26 July 2016

Earlier this month, the Institute for Government held an event to explore the role of public inquiries in helping us to understand what has gone wrong in government and how future mistakes can be avoided. Peter Riddell discusses what we learned.  

Public inquiries rarely satisfy everyone. This is less because of the length of inquiries or their cost. Rather, it is about differences of expectation about what they are intended to do.

That was one of the main conclusions of a recent seminar held at the Institute for Government in the aftermath of the Chilcot report on the UK’s role in the Iraq War. The participants were Lord Evans of Weardale, former Director General of the Security Service MI5; Sir Paul Jenkins, former Treasury Solicitor who advised governments on inquiries; and Tony Wright, now Professor of Government and Public Policy at UCL, who, in his days as a MP before 2010, chaired the Public Administration Select Committee, which looked at the role of inquiries. I was also on the panel as a former member of the privy counsellor inquiry into the British Government’s involvement in the alleged mistreatment of detainees held overseas.

Most inquiries are, as Sir Paul argued, ‘quick political fixes’ in response to urgent pressures, like the Hutton report after the death of Dr David Kelly or the Leveson inquiry after the revelations about the hacking of Milly Dowler’s phone. After the initial announcement, inquiries have several purposes. They serve as political theatre with high-profile witnesses, while occasionally finding out something new and providing lessons which can be learnt in future.

While it is easy to point to costly, inconclusive inquiries, the panel listed some successes. Lord Evans highlighted the Denning report after the Profumo affair in 1963, which was completed quickly and was ‘short, racy and readable’, though Sir Paul doubted whether any government nowadays could get away with such a secretive report and unfair process. Other pointed to the Macpherson report about Stephen Lawrence’s murder and the police response; Lord Phillips’ inquiry into BSE; and Lord Bichard’s report after the Soham murders. All identified structural flaws, though as Sir Paul noted, that does not stop similar mistakes being made in the future. He cited the similar analysis, even wording, to the Chilcot report in the Franks report of early 1983 on the intelligence background to the Falklands conflict and the Butler report of 2004 about the use of intelligence in the run-up to the Iraq War – though Lord Evans pointed to the gains from the creation of the National Security Council in 2010. Failures also tragically keep recurring in the co-ordination of local services dealing with children.

In general, Sir Paul suggested, the narrower the focus, the easier an inquiry is to do. But this is not always true. The Saville inquiry was concerned with the events in a very short period, on one Sunday in a small area. Whether that required 12 years, and vast cost is debatable, but it did create what Lord Butler has previously called ‘a lightning rod for the anger of the public and particularly of those who have been bereaved or suffered personally’.

By contrast, one of the problems with Chilcot was that its terms of reference covered seven years, from 2001 to 2009. Fears were expressed by the panel about the range of allegations intended to be covered by Dame Lowell Goddard’s inquiry into allegations of historic child abuse.

The risk with wide ranging inquiries is that the victims, the survivors and their families are unlikely to be satisfied. That goes back to expectations. There are grand hopes at a launch, which then frequently meet with disappointment. It is hard, if not impossible, to fulfill ‘truth and reconciliation’ objectives that may be explicit or implicit in an inquiry’s terms of reference.

As Professor Wright, who voted against the Iraq War noted, those who wanted the Chilcot report to condemn the war as illegal, and denounce Tony Blair as a war criminal were bound to be disappointed. Chilcot did not name ‘guilty men’.

The panel agreed that the time taken for inquiries could work against drawing appropriate and useful lessons. If very public mistakes have been made, then lessons are sometimes learned immediately and errors are corrected before an inquiry is set up, or, at least, before it reports. Lord Evans said, in relation to Chilcot, that there was little point in having a report so long after the events being examined, since most organisations would have changed. So organisations then had to try and reconstruct what they had done. In his view, there were benefits in doing something quickly rather than 15 years after an event. And, he noted, inquiries often create large costs for the organisation being investigated, diverting resources from operations.

