Examination of Witnesses (Questions 649-659)
9 DECEMBER 2004
SIR MICHAEL
BICHARD KCB, SIR
LOUIS BLOM-COOPER
QC AND PROFESSOR
SIR IAN
KENNEDY
Q649 Chairman: May I welcome our witnesses
this morning: Sir Michael Bichard, Sir Louis Blom-Cooper and Sir
Ian Kennedy. They are all here because they are the conductors
of major inquiries, in some cases, and, certainly in Sir Louis
Blom-Cooper's case, in multiple form. We are concluding our inquiry
into inquiries and we want to draw upon your accumulated experience
on these matters. May I invite each of you perhaps to say something
very briefly by way of introduction on your thoughts on the basis
of having run an inquiry or two. Perhaps Louis Blom-Cooper could
start?
Sir Louis Blom-Cooper: Thank you,
Chairman. All I want to say in opening is that one ought to approach
the whole problem of public inquiries with a high degree of flexibility;
that is to say, whole ranges of issues which tend to come into
the forum of public inquiries are different. I have discovered
over a long period of time that it is horses for courses; that
is to say, you need to adapt your procedure to the particular
subject matter, the issues and personnel involved. Having said
that, I do think there are one or two basic principles that one
ought to adhere to in a public inquiry. The first is I think they
should be quite demonstratively inquisitorial. I agree entirely
with Sir Ian[1];
you want to get away from the court room. The details that he
mentions are immensely important in creating an atmosphere in
which it is an inquiry. It is not about finding liability on anybody;
it is to find out what happened, how it happened, the circumstances
which led up to it, and, if you like, recommendations as to what
should be done in the future. It is not designed to target anybody
or point the finger of guilt at anybody. It is to find out what
happened and the circumstances of it. One of the basic principles
of an inquisitorial system is the question of legal representation.
In almost all the inquiries I have conducted, I have had lawyers
in front of me appearing for parties. I think, if I am ever asked
again to do a public inquiry, I would not allow legal representation
on the fact-finding process. All that lawyers do is to bring all
their expertise of the legal system into the inquiry room, and
that simply increases the costs. My own general view is they hardly
contribute anything to the fact-finding process. But, once the
facts have been found, and the inquiry then sorts out, as it were,
what are the issues, then you can have legal representations to
deal with the question of criticism, if you like, or interpretation
of the facts, but the actual questioning of the witnesses should
be in the inquiry and the inquiry only.
Q650 Chairman: Thank you very much for
putting it so clearly.
Sir Michael Bichard: I will not
go over the same ground. I agree largely with what Louis Blom-Cooper
has said. I will try and pick up one or two other points that
I found, as I say in my statement, were particularly important.
I do think it is important in inquiries to spend some time at
the beginning making clear what the terms of reference are. You
will regret it hugely if you do not do that when you come to make
recommendations or draw conclusions and find that actually you
are excluded from doing so because of your terms of reference,
and the lawyers that Louis has already talked about are then threatening
you with judicial reviews and injunctions. So, get it right at
the beginning.
Q651 Chairman: May I interrupt you on
that because I notice in your memorandum to us, just so that we
do not lose the point, you say, in talking about your terms of
reference, that in the pre-publication period some of the people
who had been criticised sought to establish that the terms of
reference were not broad enough to allow you to comment in the
way that you had. That does take us to this question of making
sure we get the terms of reference period right. How did that
work? Who was leaning on you?
Sir Michael Bichard: I would not
put it quite like that. I would try and be constructive. One of
the important things that we did, and I think all inquiries have
done, is to give those parties who are likely to be criticised
an opportunity to comment on the relevant parts of the report
before it is published. That is not just good in being fair to
them; it is good in terms of making sure that your report is accurate
and defensible. Certainly we made a number of significant changes
as a result of good points that were made. It needs to be said
that of course the legal representatives were keen to try and
limit the criticism that was being made of their clients. Had
we not included words in the terms of reference—something
about being able to make recommendations on matters of local and
national relevance, and make recommendations as appropriate—in
other words, give ourselves scope not just to draw conclusions
on the facts but to go beyond that—I think it would have
been very difficult for us to have made even the recommendations
that we did. All I am saying is that terms of reference are not
something just to be nodded through. You just need to make sure
that you create enough space, so far as you can tell, to make
the kind of recommendations you want to make.
Q652 Chairman: In your case, you were
actively involved in defining those terms of reference. They were
not just given to you.
Sir Michael Bichard: I had a draft
but the very first thing I did was to involve myself in a discussion
about the terms of reference.
Q653 Chairman: When these complaints
came at the end, you could see them off?
