Are they fulfilling the role for which they were initially created? Does the modern design – if there is one – of an inquiry work? What of the chair’s role – how crucial is it?
Since the Inquiries Act 2005 there have been about a dozen public inquiries completed and reported. There are many more now which have either started or are in the pipeline, including the:
- Grenfell Tower Inquiry;
- Inquiry into the contaminated blood scandal;
- Independent Inquiry into Child Sexual Abuse;
- Undercover Policing Inquiry; and
- Independent inquiry into rogue breast surgeon Mr Ian Paterson.
In short we have been asked to consider the efficacy of public inquiries which is a topic far too large to address here fully, but we hope to raise a few points of interest for further discussion.
A public inquiry’s primary purpose
It might sensibly be asked: what is the primary purpose of a public inquiry? An inquiry serves many purposes which will include an exploration of the circumstances leading up to the disaster which took place, an opportunity for the victims of such a disaster to tell their story in public and for those in positions of authority to be held to account etc, but the primary purpose will often be described when an inquiry is first announced as – ‘to ensure this can never happen again’.
While there is often a focus upon the setting up of an inquiry, the appointment of the chair and panel, the appointment of counsel to the inquiry team, the establishment of terms of reference etc, some might query whether there is a similar focus on ensuring that the recommendations of such an inquiry, hard fought for and often very expensively delivered, are followed through and acted upon. Does such an inquiry really deliver the right product ie a genuine assurance, objectively measured that by reason of legislative or institutional changes made, something similar will not, or at least is very much less likely to, happen again?
The current government seems to be keen to use the public inquiry as a tool both to assuage public anger about issues of serious concern and, hopefully, as an investigatory tool so that lessons can be learnt and similar events avoided in the future.
However, quick though we seem to be to establish an inquiry, are we any good at learning the lessons which are identified as needing correction? ‘We seem to be so bad in learning the lessons of these inquiries,’ said Lord Bichard, Chairman of the Soham Inquiry. ‘If the success of public inquiries is judged in terms of changes in regulations and legislation, then we cannot often claim to achieve that,’ said Dame Janet Smith, Chair of the Shipman Inquiry. As Sir Robert Francis, Chair of the Mid Staffordshire NHS Foundation Trust Public Inquiry, put it in his executive summary: ‘The experience of many previous inquiries is that, following the initial courtesy of a welcome and an indication that its recommendations will be accepted or viewed favourably, progress in implementation becomes slow or non-existent.’
The role of chair
Most sizeable public inquiries are now governed by the Inquiries Act 2005 (the Act), which provides certain key powers and structures to any modern public inquiry. The Act is supplemented by the Inquiry Rules 2006 (the Rules). The minister under advice from civil servants will appoint the chair and, as we have seen from past appointments, the prior scrutiny and consideration of the appointment can sometimes be less than rigorous. However, what sort of beast is the minister actually choosing? The reality is that the chair’s role changes at least three times during the course of an inquiry.
The chair acts with counsel to the inquiry (CTTI) as a designer/architect prior to the terms of reference (ToR) being settled, discussing those with the sponsoring government department, (sometimes) undertaking public consultation and discussing the terms with the minister and taking a critical role in the design of the protocols to be followed during the inquiry itself. The chair oversees the set-up of the inquiry, how the public will be involved, will they be mere observers or take a direct role by way of topic centred public seminars, the venue, advanced access to materials, and disclosure of material. These details are critical to the ultimate success of the inquiry. But are the experience and the pitfalls of this critical part of the process passed on from one inquiry chair to another?
In stage 2 the chair adopts the quasi-judicial role of taking evidence, deciding what can be asked, by whom and of whom; ruling on legal submissions as to scope, what falls within and without the ToR, deciding who should be criticised and what the standard of evidence required should be before such criticisms can be made. This is a role which, some might feel an experienced judge is well suited to, being the bread and butter of judicial life.
This is the recommendation stage and perhaps the most important of all. The recommendations must, to be effective, flow clearly from the evidence and have a solid evidential foundation. But also they must be practicable, workable and the results measurable. Some have queried whether the chair, who will often be a judge, is necessarily the right person to design forward-thinking and working recommendations. The chair has to remember that once his/her inquiry is closed his/her power is vitiated and unless the follow-up is woven into the recommendations themselves, there may be no practical way of bringing pressure to bear if the recommendations are not followed.
