Care Quality Commission - extracts re pausing the Inquiry:
2. These written submissions are structured as follows: A. The February 2016 inspection; B. Events from 30 June 2016 onwards; C. Specific issues that have been raised by the Inquiry (including those identified in the Inquiry’s Note of 4 February 2025); D. Areas of reflection; E. The request, made on behalf of the former Countess of Chester Hospital executives, for the Inquiry to be paused.
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E. The request to pause the Inquiry
90. By email dated 23 February 2025 the Inquiry invited Core Participants to comment on the formal request to pause the Inquiry, including the applicable law. CQC’s comments below relate only to the law. It does not seek to make submissions as to what the Chair should do in response to this request.
91. CQC notes that, in addition to requesting the Chair to pause the Inquiry under section 17(3) of the Inquiries Act 2005, a request has been made in parallel to the Secretary of State for Health and Social Care to suspend the proceedings of the Inquiry under section 13 of the Act. Section 13 has recently been considered by the Supreme Court in the case of
In re JR 222 [2024] 1 WLR 4877 where, at paragraph 62, Lord Stephens observed that “
not only is there no prohibition in the Act on an inquiry proceeding if there are criminal proceedings but the Act expressly envisages that in the exercise of discretion an inquiry can continue if there are such proceedings.” Lord Stephens further added (judgment, paragraph 85) that it would be contrary to the statutory purpose of an inquiry (“
which is to address public concerns”) “
if an inquiry were to be suspended unless it was necessary to do so for one of the stated purposes”. The Supreme Court thus read section 13 as imposing a high bar (namely a strict test of necessity for one of the statutory reasons specified) before suspension of a public inquiry by the minister would be appropriate, and considered that the mere fact of parallel criminal proceedings would not, without more, be sufficient to satisfy this hurdle.
95*
(
*95 A fortiori, it might be thought, in the present case where there are no parallel criminal proceedings but an undetermined application to the CCRC.)
The exercise of the power in section 13 is a matter for the Secretary of State (subject to a mandatory duty of consultation with the Chair), but the nature of that power (as construed by the Supreme Court) may be relevant to the Chair’s consideration of the request to pause the Inquiry under section 17(3)of the Act.
92.Section 17 contains no express power to “pause” an inquiry, but provides that the procedure and conduct of an inquiry “
are to be such as the chairman of the inquiry may direct” (section 17(1)) and that “
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 17(3)). It may be arguable that section 17 empowers a chair to “pause” an inquiry where it would be unfair to continue.
93.Having regard to both sections 13 and 17, CQC suggests that:
a. Halting an inquiry is principally a matter for the minister under section 13 (which expressly provides for suspension).
b. The minister’s powers under section 13 are highly circumscribed and can only be exercised, following consultation with the chair, where it is
necessary for one of the statutory purposes.
c. That a ministerial decision to suspend is subject to such a high bar suggests that a similar decision by an inquiry chair should be similarly constrained.
d. If the fact that parallel investigations are ongoing does not, without more, require a minister to suspend an inquiry, it follows that the mere fact of parallel proceedings would not, without more, require the chair to do so on grounds of fairness.
e. Assuming that section 17 does empower the Chair to “pause” the Inquiry, this would require the Chair to consider whether it would be fair to all the participants in the Inquiry to suspend it for an indefinite period pending a decision by the CCRC as to whether the case should be referred to the Court of Appeal, in circumstances where (as things stand) there is a conviction and matters have proceeded no further than a reference to the CCRC.
96*
(
96* Section 17(3) refers also to the need to avoid any unnecessary cost. However, section 17(3) requires the chair to have regard to this factor, rather than requiring the chair to act so as to avoid unnecessary cost. In other words, it is a relevant consideration, but no more.)