Selecting the Chairman and wing members
Is it appropriate to have a judge as the Chairman?
The Select Committee found that, with notable exceptions, when matters of public concern require investigation, Governments have traditionally tended to establish judicial inquiries. This tendency was described in earlier days as Government by Radcliffery. Lord Radcliffe was a frequent Chairman of inquiries during the middle part of the twentieth century. During the twentieth century around 30% of departmental and statutory inquiries were chaired by a judge. Since 1990, out of the 31 notable inquiries 58% have been chaired by a serving judge and 65.5% have been chaired by a serving or retired judge.
Lord Woolf, then the Lord Chief Justice, has said he considered that the fact that an inquiry is conducted by a judge or with a judicial Chairman enhances the confidence of the public as to the impartiality and thoroughness of the inquiry.
The Government, in submissions to the Select Committee, also supported the use of judges to chair inquiries, considering that their experience and position makes them particularly well suited to the role. […] The judiciary has a great deal of experience in analysing evidence, determining facts and reaching conclusions, albeit in an adversarial rather than an inquisitorial context. The judiciary also has a long tradition of independence from politics, and judges are widely accepted to be free from any party political bias.
Lord Hutton told the Select Committee that a judge is very well-versed in some aspects of running an inquiry, which flows from his experience of conducting cases in court. This was because judges are used to hearing witnesses, they are used to assessing evidence, they are used to defining issues, they are used to analysing facts and relating them to issues […] Judges are also well versed in ruling on procedural matters, whether a question is fair, whether it is relevant
The Select Committee noted that, as Lord Woolf told it, a judge does not owe anything to the government of the day and is therefore fully independent.
For all those reasons, judges are thus seen as ideally suited for investigating matters in which government has a stake. They are also seen as impartial, in the sense of being apolitical, and therefore not likely to favour any political party or interest group. In evidence to the Select Committee Professor Bogdanor even went so far as to argue that it is difficult to see how anyone other than a judge could chair such an inquiry, which could result in the resignation of a Minister [ …].
However, judges are unlikely to have the professional expertise of someone like Lord Laming, who told the Select Committee: I would like to suggest that there are few judges who have managed a big workforce; managed a public agency; managed big budgets in competing priorities; dealt with the party political machine, both locally and nationally; dealt with trade unions going about their perfectly legitimate business and dealt with the media day by day
Those skills may be of value to a Chairman of a public inquiry in two ways. Firstly, a public inquiry will find it easy to fault the decision-making that it is investigating if the Chairman has been in the position of taking practical administrative decisions as they will have an understanding of the difficulties faced by the decision makers being inquired into and to the application of a fair standard. Lord Justice Sedley has written perceptively on the gap between the time and resources available to make public decisions and the degree of analysis to which they are subjected in judicial review, and the point is similar. Sir Michael Bichard has recognised that a judge is likely to be as good as anyone at getting to the truth…if you are just looking at someone to try and get to the facts but had reservations about the use of judges. He told the Select Committee that: Very often we are talking about public sector bodies of which a judge has no experience at all. We are talking about accountability. In order to hold public servants to account, I think you need to understand a little of the context within which they are working, though you can get some of that from an assessor and an adviser, but it is second-hand. I do not think a judge is necessarily the best person for that. If you are talking about healing, whether you are talking about healing between some of the parties or actually healing the public confidence, which often this is about, I am not sure a judge has particular qualities to enable him to do that. If you are talking about learning and improving for the future, I am not sure a judge is the best person to do that.
The second advantage that someone with practical administrative experience may bring to the Chairman of a public inquiry is in the administration of the public inquiry itself. Of course the processes of the public inquiry will generally be managed by the Secretary and the Solicitor. However, a public inquiry can be a large, expensive and long-running concern with a turnover of many millions of pounds and a substantial staff. It has myriad tasks, from identifying witnesses to running a hearing. The Chairman has overall responsibility for it, but a number of respondents have been struck by the way in which judicial Chairmen have felt unable to take a firm grasp of difficult logistic decisions, often to the bemusement of wing members who have organisational skills. It may be desirable to give some management training to a prospective Chairman or to have clear targets and reporting processes to ensure that a lack of expertise on his part does not lead to a lack of direction.
There is an important point of principle embedded in this question. If a public inquiry is to allay public concern by being seen to conduct an open and independent review of the available evidence, it is desirable that the Panel operates as a highly-qualified jury. That makes it desirable that it should see only those materials that are made public. A legally qualified Chairman is likely to achieve that outcome for two reasons. Firstly, he is innately unlikely to want to see anything until it is decided that it will be put in evidence. Secondly, as he will have little interest in how the evidence is produced he is unlikely to get as involved in its production as someone with administrative expertise would.
