By Suzannah.Brecknell

20 Jun 2013

As the Bishop of Liverpool’s effective Hillsborough panel demonstrates, inquiries don’t always require huge amounts of time and money. Presenting a spotter’s guide to inquiries, Suzannah Brecknell tracks their continuing evolution.

Last month, the UN Committee against Torture published a strongly critical report detailing 40 actions that the UK government must take before it can be deemed to be meeting its obligations under international law. Among these, it called for the convening of two public inquiries: one into the murder of Belfast solicitor Pat Finucane, and one into British involvement in torture and rendition since 9/11 – already the subject of an aborted inquiry, whose findings the committee said should be published promptly.

The question of how topics become the subject of inquiries – and then how those inquiries are conducted – is to be addressed by a newly-established Lords select committee, which met for the first time last week. Its formal remit is to carry out post-legislative scrutiny of the 2005 Inquiries Act, the main statutory mechanism for setting up inquiries: while the government can set up investigations in a wide range of formats, we’ll refer here to those established under the Act as ‘public inquiries’. However, committee chair Lord Shutt tells CSW that the committee will also consider inquiries held outside the Act, and look into the issues which haven’t been the subject of an inquiry despite public concerns. The committee will ask whether inquiries met public needs and catalysed change, and is expected to report next year.

The Lords committee’s remit reflects the fact that even once an inquiry’s been set up – indeed, even once it’s reported – it may fail to meet public expectations or earn public confidence. A 2012 survey of 2,000 members of the public, carried out by mediation specialists the Centre for Effective Dispute Resolution (CEDR), found that just 27% of respondents had confidence in the public inquiry system, while 77% said they had little or no understanding of how they work. It’s hardly a ringing endorsement of a mechanism which should play a vital role in examining issues that the executive government cannot adequately address.

Yet it is perhaps unsurprising that so few people understand how inquiries work, since they can take a number of forms (see box) and their precise structure varies depending on the topic, the nature of evidence and ongoing legal proceedings – among other considerations. Some public inquiries – such as the epic examination of Bloody Sunday – are seen as effective (if, in that particular case, horrifically expensive). But on other occasions, public inquiries fail to produce a result: the Taylor public inquiry into Hillsborough missed many of the problems identified over 20 years later by the Bishop of Liverpool’s non-statutory independent panel (pictured above).

A degree of variation is necessary, given the differing topics and emphases of individual inquiries: some focus on establishing facts; some on providing a sense of catharsis following a national crisis; some on making policy recommendations. Yet most people don’t understand these variations, which can lead to the sense that inquiries aren’t meeting public expectations.

According to Frederick Way, research manager at the CEDR Foundation – which is conducting an “inquiry into inquiries” – one common misconception is that the process will satisfy the public’s desire to see heads roll following a crisis. There are often “calls for blood”, he says, but the 2005 Act states that a public inquiry is “not to rule on, and has no power to determine, any person’s civil or criminal liability”.

The CEDR has made several recommendations to improve inquiries – and high among these, says Way, is the need to raise public awareness about the nature and remit of inquiries, with better communication about the terms of reference for individual inquiries.

There is also usually a hope that the inquiry will lead to change; though their success in this respect is often limited, for a number of reasons. Firstly, judges – who chair the majority of inquiries – may not be best placed to formulate workable policy.  As Lord Justice Leveson noted during the phone-hacking investigations: “As a lawyer and a judge I am very used to looking backwards and deciding what has happened, but it’s not necessarily a given that a judge is the best person to make recommendations for the future.”

Secondly, there is no statutory obligation for governments to explain how inquiry recommendations are being implemented. Although in some cases the chair may subsequently report on progress – either on their own initiative, or at the request of a minister – this is only really possible for non-judge chairs, since by convention judges do not comment on or follow up their judgements after they have been given.

Carol Harlow, emeritus professor of law at the London School of Economics, argues that inquiries’ remits are increasingly being broadened from nailing the facts to setting out policy recommendations. “We are expecting too much from inquiries,” she wrote this year in a piece for the UK Constitutional Law Group. But “our expectations are highly contradictory”, since establishing facts may not establish accountability; even where an organisation is held accountable, inquiries’ limited ability to pin the blame on individuals may mean that there’s “little catharsis for individual victims.” She concluded that some inquiries may therefore serve the government’s needs rather than the population’s, often at “great cost to the taxpayer”.

Although the 2005 Act aims to prevent inquiries from becoming too costly, they can be very expensive affairs. The Francis inquiry cost £13m, and the Chilcot inquiry has so far taken four years and cost £7.5m. There are ways to keep costs down, though – and the Leveson inquiry’s secretary, Rowena Collins Rice, suggests that setting tight deadlines can help: speaking at a recent Institute for Government (IfG) event, she said the Leveson inquiry was asked to report quickly so that its recommendations could be enacted in the current Parliament. Leveson’s status as a judge also helped keep costs down to £5.4m, she added, as the inquiry didn’t have to pay for its offices in the Royal Courts of Justice.

The Historical Institutional Abuse (HIA) inquiry has also been given a tight timescale: set up in 2012 to consider child abuse in Northern Ireland between 1922 and 1995, it has been given just two and half years to report. This presents a challenge, but has also led to innovation. The HIA inquiry has a twin-track process, set up partly to maximise the number of cases the inquiry can consider: whilst an ‘Acknowledgement Forum’ hears individual cases, the statutory element of the inquiry is examining the institutions involved.

This approach chimes with another recommendation from the CEDR: that inquiries run parallel processes to manage discrete topics. These tracks should have different chairs or facilitators, and can be tailored to address different types of evidence – expert witness or bereaved families, for example – or the different purposes such as policy formulation or establishing facts.

The CEDR also wants chairs and secretariats to be given more support as they design inquiry structures, so that this sort of flexible approach can be more widely adopted. It calls for the Cabinet Office to produce a best practice guide, and for senior judges to be educated about the inquiry process and the options should they be asked to lead an inquiry. “Obviously, you don’t want with a major public inquiry to test things that haven’t been tested before,” says Way, “but a lot of the things that we are suggesting have been used”.

The example he uses is the practice of bringing a number of experts in front of the panel together, rather than one by one. This provides a more “discursive” and, hopefully, informative aspect to the session, he says. Known in Australia as ‘hot tubbing’, it’s used by many UK Parliamentary committees.

Another potential change in the way inquiries are held is the resurrection of the parliamentary commission as a method of addressing public concerns. In 2012 David Cameron was facing calls to investigate interest-rate fixing among British banks. Instead of a public inquiry, he chose to set up a parliamentary commission led by Treasury select committee chair Andrew Tyrie.

Parliamentary commissions are certainly cheaper than inquiries, but can be seen as lacking independence or the expertise to establish facts. To counter the latter concern, the banking commission employed its own counsel to support the inquiry – and this, says the IfG’s chief executive Peter Riddell, provides a “very interesting possible precedent” for future inquiries.

The way in which inquiries are carried out “goes in phases”, suggests Lord Shutt, pointing to the decline of the expert panel established to consider big issues of the day. “It seemed to me that when I was younger, we constantly had royal commissions – and they’ve totally gone out of fashion,” he says.

Though it’s too soon to say whether the familiar model of a judge-led inquiry is moving out of fashion, there are signs that the ways in which these inquiries are carried out could be changing. More flexibility in how inquiries are run, and greater clarity on what they are setting out to achieve, might help to address the problem of overblown expectations – and a consequent lack of public confidence in the system.


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