Supreme Court rules on the scope of the power to…

In this article, Fiona Scolding KC and Claudia Hyde consider the Supreme Court’s recent judgment in Re JR222's Application for Judicial Review, the first case to consider the scope of the power of a minister to suspend a statutory public inquiry.

Background

Muckamore Abbey Hospital (“the Hospital”) is a hospital in Country Antrim, Northern Ireland, which, in the period of relevance to the Inquiry, provided inpatient assessment and treatment facilities for vulnerable people with severe learning disabilities, mental health needs and challenging behaviour.

In late August 2017, concerns began to emerge as to the alleged inappropriate behaviour towards and alleged abuse of patients by some staff in the Hospital. Following the initiation of investigations by the Belfast Health and Social Care Trust and the Police Service of Northern Ireland (“PSNI”), the Minister of Health for Northern Ireland (“the Minister”) decided in September 2020 to order a public inquiry (“the Inquiry”), pursuant to section 1 of the Inquiries Act 2005. Tom Kark KC was appointed as chair. The Inquiry is tasked with making findings on events that occurred at the Hospital between 2 December 1999 and 14 June 2021.

Importantly, the criminal investigations launched by PSNI had not been concluded by the time that the Inquiry had commenced work. PSNI’s investigations have led to eight arrests to date, and in April 2021, JR222, an anonymous former staff member at the Hospital, and seven other co-accused were charged with criminal offences in respect of alleged abuse committed in the course of their employment. Several measures were put in place by the Inquiry to protect the integrity of the parallel criminal proceedings.

On 16 June 2022, JR222’s solicitors wrote to the Inquiry requesting “the immediate suspension of the Inquiry” under section 13(1)(b) of the Inquiries Act 2005 (“the Act”). Section 13, so far as is relevant, provides:

“(1) The Minister may at any time, by notice to the chairman, suspend an inquiry for such period as appears to him to be necessary to allow for–

(a) the completion of any other investigation relating to any of the matters to which the inquiry relates, or

(b) the determination of any civil or criminal proceedings (including proceedings before a disciplinary tribunal) arising out of any of those matters.

(2) The power conferred by subsection (1) may be exercised whether or not the investigation or proceedings have begun.”

JR222 requested suspension on the basis that JR222’s rights under article 6 of the European Convention on Human Rights (“the Convention”) “have been and continue to be infringed by this Inquiry commencing prior to the conclusion of the criminal prosecution” of them. The Minister declined to suspend the Inquiry, stating his view that:

“the Minister has a discretionary power under section 13 of the 2005 Act to suspend an Inquiry, where it is ‘necessary’ to allow for the completion of a criminal investigation or criminal proceedings arising out of matters to which the Inquiry relates.”

JR222 sought leave to apply for judicial of this decision.

The issue

The case before the Supreme Court turned on the proper construction of section 13 of the Act. JR222 argued that the word “necessary” in section 13(1) only qualifies the period of suspension, such that the question of necessity only becomes relevant once the Minister has decided to exercise their discretion to suspend an inquiry. Thus, JR222 argued, the Minister misdirected himself when considering whether it was necessary to suspend the Inquiry pending the criminal investigation.

The Minister as the respondent resisted the claim, arguing that the word “necessary” also qualifies the decision of the Minister to suspend an inquiry, such that a Minister can only suspend an inquiry if it is necessary to do so. Both the High Court and the Court of Appeal agreed with the Minister, holding that the decision not to suspend the inquiry until the criminal proceedings against JR222 were determined was lawful. The Court of Appeal held that section 13(1) of the Act “naturally reads as one question which must be answered” and thus did not confer “some broader undefined discretion” on the Minister.

The decision

Giving the judgment of the Court, Lord Stephens JSC (with whom the other justices agreed) dismissed the appeal.

The case turned on the proper interpretation of section 13. On this matter, Lord Stephens made the following observations at [60]-[65]:

The purposes of a suspension were limited to those set out in subsections (1)(a) and (1)(b).
The existence of discretion to suspend an inquiry presupposes the ability to continue an inquiry while criminal proceedings are ongoing.
The power to suspend is vested in the Minister who must consult the chair of the inquiry before doing so.
The period of suspension is until the day specified in the notice or until further notice is given by the Minister.
If the Minister suspends an inquiry, they must provide their reasons and lay a copy of the notice before the relevant Parliament or Assembly.

There were two possible interpretations of section 13(1). On one view, “for such period as appears to him to be necessary” only qualified the period of suspension and not the decision to suspend an inquiry. On another view, “for such period” may be read as a phrase within a sentence so that the qualifier of necessity applies both to the purpose of suspending the inquiry and the period of suspension. Applying the ordinary principles of statutory interpretation as set out in R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2023] AC 255, Lord Stephens concluded at [82], in agreement with the High Court and the Court of Appeal, that:

“the true interpretation is that section 13(1) naturally reads as one question which must be considered and answered as a whole. On this basis necessity applies to both the purposes in section 13(1)(a) and (b) and to the period of suspension.”

The Court reached this conclusion for the following reasons:

The external aid of the legislative debate preceding the Act firmly supported the Minister’s view. Finding that the Pepper v Hart test was satisfied, it was relevant that Lord Evans, the promoter of the Bill, clearly and equivocally stated that clause 12 (now section 13(1)) “allows a Minister to suspend an inquiry only when it is necessary to allow for the completion of other related investigation or the determination of any civil or criminal proceedings.” This was a decisive aid to interpretation.
In a similar vein, the Explanatory Notes to the Act adopted the same interpretation. Paragraph 26, which addressed section 13, states: “In the event that new investigations or proceedings come to light or are commenced after the inquiry has started, it may be necessary to halt the inquiry temporarily.”
The Minister’s interpretation best gave effect to the purpose of the Act. Public inquiries are established to address public concerns in an open forum. If the Act empowered the Minister to suspend an inquiry established in the public interest without it being necessary to do so, the purpose of the Act would be undermined significantly. It would be illogical, in light of the object of the Act, for the necessity qualifier only to apply to the period of suspension and not to the decision to suspend an inquiry in the first place.

JR222 relied on section 14(1)(b) as providing support for her position. Section 14(1) defines the end of an inquiry, being either the date on which the chairman notifies the Minister that the inquiry has fulfilled its terms of reference (section 14(1)(a)) or on any earlier date specified in a notice given to the chairman by the Minister (section 14(1)(b)). JR222 argued that the absence of any test of necessity in section 14(1)(b) in relation to a Ministerial decision to end an inquiry supported her interpretation of section 13(1). The Court rejected this at [89]:

“…I consider that a decision to bring an inquiry to an end is not analogous to suspending an inquiry. A decision to end an inquiry is made in the context that there is no further need for the inquiry. A decision to suspend an inquiry is made in the context of a continuing public interest in the inquiry taking place. In view of the different contexts the existence of two different powers is not absurd. Rather, it is appropriate that the power to suspend requires a higher test than that for bringing an inquiry to an end.”

Thus, the wider provisions of the Act did not provide a reason for the Court to depart from its interpretation of section 13(1).

Comment

At the time of writing, across the UK, 17 statutory public inquiries are either ongoing or expected to commence work shortly. A frequent criticism made of the public inquiry framework is the length of the process, with some lasting over a decade. While such criticisms were beyond the scope of the question determined by the Court in this case, the judgment provides welcome clarification of the scope of the power to suspend inquiries, and will assist chairs in navigating such sensitive issues going forward.

This blog was written by Fiona Scolding KC and Claudia Hyde.