Challenging the Commission on Race and Ethnic Disparities

The recent appointment of Dr Tony Sewell as head of the Commission on Race and Ethnic Disparities has been cause for concern for racial justice campaigners. In an article in Prospect magazine, Dr Sewell stated that he believed institutional racism has given black children “the discourse of the victim” and he has recently had to apologise for making “wrong and offensive” comments about gay men.

This concern has led the Monitoring Group, a grassroots anti-racist group, to instruct Matthew Gold & Co to challenge Dr Sewell’s appointment. While the remedy for institutional racism does not lie in public law, the Director of the Monitoring Group makes the important point that the struggles and gains in race relations should not be "undermined, diminished or eradicated" by this Commission (Suresh Grover, the director of the Monitoring Group).

This article will examine the use of non-statutory inquiries and reports commissioned by the Government and what methods of accountability in public law there are for those seeking to challenge the independence of any non-statutory inquiry.

The role of public law becomes particularly pertinent where the Government has launched its purportedly independent panel to examine judicial review and talk of a Covid-19 inquiry loom over the Government.

Race reports

In the last ten years, a string of Prime Ministers have repeatedly promised and attempted to tackle racism in Britain. What appears to be the preferred method of tackling racism in No 10 is ordering reviews and reports:

• David Cameron asked David Lammy MP to lead a review of the Criminal Justice System in England in Wales;
• Theresa May enumerated it as one of her  “burning injustices” which led the set up the Race Disparity Audit to examine how people of different backgrounds are treated across areas including health, education, employment and, once again, the criminal justice system; and,
• Now Boris Johnson has set out to reinvent the wheel and requested the head of his No 10 policy unit, Munira Mirza, to set up the new commission on racial inequalities.

This task, now spearheaded by Dr Sewell, comes at a time when there are no fewer than 200 unimplemented recommendations made by reports ordered by Government into such pressing subjects as deaths in police custody,  workplace discrimination, and the Windrush scandal.  Even more recently, the Government conducted a review on the impact of Covid-19 on black and other ethnic minority groups.

Consequently, there is little room for doubt that race has an impact on how minorities, particularly black people, interact with state and society. This made it particularly concerning when Munira Mirza was announced to be in charge of organising a new commission on race. Previously, Munira Mirza has stated that there is a “culture of grievance” surrounding racial inequality. Her views, and those of the now-head of the Commission, may lead campaigners gritting their teeth to engage with yet another report to ask the question: what means of accountability are available to ensure an inquiry's independence and that any further recommendations are properly implemented?

Public inquiries

First, it is important to establish that inquiries or commissions set up by the Government broadly take two forms: they are either statutory or non-statutory. Statutory inquiries are inquiries set up under the Inquiries Act 2005. This empowers Ministers to set up an inquiry into particular events that have, may have or will have “public concern” (s.1 Inquiries Act 2005).

Any inquiry set up under the Inquiries Act 2005 must comply with the statutory scheme set out within the Inquiries Act 2005 and the Inquiry Rules 2006/1838. A recent example is the Independent Inquiry into Child Sexual Abuse established by the Home Secretary in 2015. Inquiries set up under the Inquiries Act 2005 enjoy a range of procedural safeguards and powers, including the power to compel witnesses to attend to give evidence. This can be an important tool to ensure accountability is obtained and that victims of the events feel that they are heard. For example, the power to compel witnesses in the Grenfell Tower Inquiry has been instrumental in holding the building company to account for their role in the unsafe construction of Grenfell Tower.

However, Ministers remain entitled to create non-statutory inquiries, outside of the Inquiries Act 2005. The Commission on Race and Ethnic Disparities is one such non-statutory inquiry.

In a general sense, non-statutory inquiries have no specific or regimented scheme to follow. They are often structured by their Terms of Reference which are either set by the appointing Minister or the appointed head of the inquiry or commission.

Non-statutory inquiries do not have the statutory powers to compel witnesses to attend. In the context of the Commission on Race and Ethnic Disparities, this is not necessarily a negative deficiency: the power to compel witnesses and to obtain documents may be of little relevance to a inquiry that emphasises in its Terms of Reference, as in the Commission on Race and Ethnic Disparities, that it will consider “detailed quantitative data and qualitative evidence” (Terms of Reference, §1). 

However, an emphasis on an “evidenced-based” approach, raises questions: whose evidence, what can be achieved without listening to the stories of microaggressions, hiring practices, or school exclusions that may not be captured clearly in data?

