Examination of Witnesses (Questions 660-679)
9 DECEMBER 2004
SIR MICHAEL
BICHARD KCB, SIR
LOUIS BLOM-COOPER
QC AND PROFESSOR
SIR IAN
KENNEDY
Q660 Mr Prentice: There have been calls
for a public inquiry into the deaths at Deepcut, and you would
say that is something that should quite properly be dealt with
by Parliament and not by an inquiry. Let me give you another example
while you are thinking.
Sir Ian Kennedy: I can respond.
On my test of the action or inaction of government or a department,
as I understand Deepcut, it is fundamentally about the actions
of elements of the armed forces, which could be severed, like
the NHS could be severed from the Department of Health. It may
well be—and we could have a conversation about it—given
the degree of concern and the possibility of understanding and
even healing, that it might fit within that group of activities
where you could hold a public inquiry.
Q661 Mr Prentice: The Minister concerned,
Adam Ingram, said, "We cannot run the government on the basis
of public inquiries. They may be good for lawyers but they are
not good for the governments of this country". That is his
view.
Sir Ian Kennedy: I think my answer
is an answer from principle. There is a lot of rhetoric about
public inquiries and they have been called for many times. As
we sit here, no doubt another one will be called for. I think
there should be a degree of rigour in understanding when we should
have them, because they are very expensive and they do take time,
and, while they are going on, people are in a sense holding their
lives in limbo. While I was doing my inquiry, parents were going
to a hospital to have their children operated upon. That being
the case, we would have to look very carefully. That is not to
say that there should not be mechanisms for looking into Deepcut.
It is merely to say, "Is the public inquiry mechanism the
right one, or should there not be others?" If I may use the
analogy used by, I think, Sir Edward Heath, it is about how many
clubs you have in the golf bag.
Q662 Mr Prentice: I do not want to labour
the point. Another specific example is that there have been calls
over the years for a public inquiry into Gulf War Syndrome. We
have had this independent public inquiry. Again, is it right that
the Government should resist a call from the British Legion and
masses of people out there to have a public inquiry into what
happened to the soldiers that served in the Gulf?
Sir Ian Kennedy: Again, I would
argue that from principle. If you think the purposes that you
seek could be achieved through a public inquiry as I have defined
it, and if you think that the issue was not so heavily politicised,
having to do with the conduct or otherwise of government such
that some people for partisan political reasons simply will not
accept what is being said, then it might fit within the ground
for having a public inquiry. I am not going to say yes or no here
because I tend to like to think about things before I give a yes
or no answer, but that would be the principle or the approach
I would take.
Q663 Mr Hopkins: I am glad that we have
focused very strongly on the distinction between two types of
inquiry. I would call them "other regarding" and "self-regarding"
in terms of the government. For a government, in setting up an
inquiry, the first question is: is there an iceberg we are going
to hit or is it somebody else's problem? There is no problem if
it is a local authority or a hospital. When it is something that
might affect them—the government—then they are going
to be much more concerned about whether or not they have an inquiry.
Is there not a distinction between two types even then? There
are those which could cause immediate damage to a government and
when a minister may have to resign, and there might even be more
serious consequences than that—Butler and Hutton for example—less
seriously there are inquiries which may be not going to cause
resignations but might open a can of worms which the government
do not want to have opened, or it might be very expensive for
the government to have. One thinks perhaps of Deepcut as a can
of worms and Gulf War Syndrome. Do they not form a sub-division
of the more difficult type?
Sir Michael Bichard: It seems
to me that we are not talking about two types. We are actually
talking about a continuum here. There is no way that when you
come to make a decision about whether to have an inquiry that
is ever going to be a black and white issue. It is going to be
a judgment. I think what Sir Ian is saying, and I would say too,
is that this continuum has at one end circumstances of fact which
are not government-related, and may not even be local government-related,
but they are issues of fact. Going a bit further along the continuum,
there are issues of fact which also will cover issues of competence,
but mostly official competence, whether it is central or local.
My inquiry was a bit around that, as it turned out, and so was
foot and mouth. If you go a bit further along the continuum, you
will get facts with strong political overtones. If you go to the
other end of the continuum, and you are actually talking about
politically contentious issues with some facts. I think you should
become more cautious about setting up an inquiry the further along
that continuum you go. If you get to the far end of the continuum,
then my view is it is a matter for Parliament to deal with these
issues rather than to set up a public inquiry of the kind that
we are representing here.
