House of Lords - The Inquiries Act 2005: post-legislative scrutiny - Select Committee on the Inquiries Act 2005

The Inquiries Act 2005: post-legislative scrutiny - Select Committee on the Inquiries Act 2005 Contents

CHAPTER 5: SETTING UP AN INQUIRY: THE PRACTICALITIES

Introduction

153. When, in the full glare of publicity, ministers have agreed to set up an inquiry, have chosen a chairman and perhaps other members, have agreed terms of reference and have appointed a secretary, it seems that they believe their task is done, and that it is now for the inquiry to carry out its allotted task.

154. In fact at this stage "the inquiry" will consist of a very small number of individuals, few if any of whom will have played any part in an inquiry in the past, and who may not have even the most basic of necessities. This is the stage at which they could most use the help of those with experience of such fundamental matters as the appointment of staff, procurement of office premises and a venue for public hearings, communications, establishing a website, preparing budgets, procurement procedures, registration under the Data Protection Act 1998, arrangements for electronic handling of documents, transcripts of evidence, and many others. But they are largely left painfully to acquire such knowledge for themselves.

155. Inevitably the choices made will not necessarily be those which will result in the most efficient running of the inquiry, nor those which will be most cost-effective. By the end of the inquiry, however, those involved will have acquired all the knowledge and expertise which they would have wished to have at the start. That is the stage at which they will revert to other duties, so that all their knowledge and experience, which future inquiries would have found invaluable, is lost.

156. Our remit covers the practice of inquiries. We have concluded that much could be done with relatively little effort to simplify the setting up of inquiries, and that often the result would be to shorten the inquiry and reduce the expenditure.

Cabinet Office Guidance

157. The Propriety and Ethics Team at the Cabinet Office issues a document entitled Inquiries Guidance: Guidance for Inquiry Chairs and Secretaries, and Sponsor Departments. The only available version is described as a Draft. We understand that it dates from 2012, and is permanently in draft form so that it can be updated.[254] The Minister from the Ministry of Justice described it to us as a "comprehensive document" which was "widely used."[255] One of those who used it, Ashley Underwood QC, told us it "frankly was no use at all."[256]

158. The Guidance is 50 pages long. It begins with Guidance for Sponsor Departments, dealing at some length with ministerial involvement in the setting up of inquiries. It then lists the different types of inquiry but, as we have already pointed out,[257] there is no suggestion that an inquiry under the Act might be the preferred form of inquiry. There follow passages on the reactions of departments to requests for papers (including access to papers of former administrations), how officials should respond to requests for oral evidence, how to react to the inquiry report, and what to do when the inquiry in completed.

159. Next comes guidance for inquiry chairs, which is brief and only in the most general terms. The final, and longest, section of the Guidance is entitled "Guidance for Inquiry Teams." There is much about what needs to be done, but very little about how to do it. There is a statement that "The Inquiry Team will need to establish good relationships with key contacts in the sponsor department … The sponsor department will be able to assist in establishing the inquiry, for example by using their pre-existing contacts for the supply of computer and communications equipment and to assist in recruitment." This overlooks the fact that even for those departments most often involved with inquiries—Health, Transport, Defence and Northern Ireland—the setting up of an inquiry is something that happens very occasionally, and the department, however anxious to help, will have less idea than the secretariat about what is needed. Every department will have staff with knowledge of procurement procedures, but first they must know what needs to be procured.

Lessons Learned papers

160. It is at this stage that access to the expertise of those who have previously run inquiries would be invaluable. Such knowledge should be readily available, since the Guidance to inquiry teams includes specific instructions dealing with this.[258]

BOX 5

Lessons Learned papers

The Secretary is responsible for writing a ''lessons learned'' paper on their experience so that central guidance can be refreshed, and should consult with the solicitor and the Chair in doing this. The paper, which should focus on the process of the inquiry and difficulties that were experienced and overcome, should be submitted to the Cabinet Office and the sponsor department within two months of the inquiry finishing. The Secretary should draft the paper so as to include any significant points of interest for government or for future inquiries. As a minimum the paper should include information on:

· Any relevant statute and powers as well as the terms of reference;

· Timetable and description of different stages of the inquiry, including any private or public elements;

· Overall cost and a breakdown including pay rates for the Chair, panel, lawyers and any experts engaged;

· Location;

· Relationship with the sponsor department;

· IT and Information Management;

· Staffing structure;

· Publication, including the form and detail of any prior access given; and

· Any particular difficult issues faced by the inquiry or areas on which the inquiry would have benefited from guidance, and offer advice for future inquiries.