Similarly, there is no clear role or lack of role for Core Participants.  Core Participants are ordinarily individuals or groups who will play a key role during an inquiry process; for example, bereaved families are Core Participants in the Grenfell Tower inquiry, permitting them to ask questions and make submissions to the inquiry. Currently it is unclear whether civil society groups will be granted Core Participant status in order to ensure the evidence base is as broad and robust as possible

At this early stage, it is difficult to envisage the need or lack of need for witnesses or Core Participants. What may be of concern is the disclosure of documents for a non-statutory inquiry. The focus of the Commission appears to be heavily based on "evidence" and "data". Accessing the information the Commission is considering and relying on may be difficult for campaigners prior to publication. For statutory inquiries, the Inquiries Act 2005 permits the imposition of restrictions on disclosure of documents and such inquiries are not considered a "public authority" for the purposes of the Freedom of Information Act 2000. However, there is an obligation under section 18 Inquiries Act 2005 on the Chairperson to “take such steps as he considers reasonable to secure that members of the public are able to attend the inquiry or to obtain or view a record of evidence and documents given, produced or provided to the inquiry or inquiry panel”.

Even drawing a parallel to statutory inquiries, the head of the Commission has considerable power, the limits of which are not clearly defined.

Amenable to judicial review?

While statutory inquiries are amenable to judicial review, it does not necessarily follow that non-statutory inquiries are. In some cases, non-statutory inquiries are simply  “tasked by the Secretary of State to do a piece of work”  and do not attract the safeguard of judicial review. This will ultimately depend on the type of the work and some factors that were outlined in R (Clarke) v Holliday [2019] EWHC 3596 (Admin).

Clarke concerned a non-statutory inquiry set up by Secretary of State for Business, Energy and Industrial Strategy to investigate the circumstances that led to the award by the Nuclear Decommissioning Authority to the Cavendish Fluor Partnership of a contract for the decommissioning of the Magnox nuclear sites and the subsequent termination of that contract. The Claimants in Clarke sought to challenge by way of judicial review, certain decisions made by the Chairperson of the inquiry. They argued that the Chairperson’s conduct of the inquiry was unlawful.

While the Claimants were unsuccessful in their claim for other reasons, the Defendant had initially raised the issue of justiciability in relation to the challenge. The Defendant argued that the claims were non-judiciable as the Chairperson was not a public body, he was a private individual and a businessman “tasked by the Secretary of State to do a piece of work” (§84).

The High Court noted that the points in favour of non-justiciability included the fact that the Chairperson had no powers of “compulsion” as are present in statutory inquiries (s.21 Inquiries Act 2005).

The Claimants argued that the fact that the inquiry was non-statutory does not make a difference and that the test of justiciability in this context is whether the decision-maker is exercising a public function (§86). Whether a decision-maker is exercising a public function (outside of the context of the Human Rights Act 1998) stems from R v Panel on Take-overs and Mergers ex parte Datafin Plc [1987] QB 815 (CA) which provided that a body would be amenable to judicial review where any body performed or operated “as an integral part of a system which has a public law character, is supported by public law in that public law sanctions are applied if its edicts are ignored and performs what might be described as public law functions” (§836C). Any body, it was held, would be under “an obligation to act judicially, but whose source of power was not simply the consent of those over whom it exercised that power” (§850F).

It was argued that the inquiry in Clarke met this test as “[i]t was set up after a public procurement process that went wrong, involving a substantial expenditure of public money. The Inquiry is being conducted for the benefit of the public to determine what happened, to establish lessons learned and to make recommendations for the future. It is not essential for the Inquiry to have been sitting in public in order for Mr Holliday to be carrying out a public function.” (§86).

Ultimately, the Judge made a finding of fact that the Chairperson was amenable to judicial review. However, he noted that both cases highlighted by the Claimants and the Defendant were distinguishable. It is worth noting that, in particular, Datafin was distinguishable because the Panel in question was: "…operating as an integral part of a governmental framework for the regulation of financial activity in the City of London, was supported by a periphery of statutory powers and penalties, and was under a duty in exercising what amounted to public powers to act judicially…" (§89).

Equally, Lord Denning MR in In Re Pergamon Press Ltd [1971] Ch 388 held at §399F that that the significance of a non-statutory inquiry’s task should not be minimised: “They have to make a report which may have wide repercussions. They may, if they think fit, make findings of fact which are very damaging to those whom they name. They may accuse some; they may condemn others; they may ruin reputations or careers. Their report may lead to judicial proceedings. It may expose persons to criminal prosecutions or to civil actions.”  Lord Denning MR was “clear” that a non-statutory inquiry “must act fairly.”

