Memorandum by Dr Iain S Macdonald CB (GBI
11)
I have only recently become aware of the Committee's
current concern with this subject, and I have read with interest
the paper "An Issues and Questions Paper" issued by
the Committee. I regret having missed the deadline for submission
of memoranda, but I am grateful that the Committee may be willing
to accept a late memorandum.
I was Chief Medical Officer at the pre-devolution
Scottish Office during the early stages of the outbreak of bovine
spongiform encephalopathy (BSE) in cattle. Some nine years after
I had retired I was called as a witness at the Public Inquiry
(the BSE Inquiry) chaired by Lord Phillips, which reported in
October 2000.[22]
There was a conflict of evidence between another
witness and me. The published report subsequently revealed that
there had also been an undisclosed conflict of evidence between
the Inquiry and me. This had arisen because the Inquiry had attributed
to a relevant document extracted from a file a meaning that I
would certainly have disputed.
My involvement with that Inquiry has therefore
left me with concerns about how inquiries gather evidence, check
it, and disclose it to witnesses who may be affected by it. These
concerns include the risk of confusion over factual matters when
inquiries rely upon what has been described by one commentator
as "documentation which has not necessarily been tested orally".
Eloquent expressions of opinion can be found
in favour of openness in public inquiries in order to allay public
concern, to restore public confidence, or to satisfy the public
in other respects. The need for openness towards witnesses who
may be at risk of criticism or loss of reputation does not seem
to have received a comparable level of attention.
Having tried to explain briefly my interest,
and how it has arisen, I shall attempt to address those questions
in the Committee's paper on which I feel able to comment.
1. Have the largely ad hoc inquiries into
matters of public concern functioned adequately over recent years
or is a reconsideration of their use now necessary?
Different individuals or groups will have different
expectations. Some will be interested primarily in a lucid and
accurate account of events. Others will hope for something more
punitive. It may be more useful, for the purposes of this memorandum,
to try to identify the less satisfactory features of ad hoc inquiries
and consider what could be done to improve them.
4. Should there always be a single, all encompassing
inquiry into an issue or is it inevitable that other "side"
inquiries will need to be conducted on certain specific aspects
eg into professional conduct?
I do not see this as an "either or"
question. There are bound to be occasions when a single, all encompassing
inquiry is exactly what is needed. Nevertheless, within such an
inquiry a number of distinct issues are likely to present themselves
and would need to be handled appropriately. I would be reluctant
to call these "side" issues.
The Bristol Inquiry pointed out that while a
court is asked to decide between one party and another, a public
inquiry has a wider range of purposes.[23]
That may be valid, but what may seem to an inquiry to be only
one issue within its wider range of purposes can loom much larger
to the individuals concerned. A public inquiry provides a very
public platform on which such an issue is exposed to view. It
may indeed be highlighted to an extent that the media could scarcely
achieve, and yet an inquiry may leave it unresolved or in an unsatisfactory
state.
5. Is it appropriate for judges to chair
inquiries? If not, should the subject of the inquiry determine
the characteristics of the chair? What qualities should they have?
7. Is there value
in having a trained panel from which members of an inquiry can
be drawn when necessary?
I propose to comment on questions 5 and 7 together,
and to consider the staffing of inquiries in a fairly broad sense.
The media tends to identify, to the public,
the chairman and any members or assessors, and counsel to the
inquiry. Major inquiries are however supported by a large number
of individuals brought together for that purpose. This is clearly
necessary because of the volume of material to be handled. Some
80 individuals supported the Phillips Inquiry. Some were lawyers,
but most were not.
Lawyers have however the dominant role, and
great store is set by how they decide that public inquiries should
be conducted. The editor of the British Medical Journal (BMJ)
said of a recent inquiry that had attracted criticism ".
. . one problem may have been the absence of a lawyer . . . it
is lawyers who know how to conduct inquiries justly . . . .".[24]
Nevertheless, the dominance of lawyers may have an inhibiting
effect.
Lord Phillips said "In many cases the assistance
of lawyers in identifying and preparing the evidence will be essential.
Lawyers are experienced in gathering documentary evidence and
have the skills essential to ensure that witness statements cover
the relevant ground, without becoming unnecessarily prolix."[25]
That is hardly encouraging to the witness who feels that it might
be helpful to open up a little more, and perhaps even indulge
in dialogue.
