the word "public". Later, in answering Mr Douglas Hogg, the Secretary of State said -

    "I really do not want the Inquiry simply to turn into an investigation of past events. We already have a public inquiry, we have had a lengthy and difficult court case and we have had a trial. It is right that the Inquiry should investigate the failures that may well have occurred in the systems, but it should also look forward and make positive recommendations about how we can strengthen and change those systems for the future."

    As to that passage Mr Farrar says in paragraph 17 of his statement -

    "I have spoken to the Secretary of State about his answer and what he meant by "we already have a public inquiry" was that there had already been a public hearing i.e. the criminal trial of Harold Shipman. Indeed that this is what he meant is clear from the reference to "already have" read in the light of what was said as a whole."

    If that is what the Secretary of State meant he could certainly have expressed himself with greater clarity, and to our minds it is not surprising that he was misunderstood. Whether or not he intended to create the impression he conveyed to Dr Fox, Mr Wagstaff and others we find it unnecessary to decide, but we do find it surprising that an important decision as to the way in which the Inquiry was to be conducted found no place in anything that was said. In saying that we have taken fully into account the fact that we have the advantage of hindsight, and that we are focusing on one aspect of the matter.

    The Terms of Reference of the Inquiry to which the Secretary of State referred on 1st February 2000, and which were placed in the Library on that day are headed "the Independent Inquiry into the issues arising from the case of Harold Shipman" and they read -

    •    "To enquire into the issues raised by the deaths of patients of Harold Shipman whilst he was a G.P. at The Surgery, 21 Market Street, Hyde.

    •    To enquire into the role and conduct of the various statutory bodies and authorities and to consider the appropriateness of their response to the information available about Harold Shipman's clinical practices.

    •    To make recommendations to the Secretary of State for Health and the Home Secretary for safeguarding patients and any related matter which public interest may require.

    •    To report by the end of September 2000."

    Dr Shipman was not always a general practitioner at 21 Market Street, Hyde. We understand that he began to practice from that address in 1992, so the Inquiry was restricted by the terms of reference to the later years of his professional life. In the second bullet point the "various statutory bodies and authorities" are not defined, and the Inquiry is not directly invited to consider what information should have been available, although that may be covered by bullet point 3 which requires the Inquiry to make recommendations to the Secretary of State for Health and to the Home Secretary. We shall have to look again at the terms of reference when we consider the submissions made in this case.

    On 8th February 2000 Mr Graham Brady MP asked the Secretary of State whether he would establish a full public enquiry, and was told that the question would be answered as soon as possible. By 22nd February 2000 the question had not been answered, and a solicitor, Ann Alexander, acting on behalf of a representative group of families of victims of Dr Shipman, then wrote to the Secretary of State pointing out that all the families she represented were anxious that the Inquiry which had been announced should be a full public inquiry. Four days earlier, on 18th February 2000, the Director of Public Prosecutions had written to the families of some of those alleged victims of Dr Shipman who had not featured in the trial to advise them that there would be no further prosecutions. No one questions the propriety of the Director's decision, but one of the reasons which he gave for that decision was that further charges might "impede the course of the public Inquiry set up by the government to investigate critical issues arising from this case." Apparently the Director shared the misunderstanding of Dr Fox and Mr Wagstaff as to the nature of the Inquiry that had been announced. Ms Alexander pointed out in her letter that for the criminal trial prosecuting counsel had selected what he regarded as the 15 strongest cases, and that the families of other victims were anxious to have their cases properly investigated. She also referred to general issues - the need to restore public faith in general practitioners, to investigate Dr Shipman's misuse of drugs to prevent any repetition, and the need to discover why the incidence of death and the circumstances of the deaths did not strike anyone as abnormal. As she said "the scale of his evil misdeeds may without precedent." Ms Alexander and those whom she represented offered to meet the Secretary of State if that would assist, but that offer was never accepted.

    Early in February Lord Laming decided to invite Dr Annez Esmail, who is a doctor and Head of the School of Primary Care at the University of Manchester, and Professor Hazel Genn, who has the chair of Socio-Legal studies in the Law Faculty at University College London to join him as members of the Inquiry Panel. On 18th February 2000 he wrote to the Secretary of State to seek approval of his choice although, as his statement makes clear, the Inquiry team had already met to review the Terms of Reference. His letter drew attention to the width of the terms of reference, and invited the Secretary of State to narrow the first bullet point to read -

    "To inquire into the issues arising from the convictions for the murder of the patients of Harold Shipman whilst he was a GP at The Surgery, 21 Market Street, Hyde."

    In the context of the present litigation Lord Laming's arguments in favour of more restricted terms, as set out in his letter of 18th February, are of some importance, They read -

    "In my view the terms of reference, as they currently stand, could be interpreted that the Inquiry would investigate all deaths of patients of Harold Shipman whilst he was a GP at The Surgery in Hyde. Clearly, this would be an enormous job and one which, in all probability, would cut across the work of the police and any decision the Crown Prosecution Service may be considering, as well as the audit the Chief Medical Officer is carrying out on Harold Shipman's past clinical practices. I therefore suggest that the Inquiry limits it's investigation to the issues arising from the 15 deaths for which Harold Shipman was convicted. The pattern was so consistent that there should be no difficulty in the Inquiry drawing the wider conclusions about the necessary checks and changes to systems that may be needed. It would however give the Inquiry legitimate authority to limit who should be asked to give oral evidence. This amendment to the terms of reference would strictly mean that the Inquiry need take evidence only from the relatives of these fifteen cases. If you are able to accept this change, then we would need to consider how best to deal with the relatives of the 160 or so other cases that are currently being investigated by the police. It may be that the only practical solution would be to invite them to submit written evidence rather than for each to present oral evidence at an inquiry hearing although I am sure that many are expecting to do this. For the Inquiry to see potentially this number of people would clearly have a significant impact on its workload and time commitment."

    In his statement made for the purposes of these proceedings Lord Laming says, in relation to the request to narrow the Terms of Reference -

    "Although it was no part of the Inquiry's remit that we would investigate the causes of individual deaths either proven to have been or allegedly committed by Harold Shipman (those being a matter for the police or the coroner) there was nevertheless concern on the part of the inquiry team that the way in which the terms of reference were drafted might give rise to an expectation that the Inquiry would investigate the causes of death of any patient of Harold Shipman who died when he was a GP at 21 Market Street, Hyde. It was clear at this very early stage that the list of suspicious deaths was growing to well over 100."

    Lord Laming in the same letter also raised the question of funding legal representation for witnesses, saying -

    "It has also been put to me that some of the witnesses asked to give evidence may request help towards the cost of the legal representation. I understand that it is normal practice in these situations to agree requests providing the circumstances are appropriate. I would be grateful if you would therefore confirm that you are agreeable to meeting such costs if the Inquiry felt them to be necessary."

    The Inquiry team met the Secretary of State on 1st March 2000, by which time the decision of the DPP was known, and the point was made that in the light of that decision the large number of grieving families might look to the Inquiry to determine the causes of death of their relatives, so the request to narrow the terms of reference was underlined but rejected. The numerical problem, it was suggested, could be overcome by issuing victims with questionnaires and seeing them in groups.

    On 8th March 2000 the Secretary of State wrote to Lord Laming in reply to his letter of 18th February. He said he wished "to clarify the scope and terms of your Inquiry", but it is not easy to see how the letter provides clarification. It says -

    "It is, I believe, important that the independent Inquiry offers the relatives of the victims of Harold Shipman (including those whose cases, during the time of Shipman's practice at Market Street, Hyde may not have been brought to trial) the opportunity to make their views known to you and to your team."

    That sentence does seem to raise questions rather than answer them. Why is it important? For example, the relatives of some deceased person who did not feature in the criminal trial may believe him or her to have been a victim of Dr Shipman. They may be very anxious to express that belief to the Inquiry so that the Inquiry can investigate and in due course can confirm or give good reasons for rejecting the family's belief. The issue the family wishes to raise is, to our minds, clearly within bullet point 1 of the Terms of Reference because it is an issue "raised by the death of patients of Harold Shipman whilst he was a GP....." Is that the sort of issue which the Secretary of State envisaged that the Inquiry would explore? If not how can it legitimately be excluded without narrowing the terms of reference? Assuming however that such an issue can be excluded, why does it remain important for relatives of the victims to be offered the opportunity to make their views known to the Inquiry? Are they not likely to be simply frustrated if the Inquiry with its wide terms of reference refuses to address issues they want to raise, or is it thought they will derive some benefit by simply putting their concerns to a sympathetic team?

