What a public inquiry would seek to achieve
Lord Howe, who gave evidence to the House of Commons Public Administration Select Committee on Government by Inquiry about his experience of different roles in several public inquiries, helpfully identified six functions, which can be summarised as:
- establishing the facts
- learning from events
- catharsis or therapeutic exposure
- accountability blame and retribution
- political considerations
It may be helpful to develop those in our own words.
The aim is to provide a full and fair account of what happened, especially in circumstances where the facts are disputed or the course and causation of events is not clear. The Bloody Sunday Inquiry and the Shipman Inquiry are prime examples of public inquires established because there was considerable unease about what had happened and significant pressure to unearth the true facts and to be seen to be doing so.
The objective will often be to help to prevent the recurrence of events by synthesising or distilling lessons which can be used to change practice. Many of the public inquiries concerning child abuse, for example the Maria Caldwell Inquiry and the Victoria Climbie Inquiry, were established in order to unravel the apparent failures in the Social Services involved and to make recommendations designed to ensure that social services departments generally adopted better practice so as to minimise the chance that there would be repetition of the abuse.
This function provides an opportunity for reconciliation and resolution by bringing protagonists face to face with each other's perspectives and problems. Although the most obvious examples of this are to be seen in the South African model of a truth and reconciliation commission, there is considerable scope for reconciliation through understanding wherever the events which led to the establishment of the public inquiry have been divisive. The Stephen Lawrence Inquiry demonstrated how “the establishment” could address bitter feeling on the part of black south Londoners who believed that the police were above criticism and could make sweeping recommendations that improved policing and community relations.
Here the purpose is rebuilding public confidence after a major failure by showing that the Government is making sure it is fully investigated and dealt with. This aim is evident in many of the public inquiries that followed unexplained disasters, such as gas explosions, rail crashes and football stadium deaths.
This function has the aim of holding people and organisations to account and sometimes indirectly contributing to the assignation of blame and to mechanisms for retribution. On occasion it will not be enough for the public to learn what happened and to be reassured that there will be no repetition. A feeling of injustice may linger unless the personal or organisational failing which led to a disaster is exposed to public criticism. This is particularly so where those responsible, for example Ministers, are perceived to have survived with their careers unscathed.
Lord Howe had in mind the purpose of serving a wider political agenda for government, either in demonstrating that “something is being done” or in providing “leverage for change.” That is, perhaps, a generous approach to the way in which public inquiries may have been used in the past. Historically there may have been a temptation to defuse a tense political situation by establishing a public inquiry in the hope that in time which it would take to report the political temperature will have dropped. More admirably, public inquiries have been used as part of a reconciliation process. Those which were established in Northern Ireland and Eire as a result of the Western Park talks were a key factor in ensuring implementation of the Good Friday Agreement and securing continued support for the process which has been so instrumental in promoting peace and power sharing in Northern Ireland.
Other observers have articulated the objectives of a public inquiry differently. Lord Salmon said to the Select Committee: “In all countries, certainly in those which enjoy freedom of speech and a free press, moments occur when allegations and rumours circulate causing a nation-wide crisis of confidence in the integrity of public life or about other matters of vital public importance. No doubt this rarely happens, but when it does it is essential that public confidence should be restored for without it no democracy can long survive. This confidence can be effectively restored only by thoroughly investigating and probing the rumours and allegations so as to search out and establish the truth.”
In respect of the Baha Mousa Inquiry the government said that a Board of Inquiry under the Army Act would also have allowed the state to look thoroughly into the issues but it was decided that a public inquiry under a judge would offer an extra degree of public re-assurance, given the intense interest in this case.
A current international example of the way in which thorough investigation and probing of rumours so as to establish the truth is thought to be necessary to the restoration of public confidence emerges from the United States. A number of opinion formers in that country believe that the abuses such as the scandals at Abu Ghraib, the disclosure of torture memos and revelations of warrantless surveillance of American citizens need to be addressed. There are those who believe that such matters should result in criminal trials, so as to lay down a marker. However, that issues split congressmen on party lines and some senators attempted to extract an undertaking from the incoming Attorney General, Eric Holder, in his conformation hearings, not to launch any prosecutions. A recent USA Today/Gallup poll showed that more than 60% of Americans agree that investigating the failed national security policies of the George W Bush Administration should be considered in some way. Pressure is mounting for a public inquiry.
Senator Patrick Leahy, writing in Time magazine on 2 March 2009, argues powerfully for the appointment of a truth-finding panel. He contends that the Government could develop and authorise a person or group of people universally recognised as fair minded and without an axe to grind, whose mission would be to find the truth. He perceives that witnesses would be invited to share their knowledge and experience not for purposes of constructing criminal cases but to discover the facts. He recognises that the power to collect documents and to give immunity from prosecution may be required in order to uncover the truth. The outcome would be a shared understanding of the failures of the past rather than vengeance. The Senator prays in aid Lincoln’s Gettysburg Address, made after the civil war, and asserts that there is a need “to bind up the nation’s wounds”.
That need to grapple with an inchoate public feeling that something went badly wrong and that the situation needs to be exposed to the light has been the rationale behind a number of public inquiries in this jurisdiction. The Scott Inquiry addressed a general unease about the way in which the Government was perceived to be engaged in underhand activities to do with the supply of arms to Iraq. The proposed public inquiry into the invasion of Iraq is designed to deal with the public perception that the country was misled about the reasons for standing “shoulder to shoulder” with the US Government and that the handling of the post-invasion challenges was inept. The important insight which Lord Salmon’s observation contains is that it is the process of the public inquiry that matters, not its outcome. There will always be conspiracy theorists who believe that where a public inquiry finds no wrongdoing it is part of a cover-up but the vast majority accept the conclusions and recommendations of public inquiries and collectively put the matter behind them.
Drawing on very considerable experience of public inquiries, Sir Ian Kennedy has identified six functions: the recognition and identification of different, genuine perceptions of the truth; learning; healing; catharsis; prescribing and accountability.
In submissions to the Select Committee the Government posited that “the primary purpose of an inquiry is to prevent recurrence”. It is also their view that, “the main aim is to learn lessons, not apportion blame”. They believe that inquiries have “helped to restore public confidence through a thorough investigation of the facts and timely and effective recommendations to prevent recurrence of the matters causing concern. Many inquiries have helped to bring about valuable and welcomed improvements in public services”.
Lord Laming, who carried out the Victoria Climbié Inquiry, told the Select Committee that public inquiries “provide an assurance that the facts surrounding an alleged failure will be subjected to objective scrutiny. They are expected to reach judgements on why terrible events happened. They often make recommendations on how such events might be prevented in future. They may give relief to some and allow the expression of anger and outrage to others. They are often disturbing and painful events. They should improve our understanding of complex issues. At best they change attitudes, policies and practice. That being so they occupy an important place in our society”.