161. If this instruction was followed, the secretariat of a new inquiry would have immediately available at the Cabinet Office and at the sponsoring department a fund of useful knowledge which would enable them to follow the best practice of previous inquiries, and to avoid the traps into which they fell. They would also be able to contact previous secretaries who might be able to offer additional advice.

162. We therefore asked the Ministry of Justice for copies of the Lessons Learned papers for inquiries under the 2005 Act. We were astonished to be told that the Cabinet Office held only one, for the Baha Mousa Inquiry.[259] In evidence to us the Minister was unable to explain this, except to say: "I think they simply are not materialising at the end of the inquiry."[260] He subsequently wrote to explain that responsibility for this fell to the Cabinet Secretary.[261] We therefore asked the Cabinet Secretary to explain this apparent failure by the Cabinet Office to insist on secretaries to inquiries supplying lessons learned papers. He replied that the instructions set out above still constitute the current guidance to secretaries, and that the guidance was routinely shared with inquiry secretaries at an early stage. He undertook to make clear in future that a lessons learned paper must be produced and sent to the Cabinet Office Propriety and Ethics team at the conclusion of the inquiry, so that they could share best practice.

163. The Cabinet Secretary also stated that both the Ministry of Justice and the Cabinet Office already provided advice and guidance to secretariats of inquiries, but he pointed out that inquiry teams were "highly experienced" and will often have had experience in previous inquiries. This is hardly borne out by the evidence. It is true that some secretaries have experience of one or even two previous inquiries, but it is precisely those who have told us how valuable it would be to have full, detailed guidance on the practicalities of setting up inquiries.[262] Even for them there was once a first time for setting up an inquiry.

164. We believe that the current Cabinet Office Guidance on inquiries is wholly inadequate. In particular, there is no point in requiring secretaries of inquiries to provide lessons learned papers unless they, or any unit replacing them, ensure that such papers are produced, and use them to provide detailed guidance for secretaries of subsequent inquiries.

A Central Inquiries Unit

165. On 6 May 2004 the Department for Constitutional Affairs, now the Ministry of Justice, issued a Consultation Paper which was itself a response to the "Issues and Questions Paper" published by the Public Administration Select Committee (PASC) on 24 February 2004, as part of its inquiry into "Government by Inquiry". In reply to one question the Government replied in the following terms.

BOX 6

A Dedicated Inquiries Unit

The Government believes that there may be more advantage in maintaining a small, dedicated Inquiries Unit, which can co-ordinate the setting-up and running of new inquiries. The Unit could advise on possible candidates to chair inquiries, and could also provide assistance with the tasks involved in setting up an inquiry, including:

· getting an appropriate secretary in place as soon as possible;

· liaising as soon as possible with the Treasury Solicitor's Department and the Attorney General's Department about the appointment of counsel and solicitor to the inquiry (if appropriate);

· ensuring the terms of reference are clearly drafted and correctly focussed;

· ensuring suitable hearing accommodation, information technology, and security arrangements are put in place quickly; and

· dealing with the high level of media interest that might surround the inquiry.

The Unit could also take on a wider role in ensuring that lessons are learnt from the conduct and procedures of previous inquiries. It could work together with sponsor Departments and the Treasury Solicitors to develop and maintain general guidance for the use of inquiry members and staff, covering a wide range of issues from inquiry procedures to budgetary systems and effective records management. It could keep abreast of best practice and, following each inquiry, could take the views of inquiry members and staff on what they had found worked well and what lessons they had learnt. It could set up an advice network, and put new inquiry secretaries in touch with people who had previously served in this role and were ready to give the benefit of their experience.[263]

166. Among the 30 consultees who commented on this suggestion was the Council on Tribunals, which said: "The Council considers that a dedicated central inquiries unit would be a great asset. It could provide valuable advice and experience and so avoid the need to re-think the core structural and administrative issues afresh each time."

167. The Government's conclusion was: "The Government recognises there is a case for a dedicated Inquiries Unit and will consider the matter further."[264] It is not clear to us whether, in nearly a decade, there has been such further consideration. It seems now to be the intention that this unit's work should be carried out by the Cabinet Office, the one Government department which is unlikely ever to sponsor an inquiry, and within the Cabinet Office by the Propriety and Ethics Team, which "oversees the provision of advice to all government departments on standards and ethics issues, corporate governance in public bodies, and makes and manages public appointments."[265] Officials in that team may be well placed to advise on persons to be appointed to the inquiry panel or as assessors, and the terms of appointment; but there is nothing to suggest that they are the repositories of knowledge about the practicalities of setting up an inquiry. There is indeed nothing to suggest that such a repository exists anywhere in central government.