How can the process of inquiries be improved? Professor Wright noted that his committee had recommended a period of consultation after the announcement of an inquiry to discuss terms of reference. The panel debated the impact of the use of lawyers and Sir Paul distinguished between legal logic and political logic, the latter being utterly irrational to a lawyer. But lawyers who can’t do the politics are disastrous, he said, by which he meant that lawyers involved in inquiries should be more attuned to what outcomes would be politically deliverable.

Professor Wright believed Parliament should be more involved, both in setting up commissions of inquiry itself and in following up on reports like Chilcot to examine the specific conduct of ministers and officials.

Overall, however, the panel agreed that following certain kinds of events inquiries were not only inevitable but also desirable. Professor Wright celebrated them as an internationally admired part of the British system of accountability.

The seminar followed one held more than three years ago, which stressed the need for ‘lessons learnt’ exercises to follow up a report’s recommendations, and also for effective, and publicly available, guidance for carrying out inquiries to help those involved in new ones. We are still waiting. Official guidance does exist but it is not public – and has sometimes not even been known to chairs of inquiries when they start their work – though the Cabinet Office is working on a revision.

Comments

I was involved (as an advocate) in the Fennell, Hidden, Uff and Cullen Inquiries, which investigated (respectively) the Kings Cross Underground station fire and the Clapham Junction, Southall and Ladbroke Grove railway accidents.

All four were essentially political responses to (media-heightened) public concern at shortcomings in the arrangements for assuring railway safety which had been revealed by multi-fatality events. The normal procedures for investigating railway accidents (conducted by the industry's safety regulator) had to be set aside because the effectiveness of the regulatory system itself was one of the issues called into question.

The inquiries involved large teams of lawyers, lasted for months, and were hugely expensive. They provided the bereaved and injured and other critics of the industry with a public platform from which to denounce its managers, which may have had some cathartic value. But in the event their conclusions largely endorsed the technical findings and recommendations of the internal investigations which had been conducted within the industry in the immediate aftermath of the events which gave rise to them. They probably served a political purpose in temporarily diverting media criticism away from the ministers responsible for the railways, but it is debatable whether any greater insight they provided into the nature of the safety challenges facing the railways was commensurate with the cost of staging them.

One of the consequences of the Cullen inquiry report was the organisational separation of the accident investigation function from the other responsibilities of the safety regulator, thus removing the potential conflict of interest. All subsequent (and mercifully less catastrophic) accidents have been the subject of technical investigations conducted by the specialist body which now exists for this purpose, complemented by inquests which can and do address any wider public policy issues. There appears to be a universal consensus that this provides a swifter, simpler and more cost-effective way of ensuring that the facts are established and relevant lessons learned.

Whether this experience has any relevance to other areas of public policy, I am not qualified to say. It may be the relatively self-contained domain of railway safety assurance lends itself to a bespoke investigatory regime more conveniently than the wider issues of public policy raised by concerns about (e.g.) the culture of policing or the evidential and legal basis for declarations of war. But, for what it is worth, I offer it as an example of one set of circumstances in which the adversarial character of lawyer-led public inquiries has not proved to be a particularly effective and appropriate route to ascertaining the truth and ensuring that appropriate conclusions are drawn, and a better alternative has been found.

One specific benefit of public inquiries not often appreciated is to free up individuals involved in similar situations to give others the benefit of their experience without breaching the confidentiality applicable to their employment.

I recently published Procuring Successful Mega-Projects, a ‘lessons learned’ from my former career as a government employee directing major projects: public inquiry reports from various countries provided many apposite examples where it would have been illegal or imprudent to detail my own experience.

I would particularly commend the Laidlaw Inquiry into the Department of Transport’s handling of the competition for the InterCity West Coast passenger train franchise in 2012. It was completed within 3 months and the detailed exposition of events and especially of the decision-making processes was exemplary in its clarity and focus.

Do readers understand the reasons why families, individuals, clinicians and lawyers affected by valproate birth defects want and need a Judge led Public Inquiry?

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