Q664 Mrs Campbell: Can I just take up
that last point that you made? Do you think we have the right
structures in Parliament at the moment to conduct inquiries of
the sort you are talking about? For instance, I assume that you
are saying that perhaps the Butler Inquiry should have been conducted
by Parliament rather than by Lord Butler.
Sir Michael Bichard: I am not
going to be drawn on any specific example.
Q665 Mrs Campbell: I was just using that
as an example. Is it illustrative?
Sir Michael Bichard: I have not
lost all of my mandarin skills, in so far as I ever had any! I
am not sure that it does, but I have not spent enough time thinking
about what it should develop. I am on record here I think in the
past as saying that I think the current system around select committees
and public health committees is flawed. I do not know what else
really exists to inquire into the kinds of things that I was putting
at the far end of the continuum, so I am not sure that anything
does yet exist.
Sir Louis Blom-Cooper: Could I
say two things, Chairman? Firstly, I think it is not possible
to define whether a public inquiry should be set up or not. My
general approach has always been: if there is a national scandal
or a national disaster and public opinion will only be allayed
by having an independent inquiry, then that should satisfy the
criteria for setting it up. I do not think you can go further
than that. I would say procedurally I think the provision in the
1921 Act, which requires a parliamentary resolution before the
inquiry can be set up, is a useful device in which Parliament
has some control over ministers who want to set up an inquiry.
I think the new provision in the Inquiries Bill, which has a stand-off
period, that is to say there is a declaration there will be an
inquiry but the terms of reference and formation of the body will
be delayed, will now give Parliament the opportunity sensibly
to discuss the particular inquiry and either give its approval
or not to the setting up of the inquiry. The trouble about the
provision in the 1921 Act was that it was of urgent importance
and therefore the resolution was sought within 24 hours of an
incident being put under an inquiry, and Parliament really had
no material upon which it could say yea or nay to the particular
issue.
Q666 Chairman: Precisely on the Parliament
bit of the Inquiries Bill the Government has produced, surely
the point about that is that Parliament has been taken out of
the picture completely. It may have been there just residually
before, but it has now gone completely, has it not?
Sir Louis Blom-Cooper: Yes. The position,
in effect, was that the provision in the 1921 Act was really a
dead letter, a bit of window-dressing that Parliament resolved
to set up the inquiries, but in fact it never had the material
upon which it could decide whether there should be an inquiry.
Sir Ian Kennedy: My own view is
that if you turn the question, namely, does Parliament have the
procedure, then I say that I think the increasing number of calls
for public inquiries without a great deal of understanding what
that may imply is because, from a realpolitik point of view, there
is either a lack of confidence in Parliament being able to resolve
these to the satisfaction of the public, or there is a lack of
machinery regardless of competence to do so. Turning it round,
I think it is because of that lack that you are having these calls
and other things. I think it is open to Parliament to take a much
greater role in many of the things. It would have to win back
the confidence, however, that it can do it responsibly.
Q667 Mrs Campbell: I am interested in
analysing this further and finding out your views on the extent
to which parliamentary involvement is possible. Let us take the
very first step, which is the decision about whether to hold a
public inquiry or not. May I just read to you what the Department
for Constitutional Affairs say in their consultation paper? They
say: It is right that the responsibility for setting up inquiries
should lie with government ministers, both because they have ultimate
responsibility for investigation and because they are responsible
for deciding what is needed in the public interest as a result
of their accountability to Parliament and the electorate. I wonder
if you feel that there are any occasions where it is Parliament
that should call for a public inquiry rather than a minister,
or do you think in fact there should be a better mechanism within
Parliament for Parliament itself to conduct the kind of public
inquiry that is politically contentious?
Sir Ian Kennedy: If I may answer,
and colleagues will tell me where I am wrong, in one sense Parliament
is a public inquiry, if it were properly constituted. That would
leave ministers to opt for those matters where they think allocating
them to people with expertise is appropriate. Mr Hopkins was drawing
a distinction between things which fester and so on. I think it
has to be borne in mind that there is a somewhat perverse motive
sometimes in setting up a public inquiry, namely, that in the
two or more years it will take for that result, I will have moved
on and ministerially I will be somewhere else. That is not to
be ignored either. AP Herbert, you remember, described royal commissions
as rather like an elderly man with constipation: they sit a long
time and very little ever comes out! There is that motive as well.
