UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

Carol Harlow: What price inquiries?

charlowTwenty-five years ago, when the Justice-All Souls Committee published its review of English administrative law it asserted that, over the last forty years, inquiries had ‘been appropriated to the purposes of land use control to such an extent that the planning inquiry has become the typical inquiry’ (Administrative Justice – Some Necessary Reforms (Oxford: Clarendon Press, 1988 at 262). 49 of the 64 pages allocated to inquiries were duly devoted to planning inquiries, the rest being lumped together under the rubric of ‘Ad Hoc Inquiries’. Other than to remark that public inquiries might leave some individuals ‘with a sense of dissatisfaction’ the Committee had little to say about them. The same could hardly be the case today. Routine planning inquiries form around 5% of the Planning Inspectorate’s current workload, the majority of applications being decided on the papers, while the costly and contentious ‘Big Planning Inquiry’ has been replaced by an Infrastructure Planning Commission in 2008, which in turn had its functions transferred to the Planning Inspectorate, now an independent agency, by the Localism Act 2011. On the other hand, public space is increasingly cluttered with the reports of ‘ad hoc’ public inquiries, raising the question what purpose do they really serve?

Writing in 1992, embittered by his treatment by Lord Justice Scott during the Inquiry into connivance of ministers and public servants in the illegal export of arms to Iraq (HC 115 (1995/6), Lord Howe suggested that a public inquiry might serve six rather disparate objectives:

  1. To establish the facts
  2. To learn from events
  3. To provide catharsis for ‘stakeholders’
  4. To reassure the public
  5. To make people and organisations accountable
  6. To serve the political interests of government.

 (G. Howe, ‘The Management of Public Inquiries’ (1999) 70 Pol. Quarterly 294)

Lord Howe’s grudge against Scott lay with his preference for inquisitorial procedure; Scott refused to allow legal representation of witnesses at the inquiry on the grounds of length and prolixity (though he did give some warning of the questions he would be likely to ask and promised to notify in advance anyone who would be criticised in the report). The dissatisfaction of public lawyers more generally lay precisely in the ‘length and prolixity’ of the proceedings. Looking back, it seems that the only interests served by the Scott Inquiry were those of the government. An inquiry that took three years and cost around £7 million – a high price for even a 5-volume Report, – ended with a confidence motion calling for the resignation of two ministers, won by the Major Government by just two votes.

Was this the shape of things to come? The Saville Inquiry set up by Tony Blair in 1998 to establish the truth about ‘Bloody Sunday’ (30 January 1972) when the British army opened fire on civil rights protesters in Londonderry, received 2,500 witness statements and compiled some 160 volumes of evidence, 13 volumes of photographs, 121 audiotapes and 110 videotapes, all of which had to be photocopied and sent to representatives of the ‘interested parties’. Its procedures were twice judicially reviewed. It did establish the facts but at what a cost; when the ten-volume report was published twelve years later (The Bloody Sunday Inquiry ) it had cost the taxpayer £195 million. It could, I suppose, be argued that on this occasion the delays were functional; they created space for a political settlement to be negotiated in the shadow of the pending report. Unsurprisingly, the report was welcomed by relatives of the victims but was less well received by the victims of IRA violence. It is indeed unlikely that it caused any of its readers to change their position and much the same is likely to be true of the Chilcot Inquiry into the Iraq War when finally it reports.

It was partly in reaction to the mounting costs of Saville that the Government embarked on new legislation – described as a consolidation measure to replace the seldom-used Tribunals of Inquiry Act 1921 – which became the Inquiries Act 2005.  The Bill was hotly opposed on the ground that it bundled up too much power in ministers, including the power to suspend or wind up an inquiry; to prevent disclosure or publication of any evidence or documents given; and to bar the attendance of witnesses. It was feared that these powers would be used to prevent disclosure of material concerning the security services, most notably in a raft of inquiries under way into the Northern Ireland Troubles, which could be transferred into an inquiry under the Act – as did in fact occur with the Wright Inquiry and Inquiry into the death of Robert Hamill, originally set up under the Police (Northern Ireland) Act 1998 (costs around £33 million).

Inquiry costs

It has to be said that the Act has done little to cut the cost of public inquiries. According to a Post-legislative Assessment of the Inquiries Act conducted in 2010, three of the 12 inquiries held under the 2005 Act by 2010 had cost over £10 million: the Baha Mousa Inquiry cost £13 million and the Inquiry into the murder of Billy Wright in the Maze Prison cost over £30 million and took 5 years to complete.). Although the inquiry concluded that Wright’s death was due to the negligence of prison officers, his father, who had campaigned over many years for the inquiry, called it proof of ‘clear and unequivocal collusion’ – another example of incomplete catharsis. The problem here is that the general public is inclined to interpret accountability in terms of the number of heads that roll and is probably unaware that the Inquiries Act 2005 provides that an inquiry ‘is not to rule on, and has no power to determine, any person’s civil or criminal liability’, while the Coroners and Justice Act 2009 now bars any verdict that names individuals or points to their guilt. Such costs, only justifiable if the inquiries came to a clear and unequivocal conclusion, bear comparison with the escalating costs of prosecutions in serious fraud cases, said to prevent justice from being done (See Fraud Advisory Panel, Tackling the Crisis in The Prosecution of Serious Fraud.).