    The Secretary of State then turns to the media interest which he knows exists, and says in his letter -

    "I believe it will be important to provide the relatives and friends of the victims with the privacy they deserve when telling their stories. As you know the format of the Inquiry means that evidence will be heard in private, but allows you to use your discretion to make reference to any significant evidence you receive when you come to publish your report. I would wish to encourage you to do so."

    As Mr Ullstein QC, for the families, has pointed out to us it is on the face of it surprising that the Secretary of State should be talking about providing the relatives and friends of victims with the privacy that they deserve about two weeks after he received Ms Alexander's letter of 22nd February which makes it clear that those she represented did not want privacy, quite the reverse. That letter from Ms Alexander had yet to receive any form of response, as is clear from her further letter of 9th March.

    On 10th March the NHS Executive, on behalf of Lord Laming, issued a press release naming the Inquiry Team. Lord Laming is quoted as saying that the tribunal will study matters in private and that its report and recommendations will be published. The Inquiry, it is said, will consider eleven identified issues. Some of them are not obviously within the scope of the National Health Service, or even of the Secretary of State for Health, for example-

    •    "The responsibilities of coroner's courts in investigating unexpected deaths.

    •     The role of the General Medical Council particularly in tackling unacceptable practice."

    Having referred to the trial the press release continues -

    "The Inquiry has not been charged with establishing the cause of death of those patients who were not subject to the trial."

    That rather suggests that the Inquiry is taking upon itself the responsibility of narrowing the terms of reference, and the press release continues -

    "The main purpose of the Inquiry will be to make recommendations to the government about how best patients can be safeguarded in the light of the Harold Shipman case. It will look at the role played by the various statutory agencies and will examine what measures may be necessary to establish clear systems of accountability and monitoring of practice. It will make recommendations to reduce risks by introducing further safeguards and explore issues associated with doctors who run single handed practices."

    If the terms of reference had originally been so expressed some of the present problems might have been avoided, but they remained unamended, and were set out in the Notes for Editors which were made available with the press release. The press release itself ended by stating -

    "The inquiry will be open and accessible to the relatives of the patients of Harold Shipman. They will be invited to submit evidence and the Inquiry will also hear from other interested parties who wish to put forward their views on matters relevant to the terms of reference."

    It did not say in terms that oral evidence would be received in private.

    On 14th March 2000 Lord Laming wrote a personal letter to each family enclosing the terms of reference, and telling them they would be told later how they could contribute, so no one could have been in any doubt about what the terms of reference said.

    On 24th March 2000 the Secretary of State belatedly replied to Ms Alexander's letters of 22nd February and 9th March. She had sent a further reminder on 16th March. The Secretary of State started by stating what he had already done in consultation with Lord Laming, and continued -

    "The need to produce recommendations to avoid a repeat of what happened rapidly and comprehensively, and to act on them at the earliest opportunity to protect the public was uppermost in my mind. I concluded that this is best achieved by an Inquiry that is accessible and open to the relatives but also allows them to give their experiences and views privately, with a published report.

    The relatives and friends of people who died have already had the ordeal of the lengthy public trial. I have said that the victim's relatives will be able to present their experiences and views to the Inquiry. They would be able to do that out of the spotlight, and the Inquiry will take full account of them.

    This will allow us the opportunity to act quickly, and to take full account of the views of relatives and provide the necessary recommendations to enhance protection of the public."

    The letter ends by expressing confidence in Lord Laming.

    Ms Alexander met Lord Laming on 29th March and wrote to him on 3rd April. That letter deals partly with the nature of the Inquiry, and partly with the cost of legal representation.

    Then, on 5th April, Ms Alexander wrote again to the Secretary of State advising him that she had now been contacted by over 70 families representing 49 deceased victims and, having met Lord Laming, was aware of the procedures he proposed to adopt. Her letter continued -

    "All of the families whom I represent remain adamant that a public inquiry is the only way in which the issues raised by this case can be properly addressed."

    The writer points out that the Secretary of State has not at any stage consulted the families or their lay or legal representatives before reaching a decision as to the form of the Inquiry, and the letter ends -

    "My client families have instructed me to take the appropriate steps on their behalf to continue their call for a public inquiry and I should appreciate your setting out your formal reasons for refusing to adhere to their request. Would you also set out your reasons for your failure to consult the families before making your decision."

    Clearly the scene was being set for the present litigation.

    On 7th April Lord Laming replied to Ms Alexander's letter of 3rd April. His letter makes it clear that from the outset his brief was to conduct the business of the Inquiry in private. As to legal representation he drew attention to the information pack being sent to relatives and friends, and which in turn referred to the fact that Victim Support would offer assistance free of charge to anyone who needed help to complete a statement. As no relative or friend was likely to be crticised Lord Laming did not consider it appropriate for them to be legally represented.

    On 12th April 2000 the Secretary of State replied to Ms Alexander's letter of 5th April. He began by saying -

    "My over riding concern is to establish an inquiry that will secure the maximum information available as quickly, fairly and effectively as possible. There are undoubtedly lessons to be learned from the Harold Shipman case. If the public are to be protected and if confidence is to be restored then these lessons must be swiftly identified. I cannot conceive of more compelling circumstances for all concerned to act with a greater degree of urgency and purpose. Of course the process by which we go about this task is important, and should command public confidence, but ultimately it is the results by which the Inquiry will be judged."

    Before us there was some criticism of the emphasis placed on speed and results, given that Dr Shipman is now serving a long prison sentence, and no one suggests that currently or in the immediate future any other general practitioner is likely to behave as he did.

    The Secretary of State in his letter then said that he has "reconsidered matters anew" and we see no reason to doubt that. He recognises that public and private inquiries both offer distinct advantages of their own. He says that he has taken into account the views of the families and concluded that his decision must stand. He then says in reaching his conclusion he had three considerations in mind -

    (1) proceeding as quickly as possible would enable the facts to be established while memories are still relatively fresh. The Secretary of State says he wanted to avoid "the all too often protracted passage of a full adversarial inquiry" and refers to two such inquiries. He wants something "able to deliver a focused measured and timely strike at the truth" so that as early as possible he can decide upon any reforms found to be necessary, and they can take effect. He says that he has considered a non-adversarial inquiry, or one that severely restricted adversarial methods, but he does not think this would fully eliminate the risks of delay. In other words his first ground for favouring a private inquiry is that it will be quicker.

    (2) The Secretary of State expresses the belief that "an inquiry shorn of its adversarial features and the distractions of media interests can yield a far greater depth of information". Those who can assist as to individual failings, errors by public bodies and administrative flaws are likely to far more forthcoming and candid in private. Some may be concerned with their own positions and if the proceedings were in public it would be very difficult if not impossible for witnesses to put out of their minds the presence and interests of the media. So the second ground is that privacy will facilitate candour.

    (3) The third point taken is not really a point in favour of a private hearing. It is simply an assertion that such a hearing "will not be any the less exacting or vigorous".

    The Secretary of State then referred in his letter to the Allitt Inquiry. He asserts that "the private inquiry approach proved particularly revealing" and that it was reported to Parliament "that every single witness the inquiry wanted to see had attended, every document asked for had been produced and that witnesses had spoken with a candour with which would have been very difficult to guarantee in a public arena". The letter ends by saying that if appropriate the issue of whether the Inquiry should sit in public can be reviewed.

    On 13th April 2000 Ms Alexander wrote again to the Secretary of State pointing out that the ability of families and friends to be heard in full will be seriously hampered if they have no opportunity to consider what others have said, and no advice and assistance in preparing their own evidence. That is illustrated, she asserts, by the sentiments of Mr David Crampton and others who took part in the Allitt Inquiry. They felt dissatisfied because -

    "(1) They were never invited to prepare statements.

    (2) They were given no list of issues raised by other parties during the Inquiry to enable them to consider and address those issues.

    (3) They never had sight of any of the evidence given by other bodies or individuals and were thus unable to comment upon or criticise that evidence.

    (4) They were never asked to comment upon provisional conclusions reached by the Inquiry.

    (5) Their main concern was never addressed in the report of the Inquiry, namely the inability of the hospital to cope in a crisis."

    Those families, it is said, felt daunted by having to attend without assistance and then felt cheated in the result. Ms Alexander then suggested a formula which might be regarded as a compromise proposal for the present case covering both the question of whether or when the Inquiry should sit in public, and the question of paying for legal representation and assistance.

    Her letter of 13th April was answered by the Head of Litigation in the Office of the Solicitor to the Department of Social Service. Ms Alexander's proposed compromise was rejected. These proceedings were then commenced by the first applicant representing himself and 113 other relatives and friends of deceased patients on the 10th May, and by the second applicants, the media, on the 24th May.

    Main Issues

    The issues raised in these proceedings can be grouped under three heads -

    (1) The legality of setting up this Inquiry under section 2 of the National Health Act 1977 having regard to the width of its terms of reference.

    (2) Having regard to past practice in relation to tragedies of this kind, and to what has become known as to the desirability of one form of inquiry as opposed to another, and having regard to the history of events from 31st January 2000 onwards and to article 10 of the European Convention on Human Rights, whether there was created a legitimate expectation of an independent and public inquiry which has not been met. Alternatively, whether the decision not to hold such an inquiry was irrational.

    (3) The entitlement of families and friends to receive legal representation or assistance. It is accepted that if the applicants succeed in relation to any of the earlier issues this third issue really falls away because a fresh request for representation or assistance would have to be considered in the light of any re-determination by the Secretary of State. But if the applicants do not succeed in relation to any of the earlier issues, was it legitimate for the Secretary of State to leave to Lord Laming the question of payment for legal representation or assistance and was it then legitimate for Lord Laming not to accord such representation or assistance to the families? Was his decision irrational?

    We propose therefore to look first at the legality of the decision to invoke section 2 of the 1977 Act, then at such information as to other inquiries and such learning in relation to other inquiries as we have been invited to consider. We can then consider the points made in relation to legitimate expectation and irrationaility, and finally we can turn to the position in relation to legal representation and assistance.

    Valid use of Section 2?

    From time to time Parliament resolves that it is expedient that a tribunal be established to enquire into a matter of urgent public importance, and such a tribunal is then given the powers set out in section 1 of the Tribunals of Inquiry (Evidence) Act 1921. That results in a full public inquiry, and that was what the families were seeking in this case. Depending on its terms of reference such an inquiry would not be troubled by boundaries between government departments or the scope of responsibilities placed upon ministers by specific statutes, but the inquiry announced by the Secretary of State on 1st February 2000 was different. As the Secretary of State said in the House of Commons, he established it using powers to be found in section 2 of the National Health Service Act 1977. Section 1(1) of that Act states -

    "It is the Secretary of State's duty to continue the promotion in England and Wales of a comprehensive health service designed to secure improvement -

    (a) in the physical and mental health of the people of those countries, and
    (b) in the prevention, diagnosis and treatment of illness,

    and for that purpose to provide or secure the effective provision of services in accordance with this Act."

    Section 1(2) states that normally the services will be provided free of charge, and then section 2 provides -

    "Without prejudice to the Secretary of State's powers apart from this section, he has power -

    (a) to provide such services that he considers appropriate for the purpose of discharging any duty imposed on him by this Act; and
    (b) to do any other thing whatsoever which is calculated to facilitate, or is conducive or incidental to, the discharge of such a duty.

    This section is subject to section 3(3) below."

    Section 3(3) is a saving provision of no direct relevance for present purposes.

    So the power to establish a tribunal is to be found in the wide words of section 2(b), the duty in question being that set out in section 1(1).

    Section 84(1) of the Act specifically enables the Secretary of State to cause an inquiry to be held in any case where he deems it advisable to do so in connection with any matter arising under the Act, and that section goes on to set out powers and duties which will then arise. The Secretary of State did not in this case resort to section 84, and it is clear from the decision of the Court of Appeal in Crampton and others v Secretary of State for Health 9th July 1993 unreported, that he was not obliged to do so. But the submission made by Mr Ullstein for the families is that any tribunal set up under the 1977 Act, whether under section 84 or under section 2, can only operate within the confines of the Act. If the terms of reference are so widely expressed as to reach beyond the powers and duties of the Secretary of State arising as a result of the Act then either the terms of reference must be restricted or Parliament must resolve to establish a 1921 Act tribunal. As a proposition of law that seems to us to be right, and Mr Ullstein goes on to point to the width of the terms of reference and to some of the issues listed by Lord Laming on 10th March 2000 which, as we have already noted, seem to fall outside the scope of the 1977 Act. The same point is made by reference to the list of issues sent out by Lord Laming to potential witnesses in April 2000, which included for example -

    "G. The coroner and inquests

    The nature and extent of the coroner's responsibilities to investigate sudden or unexpected deaths; procedures leading to inquests; coroners procedures for monitoring death rates. The operation and effectiveness of these procedures in relation to the deaths of Harold Shipman's patients.

    H. The role of the police

    Procedures in relation to the investigation of sudden or unexpected deaths; role in monitoring controlled drug usage. Investigations of suspicions about Harold Shipman."

    Neither coroners nor the police are answerable to the Secretary of State for Health, nor do they fall within the scope of the 1977 Act.

    In his reply Mr Ullstein invited our attention to section 111 of the Local Government Act 1972, which contains words very similar to those in section 2 of the 1977 Act. A local authority relied on those words to justify charging for the advice officials gave in advance of planning applications. In R v Richmond LBC ex parte McCarthy and Stone [1992] 2 AC 48 Lord Lowry, with whom the other members of the House of Lords agreed, said that such a wide construction of the statutory words could not possibly be justified.

    For the Secretary of State Mr David Elvin QC contended that the general practitioner service is central to the National Health Service, and the Secretary of State can properly use section 2 of the 1977 Act to set up an inquiry which investigates how other agencies impact upon and monitor general practitioners. He also invited our attention to the fact that section 2 was the power used when the tribunal was established which was considered by the Court of Appeal in Crampton. But in that case, to which we must return later in this judgment, the terms of reference were narrower and the vires point which we are asked to consider does not seem to have been raised.

    In our judgment if the terms of reference in the present case are considered on their own, with the possible exception of the reference to the Home Secretary, they can be read in such a way as to enable the tribunal to act within the scope of the 1977 Act. Put in colloquial terms if it confines itself to examining how other agencies impact on the National Health Service, and does not seek to tell other agencies how to do their job, then it can be regarded as validly constituted under section 2, but that involves a reading of the terms of reference much more restricted than the Secretary of State seems to have envisaged when he spoke in the House of Commons on 1st February 2000, or than Lord Laming envisaged when he drafted the lists of issues to which we have referred. We would therefore not regard it as appropriate for this court at this stage to rule that the tribunal was not validly constituted pursuant to section 2, but we would point out that if the tribunal were to follow the course envisaged by the Secretary of State and Lord Laming it would, we believe, be exceeding its statutory powers.

