The price of rights

The issue of public inquiries – particularly their cost and whether they should be held in public or private – is becoming almost as controversial as the types of issue they must deal with. Richard Smith investigates

Things sometimes go wrong, occasionally with devastating consequences. In extreme cases lives are lost, people harmed, the economy damaged or our confidence in those who serve us undermined. When things do go wrong, the instinctive reaction of many is to call for a full and independent investigation in the form of a public inquiry. In response, many argue that public inquiries are a costly waste of time.

Parliament has the power to call for an inquiry into a definite matter of “urgent public importance” under the Tribunals of Inquiry (Evidence) Act 1921 (the 1921 act). When it does so, the presumption is that the proceedings will be held in public. However, for a number of reasons, this power is rarely exercised.

Many statutes already confer on ministers the power to establish inquiries relevant to their own policy areas without the need for parliamentary approval. For example, under the National Health Service Act 1977 (the 1977 act), the Secretary of State has a wide power to establish an inquiry to facilitate the effective provision of health services and may direct that such inquiries be held in public or in private.

In other cases (particularly those in which statutory powers to subpoena witnesses or documents are not required), ministers have sometimes established what are known as non-statutory inquiries. Again, these may be held in public or in private. Examples of the former include the BSE and Scott Inquiries.

The question of whether an inquiry should sit in public or in private has attracted much controversy. Few will forget the horror of Dr Shipman and how so many killings went undetected for so long. The Secretary of State established an inquiry under the 1977 act, but decided that this would be held in private. Some of the victims' relatives demanded a full and open public inquiry and challenged that decision by way of judicial review. The challenge was successful and led to the Government establishing a public inquiry under the 1921 act.

The courts have taken a different approach in later cases. The Foot-and-Mouth epidemic has had a profound effect on the rural population and economy. In response, the Government established three separate inquiries. It argued that speed, cost and the greater candour secured by a private process all militated against a public inquiry. The Administrative Court ruled in the Government's favour, holding that there was no presumption (except under the 1921 act) that an inquiry should be held in public.

In exceptional circumstances, Parliament or ministers may decide that nothing short of a public inquiry is required to establish the facts or to restore public confidence. They will determine the scope of its task by defining its terms of reference and they will also usually appoint the tribunal members (or at least its chairperson). However, in discharging its terms of reference, any public inquiry will operate independently of the Government and will decide its own procedures. The different terms and composition of public inquiries and the autonomy they enjoy mean that each inquiry is likely to take a different approach.

For example, the BSE Inquiry was a non-statutory public inquiry, chaired by the (now) Master of the Rolls Lord Phillips, who was assisted by two experts in the fields of public administration and science. Their investigations covered matters of policy and science spanning more than a decade. The inquiry divided its work into different stages. The first phase was a fact-finding process, during which the inquiry collected the relevant evidence, obtained witness statements and held oral hearings. For the second phase, the inquiry sought clarification of certain parts of the evidence and canvassed potential criticisms with some of the witnesses. The witnesses addressed these in writing and at further oral hearings. The questioning of witnesses was conducted principally through counsel for the inquiry.

Although some criticisms were made in Lord Phillips' report, this also went to considerable lengths to stress the enormous pressures on those concerned with the BSE crisis and how the vast majority of them had emerged from it with credit. Indeed, although its terms of reference were couched in historical terms, the BSE Inquiry had made clear from the outset that its principal aim was not to apportion blame, but to establish what lessons could be learnt for the future. The Government is continuing to implement these lessons.

By contrast, the Bloody Sunday Inquiry is entirely judicial in composition. It is a statutory inquiry (under the 1921 act) and is chaired by the Law Lord, Lord Saville, assisted by two Commonwealth judges. Its task is to find out what happened in a few confusing minutes on the streets of Londonderry 30 years ago, when 13 civilians were tragically killed by military fire.

There are two principal 'interested parties' before the Bloody Sunday Inquiry – the victims' families and the soldiers. Inevitably in proceedings as controversial as these, the interested parties have their own areas of inquiry, and sometimes allegations, to pursue. Although the inquiry has repeatedly stressed that it has formed no view as to the validity (or otherwise) of any allegations, the interested parties can (with the permission of the tribunal) pursue these directly in their questions of the witnesses concerned.

Procedures may differ between public inquiries, but they are all subject to the requirements of natural justice, including the need to ensure that the witnesses are treated fairly. This is all the more important where allegations may be made against them. For example, where the conduct of central government is concerned, the actions of politicians or officials will be subjected to close scrutiny and, occasionally, criticism. Without proper legal representation it would be all too easy for allegations to go unchallenged, for the boundaries of knowledge and responsibility to be pushed beyond what is reasonable and for the complexity and subtlety of policy matters to be ignored.

There is another feature common to all public inquiries. As Mr Justice Scott Baker observed in the Administrative Court: “Experience has… shown that notwithstanding the skill and ability of the chairman, public inquiries tend to last longer and cost more.” There will always be a tension between the requirement for a full investigation, the demands of the public purse and the desire to avoid delay. For example, the rigour with

which the Bloody Sunday Inquiry is carrying out its task has come at a price, presently estimated to be around £100m. Likewise, the BSE Inquiry cost nearly £30m.

The costs of any public inquiry should be (and are) monitored closely, but any criticism for these should not be directed to the public inquiry system. Such cost reflects (in part) the constant complaint that lawyers are too expensive. That complaint will survive long after the publication of Lord Saville's report. The decision to hold a public inquiry will generally only be taken in those rare cases of national crisis, or when public confidence has been seriously undermined, and only then by those whom we have entrusted to deal with such extreme situations on our behalf.

More importantly than the lawyers' fees, such cost also reflects the maturity of our political system and our willingness, when things do go wrong, to be introspective, to search for the uncomfortable truth and to see what lessons can be learnt. In those few exceptional cases, this may be a price worth paying.

Richard Smith is a partner in the commercial litigation group at Allen & Overy. He and fellow partner David Mackie QC have recently represented Sir Edward Heath, Lord Carrington, Sir Geoffrey Johnson Smith and Lord Armstrong before the Bloody Sunday Inquiry. They have also represented witnesses before the Scott, BSE and Hong Kong Airport Inquiries.