The public inquiry, our favourite panacea
Every crisis now leads to demands for a public inquiry, usually led by a judge, but we have lost sight of what they are for and what they can achieve
It is almost an opposition politician’s reflex now. If there is a significant tragedy, disaster or catastrophe, or a major event which is politically controversial and giving off a whiff of potential blame, the grave, sad-faced demand is inevitable: “To ask the minister if s/he will establish a public inquiry into” the latest issue which has captured the attention of the public. The current inquiry into the government’s handling of the Covid-19 pandemic was announced by Boris Johnson, then prime minister, in May 2021, as the second wave of infections was on the wane and more than 30 million doses of the various vaccines had been administered, though a third wave would begin two months later.
I won’t dwell on the ongoing controversy over disclosure of data to the inquiry and yesterday’s announcement by the Cabinet Office that it would seek a judicial review to try to maintain the ability to hold some documents back from the inquiry team, partly because that’s not the purpose of this essay and partly because it will be the subject of my weekly City AM column on Monday (5 June). Instead I want to talk about public inquiries in general, and how they operate in our political landscape.
A public inquiry can take many forms. It is a major investigation into an issue of “public concern” (the only threshold it must meet under the provisions of the Inquiries Act 2005), and the only common feature of all public inquiries is that they may only be established by the authority of a minister, whether in the UK government or one of the devolved administrations in Scotland, Wales and Northern Ireland. It cannot rule on or determine a person’s civil or criminal liability, but it is free to determine facts or make recommendations from which such liability may be inferred.
The inquiry may be conducted by a single person or a chairman and a panel, but each member must be chosen by the minister and appointed in writing by instrument. If there are to be multiple members, the chairman must be consulted about their appointments. An inquiry will often consult with the public before its terms of reference are decided (though these can be amended while the inquiry is in progress) though the terms will ultimately be set by the sponsoring minister; the chairman of the inquiry will determine issues of procedure and format. It has the power to subpoena witnesses and take evidence under oath.
It is worth saying at this point that the Covid-19 inquiry is a single-person inquiry—the chairman and only member is Baroness Hallett KC, formerly vice-president of the Civil Division of the Court of Appeal and a judge for 20 years—and she is assisted by a secretary, solicitor and counsel as well as a small team of administrative staff. After a public consultation, the inquiry’s terms of reference were announced in July 2022. The government is seeking judicial review of Lady Hallett’s instruction to release WhatsApp messages, notebooks and diaries belonging to Boris Johnson, arguing that it should not be required to disclose “irrelevant information”. This is believed to be the first time that a government has challenged the conduct of a public inquiry it established.
Since the passage of the Inquiries Act 2005, public inquiries have been relatively common. There are—this might surprise some readers—currently 16 inquiries underway, including the Covid-19 probe: five were established by the Scottish Government and two by the Northern Ireland Executive. They range from broad policy issues like undercover policing to individual incidents like the 2018 death of Dawn Sturgess by Novichok poisoning in Salisbury. There have been another 19 inquiries under the aegis of the 2005 Act which have concluded and published reports, like the Leveson Inquiry into press conduct and the Francis Inquiry into failings at Mid-Staffordshire NHS Foundation Trust.
Before 2005, most statutory inquiries were held under the provisions of the Tribunals of Inquiry (Evidence) Act 1921. Readers may be aware of the tribunal established to inquire into the Aberfan disaster in 1966, or the epic 10-year inquiry into the events of Bloody Sunday in 1972 led by Lord Saville of Newdigate. There have also been several public inquiries held under the provisions of subject-specific legislation like the Regulation of Railways Act 1871 (still extant) and the National Health Service Act 1977 (largely superseded by the National Health Service Act 2006 and the Health and Social Care Act 2012).
But what is the specific purpose of a statutory public inquiry? Is it always the most appropriate investigatory tool? Jason Beer KC, a leading expert on public inquiries, has argued that public inquiries exist to answer three fundamental questions:
What happened?
Why did it happen and who is to blame?
What can be done to prevent this happening again?
There is no question that the Covid-19 pandemic met the “public concern” of the 2005 Act. It was so vast and serious a challenge to the organs of state, and required cooperation across government and across the public and private sectors to manage it, as well as leaving more than 220,000 people dead, that the case for a public inquiry is essentially inarguable. Even Boris Johnson, who hardly relishes public scrutiny of his actions, saw the inevitability of the inquiry, announcing it while the pandemic was still underway. The powers available to a statutory public inquiry are sufficiently broad to allow a thorough investigation of the government’s response to Covid-19 (pace yesterday’s decision to seek a judicial review), and insofar as lessons can be learned from the pandemic, Lady Hallett’s inquiry should be able to establish events and make recommendations which will at least help preparedness for the next pandemic (because another outbreak on a widespread scale is inevitable).
However, it should be noted that statutory public inquiries are not a quick way to uncover truth and establish lessons to be learned. While the Bloody Sunday Inquiry was unusually long at a full decade, similar processes are usually multi-year undertakings, with three or four years being quite a common duration. Moreover, the Covid-19 inquiry is the widest-ranging ever undertaken by a UK government, notwithstanding criticisms of some exclusions from the terms of reference like so-called “Partygate” and the experience of children during lockdown. Initial hearings will begin later this month—the inquiry has its own YouTube channel—and current estimates are that the inquiry will not conclude until 2027 at least, and perhaps some time beyond that. The inquiry has already cost £15 million directly and the final bill is likely to run into hundreds of millions of pounds (the Bloody Sunday inquiry is estimated to have cost something in the region of £400 million).
Consider the scenario. Let us suppose that the Labour Party wins the 2024 general election, as latest polling suggests (but I believe is not inevitable). Let us further suppose, being charitable, that the Covid-19 inquiry reports some time in 2027, according to optimistic estimates. It could be more than halfway through Sir Keir Starmer’s first parliament as prime minister; perhaps Wes Streeting is secretary of state for health and social care. Even after the inquiry reports, the government will at first tend only to issue an immediate but detail-light response, outlining how it plans to implement the inquiry’s recommendations. There is no regular method of scrutinising or following up implementations, and select committees are often reluctant to undertake the work since the focus of the inquiry can have lost its urgency or topicality. It could easily be 2028 before concrete changes are contemplated, by which time the Labour government may be in the last months before a general election: this always distorts political priorities and discourages long-term planning in favour of tactical considerations.
What of the dramatis personae? Boris Johnson is unlikely by then to be a Member of Parliament; a Conservative defeat in 2024 would put his marginal Uxbridge and South Ruislip constituency well within the reach of Labour (his majority in 2019, a good year for the Conservatives, was only 7,210). Matt Hancock, health secretary for much of the pandemic, is leaving parliament at the next election, as is his successor, Sajid Javid. If the Conservatives are defeated, it is more than possible that Rishi Sunak, who was chancellor of the Exchequer throughout Covid-19, could leave at least front-line politics, and could easily step back altogether. Sir Chris Whitty, the chief medical officer, will have passed the normal civil service retirement age, while Sir Patrick Vallance, the government’s chief scientific adviser, has already retired. Nadhim Zahawi, who was minister in charge of the vaccination programme from 2020 to 2021, resigned from the cabinet in January this year and is currently on the backbenches. Sir Jonathan van Tam, deputy chief medical officer and a member of the Vaccine Taskforce, left government service in 2022 for a position at the University of Nottingham. Perhaps the only familiar face still in post will be the cabinet secretary, Simon Case, who will not turn 50 until the end of 2028.
Of course these individuals have not disappeared nor will not disappear from the face of the earth, and some may be criticised by the inquiry. My point is that all of them, except perhaps Case, will be firmly yesterday’s news and it may be more challenging to generate that aforementioned “public concern” about who did what and said what to whom when events will have moved on substantially. None of this is a criticism of the Covid-19 inquiry, but it is a reflection on the slow speed of the inquiry process and therefore one of its drawbacks.
Statutory inquiries are not the only response a government can make to a crisis or policy disaster. But I will examine ad hoc inquiries, independent panels, royal commissions and committees of privy counsellors another time, as they deserve some space to breathe and mature. Here is the conclusion I offer, however. When the instinct is to demand a public inquiry, especially if one is an opposition politician with one eye on embarrassing the government, consider if the statutory inquiry is the best vehicle. They grind slowly, yet they grind exceedingly small: practically unrivalled for a thorough investigation of facts and thoughtful, considered recommendations for change, they nevertheless may miss the window in which the subject of the inquiry is at the top of the electorate’s agenda. Moreover, while responsibility may eventually attach itself to those who deserve it, it may not be the palpable political hit hoped for by some who were so keen on the establishment of the inquiry.
Perhaps this is an instruction in understanding the proprieties and machinery of administration. Each tool available to a government has its own purpose, and often (though not always) performs it well. But many of these tools are specialised, and the savvy Whitehall warrior will learn to know all the contents of the toolbox, and use them accordingly. Quite simply, don’t expect results from a process which was never intended to deliver them. Understand the levers of power, and understand what happens when you pull each of them.