    Past Practice

    Before deciding what sort of inquiry should be held and whether it should sit in public or in private it is common ground that the Secretary of State should have had regard to experience - what had been done in the past in response to similar tragedies, and what if any lessons have been learnt as a result. It is clear from the evidence before us that over the last decade there has been no uniform practice, and no doubt in each case much has turned on facts peculiar to that case such as the complexity of the information, the need for confidentiality of material, the perceived demand for public accountability, the aims of the inquiry, the need to obtain a speedy result, the desirability of obtaining access to material which might not be available if one form of inquiry were chosen as opposed to another, the costs involved, and so forth. For the Secretary of State it is pointed out that the Allitt Inquiry was held in private and the authorities are said to have been pleased with the result. Beverley Allitt in 1991, as a hospital nurse, murdered four children, attempted to murder three, and injured six others. The families involved did want a public inquiry, and litigated to try to obtain one (Crampton supra). Their principal point in that litigation was that section 2 should not be invoked when section 84 is available, and on that they failed. Macpherson J refused to grant leave to move for judicial review, and that decision was upheld by the Court of Appeal. Sir Thomas Bingham MR pointed out that even if the inquiry had been held under section 84 it need not be held in public, and at page 4 C of the transcript he continued -

    "In many cases where it is sought to allay public concern it will be thought preferable to conduct the proceedings under the public eye, but the facts of different cases vary infinitely and had the Secretary of State established an inquiry under section 84 it would have been very hard, if possible at all, for the parties to challenge the decision made then or thereafter that the inquiry should not be held in public."

    Mr Ullstein invites our attention to the opening words and Mr Elvin emphasises the closing words of that sentence uttered in July 1993.

    There were other points taken by the applicants in Crampton. There was a challenge to the Inquiry chairman's decision to use an inquisitorial form of inquiry. That was rejected, the Court of Appeal pointing out that the task of the Inquiry was "quite unlike that which is entrusted to a court of law." There was also an attack upon the proposed procedure, which attack foreshadowed some of the complaints made before us. For example -

    (1) It was said that the inquiry would have to act in too many roles, detective, inquisitor, advocate and judge:

    (2) witnesses, it was said, should hear what others said, and the record of the evidence should be public:

    (3) families should be able to be represented.

    As to those complaints the Court of Appeal in Crampton reminded itself of the objects of the inquiry, and declined to intervene. But, as we have already indicated, the objects of that inquiry as set out in its terms of reference were markedly narrower than the terms of reference with which we are concerned.

    In August 1994, after the report of the Allitt Inquiry had been published, the European Commission considered an application in which it was contended by Mr Crampton and other parents of Allitt's victims that the failure to hold an independent public inquiry amounted to a violation of Article 2 of the European Convention on Human Rights - the right to life. That application (Taylor and others v U.K. [1994] 18 EHRR CD 215) was held to be inadmissible, and we mention it only to dispose of any suggestion that the Commission in that case dealt in a significant way with the question of whether or not a tribunal should sit in public. That was not an issue on which the Commission had to rule.

    As long ago as 1991 the then Lord Chancellor, after extensive consultation between officials of various departments, prepared for his ministerial colleagues a note entitled "Disasters and the Law: Deciding the form of inquiry". It offered "advice on the form of inquiry to follow a disaster where there has been significant damage or loss of life, and the criteria to bear in mind when deciding between the available options." It was a restricted document, and not in the public domain until published in Annex D to the Thames Safety Inquiry Final Report by Clarke LJ which was presented to Parliament at the beginning of this year (Command 4558), but there is no reason to doubt that the 1991 advice was available to the Secretary of State for Health and his predecessors from the time that it was given. Paragraph 12 of the Advice reads -

    "The overriding reason why judicial inquiries are held is the gravity of the incidents, and the belief that both the public anxiety they cause and the interests of victims can only be satisfied by such an inquiry. In some cases public confidence may be undermined if there is not a perception that an inquiry is full, wide-ranging and independent of government; for example, in cases where the regulatory functions of the investigatory body are called into question. There will therefore be cases in which public confidence requires there to be an independent judicial figure to hold a public inquiry."

    In the present case the applicants do not seek a judicial inquiry, but they do emphasise the gravity of the incident, and the need to restore rather than undermine public confidence. There is much else in the Advice which is of value, but which we need not quote at this stage.

    Between 1991 and February 2000 there were many events which resulted in inquiries being held, serious railways accidents, disasters in schools, child abuse, problems in special and other hospitals, etc. The inquiries were of different types, and we were briefly referred to some of them. We were also referred to the views of some of those who chaired inquiries, views which, it is submitted, would have been available to the Secretary of State at the beginning of this year had he sought them. Since 1985 Sir Louis Blom-Cooper has conducted eleven inquiries, and in a statement made for the purposes of these proceedings he says -

    "Where public disquiet about a scandal or disaster is of sufficient intensity, such disquiet can only allayed, and public confidence can only restored by an inquiry which is conducted with total transparency."

    A little later his statement continues -

    "I have conducted all but one of my inquiries in public session (with an option to take sensitive evidence in closed session). The one exception was the Kimberly Carlisle Inquiry in 1987 when I and my colleagues were persuaded by legal representatives on behalf of social workers to sit in private which we did. The experience taught me not to hold a public inquiry which raises issues deeply affecting public confidence other than in view of the public. .... Two main reasons have prompted me to take this stance. First it is my view that taking evidence from witnesses out of the glare of public scrutiny in fact allows such witnesses to embellish their testimony rather than be more adhering to the unvarnished truth. It is often an opportunity to cast the blame on others. ..... Second, far from 'the distractions of intensive media interests' yielding a 'far greater depth of information' my view is quite the contrary. The media welcome the opportunity to report public inquiries and on the whole, act responsibly. ..... by contrast, the media resents being shut out of a public inquiry conducted behind closed doors. They will endeavour to obtain information from those who have been present at the hearing. At the Kimberly Carlisle Inquiry, wholly inaccurate reports appeared as leaks in the press. This militates against an orderly inquiry."

    No one contends that the opinion of Sir Louis is decisive but, as Mr Ulstein points out, his experience is extraordinarily wide, perhaps unrivalled, and there was no evidence put before us to the opposite effect. As to the option to take sensitive evidence in closed session, that was something which Mr Browne, for the media, recognised might be appropriate and useful in this case.

    Of course Sir Louis is a lawyer, and as such may be thought to start with a preference for the normal practice followed in courts which, as the Master of the Rolls pointed out in Crampton , may not always assist. But the reasons given as to why courts nearly always sit in public may be of some significance. They were spelt out in the Court of Appeal by Lord Woolf MR in R v Legal Aid Board ex parte Todner [1999] QB 966 at 977e -

    "it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public's confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings are conducted behind closed doors or with one or more of the parties or witnesses identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely."

    In the recent case of R v General Medical Council ex parte Toth 23rd June 2000 unreported, Lightman J adopted a similar approach when reviewing the General Medical Council's approach to complaints against medical practitioners. He found that the general principles underlying the relevant statute and procedural rules were that -

    "(a) the public have an interest in the maintenance of standards in the investigation of complaints of serious professional misconduct against practitioners;

    (b) public confidence in the GMC and the medical profession requires, and complainants have a legitimate expectation, that such complaints (in the absence of some special sufficient reason) will be publicly investigated by the PCC; and

    (c) justice should in such cases be seen to be done. This must be most particularly the case where the practitioner continues to be registered and to practise."

    Of course that decision was made after the decisions with which we are concerned, and the position of the GMC is not precisely the same as that of the Secretary of State, but the applicants refer to the decision as indicating the sort of considerations which should have been in the mind of the Secretary of State.

    What undoubtedly was available to the Secretary of State, at the latest by 14th February 2000, was the final report of Clarke LJ to which we have already referred. He was asked to advise "whether there is a case for a further investigation or inquiry into the circumstances surrounding the Marchioness disaster and its causes on 20th August 1989". That led him to consider, in chapter 5 of his report, the purpose of a public inquiry. He started by saying in paragraph 5.1 -

    "No member of the public has the right to a public inquiry. Whether such an inquiry should be ordered will (as ever) depend upon all the circumstances of the case. It will depend upon where the public interest lies. The public interest is not of course the same as the interest of the public. The public may be interested in many things which it would not be in the public interest to investigate publicly".

    He then cited with approval this passage from Sheen J's report into the capsize of the Herald of Free Enterprise -

    "In every formal investigation it is of great importance that members of the public should feel confident that a searching investigation has been held, that nothing has been swept under the carpet, and that no punches have been pulled."