More information about the staffing of inquiries
would be helpful. What are the backgrounds of the staff, what
tasks are they expected to perform, and how do they relate one
to another? I would like to know, for example, who is sent on
fishing expeditions in the files, who decides what material is
relevant, and who decides what it means? I would readily admit
that that happens to be my personal bête noir.
8. Should the Tribunals of Inquiry (Evidence)
Act 1921 (or other specific legislation) invariably form the basis
for Ministers calling such inquiries or is there a continuing
need for non-statutory, ad hoc inquiries?
I suspect that there will be a continuing demand
for non-statutory inquiries. However, in commenting on this question
the point that I would particularly wish to make is that statutory
inquiries coupled with the Salmon cardinal principles seem to
provide witnesses with significant safeguards. The position is
less clear in ad hoc inquiries.
10. Should inquiries be investigatory or
is there scope for an adversarial element in the procedures?
This question seems to agitate lawyers. Lord
Scott said that the Salmon cardinal principles "carry strong
overtones of ordinary adversarial litigation". He expressed
concern about "unnecessary involvement of adversarial techniques
. . .", but he identified "an inevitable tension between,
on the one hand, the requirements of fairness and, on the other,
the need for an efficient process".[26]That
seems to set out the present position, ie there is uncertainty
about where the balance ought to lie between fairness and efficiency.
If however we consider, in simpler terms, whether
or not a given procedure provides scope for the robustness of
the evidence to be tested adequately, the conclusion might be
that exclusively inquisitorial procedures fall short.
It would however be proper to mention that Lord
Scott did endorse quite strongly the second cardinal principle.
This reads "Before any person who is involved in an inquiry
is called as a witness he should be informed of any allegations
which are made against him and the substance of the evidence in
support of them'. Can that principle possibly be disputed?
12. Should inquiries always sit in public
or are there circumstances when it is right to conduct an investigation
in private?
Inquiries do not always sit in public, but there
is usually pressure for them to do so. One might say that sitting
in public has come to be seen as the norm, and sitting in private
as the exception.
However, public inquiries tend to proceed in
two phases, as the Phillips Inquiry did. The first phase will
be concerned with establishing facts and the second with comments,
criticisms and recommendations. Although it may not be possible
to avoid the risk of some overlap, I believe that it would be
worth exploring the possibility of a more explicit division into
two separate parts.
I am therefore attracted, in principle, by the
discussion on page 3 of the Committee's paper, in the second paragraph
under the heading "Developments since the Salmon Commission",
of ways in which these functions could be separated. That could,
as the Committee appears to have been suggesting, allow more time
to be devoted to establishing the facts. That would certainly
be helpful to witnesses, and also, I would think, to the inquiry
itself.
However, the main attraction that I see in this,
which may or may not have been in the Committee's mind, is that
the first phase, concerned with establishing facts, could be held
in private, while the second phase could remain public if that
is necessary or expedient. In a privately held first phase witnesses
would be freed from the burden of knowing that in answering questions
in public they are also providing material for to-morrow's newspaper
headlines. That undoubtedly influences how a witness responds,
or does not respond, in public and it would be idle to pretend
otherwise.
Factual matters could certainly be examined
more thoroughly, and straightforward facts could probably be established
satisfactorily before public proceedings begin. Controversial
matters which cannot be resolved may have to be taken forward
into the second phase, but even in such cases the preliminary
work may well prove to have been helpful. Absolute perfection
may not be attainable, but I feel confident that some improvement
could be achieved.
In conclusion, I trust that these comments may
be of some interest to the Committee.
May 2004.
22 The BSE Inquiry. HMSO. London. 2000. Back
23
Learning from Bristol. The Report of the Public Inquiry into Children's
Heart Surgery at the Bristol Royal Infirmary 1984-1995. HMSO.
London. 2001. Cmnd5207(1);35. Back
24
Smith R. Inquiring into inquiries. BMJ 2000;321:715. Back
25
The BSE Inquiry. Chairman's Note on Lawyers. 5 February
1998. Back
26
Report of the Inquiry into the Export of Defence Equipment
and Dual-Use Goods to Iraq and Related Prosecutions. (The
Scott Report) London HMSO 1996; Vol IV:1753-8. Back
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