Leveson’s recommendation for a “genuinely independent and effective system of self-regulation” by the press has become the subject of 2 am deal stitched up by party leaders followed by a self-congratulatory vote in favour in the Commons.
Francis consists of the shock and awe of a near 2,000 page report with almost 2,000 pages of appendix, no effective executive summary, and an unbelievable 290 recommendations. You really do have to ask who, other than those most intimately involved, is going to read all of that?
Which makes the Institute for Government’s breakfast meeting next Wednesday on the challenges of running a public inquiry decidedly timely.
Public inquiries have many purposes. They include exposing the truth after a scandal or major controversy. Sometimes they are there to decide who is culpable. Sometimes – perhaps too often – to make recommendations. Quite often to provide a moment of genuine catharsis – if not “truth and reconciliation” then at least a healing of wounds, or a public acknowledgement of a real problem or injustice.
Inquiries can have some or all of these elements, the Saville inquiry into Bloody Sunday, and Scarman’s report on the 1981 Brixton riots being classics of that last category.
But they come at a cost – £195m for Saville. They can be judge run, or run by a member of the great and the good, often a former senior civil servant. Once the lawyers get involved, either as counsel to the inquiry or to witnesses or for those with an acknowledged interest, the costs can indeed become awesome, the time they take enormous.
Francis cost £13m, on top of the cost of his earlier 2010 initial report on Mid-Staffs - reporting on events that are now four to nine years old. The inquiry into the 250-plus murders by the serial killer Dr Harold Shipman cost £23m. Even the inquiry into the Soham murders run by Lord Bichard – not a judge, and run more cheaply – cost £10m. It is worth asking whether they are worth the time and money.
In some cases, there may well be alternatives. The recent – highly revealing and highly cathartic – report on Hillsborough was handled not by a public inquiry but by an independent panel. Lawyer free, much cheaper and quicker, and, in that case, chaired by a bishop.
And there is no doubt that public inquiries are surrounded by paradox and problems. On the one hand, organisations will often have sought to address the lessons that the inquiry finally enunciates years later – in the case of Francis, for example, the need for the NHS’s economic and quality regulators to talk to each other. On the other – here’s the paradox – inquiries can expose time and again the same problem which appears immune to any number of repeat recommendations and new procedures. From Maria Colwell in 1973 to the 2009 report on the death of Baby P, more than 20 reports into child abuse deaths have found the core problem to be a failure of communication between social workers, doctors, police, probation and others, either internally, externally, or both. Nothing seems to change.
In the heat of the “something must be done” moment when inquiries are set up, terms of reference can be badly drafted. The terms of the Waterhouse inquiry into child abuse in North Wales are now seen to have been too narrow. Two more inquiries have been spawned as a result.
And there is rarely any follow up. The judge, with their reputation not necessarily enhanced by the experience, delivers his or her report and is usually shorn of the ability or invitation to comment and remain engaged. What, for example, does Leveson think of what the politicians have done to his proposals?
There are exceptions. Bichard tried hard to follow up his Soham report, but was left frustrated. Adair Turner – though not for public inquiry but a policy one into pensions – set a notable precedent by effectively re-writing his own terms of reference, judging what he had been given to be unworkable, and then insisting that the inquiry team remained together for six months to help fight his recommendations through the inevitable political flak.
And then there is the need – requirement almost given that “something must be done” – for inquiries to make recommendations. Francis himself observed after publication that he was advised that a good public inquiry makes five or ten recommendations – advice that he and too many others ignored. Few display such laser like focus. Too many inquiries feel too recommendation rich, and some might do well to make none.
Lawyers tend instinctively to reach for the law as a solution. And while they may not like this comment, they can on occasion make lawyerly recommendations that do not fit with the real world. That charge can be levelled at some of the Francis proposals, and it is notable that health ministers have said they will respond to “the themes” of his report, not line by line to his recommendations.
Dame Janet Smith, as she then was, produced proposals in response to Shipman that would have put controls on the opiate drugs he used to kill his patients that would have been so draconian as to render pain relief for cancer and other disease in the community impossible. Alan Milburn, the health secretary of the day, had the courage to reject them.
Which highlights another paradox. That having set up a public inquiry ministers then find themselves under huge pressure to accept the recommendations. Yet those who run inquiries often wonder what they have in fact achieved.
In relation to some of her other recommendations around the professional regulation of doctors, Lady Justice Smith, as she now is, later lamented "If the success of public inquiries is judged in terms of changes in regulations and legislation then we cannot often claim to achieve that.
"Positive proposals can be very slow to emerge and even if they eventually do they are often diluted. It's an issue of great regret to me.”
The truth having been exposed, there can then often be an unsightly demand for heads to roll as the public and those most intimately and emotionally involved demand public hangings and floggings. The current unjustified hunt for Sir David Nicholson’s scalp over Mid-Staffordshire is a case in point.
Of course, there are occasions when clear culpability emerges – whether legal or not – and retrospective action should be taken. But there are equally many occasions where a reasonable person would look at the decisions people took in all the circumstances and think: “There but for the Grace of God ….”
Inquiries can, of course, be a real force for good. Almost no-one now remembers the detailed recommendations of the Ely inquiry into a mental hospital outside Cardiff or into South Ockendon which housed what were then known as the mentally handicapped. Both, however, added key impetus to the long process that eventually led to the closure of the Victorian asylums and the introduction of care in the community – which, for all its faults and failures has been a huge advance on what went before. It is an open question whether Francis will have that sort of lasting effect on the quality of care in acute hospitals.
Ahead of Wednesday, perhaps the last word should lie with Lady Justice Smith. “Looking at enquiries as a whole,” she said, “are they worth the time and money and resources? I would like to say yes, but I think it's often a close-run thing."