    All of that we would respectfully endorse. In paragraph 5.8 Clarke LJ continued -

    "The purpose of a public inquiry is simply to ascertain the facts and to make recommendations for the future. A public inquiry should only be ordered in exceptional cases. Public inquiries are very expensive in terms of time and money and in very many cases the facts can be established and lessons learned without such an inquiry. There are, however, some cases in which the public properly expects a public inquiry to take place. In such a case the question will arise of what form the inquiry should take, to which I shall return below. The significant feature of a public inquiry, by contrast to an investigations such as that carried out by the MAIB is that it is in public."

    The purpose of a public inquiry is, he said, in paragraph 5.10 -

    "To carry out a full, fair and fearless investigation into the relevant events and to expose the facts to public scrutiny."

    Clarke LJ then in chapter 6 turned to consider whether the Marchioness disaster constituted a suitable case for a public inquiry, and referred first of all to its scale. It resulted in the loss of 51 lives and many injuries. As Mr Ullstein points out, the activities of Dr Shipman may have accounted for more than twice that number of lives. Clarke LJ continued-

    "It was a shock to the public as a whole. I have no doubt that if such a tragedy happened today there would be a wide-spread public demand for an inquiry. In my opinion such a demand would be entirely justified."

    The applicants submit that here too there was a shock to the public as a whole, and the tragedy is such as to justify a public inquiry. Clarke LJ recognised in paragraph 6.4 that the answer to the question whether to hold a public inquiry does not depend solely on the number of people who are injured or have lost their lives, but the number of casualties "is a relevant and may be an important factor". In paragraph 6.5 he said -

    "In the two years prior to August 1989 3 disasters had taken place, namely the capsize of the Herald of Free Enterprise, the Kings Cross fire and the Piper Alpha explosion, in which 192, 31 and 165 people respectively lost their lives. Public inquiries were held into all three. Most people must I think have been very surprised, not to say astonished, when they heard that, unlike in those cases, there was to be no public inquiry into this collision and its consequences."

    The final report of Clarke LJ was published on 14th February 2000, and when indicating his reaction to it on that day the Deputy Prime Minister in the House of Commons recommended members of the House to read "Lord Justice Clarke's searching and thorough review". He said that the problems can extend far beyond transport, and continued -

    "We therefore need to consider Lord Justice Clarke's proposals carefully across government".

    Legitimate Expectation

    For the appellants it is said that the circumstances here were such as to give rise to a legitimate expectation that a public inquiry would be held, with evidence being taken in public. In support of that submission the appellants point to the history of inquiries to which we have referred, lessons learned from earlier inquiries, as spelt out by for example Sir Louis Blom-Cooper and Lord Justice Clarke, the much vaunted current political enthusiasm for open government, and the statements made by the Secretary of State in the House of Commons on 2nd February 2000. Legitimate in this context, it is submitted, means no more than an obligation on public authorities to act reasonably (Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 at 636) and fairly (see R v IRC ex parte Preston [1985] AC 835 at 851, R v Home Secretary ex parte Asif Khan [1984] 1 WLR 1337 and R v Home Secretary ex parte Ruddock [1987] 1 WLR 1482). As Bingham LJ said in R v IRC ex parte MFK [1991] 1 WLR 1545 at 1569 -

    "If a public authority so conducts itself as to create a legitimate expectation that a certain course will be followed it would often be unfair if the authority were permitted to follow a different course to the detriment of one who entertained the expectation, particularly if he acted on it. If in private law a body would be in breach of contract in so acting or estopped from so acting a public authority should generally be in no better position. The doctrine of legitimate expectation is rooted in fairness."

    In R v Devon County Council ex parte Baker [1995] 1 All ER 73 Simon Brown LJ at 88e identified four broad categories in which the phrase legitimate expectation is nowadays used. More recently in R v North and East Health Authority ex parte Coghlan [2000] 2 WLR 622 the Court of Appeal examined the court's role, but in our judgment it is difficult to fit this case into any of the established categories. There was here no clear or unambiguous representation by the Home Secretary, or by any one else, that there would be a public inquiry of the sort for which the applicants contend, with evidence being taken in public. The practice as to holding inquiries was not so clearly defined that the decision not to hold such an inquiry could be said to constitute a departure from established practice. In R v Education Secretary ex parte Begbie [2000] 1 WLR 1115 at 1133 E Sedley LJ said -

    "I have no difficulty with the proposition that in cases where government has made known how it intends to exercise powers which affect the public at large it may be held to its word irrespective of whether the applicant had been relying specifically upon it. The legitimate expectation in such a case is that government will behave towards its citizens as it says it will."

    We agree, the difficulty here, as it seems to us, is the absence of the underlying promise or practice.

    Failure to Consult.

    That difficulty for the applicants could perhaps be overcome if they could establish a duty to consult the families before either the decision of 27th January 2000 or the reconsidered decision of 12th April 200 was made. Clearly there was no such consultation prior to the first decision, and the consultation prior to the second decision was limited to a consideration of the written representations made by Ms Alexander, but what more was required? As Mr Elvin points out, if the Secretary of State is to be expected to consult the families before deciding what form the inquiry should take should he not also consult general practitioners, health service employees, and others who may be affected? The applicants submitted to us that the right course would have been to announce the inquiry and then receive submissions as to its format, as was done in relation to the Bristol Royal Infirmary Inquiry. That may be good practice, and good public relations, but subject to a qualification which appears below, we are not persuaded that the circumstances were such that at any time prior to 1st February 2000 the Secretary of State was obliged in law to consult anyone. Furthermore we see no basis for the submission that on 27th January 2000 the Secretary of State fettered his discretion by deciding as he did, so that his subsequent decision of 12th April 2000 cannot be regarded as a proper reconsideration of the relevant issues. We accept that where consultation is embarked upon, whether or not it is a legal requirement, it must be carried out properly. In ex parte Coughlan the court, at 661 C, paragraph 108 said -

    "To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken."

    The Secretary of State was certainly not obliged to meet the families or their legal representatives and receive oral representations, but there are two ways in which, as it seems to us, the applicants can justifiably complain about lack of consultation.

    First, it is clear from the letter written by the Secretary of State to Lord Laming on 8th March 2000 that his perception of what the families wanted in terms of publicity was an important reason for him deciding as he did. He told Lord Laming "I believe it will be important to provide the relatives and friends of the victims with the privacy they deserve when telling their stories". He adopted a similar stance in his letter to Ms Alexander of 24th March 2000. If the Secretary of State regarded the attitude of the families as significant when arriving at his decision to the extent that he was prepared thereafter to rely upon his perception of that attitude as a reason for his decision, then in our judgment it was his duty to find out what that attitude really was before arriving at his decision, and prior to 1st February 2000 he made no attempt to do so.

    The families were thus brought into the decision process by the Secretary of State's mistaken impression as to what their attitude would be, and his first decision can be said to be flawed for that reason. Sensibly he decided to reconsider the matter but, as it seems to us, against the background of the first decision it could not be right to make a second decision without regard to the families' views. One can test that proposition in this way - suppose the families had wanted to give evidence in private as the Secretary of State envisaged, but the media had pressed the Secretary of State to open up the inquiry. Having written as he did to Ms Alexander on 24th March in my judgment the Secretary of State could not possibly, in fairness, open up the inquiry without consulting further with the families.

    Mr Elvin's primary submission was that there was no duty to consult at any stage, but his alternative submission is that reception of the written representations of Ms Alexander constituted adequate consultation. That might well be acceptable if the Secretary of State had not given fresh reasons for his second decision, one of which (namely that privacy would facilitate candour) was a reason in relation to which there had been no consultation at all. Had there been proper consultation those representing the families might well have been able to direct the attention of the Secretary of State to material which we have seen casting doubt on that reason, which material the Secretary of State might have found persuasive.

    Independence

    Mr Ullstein submitted that the inquiry established by the Secretary of State cannot properly be regarded as independent because its chairman is appointed, its others members are approved and its terms of reference are fixed by a Minister whose department is under scrutiny, and it is not sufficiently guaranteed against outside pressures. The correspondence, it is submitted, shows that Lord Laming time and again was seeking the approval of the Secretary of State, whose funding was required, and in consequence the inquiry lacks even the appearance of independence. The Secretary of State said to Parliament that he would establish an independent inquiry, and he has not done so. In this context our attention has been invited to the judgment of the European Court of Human Rights in Findlay v UK [1997] 27 EHRR 321, where Courts Martial were under scrutiny, and the European Court said at 244, paragraph 73 -

    "In order to establish whether a tribunal can be considered as 'independent', regard must be had inter alia to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body represents an appearance of independence."

    But, as Mr Elvin points out, it is clear from the statement made by Mr Farrar on behalf of the Secretary of State that now that the inquiry has been set up the running of it is for the chairman and its members. The Secretary of State has no role to play. His position is in some ways analogous to that of the Secretary of State for the Environment after the appointment of a planning inspector to hear a planning appeal, and in Bryan v UK [1995] 21 EHRR 342 the European Court of Human Rights at 358 held that it was only because the Secretary of State could at any time revoke the power of an inspector to decide an appeal that a review by an inspector did not satisfy the requirements of Article 6 of the Convention. Here the Secretary of State has reserved no such power of revocation, so we see no reason to conclude that this is anything other than an "independent and impartial tribunal."

    Article 10.

    Both appellants, and especially Mr Browne on behalf of the media, placed considerable reliance on Article 10(1) of the European Convention on Human Rights which reads -

    "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers ........"

    Mr Elvin also invites our attention to paragraph 2 of Article 10 which, so far as material, reads -

    "The exercise of these freedoms ...... may be subject to such formalities, conditions, restrictions ...... as are prescribed by law and are necessary in a democratic society .... for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence ..."

    It is recognised by everyone that when the Secretary of State made his decisions the Convention was not formally part of English law, and that is still the position today, but as Balcombe LJ said in Derbyshire County Council v Times Newspapers [1992] 1 QB 770 at 810 H "it has been stated on high authority that Article 10 is in effect the same as the English Common Law." One of the authorities to which he referred was Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, a Spycatcher case, where Lord Goff said at 283 -

    "The exercise of the right to freedom of expression under Article 10 may be subject to restrictions (as are prescribed by law and are necessary in a democratic society) ... It is established in the jurisprudence of the European Court of Human Rights that the word 'necessary' in this context implies the existence of a pressing social need, and that interference with freedom of expression should be no more than is proportionate to the legitimate aim pursued. I have no reason to believe that English law, as applied in the courts, leads to any different conclusion."

    So freedom of expression is a fundamental right already recognised by English law, to be restricted only to the extent necessary to meet some pressing social need.

    In R v Ministry of Defence ex parte Smith [1996] QB 517, a case about homosexuality in the armed forces, Sir Thomas Bingham MR at 554 e agreed with counsel's formulation of the proper approach to the issue of irrationality, namely -

    "The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above."

    Similarly in R v Lord Saville ex parte 'A' [1999] 4 All ER 860 at 872 d Lord Woolf MR said -

    "It is unreasonable to reach a decision which contravenes or could contravene human rights unless there are sufficiently significant countervailing considerations. In other words it is not open to the decision-maker to risk interfering with fundamental rights in the absence of compelling justification."

    Mr Ullstein submitted to us that the decision that the Inquiry should receive evidence in private interfered with the families' freedom of expression because without sufficient reason it curtailed their right to receive information from other witnesses, and to impart information to the Inquiry as a result.

    In Leander v Sweden [1987] 9 EHRR 433 the European Court was concerned with an applicant who had been refused a job because of information on file which was said to indicate that he was a security risk. At 456 paragraph 74, dealing with Article 10 under the heading "Freedom to receive information" the court observed -

    "The right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him."

    That passage was relied upon by Mr Elvin for the Secretary of State, but we find it difficult to understand how it assists his case. On the face of it the Secretary of State is thereby prohibited, in the context of the present case, from restricting a family witness waiting to give evidence from receiving information that others who are currently giving evidence wish or may be willing to impart to him, namely an accurate account of what they are saying, not based simply on their own imperfect recollection after they have finished. Furthermore in Autronic AG v Switzerland [1990] 12 EHRR 485 the applicant was a company refused permission to receive uncoded TV programmes. The European Court at 499 said that Article 10 applies to profit making corporate bodies, and continued -

    "Article 10 applies not only to the content of information but also to the means of transmission or reception since any restriction imposed on the means necessarily interferes with the right to receive and impart information."

    So, on the face of it, the present prohibition on reporting would appear to be a breach of Article 10.

    The same approach was adopted by the European Court in VDSO v Austria [1994] 20 EHRR 56 which concerned the refusal to distribute a particular magazine with military periodicals distributed free to soldiers. At page 80 paragraph 27 the European Court said -

    "Such a practice was bound to have influence on the level of information imparted to members of the armed forces and, accordingly, engaged the responsibility of the respondent State under Article 10. Freedom of expression applies to servicemen just as it does to other persons within the jurisdiction of the Contracting States."

    For the media Mr Browne pointed out that it too has a recognised right to receive and impart information without unnecessary interference by public authorities. In Attorney General v Guardian Newspapers [1990] 1 AC 109 Sir John Donaldson MR said in the Court of Appeal at 183 -

    "The media are the eyes and ears of the general public, they act on behalf of the general public. Their right to know and their right to publish is neither more nor less than that of the general public. Indeed it is that of the general public for whom they are trustees. If the public interest in the safety of the realm, or other public interest, requires that there be no general dissemination of particular information, the media will be under a duty not to publish. This duty is owed to the public as much as to the confider."

    Similarly in The Observer and the Guardian v UK [1991] 14 EHRR 153 the European Court at 191 set out major principles distilled from judgments in relation to Article 10 -

    "(a) freedom of expression constitutes one of the essential foundations of a democratic society; subject to paragraph (2) of Article 10, it is applicable not only to 'information' or ' ideas' that are favourably received or regarded as inoffensive or as a matter of indifference but also to those that offend, shock or disturb. Freedom of expression, as enshrined in Article 10, is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established.

    (b) these principles are of particular importance as far as the press is concerned. Whilst it must not overstep the bounds set, inter alia, in the 'interests of national security' or for 'maintaining the authority of the judiciary' it is nevertheless incumbent upon it to impart information and ideas on matters of public interest. Not only does the press have the task of imparting such information and ideas: the public also have the right to receive them. Were it otherwise, the press would be unable to play its vital role of 'public watchdog'."

    When opening the Bristol Royal Infirmary Inquiry on 27th October 1998 Professor Ian Kennedy said -

    "I have said that I intend this Inquiry to be as open, accessible and inclusive as possible and I am aware that the issues we will cover will attract considerable attention from the media.

    We recognise the legitimate interest which the media have in reporting on behalf of the public what takes place at the Inquiry."

    That, Mr Browne submits, was a proper approach which the Secretary of State should have enabled Lord Laming to adopt in relation to the Inquiry with which we are concerned.

    No one doubts that there are circumstances when freedom to receive information or freedom of expression may have to be curtailed in the public interest. In a criminal trial information as to the identity of an informer, or as to the extent of his or her assistance, is an obvious example. The same may apply in relation to national security, medical records or disciplinary proceedings, but where these freedoms are to be curtailed the case for restriction must be strictly proved. Returning to the words of Lord Keith in the Derbyshire case there must be a pressing social need for the restriction and it must be no more than is proportionate to the legitimate aim pursued. Protection of vulnerable witnesses who may be otherwise unwilling to testify fully or at all may be a legitimate aim, but, as the applicants submit, politicians and those who work in the public service can reasonably be expected to stand up and be counted.

    As we have said, Mr Elvin did place some reliance on Article 10(2), but we have difficulty understanding how that can be invoked in the circumstances of this case. The justification offered for the curtailment of the freedoms identified in Article 10(1) does not seem us to be persuasive and although, as Mr Ullstein concedes, those freedoms are not as fundamental as the right to life, which was under consideration in Ex parte 'A' they are important freedoms, curtailment of which is significant when examining the rationality of the decisions as a whole.

    Material Considerations.