168. The importance of this task should not be underestimated. All our witnesses who were involved in inquiries, and many who were not, agreed on the importance of having a central unit to perform this task. Alun Evans, who was successively the secretary to the two Foot and Mouth inquiries and to the Detainee Inquiry, thought there should be such a unit "to learn the lessons of how to run a good inquiry and prevent having to re-create the wheel at the start of each inquiry … issues like terms of reference, communications, engaging with stakeholders, ensuring there is a clear, what I would call, project plan for delivery of it."[266] Lee Hughes, whose experience is unrivalled,[267] told us:

268

169. Collins, Kemish and Underwood too thought that "a dedicated sponsoring department for inquiries would be invaluable." They recommended that

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We agree with all these very experienced witnesses that a central inquiries unit would be invaluable.

170. It was suggested to us by Dr Mackie that there was a strong case for establishing an independent inquiries office which would carry out all these functions but would additionally have the wider task of "public engagement, of helping educate the public, who say they do not really understand the public inquiry process, as to what the inquiry process is about, the purpose of inquiries, talks to schools, build it into politics courses in universities."[270] We do not ourselves think that it is necessary for a central support unit to perform these further tasks, or that the expenditure could be justified.

171. The Ministry of Justice are responsible for Her Majesty's Courts and Tribunals Service (HMCTS). Michael Collins explained: "This operational unit could sit in a number places (e.g. Cabinet Office, HMT, MoJ etc) and there are pros and cons to all of these … One option that I know does work from personal experience, is to have the unit based in Her Majesty's Courts and Tribunal Service (HMCTS) premises in London as an NDPB[271] of the MoJ."[272] Lee Hughes said: "To me, the right place for delivering public inquiries is probably the Courts and Tribunals Service, irrespective of whether it is a judge in charge. The facilities that that organisation has around the country would be very useful if public inquiries are held and if they had the responsibility then I am sure it could be factored into their court usage time".[273]

172. We agree with these witnesses that to base the unit within HMCTS would give it access to all the necessary expertise and at the same time give it the necessary degree of independence. It would have the additional advantage that, while the Courts Service is responsible only for the courts in England and Wales, the Tribunals Service has additional responsibility for non-devolved tribunals in Scotland and Northern Ireland, so that a unit based there would be in a good position to support inquiries in those jurisdictions too.

173. We put this proposal to the Lord Chief Justice and were glad to find that he fully supported it. The Senior President did however point out that, while such a unit could be located in HMCTS, there was no scope within HMCTS' existing resources either to provide such a unit, or to provide the necessary infrastructure. We fully accept this, but are confident that any necessary additional resources the department would have to provide would be more than compensated by the consequent savings.[274]

174. We recommend that the Government should make resources available to create a unit within Her Majesty's Courts and Tribunals Service which will be responsible for all the practical details of setting up an inquiry, whether statutory or non-statutory, including but not limited to assistance with premises, infrastructure, IT, procurement and staffing. The unit should work to the chairman and secretary of the inquiry.

175. The inquiries unit should ensure that on the conclusion of an inquiry the secretary delivers a full Lessons Learned paper from which best practice can be distilled and continuously updated.

176. The inquiries unit should review and amend the Cabinet Office Guidance in the light of our recommendations and the experiences of inquiry secretaries, and should publish it on the Ministry of Justice website.

177. The inquiries unit should also retain the contact details of previous secretaries and solicitors, and be prepared to put them in touch with staff of new inquiries.

Procedure protocols

178. In nearly every inquiry the chairman finds it convenient to set out for the benefit of the participants the procedure which will be followed. By way of example, in the Mid-Staffordshire Inquiry Robert Francis QC issued the following Protocols:

· a Procedures Protocol (26 pages);

· an Addendum to the Procedures Protocol, on Warning Letters (4 pages);

· a Protocol on Statements and Evidence obtained (2 pages);

· a Media and Accreditation Protocol (3 pages);

· a Protocol on Legal Representation at Public Expense (12 pages);

· an Assessors Protocol (2 pages).