Q668 Mrs Campbell: May I go on to explore
this a little further? Somebody mentioned a little while ago about
the role of Parliament in perhaps scrutinising the terms of reference.
Do you think that there is a role for a select committee perhaps
to scrutinise the terms of reference before the inquiry is set
up?
Sir Michael Bichard: I would have
reservations about that. I think, at the end of the day, if you
are asking a chairman to chair an inquiry and he is sitting, as
I was, on his own, then I would want control over the terms of
reference. It may be that a select committee or some other vehicle
in Parliament could produce a set of terms of reference that I
felt comfortable with, but actually it may be that they did not,
in which case I would walk away. For the reasons I have outlined,
I think it is very important the chairman has control over that
procedure.
Sir Louis Blom-Cooper: I agree
with that. I think it is very important that the chairman of the
panel, if he is sitting alone, should always agree with the sponsoring
authority what the terms of reference are. It was my practice
to go and do just that. Indeed, in one case, I think for a local
authority, Suffolk, in one of the mental health cases I actually
appeared in front of the council itself and persuaded them as
to what the terms of reference ought to be in respect of a mental
health patient who had escaped and killed some local people. I
found that very satisfactory, so that your sponsoring authority
is happy with the way in which the inquiry is going to be conducted
and the chairman himself feels free, in the sense that he knows
he has the support of the sponsoring authority. I do not see why,
if the terms of reference are agreed between, say, the minister
and the chairman, that should not go before Parliament for Parliament's
approval. It seems to me Parliament is perfectly entitled to say,
"Minister, you have got this right", or "You have
got this wrong".
Sir Ian Kennedy: I would draw
a distinction between the principle you would wish the inquiry
to look into and the precise words you use, which may need some
adjustment. I think it would be appropriate for a committee such
as this to say, "If there were an inquiry, we would be insisting
it look at X, Y and Z". Depending on how the evidence unfolds,
that might have to be a matter for the chairman to have sufficient
latitude, but I would have thought it was right, and I agree with
Louis, that having arrived at a set of terms of reference, you
could bring it back to the House.
Q669 Mrs Campbell: Just a further point
on this: there have been occasions when Parliament has set up
its own inquiries but has insisted that all those participating
are Privy Councillors because of the access to secure material
and intelligence material. Do you think that is an appropriate
way of doing it, or do you think there is wider scope for Parliament
to set up its own public inquiries without necessarily insisting
on all its members being Privy Councillors?
Sir Ian Kennedy: I would not be
in favour of Parliament setting up public inquires, for the reasons
I have advanced. I think they are for ministers, subject to terms
of reference. How Parliament wants to run its own investigatory
activities into matters of major importance would be for Parliament,
and having Privy Councillors do things so that they can have access
is a way round the ideas that otherwise information might not
be forthcoming, which was Lord Butler's evidence.
Q670 Chairman: We should not ask you
questions that we should really be asking ourselves. It would
be interesting to explore for a second this idea, which I think
Ian put to us very strongly, that somehow there ought to be a
process you go through before you decide to set up a public inquiry;
that is, does it meet certain tests and are there other available
mechanisms that you could use? What I am really putting to you
all is: is it possible to formalise that process? For example,
when we legislate now on inquiries, should there be some mechanism
identified that clearly has to be worked through before a particular
inquiry model is opted for?
Sir Ian Kennedy: I would say yes.
There would be tests. Louis is right to talk about flexibility
but I think there are principal tests, if you like a gateway review,
if I can use an analogy, that you would have to go through before
you are going to commit large amounts of public money to a particular
way of looking into something because you would have to be satisfied
that more efficient, more effective, more timely or less expensive
means had been considered and found wanting.
Q671 Mrs Campbell: May I ask a final
question about the question of whether or not to hold an inquiry
in private because one of the bits of evidence we had suggested
that if you do hold an inquiry in private, then witnesses are
much more honest than they will be in public session.
Sir Louis Blom-Cooper: Except on one
occasion, I have always sat in public, and on the one occasion
when I sat in private, I was persuaded to do so because of the
particular issues. I would never do it again. I think Ian is absolutely
right: a public inquiry has got to be conducted in public, subject
of course to the chair having the ability to close the committee
room, if necessary, on a particular issue. It must be in public.
The point about people being more candid in private than in public
has its real dangers. Indeed, people will say things in private
when other people have not heard it, and they say things which
go beyond what they ought to be saying. It is very easy to use
the occasion for "scape-goating". My view is a private
inquiry is almost inconsistent with the notion of a public inquiry.
