The need for a hearing in public?

Public concerns should be aired in public

As public inquiries are created to look into events that have caused public concern, it is plain that the concern is likely to remain unless it is seen to be addressed. Naturally that statement is capable of qualification. Where the public concern relates to a fear that the state has done something to undermine the rule of law it is less likely to be allayed if the facts are not made public. If, conversely, the public concern does not touch on any perceived breach by the state of the rule of law, a degree of privacy in the hearings may not be so objectionable. Where national security will make it impossible to reveal all of the facts then the public may appreciate the need for a degree of secrecy. Caution should be exercised in any restriction as it is important to avoid the perception there has been unnecessary secrecy, which will almost certainly give rise to claims the inquiry was a whitewash.

Of course, there will often be competing imperatives, which will require a balance to be struck. There is presently a call for an inquiry into possible state collusion in the interrogation by torture of Binyam Mohamed in Morocco. Such an inquiry plainly would address a public concern over the state’s approach to the rule of law but it is clear that it could not make public a good deal of the material facts. It is inconceivable that foreign Governments would be happy for evidence relating to their anti-terrorist operations were made public and the UK Government would be bound to claim public interest immunity for intelligence materials if they were to be made public. In such circumstances an inquiry conducted by an independent body that is held entirely in secret may be thought to be better than no inquiry at all.

Freedom of expression

The expectation of public access is underpinned by jurisprudence. The decision of the Secretary of State for Health that the initial Shipman Inquiry, chaired by Lord Laming, should sit in private was successfully challenged by victim’s families. They argued that the proposal contravened Article 10 of the ECHR, namely the right to freedom of expression, as an unjustified governmental interference with the reception of information that others wish or may be willing to impart.

Balancing speed against cost

However, the indicators do not all point one way. In a similar challenge in the Persey case on the Foot and Mouth Disease 2001: Lessons to be Learned Inquiry, the judge ruled that there was no legal presumption of openness and the decision was one essentially for ministers. The speed and cost of a public inquiry, the frankness of witnesses, the purpose of the inquiry (fact-finding or lesson-learning) and the fact that Article 10 of the European Convention on Human Rights does not require the State to facilitate freedom of expression by providing an open forum were factors which influenced the decision. Section 19(4) of the Inquiries Act 2005 contains an express provision allowing a restriction to the extent to which not imposing any particular restriction would be likely to cause delay or to impair the efficiency or effectiveness of the inquiry or which would otherwise result in additional cost.

Encouraging frankness and quality evidence

Sir Cecil Clothier QC, who chaired the Allitt Inquiry told the Select Committee in respect of an inquiry that was held in private: “the unquestionable advantage of this method was that in the absence of friends, colleagues, parents, press and other embarrassments, witnesses gradually began to speak with a frankness which was at times startling”. Frank Dobson MP also told the Select Committee: “[ …] two of the inquiries that I referred to which had looked into quite important scandals within the NHS and had far-reaching consequences, were not public inquiries. They were conducted in private. Nobody challenges that they got to the bottom of the thing and nobody, so far as I know, has challenged the processes, and none of the patients or their friends or supporters, even their lawyers, have ever said that those inquiries were in any way inferior to a public inquiry”, adding “I do think that there is quite a bit of merit in many circumstances in a private inquiry with a published report”

There are two views about whether hearing evidence in public affects its quality. Lord Salmon’s observation on public versus private evidence gathering was succinctly made to the Select Committee: “Secrecy increases the quantity of the evidence but debases its quality”. The Council on Tribunals considers that “In principle, it seems right that an inquiry into a matter of public concern should itself be conducted in public, unless there is a strong public interest in the inquiry, or part of it, being held in private for reasons such as national security. […] Aside from any other consideration, public hearings go a long way towards reassuring the public that the subject matter of the inquiry has been fully investigated and that there has been no ‘cover-up’. However it went on to suggest that on certain occasions there might be advantages in holding inquiries in private as long as its report was published: “Sometimes it may be easier to elicit the truth when questioning is not conducted in the full glare of publicity”".

Dr Iain Macdonald, former Chief Medical Officer in the Scottish Office and a witness in the BSE Inquiry, gave evidence to the Select Committee. He was attracted by a two part inquiry process: “the first phase, concerned with establishing facts, could be held in private, while the second phase could remain public if that is necessary or expedient. In a privately held first phase, witnesses would be freed from the burden of knowing that in answering questions in public they are also providing material for tomorrow’s newspaper headlines. That undoubtedly influences how a witness responds, or does not respond, in public and it would be idle to pretend otherwise”

The Government, in a memorandum to the Select Committee, adduced four main reasons for sometimes holding proceedings in private: national security; statutory barriers to disclosure and legal and commercial confidentiality; personal privacy, unnecessary intrusion or distress to witnesses and simpler, faster procedures”

Allowing public scrutiny of evidence

Sir Liam Donaldson set out the factors in favour of openness clearly to the Select Committee: “The first is that there is a concern that if it is not in public the full truth will not come out, the second is that if you do not hold it in public then there is no public scrutiny of people’s actions, as compared to the inquiry’s own scrutiny, and the third is that the public do not get the chance to hear various people’s opinions on the events, which the inquiry does get the chance to hear. I think the trouble is that it always sounds very bad publicly to say that you will not have a public inquiry, because it sounds as if you are trying to withhold the truth or facts from people and you are protecting people from being properly examined in the way that they are in a public hearing with the media reporting on events, and so on”. He agreed with the view that public inquiries would not necessarily elicit the full evidence. In his view: “the absolute key element in that is the independence of the Chair. If you appoint the right person who is independently minded, although it does not, as I say, look acceptable to the public, you could have a win-win in that they delve much deeper than they would have done in a public inquiry and they put it all out in a public report afterwards”. Alun Evans was of a similar view. He explained how the Foot and Mouth Disease 2001: Lessons to be Learned Inquiry: “… was not a public inquiry, [but] we had to do everything we could to give the image and reality that this was going to be a full, open and independent inquiry and I think we managed that. Certainly the judgement of the High Court was that the integrity and independence of our Chairman could not be questioned and that argument went away”

Cost considerations

There is also a significant cost imperative in deciding whether to have a public or private inquiry. Sir Liam Donaldson told the Select Committee: “the bottom line is that a public inquiry will cost you £20 million and a private inquiry will cost you £3 million, and then six months as compared to two and a half to three years.

Those factors, although they sound rather crude when talking about victims, are an important thing to bear in mind when you are looking at public funds which could be used for other beneficial purposes. The debate about the costs of a public inquiry has been brought to national attention by the publicity over the Bloody Sunday Inquiry, and for the foreseeable future it seems inevitable that cost considerations will loom very large over any decision to hold a public inquiry.