8 Nov 2012

Q&A: Enquiring into inquiries

Hardly a month goes by before someone asks for another public inquiry. Channel 4 News asks: what’s the point?

Media waiting outside the High Court for the Leveson Inquiry (Getty)

What’s the point of a public inquiry anyway?

Essentially, it’s there to get to the bottom of the matter in question, or establish the truth, in a manner which is transparent. “Insofar as it could be established,” according to the opening words of the report of the public inquiry into the death of Irish human rights lawyer, Rosemary Nelson.

It is usually chaired by someone such as a judge, a senior civil servant, a lord, or professor.

There have been public inquiries looking into all manner of matters in the public interest – from planning and transport, to media (Leveson), hospital infections and deaths by accidents or otherwise. Or war – take the Iraq Inquiry. Usually, they do emerge from diasters or controversies – for example, deaths at the hands of the doctor, Harold Shipman, or foot and mouth, or the Hutton inquiry into the death of David Kelly.

They’re different to criminal procedures in that they’re not there to establish who’s at fault, although in presenting the truth, that might end up happening. Importantly, they’re not adversarial, and offer a forum in which to speak freely without implying guilt or innocence; they’re not a part of the criminal justice system.

While the primary aim is to establish the truth, and why what happened happened, it is often cathartic for those involved to be able to come and tell their stories.

But a public inquiry wouldn’t be complete with a report prepared at the end, summarising the findings. It makes recommendations to improve the quality of government, or management of public organisations in the future.

When did they start?

They grew from the parliamentary tradition of holding ministers to account for alleged failures by the government through committees.

An example of that was the Peel royal commission which began a year after the Indian rebellion of 1857. Chaired by Major General Jonathan Peel, the commission’s task was to consider the future of the army, and led to major reforms.

And in January 1855, George Gordon resigned as prime minister after a parliamentary inquiry into the Crimean War.

Royal commissions, created by the head of state, were the modus operandi for inquiries for a long time, though they’re no longer preferred. They’re not conducted in public, and evidence is written.

In 1921, judge-led tribunals were introduced, and then reviewed in 2005.

How do they decide who chairs the inquiry?

Under the inquiries act of 2005, set up in response to the death of the Belfast solicitor Pat Finucane who was murdered in 1989 by loyalist paramilitaries, it’s the secretary of state who decides who will chair it. Sometimes it’s the prime minister.

Sometimes, it’s a question of who you know. Consider this tale by Sir Ian Kennedy, who chaired the public inquiry inito the deaths of babies at Bristol Royal Infirmary in 1999.

One night he was phoned by the then lord chancellor, Lord Irvine, who was a personal friend of his. Sir Ian said he asked him: “You’re interseted in those things that were happening in Bristol, aren’t you, Ian?”

Sir Ian answered yes, and Lord Irvine was reported to have answered, “Well, fine” – and hung up.

Later, Sir Ian continued, Lord Irvine phoned back and said: “I’ve spoken to Frank and then it’ll be all right.”

Sir Ian didn’t know who Frank was, or what he was talking about, but that night, he had a phonecall from the private office of the secretary of state saying how delighted Frank Dobson, then secretary of health, was that he’d agreed to chair the Bristol Royal Infirmary inquiry.

“That’s often how things happen in public life,” Sir Ian said.

Who are inquiries accountable to?

Technically, no-one. They will need to follow the terms of reference as set by the secretary of state, but in terms of who they are actually accountable to, there isn’t anyone.

But if someone is unhappy with the way in which an inquiry has been conducted, they can seek a judicial review.

If a judicial review isn’t sought, then there are few ramifications for a badly conducted inquiry other than reputational damage for the judge who conducted it.

What are the limitations of public inquiries?

They are very expensive. The Bloody Sunday inquiry is a notorious example of one which generated controversy due to going on for quite some time – it was set up in 1998 by then Prime Minister Tony Blair and wasn’t published until June 2010.

Tessa Jowell said that later estimates for cost were £400m – the most expensive in history.

Likewise, the time taken can make it very difficult for those giving evidence – if it’s clarity victims are seeking in order to “move on”, it might take several years before they can get it.

People also have problems with the process – they can lack the power to compel people to attend. Which means key witnesses may not even give evidence.

Are they worth it?

Depends entirely on what they’re looking into.

One leading QC who has been involved in a number of public inquiries suggested that the Savile inquiry was one which was simply being set up “to be seen to hold an inquiry”.

“What’s happened,” he said, “has already spawned a series of inquiries, particularly because of the general feeling that someone’s got to have an inquiry as otherwise they’re thought of as approving of what’s gone on.”

The problem with this, he said, is that “it’s going to put people through a massive amount of pain, and for what?”

The QC continued that to appoint a single person to look at the entirety of the Waterhouse Inquiry “at vast public expense, as the home secretary has done… is not being done for good reason”.

Rail public inquiries have had notable success – Hatfield and Southall. Lawyers involved say that it’s because firm recommendatinos were made.

The most successful ones are ones in which recommendations also include a follow-up element, where the relevant body has to come back and illustrate what kind of progress has been made.

But, as Frank Dobson, then health secretary for the Bristol Royal Infirmary public inquiry, said: “Recommendations are recommendations. They aren’t the law.”