He draws a parallel between Lord Justice Scott's inquiry and that of Lord Denning into the Profumo affair. These two inquiries are very different. Lord Denning's was held in secret, and none of the witnesses could know of the things said by any other witness. The Scott inquiry is open to the public, and reports of it are carried by the media. Witnesses should know, or be able to find out, if allegations have been made against them. To take this further, and allow witnesses to be legally represented and to have other witnesses cross-examined, would change the nature of the inquiry.
Lord Howe, in his criticism of the procedure of the Scott inquiry, relies heavily on the recommendations of the Royal Commission on Tribunals of Inquiry. That Commission was concerned only with inquiries held under the Tribunals of Inquiry Act 1921. By the Government's choice, the Scott inquiry is not such an inquiry. The cardinal principles that Lord Howe relies on were never enacted, but later inquiries have adopted them. It is a matter for those carrying out the inquiry to decide whether to follow these 'Salmon principles'. Lord Justice Scott has chosen not to do so, as is his privilege.
The 'Salmon principles' are not uncontroversial. In 1982, the Crown Agents Tribunal (the last inquiry held under the 1921 Act) was concerned that 'although the nature of the Inquiry was that of an inquisition intended to dig deep and establish facts, and not that of a trial, the Royal Commission's recommendations introduced elements of adversary litigation'. More recently, the Ashworth Hospital inquiry has suggested that the practice of notifying witnesses of allegations made against them and of the supporting evidence (the so-called 'Salmon letters') had led to legal representatives interpreting such letters 'with a technicality and precision appropriate enough for proceedings in a court of law dealing with a criminal indictment or a set of pleadings in a Chancery action'.
Lord Howe seems not to recognise that the form chosen for the Scott inquiry by the Government makes strict adherence to the 'Salmon principles' inappropriate. It is too late now to complain.
Department of Law
University of Bristol