Q672 Mr Liddell-Grainger: On that point,
a private inquiry is always headed from the government. The government
will say, "We want this in private". There may be security
implications but normally there are not. Do you think, if that
is the case and Parliament is saying that, then you as a chairman
of an inquiry should be able to say, "No, I believe strongly
this should be in public"?
Sir Louis Blom-Cooper: The 1921
Act requires it to be in public, subject to the chair being able
to close it for reasons of national security or the like. In other
statutes I think there is a provision that the minister can indicate
whether it should be held in public or in private. I think that
has almost become a dead letter recently. I defer to others who
know better. I think now that in all public inquiries the instinct
is to have them in public.
Sir Michael Bichard: I doubt whether
any of us would have wanted to chair an inquiry that was in private.
I think it had to be in public, with the ability to close if necessary
for particular reasons.
Sir Ian Kennedy: I do not accept
the point being made to you about the truthfulness of witnesses.
I have no experience of seeing that with people in very difficult
circumstances. My view is a constitutional point that if it is
in private, you cannot hold the chairman and the panel to account
because you have not seen the evidence. It is all very well, they
may get someone, but how can you know that they are behaving properly?
You have a fundamental obligation to behave in public.
Q673 Mr Prentice: Do people always tell
the truth in public inquiries?
Sir Ian Kennedy: My experience
is that people tell the truths they perceive to be the truth,
though it may not sometimes be the truth that you would recognise,
for the reasons I say about perceptions of exchanges with people
having different memories of them and not wanting to deceive.
On other occasions, they may simply say, "X" and someone
else says "Y" and that is where you have to make judgments.
Whom do you believe?
Q674 Mr Prentice: I ask the question
because I asked Lord Hutton why he did not take evidence on oath
and he told me, and I paraphrase here, there was no need—as
if the people who were being brought before him were going to
tell the truth anyway—the Head of the secret services, the
Prime Minister, very illustrious and important people in the land—and
they would not dissemble.
Sir Ian Kennedy: Far be it from
me to descend to the particular but I think there is a principled
response which says: regardless of whether one thinks it is right
or wrong to tell the truth, there are contingent reasons in favour
of doing so because you are very likely to be found out if you
do not.
Sir Michael Bichard: We did not
administer an oath, but I did remind all witnesses of the expectation
that we had that people would tell the truth and why that was
so important, given the importance of the issues. I agree with
Sir Ian that actually when you have 2,000 documents—and
he had a lot more—several dozen witnesses and several weeks
of hearings, you are likely to get caught out. I think people
know that and that does bring some pressure on them. I do not
think we had any evidence that people were not telling the truth
at all, even in very difficult circumstances.
Q675 Mr Prentice: I know you all believe
this: you do not want overly to legalise, if that is the word,
inquiries. Sir Ian told us that cross-examination should be used
only where necessary. But Lord Hutton famously did not allow the
Prime Minister to be cross-examined. Do you not think there are
instances where it is important just to reassure the public, public
confidence and so on, and when it is right to allow a witness
to be cross-examined?
Sir Ian Kennedy: The point I am
trying to make is that it helps the inquiry or the chair and the
panel if they can find their way to an understanding of the truth
as seen by this witness. Question: does it facilitate that process
to have one lawyer after another representing X, Y and Z come
forward and put alternative options? Answer: it is unlikely to
do so. That is without prejudice to the proposition that whatever
the witness says must be tested rigorously, and that was the role
of my counsel, because not only did he ask what we as the chair
and panel wanted to know, but also what other people were saying
was the case. That can be tested just as rigorously by my counsel
as having to wait for lots of other people to come up with a kind
of bit picture of the total story.
Sir Michael Bichard: There is
a responsibility on counsel to keep the channels of communication
open with other legal representatives, so that he is well seized
of the issues and the concerns that they have, so that he is able
to ask all of the questions that others would like to ask. We
did not have cross-examination. I merely gave that particular
party's representatives an opportunity, at the end of evidence,
to come back on any points and clarification.
Sir Ian Kennedy: If it will put
your mind at rest, my counsel in the context I am talking about,
because it is important in terms of atmosphere, time and cost,
was required to meet with all the legal representatives, and they
submitted long lists of stuff which he then would incorporate.