    What then were the considerations to which the Secretary of State should have had regard when deciding as he did, particularly on 12th April 2000? At this stage it seems unnecessary to trouble further with the flawed decision of 27th January 2000, which the Secretary of State rightly decided to re-visit, and which was therefore overtaken by events. There were a number of factors which might be regarded as persuasively in favour of opening up the Inquiry, namely -

    (1) the fact that when a major disaster occurs, involving the loss of many lives, it has often been considered appropriate to hold a full public inquiry, and the case for such an inquiry would seem to be enhanced where -

    (a) there is doubt as to how many and which deaths are properly attributable to the known cause of many other deaths:
    (b) the fact that deaths occurred over a long period without detection is suggestive of a breakdown in those checks and controls which should operate to prevent such a tragedy:
    (c) as a result there is likely to be a widespread loss of confidence in a critical part of the National Health Service which needs to be addressed.

    (2) There are positive known advantages to be gained from taking evidence in public, namely -

    (a) witnesses are less likely to exaggerate or attempt to pass on responsibility:
    (b) information becomes available as a result of others reading or hearing what witnesses have said:
    (c) there is a perception of open dealing which helps to restore confidence:
    (d) there is no significant risk of leaks leading to distorted reporting.

    All of this is clear from the 1991 Lord Chancellor's Advice, cases such as ex parte Todner, the Clarke Report and the experience of Sir Louis Blom-Cooper to which I have referred.

    (3) The particular circumstances of this case militated in favour of opening up the Inquiry because -

    (a) by April 2000 it was clear that was what the families wanted, and that the Secretary of State had been mistaken to think otherwise. As he chose to rely on what he had believed to be their state of mind he should have consulted them before reaching his decision of 27th January 2000, and he should therefore have given them a proper opportunity to deal with his new reasons for maintaining his position if he was not to accede to the written submissions of their solicitor:
    (b) the wide and unamended terms of reference gave those relatives and friends of persons not named in the indictment good reason to believe that the Inquiry would investigate how and why their relatives died:
    (c) even if Parliament was not misled, what had been said and what had not been said in the House of Commons on 1st February 2000 had for obvious reasons given rise to misunderstanding:
    (d) there was no obvious body of opinion in favour of evidence being received behind closed doors:
    (e) given an inquisitorial procedure and firm chairmanship, there was no reason why the Inquiry should take longer if evidence were taken in public, nor was their any tangible reason to conclude that any significant evidence would be lost.

    (4) Where, as here, an Inquiry purports to be a public inquiry, as opposed to an internal domestic inquiry, there is now in law what really amounts to a presumption that it will proceed in public unless there are persuasive reasons for taking some other course. Although Article 10 of the European Convention is not yet incorporated into English law it does no more than give expression to existing law as to the right to receive and impart information.

    (5) If the Inquiry has been conducted in public, then the report which it produces and the recommendations which it makes will command greater public confidence. Since all members of the community, especially the elderly and vulnerable, have been accustomed to place great trust in their GPs, such restoration of confidence is a matter of high public importance.

    The Decision of 12th April 2000

    So we come to look again at the decision of 12th April 2000. The Secretary of State said that in making it he had three considerations in mind -

    (1) Speed. Obviously it is desirable for information to be gathered while memories are still relatively fresh, even though some relevant deaths took place several years ago, and it might well be desirable not to have a full adversarial inquiry, but the comparators which the Secretary of State chose were plainly inapposite because of the amount of material with which they had to deal, and no reason was advanced as to why a non-adversarial inquiry or one that severely restricted adversarial methods should not fully eliminate the risks of delay.

    (2) Candour. The belief that an inquiry shorn of its adversarial features and the distractions of media interest can yield a far greater depth of information is a tenable point of view. It derives some support from what was said by Sir Cecil Clothier in his report on the Allitt Inquiry, but it is plainly now what might be described as a diminishing minority point of view, incapable in the circumstances of this case, where no vulnerable witnesses are apparently involved, of standing up to the weight of the arguments in favour of an open inquiry, as the Secretary of State might have appreciated if he had given the families a proper opportunity to comment on this proposed reason for deciding as he did.

    (3) The assertion that a private hearing "will not be any the less exacting or vigorous" is, Mr Ullstein submits with some force, self-evidently fallacious. If witnesses do not know what others say they will not, unless invited to do so, be able to comment on what has been said, and the Inquiry may not even know that they can assist. Thus the totality of the information available will be reduced, and the ability to test one piece of evidence against another will be inhibited.

    Conclusion on Main Issue

    In Education Secretary v Tameside MBC [1977] AC 1014 Lord Diplock said at 1064 E that in law conduct is unreasonable if it is conduct "which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt". At 1065 B he said "the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?"

    In Ex parte Smith, in a passage already cited, it is made clear that the court will not interfere "save where it is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker". In the same case at page 556 C Sir Thomas Bingham MR said -

    "The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational. That is good law and, like most good law, common sense. Where decisions of a policy-laden, esoteric or security-based nature are in issue even greater caution than normal must be shown in applying the test, but the test itself is sufficiently flexible to cover all situations."

    Mr Elvin invited us to regard this decision as to whether the Inquiry should sit in private or in public as policy-laden. We disagree, and for the reasons we have set out we are driven to conclude that it was irrational.

    Funding of Representation

    For reasons which we explained earlier in this judgment our conclusion that the decision of 12th April was irrational makes it unnecessary to dwell on Lord Laming's decision in relation to legal representation. That decision will have to be reconsidered in the light of any re-determination by the Secretary of State. However it may be of some assistance if we express a tentative view.

    We accept, as everyone accepts, that no one at this stage envisages there being any criticism of the families or friends of deceased patients, and we further accept that the procedure that the Inquiry proposes to adopt is intended not to be intimidating. Families will each complete a questionnaire, possibly with assistance from Victim Support, and then they will meet the Inquiry panel in groups of around ten. They will not be questioned by counsel, but by the chairman, who is not a lawyer. That exhibits a commendable concern for the welfare of the families and friends, but they do have information to give which could be of real value to the Inquiry, and information which they may want to give so that the Inquiry can consider it. They can describe how Dr Shipman operated, what interface there was with other agencies before and after the death of their relative, to what extent other health professionals were involved, and all of that may help to explain how Dr Shipman was able to continue for so long without being detected.

    But the taking of a statement from a lay witness dealing with facts possibly some time ago and covering a substantial period of time is a skilled art, so is the eliciting of evidence on the basis of such a statement, and in each case it is a lawyer's art. If, after questionnaires have been completed, the solicitor to the Inquiry were to take statements from those witnesses who might be called he or she would be able to follow up useful leads, and if counsel to the Inquiry were to examine witnesses when called their evidence could be properly tested against evidence coming from other sources. The members of the Inquiry panel would then have a better opportunity to receive the information and to assess it without entering into the arena, and it is unlikely that significant extra costs would be involved. An alternative would be to instruct the solicitor already acting for the families to prepare their statements and to appear on their behalf.

    Thus in our judgment even if the decisions of the Secretary of State had been upheld the attack upon the decision of Lord Laming as to representation would be likely to have succeeded. It is not so much a question of parity as between the families and other witnesses who can be represented by lawyers instructed by their professional associations, and who are likely to be so as they may be criticised. It is more a question of enabling the families to play their full part in this important Inquiry. If the job is worth doing it is worth doing well.

    Final Conclusion.

    For the reasons set out above the decision of 12th April will be set aside, and the matter will be remitted for redetermination by the Secretary of State.

    - - - - - - - - - -

    MR ULLSTEIN: My Lord, firstly, I ask for an order in the terms that your Lordship has just read out, setting aside the decision and remitting it for redetermination by the Secretary of State.PRIVATE 

    My Lord, secondly, I ask for the families costs against both respondents. My Lord, in the light of the indication at the end of your judgment, in relation to Lord Laming's decision that that order would, in my respectful submission, be justified, but if your Lordships prefer to make a Sanderson order in relation to the Second Respondent, I am entirely in your Lordships' hands, so far as that is concerned.

    LORD JUSTICE KENNEDY: Yes.

    MR BROWNE: My Lord, I ask for my costs against the Secretary of State, he is the only respondent to the media application.

    LORD JUSTICE KENNEDY: Yes.