179. Inquiries have differing needs, but plainly it would be wasteful of resources if every inquiry drafted such protocols from scratch. Counsel to the Leveson Inquiry stated that his draft Assessors Protocol "draws from the protocol deployed by the Mid Staffordshire Foundation Trust Inquiry."[275] The Leveson Protocol in relation to Legal Representation at Public expense is also plainly based on the Mid Staffordshire Protocol on that subject; and indeed both appear to derive from Lord Gill's Protocol for the ICL Inquiry.

180. This is another field where the inquiries unit could usefully act as a central repository. The inquiries unit which we recommend should collate Procedures Protocols and other protocols issued by inquiries and make them available to subsequent inquiries.

Cost of inquiries

181. The Saville Inquiry into Bloody Sunday lasted over 12 years and cost £191.5 million. This was of course exceptional, but three other Northern Ireland inquiries have together cost £109 million.[276] The most expensive inquiries set up under the Act have been those requiring evidence from Iraq: Al-Sweady at £21.3 million to date and Baha Mousa at £13 million.[277] Otherwise the most expensive has been the Mid Staffordshire Inquiry at £13.7 million. Many of the inquiries set up under the Act have cost around the £2 million mark: C. difficile at £1.8 million, ICL at £1.91 million, Azelle Rodney at £2.5 million, and E. coli at £2.35 million.[278]

182. Inquiries vary immensely, and comparisons of length and cost must be treated with caution. Northern Ireland inquiries, for example, have security requirements which most other inquiries do not, and are often held in more than one location. Some of the inquiries into Iraq have also dealt with situations of conflict and mistrust, and they have had the additional expense that much of the evidence has needed translation or interpretation. But even making allowances for all these factors, there is no doubt that the manner of setting up and administration of an inquiry has a decisive influence on the cost, both directly and through the correlation between length and cost. "The biggest cost in an inquiry is the length. If you can keep the inquiry shorter, you save money."[279]

COMPARISONS OF COSTS: HAMILL AND RODNEY

183. Robert Hamill died of injuries sustained during an affray in Portadown, County Armagh, in 1997. The inquiry into the circumstances surrounding his death, including allegations of perversion of the course of justice which are the subject of ongoing criminal proceedings, lasted from November 2004 to February 2011 and cost £33 million. Azelle Rodney was shot by a police marksman in North London in April 2005, and the inquiry lasted 3 years and cost £2.2 million. The team which took over the running of the Hamill Inquiry subsequently ran the Rodney Inquiry, and the written evidence of Michael Collins, the secretary of the Rodney Inquiry, together with his oral evidence and that of Ashley Underwood QC and Judi Kemish,[280] was therefore particularly valuable. They stressed that the Hamill Inquiry was more extensive and that the information needs to be used with care; nevertheless where one inquiry costs 15 times more than the other there cannot fail to be lessons to be learned.

184. The whole of their evidence bears examination, but the differing costs of the IT systems are illustrative. In the Rodney Inquiry existing desk-top computers were used on the MoJ platform and serviced under the MoJ contract, so that no additional costs were incurred other than the standard cost of eight desk-top computers. But Michael Collins said: "In my experience IT suppliers will be looking out for public inquiries that are being set up and they will make an approach to provide 'state of the art' IT that they say you simply cannot do without." In the Hamill Inquiry this resulted in a custom-built IT system costing £6.35 million, but which, because it was custom-built, was not available until a considerable time after the appointment of the large inquiry team.[281] The Hamill Inquiry Finance Officer described the IT infrastructure as "a massive area of expenditure [which] seemed to be multi-layered (in terms of IT consultants and contractors)."[282] Lee Hughes and Alun Evans told us that they too used cheaper ''off-the-peg'' or existing IT systems.[283]

185. Another major difference in cost was the venue. The Rodney Inquiry was held in courtrooms in the Royal Courts of Justice. The Hamill Inquiry required two venues. The Finance Officer said that the Belfast premises were rented and the associated costs "very substantial"; the London premises "were also rented at a substantial cost"; using a courtroom "would certainly have been cheaper."[284]

186. A third major difference was the legal costs. Counsel to the Hamill Inquiry alone cost £4.5 million, with a further £9.5 million[285] spent on the legal costs of core participants. In the Rodney Inquiry the senior counsel was engaged to work for a significantly reduced hourly rate and his hours were usually capped at 40 hours a week. The solicitor, who was also the junior counsel, was an in-house MoJ lawyer on loan from the Criminal Appeal Office. She was therefore paid the salary of a senior government lawyer with no overtime regardless of how many hours she worked.[286] In the ICL Inquiry Lord Gill told us that the inquiry team managed to reduce the initial fee proposal of £1.5 million to £80,000 by using his discretionary powers under section 40 of the Act in advance of the hearing.[287]

187. We recommend that the chairman, solicitor and secretary of an inquiry should consult the central inquiries unit and the Treasury Solicitor to ensure that counsel are appointed on terms which give the best value for money.