It is not clear from the Terms of Reference or any other announcement that Commission on Race and Ethnic Disparity will be amenable to judicial review. In particular, it does not appear to have any public law sanction powers. Its aim is not to put the UK’s race record on trial. Rather, its reporting requirements under the Terms of Reference are to “inform a national conversation about race” (Terms of Reference, §3).

What is clear, however, is that as a decision of a Minister, the appointment of the head and the remainder of the panel, will be amenable to judicial review. Therefore, campaigners may overcome any hurdle of justiciability concerning a non-statutory inquiry with respect to the appointment of its head and panel members.

Methods of accountability

Considering, Lord Denning MR’s comments that it was “clear” that a non-statutory inquiry “must act fairly”, what is fair, particularly in the context of an inquiry, will include whether the inquiry (and its head) are “independent” or not. This will apply the test set out in Porter v Magill [2002] 2 AC 359, namely: “whether the fair-minded observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased” (§103).

Indeed, in 2012, the Cabinet Office published a draft set of best practice guidance for departments that instigate both statutory and non-statutory inquiries. This guidance was not intended to be binding, but emphasises some important points, including that on the Inquiry Team, “The impartiality of the Chair should be beyond doubt”.

Equally, any independent expert advisers who are appointed to an inquiry, will likely be “central” to any assessment of the independence of an inquiry (see, by analogy, concerning inquests R (Wright) v Secretary of State for the Home Department [2001] EWHC Admin 520 and R (Stanley) v HM Coroner for Inner North London [2003] Inquest LR 38, at §§43-49).

A recent example is that of Lord Carlile, who was removed from his post as the Independent Reviewer of Prevent following a legal challenge by Rights Watch (UK). This was possible because, although it was not an inquiry instigated by a Minister, it was a statutory requirement in the Counter-Terrorism and Border Security Act 2019 to conduct an “independent” review of the Prevent strategy.

Therefore, it is likely that any appointment which raises concerns about independence would be amenable to judicial review. The principle issue is the lack of statutory footing, but it does not appear, in the context of the Ministerial appointment, to be an insurmountable hurdle.

Other concerns

An issue may arise with respect to time limits. Under the Inquiries Act 2005, the time limit for judicial review is abridged to 14 days after the day on which the applicant became aware of the decision (which under s.38 includes any decision made by the Minister in relation to an inquiry, or by a member of an inquiry panel), unless that time is extended by the court. This may mean that any challenge would be considered, by analogy, out of time, or not “prompt” within the meaning of the practice direction on judicial review.

Comment 

The reporting requirement of the Commission on Race and Ethnic Disparity is to “inform a national conversation about race”. Considering the seriousness of the matters at hand, including the increased awareness of police violence globally and the historic abuses that have been perpetrated against black people and other ethnic minorities, this is a glib statement.

The Terms of Reference will be little solace to ethnic minorities, particularly Black and Afro-Caribbean communities who have lived through the abhorrent racism so present in our society. Its Terms of Reference will undoubtedly be seen as narrow and ineffective, particularly its emphasis on “evidence” which implies that what communities have been saying for decades - that the UK has a race problem - is not true or substantiated. Moreover, there is a clear reticence to take meaningful steps to address this issue, for example, the abovementioned 200-plus recommendations that have not yet been implemented. Any number of these could have had a marked difference in the lives of ethnic minorities who have long been disproportionately represented in the criminal justice system, school exclusions and deaths in custody in the UK.

It will be important, to some degree, to follow the Commission in general and observe who it takes evidence from and what, if any, preliminary findings and recommendations it makes. The ultimate issue being whether it will produce another set of recommendations, with no mechanism to implement them.

Beyond this Commission, non-statutory inquiries are popular among this young Government. Questions linger over the judicial review inquiry announced last week and whether there will be any mechanisms for ensuring its independence, which has already been called into question. 

Equally, a public inquiry into Covid-19 and the Government’s handling of the pandemic is inevitable at this stage. Will this be a statutory inquiry or non-statutory? Given that the Hutton inquiry into the death of Dr Kelly was a non-statutory inquiry, there is precedent for inquiries of such public importance to avoid the hard edge of the statutory framework.