    MR ELVIN: My Lord, I do not resist either of those orders for costs. My Lord, I do wish to make it clear that the Secretary of State is content to pay the costs of both parties, in that the Secretary of State seeks that no order be made against Lord Laming, the Secretary of State, in any event, would indemnify----

    LORD JUSTICE KENNEDY: I cannot see that realistically it makes any difference.

    MR ELVIN: Well we would prefer to deal with this matter through a normal costs order.

    MR GORDON: My Lord, I would resist an order of costs against Lord Laming, it may be----

    LORD JUSTICE KENNEDY: In the light of what has just been said you have a down hill task. Very well, there will be an order as we have indicated setting aside the decision and there will be an order for costs in favour of both appellants against the Secretary of State only.

    MR ELVIN: My Lord, I do seek permission to appeal. As your Lordships know, this case has raised a number of very serious and very important issues. Your Lordships have given indications which have major implications in terms of holding inquiries, particularly in terms of Article 10, and your Lordships will recall the submissions and the extracts from the leading authors relating to the interpretation of Article 10.

    My Lord, in my submission, this is a case where one could not say there was no real prospect of success in the Court of Appeal, given the importance of the issue. Secondly, in any event, the importance of the issues in this case, both in terms of the specific case and in the wider public issue, with regard to holding inquiries and Article 10, would justify the granting of permission.

    My Lord, I understand that my learned friend, Mr Ullstein, would seek a condition, if permission were granted, that the costs orders in favour of his clients in this case would not be disturbed. I am instructed to say that the Secretary of State would not oppose such a term.

    MR ULLSTEIN: My Lord, in our respectful submission, the Secretary of State was anxious to get on with the inquiry and that he should now reconsider his decision and get on with a new inquiry. Your Lordships findings of fact in this case make it most unlikely, in our respectful submission, that the Court of Appeal would overturn it and, as so often in many of these cases, they very often do turn on their own facts and it is those facts, when the law is properly applied, that made your Lordships reach the conclusions that you have; so we would oppose it.

    My Lords, so far as costs are concerned, the families are represented under conditional fee arrangements, legal aid is not available to them. We would invite your Lordships to say that if you were minded to grant permission, that any costs ordered here should not be disturbed and, indeed, that we should have our costs in the Court of Appeal in any event.

    LORD JUSTICE KENNEDY: I do not think that concession was being offered was it, Mr Elvin?

    MR BROWNE: My Lord, I adopt----

    LORD JUSTICE KENNEDY: Just one moment, Mr Browne.

    MR ELVIN: My Lord, I do not have instructions to offer that concession.

    LORD JUSTICE KENNEDY: I thought that was probably your submission.

    MR BROWNE: My Lord, so far as permission to appeal is concerned, I adopt what Mr Ullstein has said, that this is really a matter where it would be much better if the inquiry now started, was started quickly. Your Lordships will bear in mind that the original instructions given to Lord Laming by Mr Milburn was of a report by the end of September. If this matter goes to appeal, the inquiry will not even have started by the end of September. I also adopt what

    Mr Ullstein says on the question of the prospect of an appeal succeeding in overturning the result. The judgment of this Court finds against the Secretary of State on so many different points, including points of fact that, in our submission, it is rather fanciful to suppose that in the Court of Appeal he has any realistic prospect of overturning the result and being able to retain his decision to have a private inquiry.

    So far as costs are concerned, I would ask and I do not make the application in relation to the media, that

    Mr Ullstein makes on behalf of the families, but it would be reasonable. In my submission, if there is to be an appeal, whatever the result may be of the Court of Appeal, no order for costs ought to be sought against the media.

    LORD JUSTICE KENNEDY: You would expect necessarily to concede that.

    MR ELVIN: My Lord, I have no contention of conceding that. My Lord, the concessions made to the family, the families have a very particular interest and they are in a difficult situation, hence, the concession. The media, by no stretch of the imagination, could be said to be in that sort of difficult situation. They must fend for themselves in the usual way, in my submission. They can make submissions to the Court of Appeal in due course, if your Lordships give permission and pursue that.

    So far as the question of permission to appeal, my Lord, your Lordships' judgment, as your Lordships are well aware are in broad terms with regard to certain matters. My Lord, Article 10, as I have submitted, your Lordships have perhaps taken a step further than has been taken in the past with regard to access to information, which is an important point. My Lord, I rely on my final point that, in any event, the case of such importance that the matter should be heard by the Court of Appeal. So far as speed is concerned, my Lord, the chances of the Secretary of State getting anything by the end of September are now remote, given the difficulties which have arisen and the Secretary of State will have, in any event, a fundamental rethink about what happens, because he must consider what he should do in the light of your Lordship's judgment. My Lord, in a sense the----

    LORD JUSTICE KENNEDY: How long, realistically, does it take? I appreciate at the moment that people have only had the judgment for less than two hours. How long does it take to make a sensible evaluation?

    MR ELVIN: My Lord, consideration I would have thought could be given to the matter within about seven days.

    LORD JUSTICE KENNEDY: I am inclined to think you may have half that time at the moment, speaking entirely for myself. I have not spoken to my Lord yet, but if we were minded to give permission it would be on the basis that an indication was given to the Civil Appeal Office by close of business on Wednesday as to whether or not the Secretary of State was prepared to proceed or not.

    MR ELVIN: Can I take instructions on that?

    LORD JUSTICE KENNEDY: Yes.

    MR ELVIN: My Lords, I would not oppose an abridgement.

    LORD JUSTICE KENNEDY: We are prepared to grant permission to appeal. We do not necessarily encourage the Secretary of State to take advantage of the permission. We do think the matter is of considerable importance, but we grant it on these conditions: first of all, that there be no disturbance of the order for costs made in favour of the families and friends of the deceased in this court and, furthermore, it is a condition that by close of business on Wednesday, the Secretary of State, or those on his behalf, advises the Civil Appeals Office whether it is the intention of the Secretary of State to pursue this appeal. If it is his intention, the matter will be listed before my Lord and myself on either Thursday, or Friday of next week, or the following Monday in order that we may give directions for the progress of the appeal. We have in mind and we make this clear now, laying down that there be a very short time in which to serve Notice of Appeal; that there be an equally short time in which to serve any response notice and that the matter be available for hearing throughout the long vacation.

    MR ELVIN: Yes, my Lord, I am grateful.

    MR BROWNE: My Lord, there are a couple of footnotes on the judgments which I was asked by your clerk to mention so they can be heard by the shorthand writer. On page 10, although I loyally stuck with Mr Ullstein, in fact, the media submissions were confined simply to the issue of whether the inquiry should be public or private and I did not adopt that part of his submissions in which he argued that the inquiry which had been set out was ultra vires section 2.

    LORD JUSTICE KENNEDY: Yes, that is obviously an error to be put right.

    MR BROWNE: Also, on page 21----

    LORD JUSTICE KENNEDY: Can you just give me the passage on page 10?

    MR BROWNE: Yes. I have the earlier version of the judgment. It is just after the reference to "Crampton" on page 10. It is still on page 10, two thirds of the way down.

    LORD JUSTICE KENNEDY: Yes. "There was a submission made by the families". If we just take out the words "and adopted by Mr----

    MR BROWNE: Yes.

    LORD JUSTICE KENNEDY: Thank you.

    MR BROWNE: On page 21 the reference to Lord Goff in the Derbyshire case. It would be correct both to say Lord Goff in the Spycatcher case, and Lord Keith in the Derbyshire case, but it is not correct to refer to Lord Goff in the Derbyshire. I am not sure which are Lord Goff and Lord Keith----

    LORD JUSTICE KENNEDY: One cited the other if I remember rightly.

    MR BROWNE: Lord Keith in Derbyshire referred to Lord Goff in Spycatcher

    LORD JUSTICE KENNEDY: I think if we just strike out Lord Goff, and put Lord Keith in its place, is that right?

    MR BROWNE: Yes, my Lord.

    MR ULLSTEIN: My Lord, can I also say how grateful the families are that you put this matter back until 12.45 p.m. to enable them to travel down to London.

    LORD JUSTICE KENNEDY: We were anxious to do what we could to assist. Thank you very much.


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