Sometimes during the questioning, which went on for a day or more,
there would be an occasion when a lawyer from the back, who was
sometimes in touch with a colleague phoning from London because
we sent the stuff using information technology so as not to have
the expense necessarily of entertaining large numbers of the legal
profession in Bristol, would walk to the front and put a yellow
sticker on the computer screen of the junior, as it were, "Ask
him about the dog", and that question could then be incorporated.
Effectively, it seamlessly worked.
Q676 Mr Prentice: It is marvellous that
you can use IT in this way. I am interested in inquiries that
lose their way, they just run into the sand; they lose sight of
what they are trying to do. When Geoffrey Howe, Lord Howe, was
before us, he cited the experience of Scott, that Scott was stumbling
about in a swamp not knowing where he was going. Geoffrey Howe
told us that he thought inquiries should have what he described
as wing men. He said that if you just have a judge on his or her
own, then they can become submerged by the volume of material.
It is important to have these assessors, advisors, flanking the
judge, just keeping them on the right track.
Sir Louis Blom-Cooper: I think
Lord Howe fastens on very much to the one instance from the Scott
Inquiry. I was always taught when I was quite young by Barbara
Wootton that you must give at least two examples for any generalisation.
Q677 Chairman: Have you not been involved
with Saville?
Sir Louis Blom-Cooper: No[2]
Q678 Chairman: Bang goes the argument
then, but not the example!
Sir Louis Blom-Cooper: I wanted
to say that I do think Ian is absolutely right, that if the questioning
needs to be aggressive and probing, that can be done by counsel
for the inquiry. You do not need counsel for one of the representative
parties to do it. They can have their access to counsel for the
inquiry. After all, the inquiry itself may say to its own counsel:
"Look, do not pursue that line. It is of no interest to us.
We do not want to follow it. Please do not ask questions",
whereas, you cannot stop counsel for one of the parties that is
legally represented from asking questions which he wants to ask.
If I thought that my professional colleagues actually regarded
their function as primarily assisting the inquiry, then I think
I would be in favour of legal representatives asking questions.
The trouble is that lawyers who are representing parties will
behave as they behave in the court room and they will be adversarial,
and that is fatal.
Q679 Mr Prentice: Can I just come back
to judges chairing inquiries and turning inquiries into court
rooms? We have the famous or infamous case of the Saville Inquiry
trundling on for, was it, five or six years, which cost a scandalous
£155 million. Had it been chaired by someone other than a
judge, would we have seen greater expedition?
Sir Louis Blom-Cooper: Again,
that is one example, and I am not going to make any comment upon
it, save to say I think it will never be repeated. On the point
that Ian makes about judges, the public of course has great confidence
in the independence and impartiality of judges. That is why I
think in the past there has been an instinctive way of appointing
judges. My view is that we should use judges much less often than
we do. That is not to rule them out. There are some judges whom
I can think of in the past who were excellent. Lord Scarman's
conduct of the Brixton disturbances in 1981 was an absolute model
of how you conduct a public inquiry. I do not know whether Ian
has ever studied that but he would give his total approval to
the way that was conducted. It is true that Lord Scarmans do not
grow on trees but there are members of the judiciary who can almost
immediately exude great confidence to the public that they are
conducting a proper inquiry and they do not necessarily bring
with them all the attributes of the court room.
Sir Michael Bichard: You have
to step back rather than just saying, "Shall we never have
a judge?" There may be judges who could do this, but in stepping
back you have to ask yourself: what is the purpose of an inquiry?
We have been talking about that this morning. I think Sir Ian
has set out in his paper some principles which I think are pretty
right. The question is whether a judge is likely to be the best
person to deal with all of those issues. He is likely to be as
good as anyone at getting to the truth probably if you are just
looking at someone to try and get to the facts, but we are not
just talking about that. We are talking about someone who is going
to draw some conclusions about how we can improve the situation
in the future. Very often we are talking about public sector bodies
of which a judge has no experience at all. We are talking about
accountability. In order to hold public servants to account, I
think you need to understand a little of the context within which
they are working, though you can get some of that from an assessor
and an advisor, but it is second-hand. I do not think a judge
is necessarily the best person for that. If you are talking about
healing, whether you are talking about healing between some of
the parties or actually healing the public confidence, which often
this is about, I am not sure a judge has particular qualities
to enable him to do that. If you are talking about learning and
improving for the future, I am not sure a judge is the best person
to do that.
2 The witness was not involved in the setting up of
the inquiry but did appear as counsel. Back
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