Legalism of public inquiries
There is considerable public debate about the increasing legalism of public inquiries. Many commentators associate them with inflated fees for excessive numbers of lawyers. Many understand that the public inquiry itself may need a team of solicitors and counsel to unearth and present the evidence. There is some sympathy for the proposition that a witness or interested party who may be prejudiced by the workings or the report should be entitled to legal representation so as to protect his reputation. However, there is increasing disquiet about the provision of lawyers at public expense for witnesses when they are giving their statements and during the hearings. That is especially so where those lawyers are not allowed directly to question witnesses at the hearings and are seen merely to be sitting mute for weeks on end, as in the Rosemary Nelson Inquiry. The argument goes that prosecution witnesses in criminal trials have no such luxuries and yet they are liable to be attacked during a trial in ways that may be very intrusive and disparaging. Even in civil trials witnesses may have their integrity impugned in public yet will not be represented.
The choice of the Chairman of a public inquiry is likely to influence the degree to which its processes are attended by legal representation. An engineer chairing a public inquiry is more likely to feel capable of getting to the truth with the aid of expert witnesses than with legal submissions. On the other hand, a lawyer chairing a similar public inquiry may ensure a higher level of fairness to all those involved in what is likely to be a fraught and contentious exercise.
The solution to the identity of the right Chairman for a given public inquiry will no doubt be depend on all the facts and, in particular, on the nature of the matters under investigation and the scale of the public inquiry. However, as Sir John Gieve has noted, the comparative advantage in appointing lawyers is that they know about evidence, about questioning, adversarial questioning, and so on. They are the experts in the process. In a number of cases he had tried to appoint advisors or panels alongside them who can bring a bit of specialist knowledge and sometimes that works very well.
Skills of wing members
Dr Iain Anderson, Chairman of the Foot and Mouth Disease 2001: Lessons to be Learned Inquiry, is an example of a single Chairman. The Secretary of the Inquiry, Alun Evans, told the Select Committee that he was not particularly convinced that having assessors or Panel members would have assisted the process. Nonetheless: In terms of expertise we identified fairly early on the areas we thought our inquiry was lacking which was, one, on high-level economic analysis and, two, on statistical analysis. […]. Very early on we brought in two leading academic experts on these two disciplines to advise on those areas, and that worked admirably well for us[…]
The Council on Tribunals is convinced about the value of additional experts. It told the Select Committee: Wing members can provide a breadth of experience which can be brought to bear on the subject matter of the inquiry. They can also enhance public confidence in the fairness of the process and in the inquirys conclusions. They can afford the Inquiry Chairman helpful support and some protection against errors of judgement in matters of both substance and procedure. It went on to advise that consideration should also be given to the appointment of assessors, particularly on technical issues in a specialist field. Lord Howe started: from the premise, […] that wingmen […] will almost always be desirable, partly for the reason that they bring wisdom beyond that of the single Chairman on the subject in question but also because they function in a quasi jury fashion. […] I found myself, in the Ely Inquiry in particular, enormously helped by the presence of outsiders, not just on the technicalities, but on the human questions and how best to handle things, and I quote, I think, a most impressive tribute: Lord Bingham in his BCCI Report […] pays tribute to the valuable help they gave him in his role as a judge (as well as in their role as experts), a sounding board on whom you can test your opinions[…]
Others have seen Panels as a means of underpinning an inquirys independence.
Lord Norton thought:[ …] several members [...] makes it less easy for Government to manipulate, and so, I suppose, you could counterpoise Hutton with, say, Butler in terms of the composition. That is why, I think, if you have a common framework, so you have a Panel of say three to five, it makes it less easy for Government to, if you like, determine the outcome simply by the choice of a particular individual.
If the Chairman of a public inquiry is to be a lawyer then the perception of the entire process may be improved by having Panel members who are respected for their expertise and experience in the matters under review or in matters which are tangential to the terms of reference. For example, where the events giving rise to the establishment of the public inquiry were thought to have a racial or sectarian motive then the appointment of a respected church leader could facilitate the healing process that may be an essential component of the public inquiry. The appointment of Dr John Sentamu as an adviser in the Stephen Lawrence Inquiry was a conspicuously successful example of that.
Section 8 of the Inquiries Act 2005 puts that notion on a statutory footing. That provision requires the Minister to have regard when appointing a member to the panel of a public inquiry to not only the need to ensure that the panel has the necessary expertise to undertake the public inquiry but also the need for balance in the composition of the panel. In that exercise he may have regard to the assistance that may be provided by an assessor to be appointed under section 11 of the Act.
Appointing the Panel under the Inquiries Act 2005
By section 3 of the Act a public inquiry is to be undertaken either by a Chairman alone, or by a Chairman with one or more other members.
By section 4 of the Act appointments must be made in writing, and before appointing a member to the Inquiry Panel (otherwise than as Chairman) the Minister must consult the person he has appointed, or proposes to appoint, as Chairman.
Under section 7 of the Act, there may be further appointments to Inquiry Panel.
Section 9 of the Act imposes a requirement of impartiality
Section 10 of the Act imposes consultations requirements for the appointment of judge as Panel member
Section 12 of the Act regulates the duration of appointment of members of the Inquiry Panel.