INITIAL PLANNING

188. Michael Collins told us that in conducting the Robert Hamill Inquiry "no-one attempted in the early stages to look at all the key issues to put together realistic timeline and costs".[288] It is clear that effective scoping and planning at the initial stages reduces costs, and that ineffective planning increases them. A number of our other witnesses, among them Herbert Smith Freehills,[289] Lee Hughes, Alun Evans,[290] Sir Brian Leveson,[291] and Sir Louis Blom-Cooper QC,[292] told us that the most effective way of controlling the length and cost of inquiries was by conducting a scoping and planning exercise at the outset. We agree; but such an exercise will not be effective unless those involved have the benefit of the lessons learned from previous inquiries.

189. We recommend that a scoping exercise should be carried out by the staff involved in planning a new inquiry to examine all the key issues, in particular to address matters of timescale and cost.

190. They must have available from the outset the material derived from lessons learned at previous inquiries. While their first priority must be the effectiveness of their own inquiry, comparison with other inquiries should avoid the excessive expenditure which has bedevilled many of them.

STATUTORY AND NON-STATUTORY: THE COST

191. The Ministry of Justice stated in its post-legislative memorandum that the Act aimed "to make inquiries swifter, more effective at finding facts and making practical recommendations, and less costly whilst still meeting the need to satisfy the public expectation for a thorough and wide ranging investigation."[293] Section 17(3) of the Act places a duty on the chairman to act with "the need to avoid any unnecessary cost"[294] and section 40 gives the Chairman discretion when to award amounts in respect of legal representation, compensation for loss of time, and expenses. The Act would indeed make inquiries less costly if it made them swifter, but we think that length is influenced by practice rather than statute. We hope and believe that chairmen of inquiries would seek to avoid unnecessary cost whether or not under a statutory duty to do so, but there are times when it is helpful to be able to point to this duty, for example when reaching decisions on the representation of core participants and in making awards in respect of legal representation.[295]

192. Many of our witnesses told us that non-statutory inquiries are often preferred as an alternative to inquiries under the Act because they are shorter and so cheaper.[296] Non-statutory inquiries have indeed to date tended to be shorter than statutory inquiries, and some have been less costly. However two of the three non-statutory inquiries set up since 2005 and for which costs are available are the Iraq (Chilcot) Inquiry, which cost £6.1 million to the end of March 2012, and the Detainee (Gibson) Inquiry, which was terminated prematurely, but whose running costs to October 2013 still reached £2.3 million.[297]

In theory, a statutory inquiry should cost more than one without a statutory basis only if and to the extent that the statute imposes on the inquiry obligations which involve expenditure which is not incurred by a similar non-statutory inquiry. We know of only one such obligation, the detailed procedure for warning letter under rules 13-15 of the Inquiry Rules 2006, and we explain in chapter 7 our reasons for recommending the revocation of these rules.

254 We have published on the Committee's website the Guidance as it was on 8 August 2012. We are not aware that, at the date of this report, it has since been amended. Back

255 Q 318. Back

256 Q 254. Back

257 Paragraph 62. Back

258 Page 43. Back

259 We were also sent what purported to be a Lessons Learned paper for the Azelle Rodney Inquiry, but which was in fact an early draft of evidence submitted to us. This may ultimately form the basis of a Lessons Learned paper for that inquiry. Back

260 Q 337. Back

261 Letter to the Chairman of 16 December 2013. Back

262 See the evidence quoted in paragraphs 168-169 below. Back

263 Written evidence from the Department for Constitutional Affairs to the Public Administration Select Committee, (Session 2003-04, HC 606-ii), paragraphs 7.3-7.4, available at:
http://www.publications.parliament.uk/pa/cm200304/cmselect/cmpubadm/606/4052502.htm. Back

264 Effective inquiries: response to consultation, CP(R) 12/04, September 2004. Back

265 Cabinet Office website. Back