A public inquiry in isolation
Sir Liam Donaldson, Chief Medical Officer, has said that “there is a pool of information about things that go wrong in the public health services from which we need to learn. At the moment inquiries probably cover a relatively small amount of that pool”. He went on “Essentially it is not enough to have inquiries; you have got to have some other system of analysis or investigation which will lead to learning”. The force of those observations is that an individual public inquiry may achieve the short-terms ends that appear to be required, but may fail to see a pattern. The classic example of this failing is child abuse. There have been a number of public inquiries into child care which have resulted from serious cases of neglect, and each has made recommendations. Nonetheless, further cases occur which disclose further systemic failures. If a public inquiry appears to be the correct response to a public concern then consideration should perhaps be given to whether the terms of reference can be so widely drawn as to enable the full context of the public concern to be addressed, and whether public attention and funds should be directed to the implementation and follow-up of recommendations in order that the lessons are heeded and not just learned. Policy-makers may wish to make commitments in Parliament to this effect.
The form of the public inquiry
The following section deals with the strengths and weakness of having a legally qualified or an expert Chairman, and of having wing members or advisors. In deciding whether a public inquiry is the right vehicle to deal with a matter of public concern, the range of models of public inquiry will no doubt be borne in mind.
When establishing the three Cory Collusion Inquiries, the then secretary of State said that:
“There are a number of general principles that will apply to the establishment and conduct of these inquiries:
- Transparency, consistent with the interest of justice and national security
- Fairness and respect for individuals
- Power to seek to establish the facts
- Access to necessary resources and avoidance of unnecessary expenditure”
No doubt those factors are likely to be required of any public inquiry, but the means of achieving them in any particular situation are many and varied. In a simple case an expert Chairman may conduct what is largely a paper exercise. In a very complex case the Chairman may be a retired Law Lord who is supported by two wing members and a staff of expert advisers, and hundreds of witnesses may be called. Neither of those extremes should be taken for granted as the only model for a public inquiry.
Human rights considerations
The Inquiries Act 2005 is now the only basis on which a statutory inquiry can be established by Ministers to examine events that have caused public concern. Schedule 3 to the Inquiries Act repealed a complicated collection of statutory powers, including the Tribunals of Inquiry (Evidence) Act 1921.
Human rights considerations permeate all the functions of a public inquiry, and do not call for separate consideration in this work, but it may be helpful to note two features that are material to whether a public inquiry is the right response to public concern.
In relation to Article 2 of the European Convention on Human Rights some deaths must be the subject of a full, effective and independent examination of their circumstances. It is clear that a public inquiry is capable of providing that examination, and the Government has said that it believes as much in relation to the Patrick Finucane Inquiry. The question whether any given public inquiry will discharge the state’s responsibility under Article 2 will depend primarily on the breadth of its terms of reference. For example, the death of a soldier killed while on duty by defective body armour may be the subject of a full public inquiry that fulfils all of the Article 2 requirements, or it may be limited in scope, such as by reference to the question whether the supplier met the contract specification. In the latter case it is unlikely that the Article 2 requirements would be met.
It is also the Government’s view, based on relevant case law, that Article 6 (right to a fair trial) of the European Convention on Human Rights is not generally engaged by inquiries in the UK. Public inquiries are not courts and they do not have – and never have had - power to determine civil or criminal liability. That view is supported by the express prohibition, contained in section 2 of the Inquiries Act 2005, on a public inquiry determining any person’s civil or criminal liability.