Lack of transparency in public inquiries ‘not compatible with modern expectations’

By Rebecca Lowe

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Greater transparency is needed regarding the way British public inquiries are conducted, according to leading lawyers in the field.

Chairs are often appointed ‘in great haste’, it has been claimed, and the appointments procedure is rarely disclosed. Chairs and panels are often reportedly given little or no information on to how to proceed, and frequently need to resort to calling up previous incumbents for advice.

Robert Francis QC, who chaired the 2010 inquiry into care provided by the Mid Staffordshire NHS Foundation Trust, said he was unprepared for the role when it was offered to him. His 2,000-page report, published this February, found that years of abuse at the hospital had led to the deaths of hundreds of patients.

‘Many chairman seem to have a common experience, which is an appointment made in great haste, under pressure,’ he said, speaking at a private debate on public inquiry reform at the Royal Society in London on 21 March. ‘In my case, I was given a generous two hours to decide. You are then rushed off to see the minister […] and there is some discussion about terms of reference, usually on a subject about which one knows little to begin with.’

The debate, attended by over a dozen eminent QCs and inquiry experts, was convened by the Centre for Effective Dispute Resolution (CEDR) to discuss a series of draft recommendations for public inquiry reform. The organisation launched its Inquiry into Public Inquiries last year, after a survey it commissioned found that 73 per cent of respondents do not have confidence in the inquiry process, with a majority believing them to be too long and costly.

One of CEDR’s key recommendations proposed looking beyond the traditional ‘mock trial’ or ‘litigation’ model and considering alternative approaches such as mediation. The Leveson Inquiry, which used the litigation model, cost over £5m, a third of which went to lawyers. The on-going Al-Sweady Inquiry has cost nearly £16m, of which over £3m has been on lawyers’ fee and over £6m on investigative and consultancy services.

Francis pointed out that in public inquiries ‘both independence and the perception of independence are absolutely vital’. Yet the lack of transparency over how panels and their secretariat are chosen ‘is not compatible with modern expectations’, he stressed.

 


 

  Every inquiry is reinventing the wheel in regard to procedure, the collection of resources and generally how to go about its business

Robert Francis QC
Chair of the Inquiry into care provided by Mid Staffordshire NHS Foundation Trust

 

‘The extraordinary thing is that every inquiry is reinventing the wheel in regard to procedure, the collection of resources and generally how to go about its business,’ he added. ‘It seems to me that the more inquiries we have […] the more there needs to be a common resource available that enables those who conduct inquiries to get off to a better start.’

Lord Woolf, former Chief Justice of England and Wales and Chair of CEDR’s inquiry, agreed that some inquiries could benefit from a ‘less legalistic’ approach. Judges might not always be the best choice to chair the panel, he pointed out, and the UK should try to learn from other jurisdictions, such as Australia. ‘Lawyer costs are certainly an issue,’ he told IBA Global Insight. ‘We never want to lose the need for proportionality. You can’t spend year after year investigating things. As is sometimes said, excellency is the enemy of the good.’

Another chief cause of delay, according to delegates, was the immense task of redacting documents. The Mid Staffordshire inquiry involved 1.2m pages of evidence, all of which had to have personal details removed before publication.

The inquiry also spent six months sending ‘warning letters’ to people who might be criticised. Under current rules, individuals must be warned even if the criticism is speculative and is not eventually included in the final report. Such a procedure ‘can create an air of alarm’, according to Francis. ‘Huge, ferocious allegations can be put to individuals, just as a precaution. It can cause huge anxiety to people who think they are going to be accused of the most hideous crimes.’

Greater transparency needed in public inquiries

Sir John Chilcot, chairing the Iraq Inquiry, has said he hopes to start sending out warning letters later this year. The inquiry was due to be published in 2010, but has suffered repeated delays. Last year, Chilcot reprimanded the Cabinet Office over its refusal to allow the disclosure of correspondence between former UK Prime Minister Tony Blair and former US President George W Bush – information Chilcot described as ‘central’ to the inquiry’s considerations. The issue remains unresolved.

Overall, CEDR made 11 recommendations to improve the public inquiry process, which it will put in front of the government in coming months. The most popular among the delegates included: improving training for chairs; establishing an independent inquiries office to centralise information; increasing public awareness of the inquiry process; and improving oversight of the implementation of recommendations.

Proposals that proved more controversial included: having an interim presentation of facts after 20 per cent of the time has elapsed, which some felt might lead to premature and inaccurate conclusions; and separating the investigation and recommendation processes, which was believed to be impractical.

A recommendation for increased involvement of the public via a ‘citizen’s panel’ received widespread support, but there was disagreement over whether members should be self-selected or chosen at random, and whether they should have an interest in proceedings or remain independent.