Sir Michael Bichard: Absolutely,
yes. There are other points I would pick up. One is the importance
of maintaining momentum. I am just a junior partner here really
because my inquiry was much simpler than the others that you are
looking at. Even there, it is so easy, I think, to lose momentum.
One of the important things one must not forget is that it is
not just maintaining momentum because there is an issue of public
confidence and concern, because, in the case of the Soham Inquiry,
two young girls had been murdered, but also it is important to
the witnesses and the parties, the people who are under a cloud,
to deal with these things as quickly as possible. It is not a
well-known public fact that I was on the receiving end of an inquiry
once, chaired by one Louis Blom-Cooper, when I was Chief Executive
of the Benefits Agency. I remember that because I remember what
it is like to be facing up but it is not a pleasant experience
and you just want people to get to the truth as quickly as possible,
so I think momentum is very important. Also, this issue about
giving criticised parties a chance to respond is important, for
the reasons I have given. I think it is rather important, and
this is so difficult in cases like Sir Ian was describing earlier,
to try and keep the recommendations to a reasonable number. Actually,
I think you did. I think there are some other inquiries on less
complex matters that have gone into hundreds of recommendations.
The danger is that the things that really matter just get lost.
The public, the press and the media cannot understand what you
are saying. Mine was much simpler but we only had 30 recommendations
and really only on five of those did I focus at the point of publication.
I am not sure that anyone else has had a review process built
in. I have introduced that. I have written to those involved and
I am waiting for their response, simply because I have seen too
many inquiries with excellent recommendations not followed up,
and I did not want that to happen. These are serious matters.
I have given up six months of my life; lots of other people have
given up a lot of their time. It just seemed to me it was important
that we reviewed it. The feedback I am getting from senior civil
servants is that that has focused people and that probably more
has happened than would otherwise have been the case. The final
point is that I agree with Louis about this flexibility issue.
I know that there is a desire always to have advice, support and
procedures. To some extent, I agree with that. I was struck when
I came to this task at just how little advice and expertise there
was available. I should have gone to Sir Ian! If you go to the
other extreme, however, you take away the space that the chairman
needs to react to situations. I think it is so important that
the chairman is able constantly, on a day-by-day basis, just to
check out whether he or she is still maintaining that environment
of calm which you need if you are going to get to the truth. If
you are dealing with families who have lost children, if you are
dealing with people whose careers are under threat, there is always
the possibility that this is just going to blow. If it blows,
then you have lost the environment of calm and then it is very
difficult to get it back again. From talking to Sir Ian earlier,
just be aware of the small details; even the way in which the
room is set out is really important. Where you hold it is really
important if you are going to maintain that. If you try and prescribe
too much, you will lose that discretion.
Q654 Chairman: Thank you for that. We
shall want to ask you about a number of those points.
Sir Ian Kennedy: Chairman, thank
you for inviting me. If I may, I will make a few points. I have
already put before you some information. If anybody else wants
that, I am happy to put it in the public domain. I think, first,
that it is important to identify what we regard as the purpose
of a public inquiry because only if we think that what we are
contemplating setting up is going to achieve those purposes should
we be setting up a public inquiry. There are other ways of getting
to whatever we wish. Secondly, differing a little with Sir Michael,
I am not persuaded that necessarily there is a truth. There are
various truths that people seriously believe, and it is about
articulating those and getting them to understand that a parent
may have heard that the risks are very small because the doctor
said there was 80% chance of the patient dying meant a 20% chance
of surviving, and the doctor thought that he or she was saying
there is a large risk involved. They both heard different things
and they are both telling the truth. It is getting them to understand
and then maybe out of that realising that oral communication is
not the appropriate way when you are talking about risk and you
need to have some other way of conveying that. I have said something
about purpose. The second point is that, as regards the chair,
I have the strong view that it should not be a member of the judiciary,
for two reasons: one, a constitutional reason about the potential
undermining of independence or impartiality in many of these highly-charged
inquiries; and, secondly, because I think a public inquiry should
not be a court, and judges tend to be familiar with courts and
turn things into courts, in my experience. Thirdly, I would say
that of the various guiding principles you have developed—and
Sir Michael is absolutely right, there is not a great deal of
advice and you do, as it were, have to make it up as you go along
unless you think it through first—the atmosphere, the ambience,
which colleagues have talked about is important, as is the procedure
you adopt. Louis is right, it should be flexible, but there should
be certain guiding principles, one of which is that you want to
hear witnesses rather than necessarily lawyers and that you can
curtail a lot of the time taken and really facilitate one of the
purposes of understanding and healing if you do not allow it to
become entirely adversarial—"I did", "you
did not"—throughout the whole of the many days you
are holding the inquiry. The next point is that you should work
out, and Sir Michael is quite right, your terms of reference at
the outset. This is your relationship with the minister or with
the government. Of course it is for government to indicate what
they want you to look into but it is perfectly open to the chairman
to say, "I am not going to do it if that is what you want
me to do". In other words, you have to sign up to the terms
of reference, and that creates the space for negotiation as to
what you think is feasible and appropriate in your role. Secondly,
you have to decide whose report it is. That is an absolutely critical
question. The first thing I asked my legal team is whose report
this is going to be—a matter we did not resolve for maybe
three years. Why do I say that? It is because if it is an independent
public inquiry at some point you have to say, "This is my
report and that of my colleagues, which I own and am giving to
you and to the public at the same time", rather than, "It
is something I give to you, Minister, and now you may do with
it that which you wish, including perhaps not publish it at all".
