Examination of Witnesses (Questions 680-692)
9 DECEMBER 2004
SIR MICHAEL
BICHARD KCB, SIR
LOUIS BLOM-COOPER
QC AND PROFESSOR
SIR IAN
KENNEDY
Q680 Mr Prentice: Is it possible to formalise
all that then? We heard earlier that you have to have horses for
courses. If there are certain types of inquiries that would not
benefit from having a judge, can you have a check list: this is
an inquiry that a judge ought to run; this is an inquiry and because
it may deal with something about local government that would be
inappropriate?
Sir Michael Bichard: I think it
would be good to try and set those issues out. What you have to
avoid is then coming to a conclusion that you must, in these circumstances,
appoint X. You have to make a judgment about a person, about a
situation, but I think it would be helpful to explore some of
those issues, if only to try and move away from the general acceptance
that when you have an inquiry it ought to be a judge.
Sir Ian Kennedy: My position remains
Stalinist on this matter! If you define the purposes as I have
defined them, as Michael has already made clear, you are unlikely
to find someone whose background, upbringing, professional approach
to life, is going to be able to achieve those purposes. That is
not to say you cannot use a judge for another activity in the
bag of clubs that you ought to have developed. Louis has played
what I call the Scarman card on a number of occasions when we
have spoken. My own view is that Leslie Scarman is the exception
that proves my rule.
Q681 Mr Prentice: May I ask about deadlines
for inquiries and so on? This is something I have raised with
witnesses before, that some inquiries go on for years and years.
Should there be a kind of external constraint? Should the Department
for Constitutional Affairs' Ministers agree with the chair beforehand
what the likely length, or an acceptable length, of the inquiry
would be, or should it just be open-ended?
Sir Michael Bichard: Absolutely
not, because I think as soon as you do that then people are going
to accuse you of tailoring the inquiry to hit that deadline. They
will accuse you of not having taken time to consider particular
pieces of evidence because you are up against a deadline. I have
said to you how important I think maintaining momentum is but
to fix an artificial deadline at the outset would be disastrous.
Sir Louis Blom-Cooper: May I enter
a note of dissent on that? I think myself that the moment terms
of reference are framed and the chairman is chosen, you can make
a rough estimate of how long it will take. In all my recent inquiries,
I have always asked for a deadline, with the caveat that if it
extends beyond that, then you go back to the minister and say,
"Would you please extend my time?" I think it is quite
important to let the public know how long the inquiry is likely
to take and when they will get their report. That is very important.
Could I just add one point that Michael Bichard made a good deal
earlier and that is about recommendations? I rather disagree with
him. I think a public inquiry ought to be left to make as many
recommendations as it wants. After all, the recommendations are
not necessarily primarily designed for public consumption but
they may be very well directed to the department of state, for
example, responsible for the particular issue. For example, in
the Ashford Hospital Inquiry, I think we made over 100 recommendations
and all but one were accepted and implemented. I think it is quite
important that the department itself gets enormous help from a
public inquiry in directing future policy and future practice
in the particular field.
Q682 Chairman: We have had permanent
secretaries before us who have told us how—this is not the
word they used but my word—useless a lot of the recommendations
in inquiries have been because they have been from people who
just simply do not understand how these bodies and systems work.
Looking to either of you, but to Michael Bichard at the moment,
could I say that I think you have been quite innovative, not only
in the review process that you put in but quite innovative in
tying particular recommendations to particular bits of the system
and asking them to come back to you on that. Does that not, in
a sense, make the point that because you are someone who has been
inside the system, you actually know what it takes to deliver
a recommendation? It is far more plausible when you say something
like that than it would be to have, say, a judge who would sound
off into the ether about systems that he does not understand?
Sir Michael Bichard: You cannot
have a review process unless someone has the responsibility of
implementing your recommendations. Otherwise, there is no-one
you can hold to account. Having decided we are going to have a
review process, we are absolutely determined to make each of those
recommendations attributable to a department or an individual.
I went further than that, which may be slightly more controversial.
That is, I used the period from the end of the evidence to the
publication of the report just to try and test out whether the
kinds of recommendations that I was likely to make were regarded
as feasible, nay, even reasonably affordable, and therefore spent
that time building a little bit of a consensus around the recommendations
so they were not immediately rubbished when they were produced.
I know you have to handle that very carefully so that you are
not getting yourself in to a situation where your recommendations
are being constrained by what you are hearing, but if you have
the possibility of a couple of options around the way forward
and one of them is going to be achievable and get support and
the other is not and there really is not anything in your mind
between the two, I just think it makes commonsense to go for the
one that is going to be likely to be implemented. I know Ian is
trying to get in, and it is good to have disagreement between
your witnesses. One of the reasons for not setting a deadline
is that you do not know what you are going to find. We found things
which took us beyond what we were expecting initially. If you
are tied to a deadline, then people will always say that you have
produced your report prematurely without having been able to give
those issues that you have discovered proper thought.
