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Our inquiry problem

British public inquiries take forever and achieve too little

More time” — that, in 1966, was the plea of Lord Justice Salmon about public inquiries. In an influential report, the appellate judge (later a law lord) set out a series of “cardinal principles” for allowing public inquiries’ witnesses to prepare cases, call their own evidence, question each set of witnesses and more. This, Lord Justice Salmon acknowledged, would create delays, but “a few weeks more in preparing the material for arriving at the truth is a small price to pay in order to avoid injustice”.

A few weeks, perhaps. But a few years? The better part of a decade? In the years since the Salmon Commission, British public inquiries have grown to be lengthy, unmanageable, endless processes. The Scottish Child Abuse inquiry shows no signs of stopping eight years after it began. The Undercover Policing Inquiry doesn’t anticipate publishing its final findings until 2024, at which point it will have been inquiring for nine years. The Grenfell Tower Inquiry has managed to wrap up its second phase of hearings after a total of six years, but with over 320,000 total documents being reviewed, we can hardly expect a sprint.

The Covid-19 inquiry, meanwhile, is just getting started. The urgency of the government’s recent judicial review of Baroness Hallett’s requests for documents is misleading. The Hyponatraemia Inquiry, which investigated the deaths of five people, took fourteen years to finish. The Infected Blood Inquiry is looking at a healthcare disaster that killed around 2,400 people, and it is still going strong after six years. As its headline recommendation, its latest interim report offers the stunning insight of suggesting a compensation scheme for victims. Covid-19 killed over 225,000 people in the UK. We should expect the next king sooner than the final Hallett Report.

A slow inquiry system deprives voters of the chance to punish government missteps

The present system of inquiries is perverse in the extreme. If justice delayed is justice denied, then so are lessons delayed lessons denied. By the time inquiries get around to reporting, the political climate has moved on. The news cycle is not especially interested, and the modern product of a public inquiry — a dry, legalistic report of extreme length — is almost designed to be unreadable. This primarily benefits politicians. The long lag in findings means that there’s a good chance a blundering minister will have long since retired to a lucrative career in consulting. A slow inquiry system deprives voters of the chance to punish government missteps at the ballot box.

Meanwhile, the enormous resources allocated to the inquiries — the Bloody Sunday Inquiry cost £200 million, whilst the Covid-19 Inquiry was last year reported as already having cost £85 million — represents resources that are not going to help victims or to make much needed reforms. Instead, enormous amounts are sent to lawyers, with government departments going to pricey outside firms at the costs of millions for advice, so they can have lawyers against the government’s own inquiry. The costs of the inquiries’ lawyers are considerable, too. Normally self-employed barristers are given the holy grail of a steady, remunerative, long-term brief — the Covid inquiry has hired 60 of them.

It doesn’t have to be this way. It’s not just that common sense tells us that an inquiry should not stretch to the length of three PhD investigations. Comparative experience shows that other countries work fast. Canada’s inquiry into the use of Emergencies Act powers reported in less than a year. Sweden’s Covid inquiry has already reported. Belgium has already approved the 135 policy recommendations made by its inquiry. New Zealand’s is due to publish by 2024. Once again, British exceptionalism seems to mean doing things more slowly, poorly and expensively than other countries.

Why are British public inquiries costly, lengthy behemoths that end up producing reports which go largely unread? The root of the problem can be traced back to Lord Justice Salmon’s fishy recommendations. The overriding emphasis on procedural fairness, on giving witnesses the opportunity to direct questions, and have counsel make their own submissions, turned inquiries from inquisitorial proceedings into a quasi-judicial proceeding.

This was misguided. The purpose of an inquiry is not to assemble all the evidence from every interested party, nor via a series of hearings allow those parties to question and present their own evidence. It should be, well — an inquiry: a directed investigation into what happened, at all times controlled by the head of the inquiry. The prioritising of “procedural fairness” reversed these principles. It has given other parties entitlements to add things to the public record and filled endless hearings with irrelevant points.

Procedural fairness sounds nice, but an inquiry is not a trial. The public interest in a speedy inquiry outweighs concerns about letting each side speak their points. Even worse, public inquiries do not operate with the limitations on evidence English courts normally use. Instead, they resemble a UN war crimes tribunal, entering every possible bit of data on the record for a decade, before eventually releasing a long, unreadable verdict.

At the very least lawyers should not be put in charge of things

Inquiry panels should instead direct their own procedure, review existing public evidence, call witnesses only where absolutely necessary, and end the practice of giving witnesses permission to present their own case. The approach of New Zealand is instructive: the Kiwi Covid Inquiry website rightly says the inquiry “must not take a legalistic approach and must use the most efficient and least formal procedures to gather information in addition to that which is already publicly available”. This is a good model. In addition, inquiries (unless into a legal matter) should not be chaired by former judges nor even by lawyers — both of whom have a tendency to see everything as a courtroom. Jack Cade’s infamous advice — “let’s kill all the lawyers” — is a bit extreme, but at the very least lawyers should be kept at arm’s length and not put in charge of things. New Zealand’s inquiry is a three person panel consisting of an eminent public health expert, a former MP and an economist. Baroness Hallett’s impressive legal and judicial career gives her many qualifications, but no expertise in health policy.

Inquiries can be quick and effective in this country. Lord Denning’s investigation and report into the Profumo Affair took three months to complete. Written in plain and clear language, it was readable enough to be a bestseller. It came fast enough to have political consequences. All that is unthinkable today, but not impossible.

Instead of six principles of cardinal fairness, inquiries should be centred on one overriding objective — to provide useful lessons and insight to the government and the public at large. It should pursue this end by targeted inquiry, avoiding formal and legalistic procedure, and exercising careful control over what evidence to introduce. Rather than sue an inquiry that won’t report for at least a decade, the government should have the courage to scrap the inquiry and launch a reformed commission that can deliver a final, readable report within at most three years. The alternative is to stick with a current system of spending hundreds of millions of pounds on an investigation (and on the lawyers defending the government in that investigation) that will report too late to have any impact.

The choice is clear: we can stick with Lord Justice Salmon’s “more time” or, by de-legalising the procedure, we can have “more value”.

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