I think that needs to be clarified. My advice would be if you
feel that you are doing something and it is important to persuade
others, you have to have some agreement on that. Lastly, I agree
with Sir Michael that one of the fundamental features missing
in the current approach to public inquiries is any procedural
mechanism for following things up. The moment that the inquiry
ends and the report is delivered, the inquiry is functus officio;
it has ceased to have any standing. I would recommend, and one
of the slides before you right at the end says this, that there
may be a requirement for a procedural device emanating from this
committee or others whereby the government is asked, or the relevant
minister is asked, after six or 12 months, simply what is being
done, which of course concentrates minds.
Q655 Chairman: Thank you for that. Could
I take us back to one of the points that you mentioned—and
I know, Sir Ian, you have a strong view on this—in terms
of being clear about why you set up these inquiries in the first
place and why you set up one kind as opposed to another. I think
your view is that you should only set up a public inquiry of the
kind that we are talking about when it is something that is not
a political hot potato, does not involve the actions of ministers
of central government, but sits in a category that can be dispassionately
inquired into. Why do you feel so strongly about that?
Sir Ian Kennedy: As Sir Christopher
Wren would say, "If you need some evidence, look around".
We have had Scott, we have had Hutton, we have had Butler, all
of which were chaired by eminent people whose eminence was more
highly regarded before than after, as it were. The moment they
said whatever they said, they were in areas of clearly partisan
politics where it struck me that whatever they were going to say,
some would inevitably, for reasons that they perceive to be good,
disagree. It follows that you would not necessarily advance public
understanding and you would bring into disrepute the procedure
of public inquiries.
Q656 Chairman: How easy is it to distinguish,
though? If you are saying that there are two different kinds of
issues, one that may be appropriate for a public inquiry and one
that is not, is it, in practice, easy to make that kind of distinction?
Sir Ian Kennedy: It is not. I
would go on to say that I think it is for this committee, or some
other such committee, to grapple with those matters where the
conduct of the government, a past government or the present government,
is being called into question. No, it is not. BSE is an example
where, as it were, it sits on the cusp of the distinction I am
trying to draw between where you are talking about the actions
of government or a department and the actions of local authorities
and all sorts of other disparate organisations. In my view, BSE
does illustrate that where you have other players besides government,
and lots of people were engaged, that may argue for it fitting
within a public inquiry where it is not merely a government department
having failed or not failed to meet whatever the government objectives
might be. It is really a lot about the science and how much you
knew, at what point you knew, and whether we can know it all.
It was good to put that into the public domain.
Q657 Chairman: On your principle here,
I just think about how we test it in examples. In relation to
the Blunkett affair at the moment, there have been people popping
up saying, "We must have a judicial inquiry". This seems
to me to fall down on two grounds on your argument. One is that
at all costs we must not get judges involved in things political
and we must not run public inquiries into things which are hotly
contentious politically. Secondly, as you have argued, we must
keep the judges out of this at all costs. On two grounds that
seems to fall.
Sir Ian Kennedy: Absolutely, and
the fact that things are called for does not mean to say that
that is any reason for granting that call. Furthermore, it does
not mean to say that concerns should go without a means of resolving
them. It merely says that if you are interested in some notion
of a public inquiry, as we have experience of and with all the
flexibilities that Louis has talked about, it is not a device
which is suited to looking at l'affaire Blunkett. It is
a matter for Parliament or others to find ways of looking at it.
Q658 Chairman: That is the last bit I
was going to ask you about. Having made the distinction, and then,
in a sense, you hand over all the tricky political stuff to Parliament,
if it is the case that Parliament is pretty useless at doing all
that kind of stuff, where are we left?
Sir Ian Kennedy: You are asking
me to accept the premise?
Q659 Chairman: It is not a very plausible
one, is it?
Sir Ian Kennedy: I think we are
left with you guys getting it straight, with the greatest respect,
because I think it is a matter for Parliament properly organising
itself in many of these issues.
1 Prior to the public evidence session Sir Ian Kennedy
gave a short presentation to the Committee. Back
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