Public inquiries – be careful what you wish for

3 April 2013

Whenever a scandal erupts or allegations are made about major errors by public bodies, politicians and the media demand an inquiry, invariably in public and usually led by a judge.

Be careful what you wish for was central theme of a fascinating seminar about public inquiries held at the Institute for Government just before Easter—which featured Lord Butler, who chaired the privy counsellor inquiry into intelligence about weapons of mass destruction ahead of the Iraq war; Lord Bichard, who ran the inquiry into child protection procedures following the Soham murders in 2002; and Rowena Collins Rice, currently Director-General of the Attorney General’s Department who was secretary to the Leveson inquiry. And I served as a member of the privy counsellor inquiry into British Government involvement in the alleged mistreatment of detainees held overseas.

The paramount lesson is the need for clarity from the start about what an inquiry is supposed to achieve. Most inquiries are established in a hurry by prime ministers as a way out of acute political and media pressures. That can lead to muddle over terms of reference as well as methods and personnel.

There is often a preference for judges to lead inquiries given their independence and experience of hearing evidence. But this can prolong hearings and not always lead to clear conclusions. The use of QCs as counsel to inquiries is also controversial. Their use was rejected by the Chilcot inquiry into the Iraq war and they were not adopted by the private inquiry by Lord Butler. However, Lord Bichard strongly backed the use of a QC as an experienced questioner allowing him to listen to the evidence.

Of course, no inquiry is exactly like another. But there are some broad principles:

1. A full inquiry can only really work when police investigations and any criminal proceedings have been completed. The Bichard inquiry into the Soham murders did not start until the trial was over. However, continuing police inquiries into a series of allegations meant that the Detainee inquiry had to be wound down, and severely limited what the Leveson inquiry could reveal and discuss. This is a big problem when a central objective is to find out what happened.

2. Inquiries can, in Lord Butler’s words, be ‘a lightening conductor for the anger of the public, and particularly of those who have been bereaved or suffered personally’. Ultimately, despite its excessive length and cost, the Saville inquiry into Bloody Sunday achieved that, not least because of David Cameron’s full acceptance of the report. Lord Howe of Aberavon, who was one of the barristers at the inquiry into the Aberfan disaster of 1966, stressed at the IfG event how important it was that the main lawyers were Welsh and could therefore establish a rapport with the families of the dead children. Lord Bichard revealed how much time he and his team spent talking to the family of the victims, as well as to other affected parties. This ensured that they supported the often painful process of the inquiry. That is much harder, if not impossible, for inquiries into intelligence, most of which have to be carried out in secret.

3. Inquiries need to be strictly disciplined about the number of recommendations they make. Otherwise their impact can easily be dissipated. The Francis inquiry into the appalling abuses at Mid-Staffs Hospital made 290 recommendations, far too many. Allied to that is excessive length of reports, a flaw of judge/lawyer led inquiries like Francis, Saville, and Leveson. The Scott report into the arms for Iraq affair was not only long but muddled, a warning on how not to conduct an inquiry. Lord Bichard brought in a scriptwriter to refine the drafts of his report, an example which some judges might follow.

After all the effort of producing, delivering and publishing a report, all inquiries then face the dilemma of what next? Lord Bichard followed up his report to check on the adoption of his recommendations, while Lord Leveson has acted like a judge after a case and has said nothing further about his findings. In most cases, the inquiry team has no further role as the Government decides how many of the recommendations it will accept or disregard.

Above all, the discussion showed the need for lessons learnt exercises. At present, inquiries are set up from scratch so it is often a matter of chance whether a new panel and secretariat learns from previous ones about what works and what doesn’t. We need a guide to effective public inquiries.

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