No doubt it was for cost-cutting motives that the inquiry into the murder of lawyer Pat Finucane in Northern Ireland in 1989 by Sir Desmond de Silva QC became a review of the evidence of two earlier inquiries held respectively by Lord Stevens and the Canadian justice, Judge Cory (Report of the Patrick Finucane Review by The Rt Hon Sir Desmond de Silva QC, HC 802 (2012/13). This procedure, which meant that he had no statutory powers of compulsion, was in the event justified by the fact that Sir Desmond was in no way inhibited from uncovering ‘new and significant information that was not available to Sir John Stevens or Justice Cory’; from publishing this material; and from coming up with the challenging conclusion that ‘a series of positive actions by employees of the State actively furthered and facilitated [Finucane’s] murder and that, in the aftermath of the murder, there was a relentless attempt to defeat the ends of justice’ (Report at [115]). But this conclusion, described by the Prime Minister, Davis Cameron as revealing ‘shocking state collusion’, failed once again to satisfy Finucane’s widow who, supported by Ed Miliband and Amnesty International, called the review ‘a sham, a whitewash and a confidence trick’ and demanded a full and independent inquiry (The Huffington Post (UK), 20 February 2013). In his remarks under ‘lessons for the future’ – which he had not been asked expressly to address – Sir Desmond wryly commented [113]: ‘Perhaps the most obvious and significant lesson of all, however, is that it should not take over 23 years to properly examine, unravel and publish a full account of collusion in the murder of a solicitor that took place in the United Kingdom’.

Overlap and underkill

This highlights a further deficiency of the public inquiry: the overlapping machinery for accountability and the number of disparate and piecemeal processes that are generated and the failure to provide ‘joined up justice’. The trouble is that the 2005 Act was not exclusive; it repealed some of the statutory powers to order inquiries and provided for a general code of procedure (The Inquiry Rules 2006, SI 2006/1838) but did not exhaust the powers of ministers and indeed anyone else who wishes to do so, to set up an inquiry. The prize (if that is the right word) should be awarded to the Hillsborough Disaster Inquiries into the death of 96 football supporters and injury of hundreds more at a match in Hillsborough stadium on 15 April 1989. By 2009, this had attracted: two internal police investigations into the conduct of South Yorkshire Police; an inquiry by Lord Justice Taylor, published in two parts in 1989 and 1990; an investigation by the Health and Safety Executive; a two-stage coroner’s inquest; an unsuccessful private prosecution following the DPP’s decision not to prosecute; a paper review of the evidence by Lord Justice Stuart Smith; and two civil actions, which caused outrage when police officers succeeded in claims for damages when victims’ relatives did not (Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310; Frost v Chief Constable of South Yorkshire [1999] 2 AC 455). It should be noted that the two Taylor Reports had blamed the police, while Lord Justice Stuart Smith, although castigated by the Hillsborough relatives, had picked up the fact that the police had rewritten many of the witness statements. Why did nothing happen? (Pause for rueful reflection).

Only when Andy Burnham, then Health Secretary, waived the 30-year non-disclosure rule on public records in 2009 and Home Secretary Jack Straw appointed an independent panel in 2010 to review the new evidence, did action commence. In line with modern practice, the Report of the Hillsborough Independent Panel, with all the documentation, is published (Hillsborough: The Report of the Hillsborough Independent Panel,  HC 802 (2011/12). Agreed unanimously by the 8-member panel, the report was largely written by Professor Phil Scraton of QUB, a long-term supporter of the Hillsborough families. It once again blamed the police for tampering with witness statements and categorically denied there was any evidence to verify police allegations of exceptional levels of drunkenness or violence among Liverpool fans. Hillsborough – along with many other unsuccessful inquiries – attests to the very great difficulty of holding the forces of law and order to account through a public inquiry. Typically, the two officers most involved in the disaster both retired, having avoided conviction in the criminal prosecutions and disciplinary action for neglect of duty. A reopened coroner’s inquest is now awaited. A more encouraging message from Hillsborough concerns the very great importance for accountability of freedom of information legislation and the contemporary climate of transparency.

