A Plethora of Public Inquiries

What will our next public inquiry be about? Do we need to investigate the use of reinforced autoclaved aerated  concrete (RAAC) by the public sector before  2000, the HS2 delivery saga, or something else?

In August/September alone, new high-profile independent inquiries were 
announced into the circumstances and handling of entirely innocent miscarriage of justice victim Andrew Malkinson’s case and the context around crimes committed by NHS nurse Lucy Letby. Interestingly, the former is non-statutory whereas the latter was converted to a statutory process. 

The major advantage of public inquiries is that they are a bespoke and highly flexible form of investigation, scalable and tailored according to their own terms of reference in each case. Like any well-run investigation, they are concerned with legal principles and considerations, notably lawful decision making, fairness and due process. Some question their efficacy, however, because they are essentially political (though not party political) processes. They are not about attributing civil or criminal liability and they cannot make legally binding recommendations. 

As such their influence is principally social and political, rather than legal. Their value can also be reduced if they become sprawling processes that take too long to reach their conclusions. 

Statutory or non-statutory? 

Increasingly a ‘statutory’ inquiry is what is called for, on the basis that only this will command enough public confidence to draw a line under a crisis. Commentators rightly note that public inquiries established under statute (mainly using the Inquiries Act 2005) have stronger legal powers— including the ability to compel witnesses to give evidence and organisations to turn over documents. They take evidence on oath, and they can straightforwardly fund individual participants’ legal representation. 

Legal trappings like these may, indeed, be very important in creating the perception that an inquiry is open and will hold people to account, thereby avoiding cries of ‘whitewash’. Such powers may even be, and quite often are, essential for getting to the truth and hearing all sides. It would not do for key actors to simply refuse to cooperate, or for the voices of victims and their families to be muted due to limited resources. But it is worth taking a step back before accepting that statutory public inquiries must be the norm. 

Because a public inquiry is a mainly political device, the politics of the situation triggering it, and the political objectives underlying it, are likely to determine its form. The political backdrop will affect how comprehensive, participatory and public any review needs to be. Because the circumstances giving rise to inquiries are so various, context is undoubtedly king. 

Many inquiries are not about major scandals affecting numerous individuals across whole sectors, which would probably demand a statutory inquiry, but instead relate to the inner workings of the state and what has gone on within or between public bodies, sometimes in isolated incidents. Inquiries like this are typically directed less at achieving national catharsis and accountability, and more at rooting out bad practice and swiftly implementing improvements to public services, systems and controls. 

Another factor may be who needs to be involved. For example, if the key individuals are civil servants, their professional codes already demand transparency, honesty and integrity and impose sanctions for falling short. These values will inform their participation and the standards they apply to the turning over of relevant material. Statutory powers to compel them might not necessarily improve an inquiry’s access to their evidence. Indeed, all inquiries, statutory or otherwise, collect the vast majority of their evidence through the willing cooperation of participants, rather than by compulsion. 

An informal atmosphere directed towards targeted process improvement and collaboration between inquiry and participants may, in certain cases, yield more realistic solutions than can be extracted through the kind of barrister-led questioning that characterises the public hearings of statutory inquiries. In rare cases, the greater ease with which non-statutory inquiries can deal with matters in secret may also encourage greater candour and co-operation. 

Finally, it must not be forgotten that a statutory public inquiry is no guarantee of a satisfactory outcome. The record of statutory inquiries for delivering real change through their recommendations (as opposed to their reputation for securing public accountability at hearings) is rather mixed. That is not least because they almost always conclude long after they are established, by which time the political onus for reform has often dwindled. Whatever advantages non-statutory inquiries may offer in certain cases, however, one cannot assume they will deliver speedier, cheaper or more deliverable outcomes.

That is especially true where the issue being investigated is broad and contentious, replete with institutional defensiveness and disputes over responsibility for systemic failures. In that territory the formality and legal powers of a statutory inquiry are most likely to win out, which may be why one was opted for in the Letby case. 

Conclusion

Political problems arising from matters of significant public concern or controversial public policy issues come in many shapes and sizes. Like any good political solution, public inquiries must be tailored to the problems they address and that means potentially nimbler non-statutory inquiries still have a place.

This article was first published by the New Law Journal and can be found on its website: www.newlawjournal.co.uk