Memorandum by Graham Mather, President,
European Policy Forum (GBI 20)
HOW SHOULD
INQUIRIES BE
CONSTITUTED?
1. After the Franks inquiry into the Falklands,
Jim Callaghan famously remarked that Lord Franks "for 338
paragraphs painted a splendid picture, delineated the light and
the shade, and the glowing colours in it, and when Franks got
to paragraph 339 he got fed up with the canvas he was painting,
and chucked a bucket of whitewash over it".
2. Complaining that Lord Hutton refused
to pass judgement on the matters which had been heard in his court
on Iraq, Nick Cohen considered that Lord Hutton "has brought
a belated but deserved disgrace to judicial inquiries".
3. In Matrix Churchill, Sir Nicholas Scott
seemed overwhelmed by the scale and volume of his own report to
the extent that he seemed unable to draw conclusions from it,
whilst at enormous cost Lord Widgery's inquiry into Bloody Sunday
is being revisited by Lord Saville.
4. And there was astonishment when Andrew
Marr asked Lord Butler's press conference who was to blame for
defective Iraq intelligence analysis, only to be told that no-one
was to blame for anything, and that all decisions had been collective.
5. It may be time to redesign the way in
which public inquiries, the ultimate backstop of accountability,
are designed and operate.
6. The methodology seems no longer to work.
One approach is that they should operate either under the control
of a single judge (Scott, Hutton). Another is that they are headed
by a mandarin assisted by Privy Councillors (Franks, Butler).
7. The judicial route has two profound difficulties.
Most serious is the historic hesitation of judges to stray into
matters which can, at least in theory, be resolved by Parliament.
Since Stockdale v Hansard in the mid 19th century judges
have systematically fought shy of any challenge to parliament:
the attempts by Lord Denning "be you never so high the Law
is above you" to impose heavy legal constraint on executive
action was atypical.
8. There is probably no better means of
untangling evidence than a single judge, assisted by counsel of
the standard of Presiley Baxendale or James Dingemanns. But judges
visibly run out of steam as they contemplate the interaction of
the facts they have disinterred with the incoherent complexities
of cabinet government and collective responsibility, British style.
9. Elsewhere in administrative law many
established Tribunals assist single judges with a pair of assessors
to reintroduce an element of public involvement, special knowledge
or just common sense. The result can help ensure that His Lordship
hasn't missed the point in his forensic examination of the detail.
It seems at least possible that an assessor sitting alongside
Sir Nicholas Scott would have suggested that a system which had
very nearly sent innocent men to prison for acts in which the
state had been closely involved required some redesign.
10. An outside voice in Scott or Butler
would probably have said that it would not be good enough to say
that all involved in collective decisions with profoundly unsatisfactory
outcomes had "shown good faith" a comforting but ultimately
unsatisfactory confusion which leads inquiries to fail to make
a long term difference.
11. Inquiries run by mandarins have another
different problem. Most very senior and high officials believe
that the way in which British government operates is, if not perfect,
as close to perfection as can be expected. High officials can
be shocked by the way in which events panned out in particular
cases. They can frequently identify quite large numbers of quite
small steps which might prevent the same situation occurring again.
The Butler inquiry generated a large number of these, and the
career of the Committee on Standards in Public Life has also shown
that such bodies can close stable doors on public appointments
and parliamentary misfeasance. These achievements are not to be
denigrated.
12. Yet taken in the round the lesson of
Franks, Scott, Hutton and Butler may be that inquiries neither
effectively attribute responsibility—because it is always
deemed to be collective—nor adequately redesign malfunctioning
systems—because they prefer to tweak them against the unlikely
risk of the disaster into which they are inquiring happening again
in the same way.
13. Recently, however, into this narrow,
somewhat complacent and clearly inadequate approach has come an
astonishing model of how a good inquiry can work and an opportunity
for change. Sir Michael Bichard's report into the way into child
protection measures, record keeping, vetting and information sharing
in Humberside and Cambridge police following the murders of Holly
Wells and Jessica Chapman is an astonishing ray of light on how
inquiries could be run.
14. The choice of inquirer was the first
encouraging sign. Michael Bichard was an unconventional mandarin,
with a background in local government, who never seemed entirely
to buy the package that everything existing systems did was for
the best in an imperfect world.
15. His report is startlingly different
from the others. He does not hesitate to comment on the facts—which
are analysed in microscopic detail—as the story builds up.
Names are named throughout. In the 9-11 Commission staff reports,
the various failures of entry control, visa checking and inter
departmental communication failures are listed—but only
the people who broke the mould by going beyond the call of duty
or performing their jobs outstandingly get named. In Bichard they
do as well—but so do those whose performance was scarcely
acceptable.
16. The conclusions are blunt, precise and
have a ring of truth. "Huntley alone was responsible for
and stands convicted of these most awful murders. None of the
actions or failures of any of the witnesses who gave evidence
to the inquiry, or the institutions they represented, led to the
deaths of the girls. However, the inquiry did find omissions,
failures and shortcomings which are deeply shocking. Taken together,
these were so extensive that one cannot be confident that it was
Huntley alone who `slipped through the net'."