The sad case of ‘Baby P’, murdered by his mother’s boy friend while under the radar of Haringey social services, is somewhat different. His death was the subject of (1) an internal inquiry by Haringey Council into the performance of its social services department of which only the executive summary was published; (2) an external inquiry ordered by the minister (Ed Balls) in terms of the Children Act 2004 and conducted by Ofsted, the Healthcare Commission and the Chief Inspector of Constabulary; and a further inquiry by Lord Laming (below). There was also a Coroner’s inquest, finally adjourned as purposeless. Alongside, the legal system was functioning quite normally: the actual killers were convicted and imprisoned; the civil courts intervened to protect the position of Haringey’s Head of Children’s Services, summarily dismissed under pressure from the minister without the benefit of a hearing R(Shoesmith) v Ofsted and others [2010] EWHC Admin 852; [2011] EWCA Civ 642); and two doctors who had apparently missed the scale of Baby P’s injuries were disciplined by the BMC.

Lessons for the future?

More significant from the standpoint of the public inquiry is the report commissioned by the Secretary of State from Lord Laming. In 2002-3, Lord Laming had held another inquiry into the death of Victoria Climbié in Haringey: The Victoria Climbié Inquiry Cm 5730 (2003). Specifically asked to make recommendations as to ‘how such an event may, as far as possible, be avoided in the future’, Lord Laming had produced 106 recommendations over matters ranging from training of social workers to problems with ‘joined up governance’. His report was accepted and the recommendations found their way into government policy (See Every Child Matters: Change for Children (2004); Working Together to Safeguard Children: A guide to inter-agency working to safeguard and promote the welfare of children (2006)). Now Lord Laming was being asked to provide ‘an urgent report’ on the progress made across the country to implement effective arrangements for safeguarding children. His Report (Lord Laming, The Protection of Children in England: A Progress Report,  HC 330 (2008/9), which this time contained only 58 recommendations, revealed how far from perfect the implementation of his Climbié report had been. It also highlighted the scale of the problem: of 11 million children living in England, 200,000 are at high risk of domestic abuse and violence, of whom 37,000 are the subject of a care order and 29,000 of a child protection plan. Haringey, be it noted, is a deprived and impoverished local authority ranking 5th in London on the index of multiple deprivation, where in 2007, 36.4% of children were assessed as living in poverty; 176 were subject to a child protection plan and 476 were in care, amongst the highest figures in the country. Is it surprising that in these circumstances not all the Laming recommendations were implemented?

How far are inquiries being given the policy-making functions traditionally allocated to Royal Commissions and are they suited to such a role? Lord Laming is a distinguished and experienced social worker – though this was not enough to restrain criticism of his appointment as Chair of the Climbié inquiry, on the ground that his own department had once been criticised in a local ombudsman investigation. Perhaps a judge would have been more impartial – but then, what of expertise? The recent report into the failures of care at Mid-Staffordshire NHS Foundation Trust was the second, ‘generic’ stage of a non-statutory inquiry – another increasing trend in inquiry proceedings – demanded, we are told by the Chairman, shocked by the facts that he unearthed in his first, specific inquiry (Independent Inquiry into Care Provided by Mid Staffordshire NHS Foundation Trust January 2005–March 2009, HC 375-1 (2010/11)). The Report, which ran to more than 1770 pages, contained 290 recommendations, took 2 1/2 years and cost over £13 million (Report of Inquiry into Mid-Staffordshire NHS Foundation Trust Public Inquiry, HC 947 (2012/13)).   Robert Francis QC is a barrister specialising in medical negligence. He appointed a panel of assessors, mostly with medical experience. One has nonetheless to query his qualifications to remodel our health services on the back of an inquiry into a single monumental failure. And will its fate be any different from the little-known Boorman review of health services in London (Full Report of the NHS Health and Well-Being Review (November 2009)) or for that matter Andrew Lansley’s hotly contested, and perhaps less well researched, proposals for remodelling health services, later to be remodelled in the Health and Social Care Act 2012?

The same may be said of Lord Leveson, a senior judge from the common law bar, invited to inquire into the ‘culture, practices and ethics of the press’ (Report into the Culture, Practices, and Ethics of the Press,  HC 213 (2012/13). The inquiry was divided into bite-sized modules: specific investigations into phone hacking and other journalistic iniquities, which Lord Justice Leveson was undoubtedly well-qualified to conduct; his procedures were undoubtedly swifter and less costly, at just over £5 million, than the Bloody Sunday Inquiry. Module 4, which contained recommendations for ‘a more effective policy and regulation that supports the integrity and freedom of the press while encouraging the highest ethical standards’, is more contestable. Even though the support of assessors  with considerable press experience renders this more palatable and more like a Royal Commission, the qualifications of the group to remodel the press are dubious, leaving space for the Government to reject its most important recommendation. Reassuring the public, making the press accountable or serving the political interests of government?

I believe 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.

Carol Harlow is Emeritus Professor of Law at the London School of Economics

Suggested citation: C. Harlow, ‘What Price Inquiries?’ UK Const. L. Blog (28th February 2013) (available at http://ukconstitutionallaw.org).

One comment on “Carol Harlow: What price inquiries?

  1. Pingback: What price inquiries? What price justice?

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Information

This entry was posted on February 28, 2013 by in Judiciary, UK government and tagged , .
%d bloggers like this: