Public inquiries in Japan: Inquiries into the Fukushima nuclear disaster from a UK law perspective.
By Hideo Horasawa (Nanzan University and University of Essex)
It has already been more than eight years since the Fukushima Daiichi nuclear disaster which was started by the tsunami that followed the Great East Japan Earthquake on 11 March 2011. This disaster continues as people are still suffering both physically and mentally. There have been many inquiries and investigations regarding the accidents following the earthquake, centrally, locally and privately. The most prominent among these are the inquiry into the Fukushima disaster, ordered by Parliament, and the inquiry ordered by central government (hereinafter referred to as the “parliamentary inquiry” and the “governmental inquiry”, and together, as the “Fukushima inquiries”). This article analyses public inquiries in Japan by focusing on these two particular inquiries.
In Japan there is growing tendency to demand an independent inquiry/investigation after any accident or scandal that is of public concern. The contents of the Fukushima inquiries’ reports have been widely discussed by academics, journalists and the public, although little has been written about them by public lawyers and the legal aspects and the implications for administrative justice have received less attention. However, recent issues and perspectives from administrative justice in the UK (e.g. involvement of the victims and design of inquiries on this blog) could offer a useful insight in re-examining these inquiries. Therefore, an analysis from the perspective of administrative justice would contribute to future discussion in Japan.
Current situation in Japan
There is no tradition of public inquiries in Japan. The parliamentary inquiry into the Fukushima disaster has called itself the “first independent public inquiry in Japanese constitutional history”. Meanwhile, inquiries into national significant cases have been held in Parliament, or by a parliamentary committee consisting of members of Parliament, where a hearing is conducted in public and witnesses may be compelled to attend or give evidence. However, there is a limit of both time and expertise in any parliamentary scrutiny, and political considerations may obstruct the scrutiny. For these reasons the government may establish a third party commission for an inquiry/investigation either instead of, or running parallel to, a parliamentary inquiry, although it is often pointed out that such inquiries lack independence from the government or related departments.
An ad hoc inquiry/investigation by a third party commission has been widely used by national and local government after a disaster or scandal of public concern. However, most of these commissions are considered to involve merely a departmental investigation. Typically, the commission consists of external experts and its meetings are open to the public, but its administrative staff come from involved departments and the proceedings conclude after only a few meetings (usually between five and ten) of one or two hours. For these reasons these commissions are sometimes criticised for being only superficially independent and unsuited for effective fact finding. In addition, there is no statute which governs third party commissions of inquiry generally. Most of these ad hoc commissions have been established by administrative decision without a statutory footing.
However, there appear to be several recent examples of third-party commissions with greater independence from government that have undertaken longer and more thorough investigations. Both Fukushima inquiries are examples of these, thus they are worth examining. Conversely, there have been some cases in which the chair and members were forcibly changed or a new commission was established. One such was case was a local inquiry into a student’s suicide that was suspected to be caused by bullying. The major reason for this was from strong complaint by the victim’s family. Therefore, the current situation is at the stage of trial and error.
Governmental and Parliamentary inquiries into Fukushima disaster: comparison
After the Fukushima disaster, the first national inquiry was a governmental inquiry, the “Investigation Committee on the Accident at Fukushima Nuclear Power Stations of Tokyo Electric Power Company”. It was established on 24th May 2011 by Cabinet decision. The committee published its interim report on 26th December 2011 and its final report on 23rd July 2012. The Committee consisted of a chair and nine members who were experts in the following fields: failure analysis, nuclear energy, radiation, earthquake, sociology of science and technology, a lawyer, an ex-judge, the local mayor, and a writer on severe accidents. The number of interviewees reached 772 in total. All 13 meetings were open to the public, but no hearing or interview was conducted in public.
The parliamentary inquiry, “The Fukushima Nuclear Accident Independent Investigation Commission”, was established on 8th December 2011 by a statute, and its final report was published on 5th July 2012. It called itself the “first ever parliamentary commission consisting of non-parliamentary members”. The Commission consisted of a chair and nine members, including the former president of the Science Council, experts in nuclear energy, radiation, earthquake, system design, a science journalist, a lawyer and the local chamber of commerce. This commission also opened all 19 meetings to the public, but differed from the governmental inquiry by broadcasting the meetings on the internet and communicating with the public though social media. A more crucial difference is that hearings of key parties (38 witnesses) were conducted in public in addition to the private interviews of 1,129 people.
Another different aspect from the perspective of administrative justice is independence from the government. The parliamentary inquiry took great care in staffing as the stature required (unlike the governmental inquiry) that administrative staff be hired from the private sector. As a result, the parliamentary inquiry appears to have acquired a reputation from the public for its transparency and independence.