Sir Ian Kennedy: May I add to
that? I agree with Michael on deadlines completely, but also that
if you are going to make any recommendations which are likely
to serve the public interest by being listened to, then you must
have some understanding of the system into which they are to be
inserted. That means you must surround yourself with staff who
understand. Michael is quite right; you must begin behind the
arras, as it were, to have the start of a dialogue. If I can give
you a concrete example, the view taken by myself and my panel
was that clinical negligence litigation was so significant a barrier
to people admitting near misses or actually to things going wrong
that it was working against the interests of the safety of patients
because no-one confessed, as it were, so that we could learn from
it. We tested that with the then Lord Chancellor's Department
and were met with the proposition "we believe in blame over
here", as it were. So we knew that there was at least one
sector of Whitehall that would not regard that recommendation
as particularly welcome. That does not mean to say you change
the recommendation; indeed, we did not because there were other
parts of Whitehall that were more likely to listen to it. However,
if you do not do that—Michael is quite right—you are,
as you rightly said, issuing things into the ether. That is what
makes a judge chairing even less appropriate in these circumstances
because they have no knowledge of the workings of Whitehall, not
least the notions of compromise.
Q683 Mr Prentice: I hope that I am not
misquoting Liam Donaldson, and if I am my colleagues will correct
me, but when he came before us he gave me the impression anyway
that sometimes recommendations were made that were impracticable—reconfiguring
bits of the National Health Service, restructuring, which perhaps
went a bit outside the central remit of the inquiry. I remember
reflecting on this and thinking how widespread this was, if there
were lots of inquiry reports out there with recommendations that
were impracticable and had never been implemented.
Sir Ian Kennedy: And therefore
a waste of money and a waste of time. There is a degree of mission
creep and a degree, over time, if you are chairman, of the outbreak
of hubris that you can solve if not this problem every problem.
You have to occasionally look in the mirror and control yourself.
Sir Louis Blom-Cooper: Of course,
recommendations are only recommendations. The sponsoring authority
does not have to accept them. One has had that experience.
Q684 Mr Heyes: If they are going to have
power, then taking Sir Michael's approach, testing the feasibility
before you publish them is absolutely crucial. I would like to
push you a little bit further to explain to us how you went about
testing out the feasibility and checking out whether there was
support for the recommendations. Who did you speak to, and was
that always consistent with the overriding principle of complete
openness of what you were about?
Sir Michael Bichard: As I say,
I think it is difficult territory. I can only tell you what I
did, and people might say it was not the right way of doing it.
Between the end of evidence and writing the first draft—and
there were many drafts—and publication, I had meetings and
discussions with civil servants in two government departments,
and conversations with those outside of government. As a result
of that I was able, I think, to produce recommendations that were
still independent but still quite radical, but which people felt
could be achieved therefore on the day of publication. We have
not talked very much about the media, and perhaps we could come
on to that because it is quite an important area; but on the bare
publication there was strong support actually from everyone to
the recommendations in the report: the police, who were criticised,
came strongly out in favour of it because they thought the recommendations
could be implemented; and different departments within the Government
did; and the media was also supportive. That immediately then
gives you momentum to ensure that those recommendations are implemented.
One of the reasons why—the other slight disagreement we
had—I try and keep recommendations to as small a number
as possible and focused on the main priorities is that communicating
the really important things coming out of this to the public through
the media is very important in building up support, which you
need if they are going to be implemented. I have no powers to
set up a review at the moment. The only power I have to review
this and to report publicly at the beginning of March, as I will,
is public support and media support.
Q685 Mr Heyes: The reason I press this
is because I am impressed by the innovation; it is something all
inquiries can learn from; but it is doing it in a way that does
not leave it open to that suspicion that you are potentially giving
some power of veto. You talked about discussions with civil servants;
and if you were to be hypercritical you could perceive that as
a cosy discussion with people who wanted to protect their position
by persuading you to a particular point of view. I am sure that
that did not happen in your case, but those kinds of suspicions
can arise.
Sir Michael Bichard: I agree.