The problem of enforcement and creeping scope
Dr Karl Mackie CBE of the Centre for Effective Dispute Resolution (CEDR) suggested in 2012 that the third stage might better be devolved to a separate chair or panel with experience (Public Inquiries, Proposals for a Design Rethink, CEDR, December 2012). He argued that perhaps judges are not best suited to the recommendation stage: ‘Equally, it may be argued that the process of public exposure and examination of witnesses is well attuned to situations where one is looking historically at blame and contribution. It may not serve so well the purpose of articulating recommendations for change or practical futures, nor can one argue judges (nor for that matter many other professions) are particularly trained or experienced in such a mode of approach. Yet the ‘futures’ role of the inquiry process is arguably of critical significance in the bulk of inquiries.’
This might not, however, fairly take into account the fact that judges regularly have to make decisions as to the future conduct of the lives and behaviour of others, including the misbehaviour of large institutions and how such behaviour should be punished and/or corrected.
In the Mid Staffs Inquiry Sir Robert Francis QC dealt with the problem of enforcement of recommendations as far as it is possible to do so, by making his first recommendation that each involved institution should announce what recommendations it accepted as applying to them and secondly to publish not less than once a year a report setting out its progress against planned actions. This was followed up by requesting the Health Select Committee to incorporate into its reviews of each institution an examination of the decisions and actions they had each taken in compliance with these recommendations (a request the Health Select Committee adopted).
A further pitfall for the chair of any large inquiry is the inevitability of requests to widen the scope of the inquiry. To bring any inquiry to a timely and successful conclusion (meaning within a time frame which is effective in helping to avoid the repetition of the damage addressed) a chairperson must ensure that the inquiry is not diverted from its proper course. The authors respectfully suggest that caution needs to be exercised to avoid being diverted by the inevitable multiple requests to widen the inquiry, but instead to choose a few indicative examples of specific failings, broad enough in scope to capture the totality of the behaviour, and drill down into them because they will sufficiently reveal any patterns/general issues to be addressed. Whilst this may mean that not every incident or victim is referred to, it will ensure that the lessons to be learnt are addressed and it will mean that time is managed effectively.
This does, however, underline the importance of getting the original ToR right and ensuring the public participate as much as possible. The public consultation on the ToR of the Grenfell Tower Inquiry was a welcome and sensible device.
So the chair, whether a judge or not, has to be rigorous, focused, fair, and cognisant of the public anxiety, pain and disquiet as well as the importance of public involvement but still be willing to make hard decisions on scope and excising that which is not strictly necessary. Finally s/he has to be prescient as to how the recommendations may be formulated to ensure their continued momentum long after the chair’s public power has waned.
Learning from previous inquiries
Public inquiries are all about identifying and learning from the previous mistakes by institutions and ensuring those mistakes are not repeated. But the one public institution which has a very limited learning base, and no prior training for the team, is the public inquiry system itself. Time after time chairs are appointed who have never run a public inquiry and the CTTI team will often be drawn from those known to the chair. The solicitor to the inquiry may well be the most experienced member of the team but whether that experience is given as much weight as it should be will depend to some extent on the will of the chair.
The Cabinet Office has now issued draft guidance (undated) which provides generic information, it is stamped with a ‘draft’ watermark so the authors were not sure of its current status (and don’t confuse it with the Traffic Commissioner’s guidance which helpfully appears on the Cabinet Office website under the heading ‘A Guide to Public Inquiries’). The CEDR has also produced some guidance which can be found here.
The House of Lords Select Committee on the Inquiries Act 2005 made recommendations and received its response from government in 2014. The Committee recommended that the government should make resources available to create a unit within Her Majesty’s Courts and Tribunals Service which would be responsible for all the practical details of setting up an inquiry, whether statutory or non-statutory, including but not limited to assistance with premises, infrastructure, IT, procurement and staffing. The unit should work to the chair and secretary of the inquiry (Recommendation 12).
The government rejected that recommendation but did accept Recommendation 13: ‘The Committee further recommends that the inquiries unit should: ensure that on the conclusion of an inquiry the secretary delivers a full lessons learned paper from which best practice can be distilled and continuously updated.’
The government still resists calls to build a cadre of inquiry specialists with a proven track record in running and delivering a successful inquiry. Some might query whether a ‘lessons learned document’, even if coupled with the Cabinet Office guidance, can ever match the value of an experienced team helping to design and advise a ‘virgin’ inquiry team. The current spate of inquiries will hopefully serve an important public need but their ultimate worth can only be assessed in light of their recommendations, the institutional and/or legislative changes brought about as a result and their effectiveness in lessening the chance of disaster striking again.
Contributors Tom Kark QC and Polly Dyer are barristers at QEB Hollis Whiteman Chambers