17. Following Bichard one chief constable
has been suspended. It is difficult to see how that could have
happened without so authoritative and clear a report. Major recommendations
have been made for system changes, in each case defining responsibility.
18. In its fact-finding Bichard resembles
the 9-11 Commission. A narrative is built up but, unlike the usual
Whitehall style of report, the tone is not neutral and even but
inquisitive and from time to time surprised.
19. In Bichard, as in 9-11, there is a tone
that terrible things have happened and we are all, inquirers and
public, struggling to find out why they went wrong and to put
them right.
20. It makes for a tougher style of inquiry.
Many responsible for airport security, immigration control, as
well as air traffic control will have winced as they read the
9-11 report, just as many police and social services staff look
sloppy and incompetent in the way they handled Huntley. Yet grown
up inquiries like Bichard and 9-11 recognise that life is full
of sloppiness and incompetence; they don't hesitate to be blunt
about its manifestations, to praise the exceptional people who
performed their duties outstandingly and imaginatively, but above
all to learn the lessons.
21. Where Bichard considers that there are
issues outside his remit, for example, he gives a clear steer
to other inquiries.
22. "It is not for me to reach conclusions
about Social Services' handling of the early contacts with Huntley.
This is a matter for Sir Christopher Kelly's Serious Case Review.
I have, however, referred to him my misgivings about several aspects
of these contacts." (Bichard then sets out four paragraphs
of concerns).
23. The 9-11 Commission follows the same
approach. It has recommended far reaching changes to the US intelligence
coordination system and the signs are that these will be implemented.
The Commission has promised to monitor this. And Sir Michael Bichard
will reconvene his inquiry six months after it closed to examine
what has happened to his recommendations.
24. We have a choice. Inquiries can find
the facts and close stable doors, or find the facts and be serious
about changing things. Sir Michael Bichard's work in Britain,
and the 9-11 Commission's approach in the US, have given us two
powerful models of how inquiries can make a difference and public
confidence in them can be restored.
25. Yet it remains uncertain how best to
constitute inquiries to attempt to secure their most effective
outcome and to guard against the suggestion that those conducting
them are too establishment-minded to reach an effective combination
of fact finding, responsibility allocation and lessons for the
future.
26. Some believe that the risk of "whitewash"
is best avoided by institutionalising the selection process and
pre-selecting suitable inquiry chairmen in the form of a standing
panel.
27. A variant would be to hand to an appointments
commission at arms' length from ministers the task of allocating
inquiry chairmen.
28. Yet a panel of potential inquiry chairmen
may itself be seen as a quintessential collection of the great
and the good and those making th selection may err on the side
of caution given the uncertainties of the role which is to be
fulfilled, thereby failing to meet one concern.
29. Since a successful inquiry will require
a careful matching of skills to the particular issue a panel would
have to be sizeable if there were to be any prospect of pre-selecting
genuinely appropriate candidates. Instead of selecting from an
infinite number of candidates, albeit with a risk that they were
seen as hand picked, there is a counter risk that the pool of
the pre-selected would b seen as worthy but not particularly expert.
30. Attempting to solve the problem by an
appointment commission might assist. It would clearly remove the
appointment from two classes of figures who may have quite serious
potential conflicts of interest: ministers and senior civil servants.
31. On the other hand an appointments commission
would possibly add some delay to the process and make quick and
decisive inquiries less easy to secure. It would be obliged to
follow more established procedures than has been the case in recent
years, the cumbersome nature of which may explain why formal inquiries
under the Tribunal and Inquiries Act of 1921 have fallen out of
favour.
32. A third option would be to involve a
cross party range of politicians, perhaps at Privy Council level,
in the conduct of inquiries, thereby attempting to increase public
confidence in the process. In the US the 9-11 Commission undoubtedly
benefited from a perception from the outset that the Commission
involved a wide range of political representatives. The Butler
Committee, however, was based on this approach but did not for
whatever reason seem to gain much benefit from the presence of
some senior serving politicians among its membership, although
such a structure may have helped to ensure that political parties
themselves were "embedded", to some degree, in its work.
33. This review of recent experience suggests
that there it may be in the public interest to continue to allow
inquiry chairmen to be chosen from a wide range of public figures,
allocating them quickly and with reference to demonstrated expertise.
34. An appointments commission might prove
unwieldy in practice, but the Committee on Standards in Public
Life might usefully be asked to examine afresh best practice in
appointments and conduct of inquiries.
35. One change, however, could be introduced
without either delay or complication. It would be to assist the
inquiry chairman, whether judge, mandarin or other public figure,
with two lay assessors in the way familiar from specialised judicial
tribunals.
36. Assessors help to maintain proper procedure
and to deter "short cuts". They are a guard against
attempts to influence chairmen through a quiet word, and a force
for thorough examination of the evidence. They assist in maintaining
good procedures and can provide real collegiate support for the
chairman in what are frequently difficult and testing decisions
of heavy responsibility. No less important in coming to conclusions
for the future they can provide a check based on common sense:
has the report covered all bases? Do its conclusions stand up?
How will the public, rather than insiders and the establishment,
see this? What should happen next? All these questions are better
answered if a judge or a former senior civil servant has alongside
him the support of two independent assessors to share his responsibility
and assist his work.
Graham Mather
November 2004
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