Sir Ian Kennedy: I have reflected
a lot upon this because of the commitment to openness, but you
are moving from the process of finding facts and establishing
the story and the various stories, to forming judgments. There
is no reason why, in working out the options for your judgment,
you should not test them with people who might have good judgment
themselves. They would not only be members of Her Majesty's Government—far
be it; they might be from a whole spectrum of people who have
to put whatever you might recommend into operation, let us say
about collecting data in a particular way. You would talk to people
from the Royal Statistical Society and ask, "Is this just
mad, or might it work?" They come back and say, "If
you do it that way, it might work." Then you go away and
think about that, and it helps you make judgments. We have all
seen the evidence about safety, reverting to the example I gave
before, and also litigation and what it costs: then the judgment
you make in the light of that can be challenged by anybody, but
you might as well listen to some people before you arrive at that
judgment.
Q686 Mr Hopkins: To return to the constitutional
point, I think that is the core of the problem. The collective
wisdom of our three distinguished witnesses today could probably
provide an ideal format for running those inquiries that are not
threatening to government—the type A inquiry, if you like.
It is the type B inquiry where government perceives a threat to
itself. Although I accept Sir Michael's point that there may be
a continuum, it is lumpy: there is a big lump at one end and a
big one at the other, and possibly one or two in the middle. If
I were a minister I would know immediately whether or not it was
a threat to me and the government if an issue arose. Sir Ian has
said that the only way is for ministers to have powers to set
up inquiries, in whatever form they take. For the first type there
is not a problem, but for the second one, the minister, who may
possibly be implicated, certainly feels a threat to the government
and would have the prime minister breathing down his or her neck.
That is the problem. We have a constitutional problem, as Sir
Ian said, in relation to this kind of thing. Parliament clearly
does not do this now, bearing in mind the large majorities that
have tended to be very loyal to very strong prime ministers over
the last 25 years, except perhaps the Major government with its
small majority: Ministers will do what they want. Is there not
some way of setting up a new constitutional procedure where one
could lever inquiries out of ministers, even when they were reluctant?
Sir Louis Blom-Cooper: Yes. This
is an absolutely fair point to make. There is a necessity for
being able to set up a public inquiry in the face of ministerial
opposition. That seems to me the function of parliament.
Sir Ian Kennedy: I do not agree,
with respect. My view is that public inquiries ministers set up;
other things are not amenable to public inquiries. Parliament
has to decide how to deal with them. I have always believed that
one device would be what might be described as constitutional
guarantees, which a lot of other countries, particularly Latin
American countries in the model of Simon Bolivar and so on, suggested
a group made up of not necessarily lawyers—they may be trade
unionists or all sorts of groupings—but who have vested
in them the guardianship of the constitution but are independent
of parliament but the agency into which you can shunt these matters
to be resolved. They have full powers of a court but are not a
supreme court in one sense; they guarantee the continuity of the
constitution, however defined, in issues where the conduct of
government is called into question.
Sir Michael Bichard: Whether you
need to go that far—I can see some consequences from that
which may not be as attractive as one would wish.
Sir Ian Kennedy: It is only another
club, a driver; it is a number three driver, not a sand wedge.
Sir Michael Bichard: I can see
however the driver being used for non-golfing purposes. I am not
sure you need to go that far. I agree with you that there ought
to be some way in which these very political issues can be seized
upon by parliament if a minister does not wish to seize upon them,
because after all ministers are ultimately responsible to parliament.
I do not know what precisely that mechanism is, but it is some
kind of parliamentary inquiry. We do have a Speaker of the House
of Commons, who is expected to act on behalf of the House; and
in some way it is an extension of that. I am not suggesting the
Speaker should be involved in this process, but it is an extension
of that kind of whole house responsibility, whole parliament responsibility
into matters that are heavily laden with political implications.
I think it ought to be possible to devise something like that.
Q687 Chairman: We are giving some thought
to it which is why we are trying to test you on it!
Sir Michael Bichard: I am sure
you are. We are only here for an hour!
Q688 Brian White: Is there a time limit
by which an inquiry is no longer valid, thinking of an example
where it took a long time to finally concede the need for an inquiry,
or the Saville inquiry, where memories are 20 and 30 years old?
Is there any value in having inquiries into events of some time
ago?
Sir Louis Blom-Cooper: I doubt
the value of an inquiry of an event 30 years ago—and I have
particularly in mind Bloody Sunday—if the procedure is one
of taking oral evidence, because the ability of the human mind
to be, as it were, diverted from true memory is so great. I think
the Bloody Sunday inquiry will demonstrate that at the end of
the day, whatever confusion there was on 1 February 1972, it has
been multiplied 10 times over in 2004; that is to say, you do
not get any benefit from calling witnesses. The best you can do
is go back and look at the documentation that existed at the time.
You can look at all the commentaries that have been made, and
it may be that you would ask certain people to give written evidence,
but that would be the totality of it. This is why I am so much
in favour of an inquisitorial system rather than an adversarial
one. Flexibility demands that that kind of case needs to be dealt
with in a quite different way if you are going to try and find
out the truth.
