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For the public good
Law Society Gazette – 21 October 2004

The role of public inquiries is under close government scrutiny. How effective are they in ensuring that their welter of recommendations are implemented? Mark Smulian investigates

When any disaster, scandal or allegation of official misconduct hits the headlines, it is never long before someone calls for a public inquiry, usually adding that it should be headed by a 'senior judge', as though some all-powerful bewigged avenger will appear to point fingers and right wrongs.

Public inquiries have many expectations heaped on them - catharsis for victims or the bereaved, the idea that blame will be apportioned, light will be shone into dark corners, lessons learned, and those at fault disgraced.

Whether inquiries can do these things, and if so how, has been the subject of a consultation by the Department for Constitutional Affairs (DCA) on questions raised by the Commons Public Administration Committee in February, just after the Hutton inquiry into the death of Dr David Kelly had generated more public controversy than it quelled.

Inquiries are reserved for the most serious matters, such as the rail disasters at Paddington and Southall, where there were heavy fatalities.

Indeed, campaigning human rights solicitor Louise Christian is threatening transport secretary Alistair Darling with judicial review unless he concedes an inquiry into the Potters Bar rail crash by the end of October.

Yet, as the DCA paper showed, the organisation of inquiries has the whiff of improvisation about it.

Some are set up under the Tribunals of Inquiry (Evidence) Act 1921, and have the power to call witnesses. Most are set up by government ministers on an ad hoc basis, with variable powers, and a reliance on goodwill to secure witnesses and documents.

New legislation could follow on from the consultation, and the government has said it is considering this. But its response noted how the government contends that inquiries can require a great deal of time and resources, and can place a considerable strain on those involved.

'It is important that inquiries are called only in exceptional situations, in which no other investigatory mechanism would be sufficient to establish the facts or restore public confidence,' it said.

The DCA received 57 consultation responses, seven from law firms. A large majority took the view that the power to call an inquiry should rest with ministers, and another majority said that inquiries should have powers to enforce the attendance of witnesses, examine them on oath and to compel the production of documents, a position the government supports.

In general, there is little conflict between the majority responses and the position now taken by the government, with the DCA agreeing to, among other things, statutory protections for witnesses with immunity from civil proceedings brought as a result of their evidence, and the application of legal professional privilege between witnesses or participants and their lawyers.

Ms Christian, senior partner at London firm Christian Khan, was involved in the Paddington train crash inquiry, and her experience showed how crucial the choice of chairman can be.

'It lasted for a year, and was very useful and well conducted, although it was extremely tough on the lawyers as Lord Cullen handled it extremely expeditiously and we had very long hours,' she says. 'My colleagues on the steering committee said they were glad I was leading because the pay was so bad.'

She supports legal privilege protection, but with the proviso that it should apply only to documents produced for the inquiry and not to those that already exist, in case parties to inquiries sought to withhold papers, citing privilege as a reason.

Ms Christian supports the minority of respondents who thought there should be an automatic right to a public inquiry 'in the event of a major disaster'.

She says: 'One good reason for a public inquiry is that without one, the bereaved have to go to inquests, which is not the right way to deal with these issues.

'The Tory government refused a public inquiry into the Marchioness and Labour said it would be different, but now it is refusing inquiries into Potters Bar because it finds it embarrassing. I have told Alistair Darling I will judicially review him if he does not agree to an inquiry by the end of October.'

Another solicitor who went through the Paddington inquiry was Des Collins, senior partner at Watford-based Collins. He also acted for families in the Southall inquiry.

'I think the good thing about public inquiries is that from the public's perspective it provides open government; those affected can see it happen,' he says.

'The downside is that having gone through a very long process, a very large report is published with a lengthy list of recommendations with no certainty about what will be implemented and to what extent the decisions of the inquiry will be acted upon or ignored.'

Mr Collins favours a duty on ministers to state which recommendations they accept and reject, and why.

'For those that are accepted, there should be regular progress reports on what had been done to implement them,' says Mr Collins. 'I would like the power to oblige a minister to do this to rest with an inquiry chairman, as the response from government is not always as positive as one would like.'

He prefers a single system, rather than the present mix of the 1921 Act and ad hoc arrangements, because 'one of the problems is that one is reinventing the wheel the whole time'.

The powers each inquiry has, and the way they are wielded, rest with the chairman, who can be unclear as to the parameters.

Mr Collins says: 'A chairman may at the outset know considerably less about the matter concerned than does the minister or any of the lawyers involved, and there needs to be a means to deal with that.'

Michael Smyth is a partner and head of public policy at Clifford Chance, solicitors to the Hutton inquiry, and is involved in Sir William Morris' current inquiry into Metropolitan Police discipline.

He reckons what has come out of the consultation is 'all rather sensible, as the 1921 Act was passed when the world was a very different place, particularly because the age of deference has gone and the media zoo is very different from what it was then. There is a greater clamour nowadays for transparency'.

Both the Hutton and Butler intelligence inquiries, despite their prominence, were ad hoc ones without the power to compel witnesses, a situation Mr Smyth finds unsatisfactory.

'I am for a single, comprehensive regime which, while allowing for flexibility, does away with the present all-or-nothing choice between 1921 Act inquiries with powers to compel witnesses and ad hoc inquiries which don't,' he says.

Another change perhaps in the role of inquire since 1921 is that victims of disasters, or their relations, tend to look on inquiries as 'less as a means to compensation than a means of telling a story and it is a public catharsis for them', he says.

Mr Smyth reckons that any independent commission to regulate inquiries would be a step too far. Someone, he points out, has to decide.

'I have no problem with the trigger for inquiries being with politicians even if, for their own reasons, they might not pull that trigger,' he says. 'The alternative would present greater difficulties. I'm prepared to take the risk with politicians.' Andrew Lidbetter, litigation partner at Herbert Smith, worked on the Scott 'arms to Iraq' inquiry in the mid-1990s and on the Tomlinson inquiry into A-level results.

He calls the 1921 Act 'fairly skeletal', and concludes 'the main value of the proposed new legislation would be to put good practice into statutory form and update the old legislation'.

The government's responses to the consultation were broadly sympathetic to the majority views expressed.

The question now is how high up the legislative timetable such a measure will be. By doing what most consider the right thing, it does at the same time carry the risk for ministers of creating an increased rate of potentially politically embarrassing probes.

Mark Smulian is a freelance journalist