The Power to Pause

Chris Gillespie looks at the relationship between a Minister’s powers to suspend under section 13 of the Inquiries Act 2005 and an Inquiry Chair’s management powers under section 17

Following the application to the Criminal Cases Review Commission by representatives of Lucy Letby in respect of her criminal convictions in March of this year, representatives for the former managers of the Countess of Chester hospital made an application pursuant to s17(3) of the Inquiries Act 2005 (“the Act”) to the Chair of the Thirlwall Inquiry to “pause” the inquiry “pending the outcome of the Criminal Cases Review Commission’s (“CCRC”) consideration of an application made by Lucy Letby in respect of her criminal convictions.” At the same time, an application was made to the Minister to suspend the inquiry pursuant to section 13(1) of the Act.

The application suggested that the application made by Lucy Letby to the CCRC, at face value at least, could not be ignored by the Inquiry and merited consideration given the international panel of expert opinion which appeared to support it. At the heart of the application was a concern about the completeness of the inquiry and fairness to its participants. The Inquiry had proceeded on the basis that Lucy Letby was responsible for the deaths and unexplained collapses of the babies at the Countess of Chester hospital, which was entirely in accordance with its terms of reference (in respect of which Letby’s guilt is fundamental). It was argued that there now appeared to be a serious risk that Letby’s convictions may be quashed. Given that the fundamental purpose of the inquiry was to understand the circumstances in which the babies came to die/suffer unexplained collapses and that there had been no investigation of alternative explanations, such as poor clinical care, it was argued that it would be wrong to proceed regardless. As to the issue of fairness, all witnesses were questioned on the basis of the single killer nurse scenario, alternative scenarios were not explored and their evidence would be judged on that basis alone. The application did not envisage a complete stop to the Inquiry’s work but a pause in respect of most aspects and progress in relation to matters that were not conditional on Letby’s conviction (for example, safeguarding processes and the treatment of bereaved parents).

As to the relevant legislation, section 17(1) provides that “subject to any provision of this Act (emphasis added)…the procedure and conduct of an inquiry are to be such as the chairman of the inquiry may direct.” By section 17(3), “In making any decision as to the procedure or conduct of an inquiry, the chairman must act with fairness and with regard also to the need to avoid any unnecessary cost (whether to public funds or to witnesses or others).”

Section 13(1) of the Act, as definitively interpreted by the Supreme Court in In the matter of an application by JR222 for Judicial Review (Appellant) (Northern Ireland) [2024] UKSC 35, provides that the Minister has the power, by notice to the Inquiry Chair, to suspend the inquiry where the Minister considers it necessary and for such period as the Minister considers it necessary to allow for (a) the completion of investigation into any of the matters to which the Inquiry relates, or (b) the determination of any civil or criminal proceedings arising from those matters.

For the purposes of her ruling, Thirlwall LJ proceeded on the basis that it was arguable that as Chair she had the power to pause the inquiry where it had become unfair to continue. Notwithstanding that, she ruled against the application on the basis that, as she determined it, there were in fact no extant criminal proceedings. There had been a trial; two appeals had been exhausted; and, an application had been made to the CCRC who would have to consider whether or not to refer to the Court of Appeal. Both this period of consideration and the period before the Court of Appeal could hear the case, should a referral be made, would be lengthy. What was described as a pause, in the circumstances increasingly looked like a suspension. Acceding to the application would increase the costs of the inquiry during any such period, taking into account, for example, the need to retain a slimmed-down secretariat, which might require new members for the purposes of warning letters and publication. Experience showed that the longer the gap between hearing evidence and beginning to draft the report, the longer the drafting process takes, which also increases costs. As to fairness, there had been no suggestion at the outset of the inquiry that the convictions did not stand. Further, the inquiry was not scrutinising the actions of Lucy Letby but rather the actions of all those who were at the hospital at the relevant time. Crucially, concessions had already been made as to the wholescale failures in safeguarding at every level. Fairness to all parties was required.

Having regard to the legislation, it appears that the power to suspend an inquiry lies with the Minister who established it (section 13). Before so doing, they must consult with the Chair before exercising it: section 13(3).

Whilst the Chair is given broad powers as to the procedure and conduct of the inquiry, the exercise of these powers is explicitly “[S]ubject to any provision of this Act.” Section 11 specifically provides for a power exercisable by both the Minister and the Chair. The decision under section 13 is one for the Minister alone. Therefore, as a matter of statutory construction, the Chair’s powers under section 17 do not include a power of suspension. This also fits with the general structure of the Act, which gives the Minister the powers to commence, appoint members to and end an inquiry.

The Chair was undoubtedly correct to conclude that she had the power under section 17(3) to pause the inquiry for a short period, for example, to obtain or consider disclosure. It appears that the Chair took the view that what was being requested was not, in reality, a pause but rather an open-ended adjournment, which may have resulted in the inquiry being inactive for months or years and would have been, in reality, a suspension.

In circumstances where a Chair has such concerns over the continued fairness of an inquiry that they are of the view that the inquiry should be suspended, they can bring the concerns to the attention of the Minister, who will make the decision whether to suspend or not. It is clear that they have no such power themselves.