Sir Ian Kennedy: I think the Bloody
Sunday inquiry is a perfect example of when you should have a
public inquiry; I just do not think it was run in the right way,
with the greatest respect. That is the difference I am drawing,
because catharsis healing, multiple truths, learning lessons,
and all of that can come out of it, and it did not necessarily
involve the action or inaction of government, or if it did it
is so far away that people are less likely to be partisan on this
side of the Irish Sea. But if you then convert it into a trial
in the way that Louis has described, you subvert the possibility
of realising what I thought were legitimate ambitions.
Q689 Brian White: One of the areas that
is often overlooked is that you conduct these inquiries in the
full gaze of the media, with differing opinions coming out. How
do you cope with dealing with those campaigns when you are running
your inquiries? I am talking about media campaigns as opposed
to the individuals involved in whatever it is you are looking
into.
Sir Ian Kennedy: From my own experience—and
Michael's more recent, in a sense highly focused—the media
is merely an extension of the public in this way. They are entitled
to know what you are doing and entitled to be party to it and
to sit in and ask questions. I went into purdah the moment we
sat, but we had a dedicated media team that would make available
evidence, transcripts, give interviews as to where we were going,
deadlines and so on. Thereafter it was a matter for the newspapers
or the radio what they would report of what transpired, and that
is a matter for them, but you simply have to recognise them as
a proper part of the political and public landscape, and help
them to do their job.
Sir Michael Bichard: You have
really got to treat them in a positive way rather than even tolerate
their presence. Some of the media said to me after the publication
of the report that this was one of those occasions when they did
feel they were being treated as if they had a responsible role
to play, that our press officer was taking time to explain often
what was going on. The press said that very often they felt in
inquiries they had been left in the dark; that the language that
was used was unnecessarily complicated; that the recommendations
were too long and incomprehensible; and then people expected that
they would be helpful, supportive and that they would be able
to explain what this was all about to the public.
Q690 Brian White: This is one of the
rules that you would have at the beginning of an inquiry, because
each inquiry has been set up separately.
Sir Michael Bichard: Yes. The
technology that exists now enables you to support the media during
the course of an inquiry. In the Soham inquiry the media very
rarely came into the inquiry room. They were sitting in their
own room. They had the transcript coming up almost at the same
time as the evidence was being given. They were able to reflect
upon it to come to their conclusions without having to fill up
the inquiry room. It went very, very well, but at the end of the
day it involved our press officer going along sometimes and saying,
"this is a bit complicated; this is what was really happening;
this is what we think of the issues."
Sir Ian Kennedy: You can do a
lot with modern IT. We took the inquiry proceedings to remote
locations, one in South Wales, one in Devon and one in Cornwall,
where parents and others and local media could go and watch the
proceedings. Then we would keep a week's copy on video so that
if they had missed any they could catch up. It is very easy to
do if you think in terms of the fact that you are serving a public
that may not always be able to come through the door on any given
day.
Sir Michael Bichard: It is bizarre
to set up a public inquiry and then treat the press as if they
are a problem.
Q691 Mr Prentice: The House of Lords
will be considering the Inquiries Bill today and we have had a
letter from the clerk to the Constitution Committee in the House
of Lords, telling us that the Chairman of that Committee is unhappy
about the way in which this has all come about. We were told that
it was not preceded by a White Paper or any other full statement
of the Government's proposals. My question is really to Sir Louis:
do you think the Government has got it wrong with the Inquiries
Bill? Do you think it is a missed opportunity? What are the major
omissions or flaws in it?
Sir Louis Blom-Cooper: From my
perspective—and it is only my own perspective—I think
the Bill is premature. I think some of the basic principles that
we have been discussing today need to be sorted out before you
launch into legislation. I think I know the reason why the Government
is very keen to press ahead with the Inquiries Bill: it wishes
to have the provisions of the Bill in place before they set up
the inquiry into the Paddy Finucane case. I think that is the
reason for haste. I may say that that does not seem to me to be
a very good reason for not taking the opportunity of resolving
some of the basic issues. As I have said in my paper, I think
the issue between the Salmon principles of 1966, which have been
followed time and time again, as opposed to how Lord Scott conducted
the inquiry—whatever one may say about that, it was quite
opposed to Salmon—that issue has to be resolved; that is
to say, public inquiries are adversarial and we must deal with
the question of legal representation.
Q692 Chairman: We could go on a long
time on this. We have had a good go. Thank you for what you have
said to us and for your written submissions. We have tried as
best we can to draw on your vast experience between you, and the
reflections you have made on your own inquiry experiences. I hope
that our report will reflect that. Thank you all very much.
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