By Dr Karl Mackie CBE, Chief Executive of CEDR and author of Setting Up and Running a Public Inquiry: Guidance for Chairs & Commissioning Bodies
“Inquiries play a very important role in our constitutional arrangements. The independence and thoroughness of their work both contributes to public trust in those institutions which are subject to review by Inquiries and means that the public places a great deal of trust in the Inquiries themselves.”
The Rt. Hon Lord Woolf of Barnes
In thinking about the sort of issues that have triggered a public inquiry in recent years – major allegations of child abuse in British society, press regulation, hospital standards, the death on UK soil of a foreign national, allegations of abuse against detainees in wartime – it is easy to see the range and seriousness of such issues. [Note that the National Archives publishes an index of websites of public inquiries.] No single court process or act of Parliament can match the approach and issues explored in a public inquiry, which provides an understanding of what has taken place, from an inquisitorial as opposed to adversarial perspective; a public catharsis; as well as wide-ranging recommendations for future action. These recommendations are usually not only to prevent a recurrence of the issues that caused the public inquiry but to benefit society more widely. Given their critical importance as a device for ameliorating major public concern, the process by which public inquiries meet their goals should not be neglected.
Inquiring into inquiries
The Centre for Effective Dispute Resolution (CEDR) has been ‘inquiring into public inquiries’ since 2011. This has included researching the methodologies and effectiveness of public inquiries over the past 30 years in the UK and considering equivalent processes in other countries. We also conducted a survey of more than 2,000 citizens, which provided evidence of a widespread lack of confidence in the inquiry process and of the impoverished nature of its ‘public’ dimension.
As part of this work, we published a practical resource for those tasked with leading a public inquiry – Setting Up and Running a Public Inquiry: Guidance for Chairs & Commissioning Bodies – which covers process options that can be used to improve the system, from commencement of the inquiry through to delivery of recommendations, and was created by working with those who have been involved in inquiries including inquiry chairs, civil servants, counsel for the inquiry, and victims’ groups. We also held a symposium on the topic, in 2013, and gave evidence to the House of Lords Select Committee on the Inquiries Act 2005.
Design of the process
Our interest in this research lies in our interest in process design for conflict resolution and in the fact that the inquiry process is becoming something of a fundamental tool for social investigation. Calls for inquiries are becoming more frequent where society’s failings are more transparent and objectionable, raising concerns of public interest. Yet the process has received surprisingly little analysis in terms of its design – there is no established mechanism by which judges, government tor the civil service can capture learning from previous inquiries. Inquiries are often criticised for having obfuscated terms of reference, for being too long and too costly, and for failing to achieve what they were intended to do.
Public inquiries can be statutory or non-statutory. Statutory inquiries can be established by ministers and by select committees. Non-statutory, or ad hoc, inquiries are not bound by procedural rules.
The Public Administration Select Committee (PASC) in its 2005 report on Government by Inquiry [published while the Inquiries Bill (later the Inquiries Act 2005) was going through Parliament] noted the significance of public inquiries in bringing about improvements in public services, quoting Lord Laming, who carried out the Victoria Climbié Inquiry and who told PASC that:
Inquiries “provide an assurance that the facts surrounding an alleged failure will be subjected to objective scrutiny. They are expected to reach judgements on why terrible events happened. They often make recommendations on how such events might be prevented in future. They may give relief to some and allow the expression of anger and outrage to others. They are often disturbing and painful events. They should improve our understanding of complex issues. At best they change attitudes, policies and practice. That being so they occupy an important place in our society”. [HC 606-iii, GBI 03, Ev 76]
PASC noted that ‘Inquiries continue to be as much the subject as the source of criticism in public life, particularly where they have been established to examine the actions of government’. In carrying out its research, PASC analysed inquiries held since the beginning of the 20th century and identified a long-term diminution in Parliament’s role in the process of public inquiries, concluding that ‘the gradual distancing of Parliament from the investigatory mechanisms over this period has been reflected in less rigorous parliamentary procedures following inquiry reports’.
