Da Silva & Ors, R (on the application of) v Secretary of State for the Home Department & Anor

Under the Inquiries Act 2005, the Minister has discretion whether to appoint additional inquiry-panel members. The statutory matters expressly requiring attention include the panel’s expertise, impartiality and, where a multi-member panel is proposed, balance. The Act does not require a panel to be appointed in order to promote public confidence. The Minister may consider delay, the interests of all core participants and the inquiry’s practical programme, and determines the weight given to those matters subject only to public-law rationality. A panel conducting fact-finding must operate as an entity and cannot simply divide the evidence between members. A continuing equality duty does not require a fresh assessment where no material development has occurred since the original decision.

The claimants, core participants in the Undercover Policing Inquiry, sought judicial review of the Secretary of State’s decision not to appoint additional panel members. Permission had previously been refused on the papers. The claim was based principally on alleged failure to consider public confidence, meaningful participation, expertise concerning discrimination and the public sector equality duty under section 149 of the Equality Act 2010.

The decision under challenge was communicated on 2 March 2018 and supplemented on 29 March. The central issue was whether subsequent representations and evidence constituted material developments requiring the Secretary of State to reconsider that decision and undertake a fresh equality assessment.

1. The application was refused. The letters of 29 March and 21 June 2018 did not constitute fresh decisions. The relevant question was whether material developments after the March decision required reconsideration.
2. The Inquiries Act 2005 does not require the Minister to appoint a panel having regard to public confidence. Sections 8 and 9 identify the principal express statutory requirements: necessary expertise, balance where a panel includes members other than the chair, and impartiality. Beyond those matters, it was for the Secretary of State to identify relevant considerations and determine their weight, subject to Wednesbury review.
3. The Secretary of State was entitled to consider the wide range of interests represented in the Inquiry, the expertise and impartiality of the chair, public confidence viewed in that wider context, and the delay that additional appointments might cause. The decision-maker was not required to assess public confidence solely through the perspective of particular core participants.
4. The court rejected the argument that a fact-finding panel could accelerate the Inquiry by allocating different evidence to individual members. A panel member is a full member of the panel, and the fact-finding exercise could not be divided so that members considered evidence in isolation.
5. The Secretary of State had considered the claimants’ concerns about expertise, diversity and public confidence. The evidence did not demonstrate that the chair had a closed mind or that the earlier decision contained a material error concerning his approach to restriction orders.
6. The public sector equality duty under section 149 of the Equality Act 2010 was continuing. However, the Secretary of State had lawfully assessed the impact of appointing a panel, including the possible effects of delay on core participants with protected characteristics. Because no material developments had occurred, a further PSED exercise was unnecessary.

This was a renewed first-instance application for permission to seek judicial review. Permission had been refused on the papers by Andrew Baker J on 13 September 2018. The High Court (Administrative Court) refused the renewed application.