On the other hand, there are similar points in both inquiries concerning administrative justice. The first is that their terms of reference were not specific as the government and Parliament did not want to restrict the wide discretion given to the chairs. Secondly, their investigations were restricted in time by the estimated short period for their report. The parliamentary inquiry had been expected by the parliamentary committee to publish its report in six months, whereas it is common for the chair to decide the inquiry’s duration in the UK. Both inquiries were aware of the limited nature of their investigations and both recommended the need for further inquiries: these recommendations have not been implemented.
The perspective of administrative justice raises several issues which should be examined for future inquiries. The next section analyses both inquiries in terms of involvement of the victims and design of the inquiry.
Involvement of the victims and families
In the UK, involvement of the victims and their families are important matters for the chair to consider in order to make the inquiry more trust worthy. Victims might participate in the inquiry as a witness, and furthermore they might be involved by consultation on the terms of reference, before inquiries are set up. The ongoing Grenfell Tower inquiry has been criticised, partly on grounds that there was insufficient engagement with families and survivors, and ill-representation of the community.
In Japan, the victims’ involvement is regarded as important, especially in the case of an inquiry after a student’s suicide. While both Fukushima inquiries provided great respect for the victims, their approaches were different. The governmental inquiry held explanatory sessions of the interim and final reports, whereas the parliamentary inquiry held three town meetings to hear the victims’ voice and written representations (via a sent questionnaire) of 10,633 victims before drafting the report. It appears that the parliamentary inquiry had treated the victims as a participant contributing to the content of its report (as in UK practice) but in the governmental inquiry the victims could officially involve after drafting. Considering the potential contribution of victims in learning lessons, the approach by the governmental inquiry is inadequate. Moreover, such a negative approach could discourage victims’, and the wider community’s, trust in the inquiry.
Importance of design
As every inquiry is established as “ad hoc”, it has been said that it is difficult to provide a ’one size fits all’ set of rules for inquiries. Thus it is not practical to regulate in detail by law. This is evident in the UK law, as the Inquiries Act 2005 is less prescriptive than other statutes relating to administrative justice. Additionally, the Secretary of State has rarely exercised ministerial power to intervene under the Inquiries Act 2005 according to post-legislative scrutiny. The Secretary of State prefers not to intervene in the practice of public inquiries to secure public confidence. Therefore, the chair and panel tend to be conferred wide discretion by the law and use it without ministerial interference in practice. With such discretion, the chair needs to set up and manage the inquiry in a tailor-made manner. This is one reason why design thinking is crucial for public inquiries. The recent practice of wider consultation on terms of reference shows the necessity of deliberate design from the outset. If the initial design does not work out well, the inquiry would lose the trust of interested parties or the public.
In Japan, the Fukushima inquiries, in particular the parliamentary inquiry, were deliberately designed to recover public confidence by their openness, publicness and independence. This appears to add legitimacy and reliability to their reports, especially from the perspectives of the victims and the public. However, both inquiries failed to notice key design omissions, and these ommissions have since caused problems.
One such problem is monitoring and further inquiries. The reports of both inquiries suggested that it is necessary to monitor and follow-up implementation of their recommendations. The government has published annual reports of implementation, although Parliament has not. However, former chairs of both inquiries have complained that their recommendations have not yet been fully delivered, partly because adequate oversight cannot be carried out only by the government. Both inquiries recommended further inquiries as they could not carry out a thorough examination within the estimated short timeframe. Nevertheless, Parliament and the government have not intended to set up a second inquiry as yet.
Another problem concerns publication of interviewees’ evidence after the inquiries. Both inquiries decided to conduct most interviews in private but had not decided whether they would publish the evidence from these private interviews after the inquiries. Therefore, both inquiries had not asked interviewees about publication, and the evidence had not been published initially. However, as there have been many requests for disclosure, and some evidence of the governmental inquiry were leaked, the government decided to allow publishing the evidence of the governmental inquiry if the interviewee agreed. In spite of this, the evidences in the parliamentary inquiry have not been published yet.
Both problems are attributed to the design of the inquiry as a whole. Although Parliament and the government, which could design the whole process relating to each inquiry, had a huge interest in setting it up, it seems they did not have interest in following it up and have appeared to lose interest after the inquiries.
End and the future
From a UK viewpoint, public inquiries in Japan might be regarded as underdeveloped. The basic principle of independence and publicness has not been fully applied to a third party commission for inquiry/investigation. Of course, an ideal approach for building public confidence is dependent on each country’s tradition and culture, thus any possible model of public inquiry would be different in different countries.
On the other hand, similar issues – such as victims’ involvement – have gained attention and a similar concept of design could have meaningful contribution in both the UK and Japan. There are other interesting issues for comparative study which I cannot deal with here (adversarial and inquisitorial; time and cost). Therefore, comparative study appears to be one of useful approaches for future research.
Hideo Horasawa is Professor of Administrative Law and Environmental Law at the Nanzan University (Japan), and Visiting Fellow at the University of Essex (until Feb 2020).