Chapter 17 Answers to quick test questions

Public inquiries are held to investigate issues that have become of intense public concern. This can include a major political scandal, or when there has been serious wrongdoing or failure within a public authority. The public inquiry will aim to achieve some of the following functions:

• establishing the facts, especially where these are disputed or the chain of causation is unclear;
• determining accountability;
• learning lessons and making recommendations to prevent recurrence, often by improving the constitution and powers of regulatory bodies;
• allaying public disquiet and restoring public confidence;
• catharsis: an opportunity for reconciliation between those affected by an event and those whose action caused it or whose inaction failed to prevent it;
• developing public policy.

For example, the Leveson Inquiry investigated the practice and ethics of the press and the relationship between the media, the police, and politicians. It aimed to establish the facts, allay public disquiet about the conduct of the media, and develop policy by proposing a new regulatory system for the press.

It must also be stated that an inquiry can serve an ulterior purpose. In response to a scandal, the government can be tempted to hold public inquiry to make it appear as though it has responded to the scandal and taken it seriously. However, the government will refuse to do anything more until the inquiry has published its report. Politically, this can give the government breathing space for the short term, although ultimately any recommendations made by the inquiry will need to be responded to and this might be controversial.

Judges are often invited to chair inquiries because they have the skills and expertise necessary to decide factual disputes based on the evidence the inquiry has received. The independence of the judiciary means that selecting a judge is a clear indication that the inquiry is independent. Furthermore, any legal issues that inquiry raises will be able to be dealt with.

However, judges may not have the necessary experience within public bodies to make appropriate recommendations. In such circumstances, a non-judicial chair could be more appropriate. For example, the Butler Inquiry considered the use of intelligence before the Iraq War and this inquiry raised sensitive issues of national security and the use of intelligence information. Consequently, it was chaired by a former Cabinet Secretary, a senior civil servant, a former Chief of the Defence Staff, and two MPs, who all had experience in dealing with intelligence matters.

Arguably, some inquiries are too political and might be inappropriate to be chaired by a judge. For example, the Hutton Inquiry involved matters of high political controversy, and Lord Hutton’s report was considered by some to be a ‘whitewash’ in favour of the government. This led to some questioning as to whether ‘a Law Lord’s “borrowed authority” should have been lent to such an inquiry . . . When its subject-matter is considered, the Hutton Inquiry may represent the classic instance of why we should question the public’s ready acceptance of asking a senior judge to hold a public inquiry’².

Under the Inquiries Act 2005, section 10, before a judge can be appointed to chair an inquiry, the Lord Chief Justice (in their capacity as Head of the Judiciary) needs to be consulted.

Overall, whether a judge is best to chair a public inquiry depends on its subject matter.

The House of Lords Select Committee on the Inquiries Act 2005 has expressed concern that inquiries have continued to be established under the royal prerogative for no good reason. They suggested that there should be a presumption that the 2005 Act is used unless there is a ‘good reason’. The most likely ‘good reason’ is national security, which may require an inquiry, such as the Butler Inquiry, to sit in private. This is because the 2005 Act has presumption that an inquiry should sit in public.

If a public inquiry is held under the royal prerogative, it could sit entirely in private. However, if the inquiry is established under the Inquiries Act 2005 the position is more complex. Under section 18, the chair of an inquiry is required to ‘take such steps as he considers reasonable’ to ensure that members of the public and the media can attend the inquiry and ‘see and hear a simultaneous transmission’ of proceedings. A ‘simultaneous transmission’ does not necessarily mean one that is televised. Although the Leveson Inquiry was televised live, the Hutton Inquiry allowed some public access, but also a live link to another room with greater capacity.

Under section 19, public access can be restricted if it is necessary for the inquiry to fulfil its terms of reference or is in the public interest. This requires the chair to balance several considerations. The overriding aim of the inquiry is to allay public concern but this is balanced against the risk of death or injury, damage to national security or the economic interests of the UK, or damage caused by disclosing commercially sensitive information.

Overall, it seems the presumption is that inquiries should be held in public unless there are good reasons for not doing so. If necessary, it is also possible for part of an inquiry to be held in private with the remainder being held in public.

This is sometimes known as the system of ‘warning letters’. When an individual is going to be criticized in a report, the inquiry is required to send that individual a ‘warning letter’, outlining the criticism, and evidence that has led the inquiry to make that criticism. This allows the individual the opportunity to respond to that criticism. While the inquiry can consider the response, and may amend its conclusions, it remains free to make the criticism if it feels that the evidence still justifies that conclusion.

The Inquiries Act 2005 contains no provisions regarding what happens once the inquiry has published its report. This reflects how the acceptance or rejection of an inquiry’s conclusions are a political rather than a legal matter. There is some frustration that after the cost, time and effort of an inquiry, the recommendations may never see the light of day. This said, there are some ways in which political pressure can be placed on the government. These include the relevant select committee in Parliament scrutinizing the government’s response to an inquiry’s report. This in turn reflects how the government is accountable to Parliament for its decisions and policy.