In 2007-08, PASC, in its report on Parliamentary Commissions of Inquiry, recommended a parliamentary mechanism for initiating inquiries. These would take the form of ‘Parliamentary Commissions of Inquiry’, composed of parliamentarians and others.
Ad hoc development
Despite both the seriousness of the issues and the power of the public inquiry as a tool, there has been little review of the process itself, and it has developed on an ad hoc basis with ad hoc appointments. Unlike a court process, governed by practice directions and procedural rules and administered by a structured court system to oversee procedure and provide administrative support, a public inquiry is governed only by the Inquiries Act 2005 and the minimal Inquiries Rules 2006. The result of this is that there is an uneasy tension as to what process should be followed, and many inquiries have slipped into a default court mode for no reason other than that is the model with which those running the inquiry are most familiar. This quasi-court model has arguably made public inquiries more adversarial, and by natural extension defensive, with parties protecting their interests and expecting to be cross-examined. An inquiry conducted in this manner can become more focused on fact-finding than problem-solving.
Further, the standard methodology of a court process, whereby a judge hears and considers the evidence and presents a judgment as a final decision, this approach has questionable impact when repeated in a public inquiry. The recommendations arising from a public inquiry do not have the binding power of a judgment. A public inquiry needs to work with those who will carry out the recommendations to understand their needs, limitations and concerns in order to make a proposal that can be followed through. A chair who knows the difficulties that a group or organisation may have in performing a recommended action can tailor the recommendation to ensure it can be carried out. Recommendations therefore still come from a position of independence, objectivity and fairness, but there is a recognition in how they are presented that the inquiry is working with those affected, not just about them. This would counter one of the biggest criticisms that we’ve seen about former inquiries – that they haven’t actually involved those with the deepest interest in outcomes.
Some of the practical steps that we have recommended include a period of time where an inquiry’s draft Terms of Reference are open for consultation prior to being finalised; mechanisms for increasing the practicality of working with groups of witnesses to encourage open testimony and cross-sharing of thoughts; and processes for encouraging the uptake of recommendations and monitoring whether they have been followed.
Other aspects covered in the guidance include handling group concerns and evidence, engaging with the public and learning from previous inquiries. The report recommends establishing a central Independent Inquiries Office, which would have a role in administering inquiries but also act as a repository for information and lessons learned from previous inquiries. It could also serve a ‘social audit’ role similar to that of the National Audit Office, scrutinising public expenditure on inquiries.
Reforming the public inquiry process is not an overnight task, and many of our recommendations for process reform will require active thought from those undertaking inquiries. Nor is our guidance intended to be a substitute for a chair’s own particular understanding of how to conduct an inquiry. However, what we have provided is a menu of options to expand the possibilities of administering a public inquiry. This is something that we hope will be of benefit not only to the chairs and secretariats of public inquiries themselves but also to society more widely. It also helps set a benchmark for measuring the conduct and performance of future inquiries.
UKAJI readers might be interested to know that Carol Harlow, Emeritus Professor of Law at the London School of Economics, wrote (on the UK Constitutional Law Association blog in 2013) that we are expecting too much from public inquiries:
“The Inquiries Bill was based on the report of a Select Committee (PASC, Government by Inquiry, HC 54 (2004/5) and a government consultation paper, ‘Effective Inquiries’. But these did not really address the many problems of ‘The Big Public Inquiry’ and contained no real examination of their functions as ‘an instrument of government’. We have been left with a heterogeneous set of arrangements for investigation, with overlapping functions and variable procedures. There is no real attempt at ‘joined up governance’. Each inquiry is limited by its terms of reference or statutory remit, which may overlap or may leave serious gaps. Our expectations are highly contradictory: establishing facts, for example, may do little for accountability; learning lessons for the future may require a diminution in accountability; and making organisations accountable may, as the Justice/All Souls Committee concluded all those years ago, provide little catharsis for individual victims. What remains all too often at very great cost to the taxpayer is serving the political interests of government.”
C. Harlow, ‘What Price Inquiries?’ UK Const. L. Blog (28th February 2013) (available at http://ukconstitutionallaw.org).