Criteria and taxonomy
179. In its written evidence to us the Government
has said that "There is no standard blueprint for the type
of circumstances in which an inquiry might be needed. Matters
triggering inquiries are, by their nature, difficult to foresee"
adding that "A common theme tends to be that the subject
matter of the inquiry has exposed some possible failing in systems
or services, and so has shaken public confidence in these systems
or services, either locally or nationally".[295]
Speaking in the Lords second reading debate on the Inquiries
Bill, the Parliamentary Under-Secretary for the Department for
Constitutional Affairs, Baroness Ashton of Upholland, believed
it was difficult to identify criteria "partly because of
the wide difference in the nature of inquiries. They are fundamentally
different". She was, "not sure whether we would capture
everything that needed to be considered".[296]
Sir Louis Blom-Cooper QC concurred, "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".[297]
180. Advice is therefore unclear. Frank Dobson revealed
(and Sir Liam Donaldson confirmed) "that I was strongly advised
not to hold a public inquiry. I felt this was partly because many
involved knew it was likely to reveal an embarrassing 'can of
worms'". [298]
Sir Liam Donaldson acknowledged the difficulties but thought "we
should have a try at it [establishing criteria], because at the
moment it is just being done on judgment, experience and intuition,
and I think it would be very helpful not least to have an auditable
process: because increasingly we have judicial reviews calling
for inquiries when departments might think that the inquiry is
not the appropriate mechanism".[299]
181. Some of those who gave evidence to us did try
and come up with a checklist of criteria. Lord Norton told us
that:
"There should, in effect, be a checklist
for determining whether an inquiry is the most appropriate mechanism.
The checklist would cover such questions as: Is the problem clearly
defined? Does it have clear implications for public policy? Is
the level of public concern sufficient as to justify triggering
a public inquiry? Is there any established alternative available?
Have other possible avenues been exhausted? Do the potential benefits
of an inquiry justify the costs? These criteria could, if necessary,
be embodied in a schedule to any new legislation […] governing
the establishment and conduct of public inquiries".[300]
182. Alun Evans, secretary to the Foot and Mouth
Disease 2001: Lessons to be Learned Inquiry thought the "suggestion
of some type of menu which goes through a process of thinking
does it fit within this, does it fit within that or is the inquiry
not appropriate, would be worth doing".[301]
He saw:
"a number of elements which might call you
to have a public inquiry: first, that something has demonstrably
and seriously gone wrong, a big failing somewhere; second, that
in a part of that there were either political, administrative
or managerial failings or all three; and third, that the public
or parts of the public have suffered harm in some way as a result
of that failing. I think those type of areas would be the ones
where you would then say do we need an inquiry separate from government
to look into why this happened?"[302]
183. Dr Tim Baxter, secretary to the
Ashworth Inquiry, added another: where "there is a reputation
issue for the future of that area of public life".[303]
Sir Ian Kennedy offered us further possible criteria: public confidence
and trust in government or a public service cannot otherwise be
restored; the integrity of system of justice is under challenge;
misfeasance by government; a major disaster with loss of many
lives; an issue of significant importance which also raises matters
of wider public concern; value is added, i.e. issue cannot be
examined as appropriately in any other way that is less expensive,
less elaborate, and more speedy; or where new or poorly understood
issues of major public concern are involved.[304]
184. Sir Ian Kennedy proposed "a gateway review,
[…] 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".[305]
While it is possible that an inquiry would not be called even
where many of the criteria are met, we believe the time has come
for setting out what such criteria are in order to improve clarity
about the circumstances in which decisions to call inquiries are
taken. We recommend that Ministers
should justify their decisions whether to hold an inquiry or not
on the basis of a published set of criteria and propose the following
as a possible basis for this:
