Watching the watchmen – at the sharp end with the lawyers on public inquiries

Public inquiries have the power to seek truth in tragedy and scandal, but could a rigid process and weak leadership be undermining their authority? We talk to the professionals at the sharp end

It was supposed to find the facts amid decades of cover-ups and abuse of the most vulnerable in society, but in recent months the former chair of one of the most complicated inquiries in British history was branded a disgrace and its lead counsel departed trailing controversy and legal threats.

Amid the accusations, the Independent Inquiry into Child Sexual Abuse (IICSA) has become a startling example of the tensions and contradictions in the inquiry process. Inquiries in their various forms have a long history in the UK, covering a wide array of forms and subject matters. Used to investigate scandals and catastrophes, the process provides an openness and offers an independent perspective on issues of national importance.

But there has been nothing quite like IICSA in sensitivity, political frisson and scope. The investigation of the breadth of abuse of children uncovered links to the British establishment spanning decades; the church, Parliament, police, hospitals, schools and more are under examination.

IICSA – already on its fourth chair, despite having only officially begun in July 2015 – demonstrates the scrutiny placed on inquiries, a quasi-judicial/quasi-investigatory process shot through with tensions. ‘The problems always go back to the terms of reference and the composition of the tribunal,’ says Kingsley Napley head of criminal litigation Stephen Parkinson.

Sir Robert Francis QC of Serjeants’ Inn Chambers, who chaired the 2010 inquiry into mortality rates at Stafford Hospital, notes the challenge facing senior figures grappling with a new inquiry. ‘If you talk to any person who has ever worked on an inquiry, they are absolutely amazed that you start from a blank sheet. No-one has gathered any of the combined learning in how to do it.’

With intense scrutiny facing the process – not least with a current review of the ‘Maxwellisation’ right of reply procedure – Legal Business talked to veterans who have handled some of the most high-profile inquiries of recent years to gain their insight.

 

A public interest

Public inquiries are currently typically derived from the Inquiries Act 2005, a response to the spiralling cost of the Saville Inquiry into the Bloody Sunday shootings of 1972, which ended after 12 years in 2010 with a cost of £195m. The act updated the framework for statutory inquiries, enacted by a government minister to investigate matters of public concern. Provisions in the act helped fill in the gaps in an otherwise ad hoc procedure. A crucial point of the act seeks to address the issue of costs that has dogged some inquiries, with section 17(3) stating: ‘The chairman must act with fairness and with regard also to the need to avoid any unnecessary cost.’

There had previously been a long history of inquiries in Britain, though their use was often informal and covered by a range of Royal Commissions and reviews of varying scope, with the Scarman Report into the Brixton riots of 1981 and the Scott Inquiry during the 1990s into arms sales to Iraq both particularly influential. Statutory inquiries were originally cemented into British law through the original Tribunals of Inquiry Act 1921 and the Salmon Report into Tribunals of Inquiry in 1966 that set out further guidelines for official inquires.

If the 2005 act brought more structure to the use of inquiries, many are still held ‘informally’, outside statute. The Chilcot Inquiry into the Iraq War was non-statutory, while the Dame Janet Smith Review of the BBC in the wake of the Jimmy Savile scandal was an internal review, albeit unusually transparent due to the state-backed status of the broadcaster.

A debate continues among the profession and policy-makers on the respective merits of the formal and informal approaches. Crucially, official inquiries have powers to compel witnesses to give evidence, though critics argue such inquiries can be slow and inflexible.

Says Francis: ‘Both have advantages depending on what you are trying to do. Non-statutory lacks powers of compulsion, but you are able to undertake things with rather less formality than a public inquiry. I was able to wander around hospital wards and talk to people, which is much more difficult to do if you are chairing a public inquiry.’

The 2005 act itself has been criticised for compromising the independence of inquiries. In truth, the tension between the executive’s role runs through the process and can probably never be entirely resolved since it is the government that agrees to launch the inquiry, sets the scope and appoints the chair.

With the act also came a further set of rules in 2006, laying the groundwork for how a public inquiry should be run. But the combined act and laws have been overly prescriptive, according to some senior public law lawyers.

Eversheds head of inquiries and investigations Peter Jones adds that this lack of flexibility in formal inquiries has had an added effect on costs. ‘Some of the rules were completely unnecessary. Now every time a chair would like to short circuit something or do things quicker they can’t. All these rules do is fetter a chair’s ability to have a proper inquiry and add to costs.’

 

The cost of justice

While the public is interested to see justice done, costs and delays can quickly change the mood. In the long run, are the answers worth it? Around £12m was spent on the Chilcot inquiry, which lasted from 2009-16. The Leveson Inquiry into press standards from 2011-12 cost around £5.4m and subsequent police investigations cost £43.7m. The 2010-13 Mid Staffordshire Inquiry was around £13.6m. The total legal costs of the Hillsborough inquests from 2012-16 came to £100m, with much of the fees funded by the taxpayer decades after the original tragedy. Many would argue they were costly, but necessary. The current IICSA is predicted to last until at least 2020 and is expected by some lawyers to ultimately cost over £100m.

A further issue is the so-called ‘Maxwellisation’, where criticised individuals are given time to respond (the phrase is a reference to a report by the Department of Trade and Industry on controversial press magnate Robert Maxwell). The process was originally adapted from common law but has been increasingly expanded to show witnesses copies of the entire report, back-ending the process and generating substantial delays. Such consultation is thought to have added almost a year to the Chilcot Inquiry, while Francis believes at least six months were lost to Maxwellisation in his Mid Staffordshire Inquiry.

The procedure is currently under review by Blackstone Chambers’ Andrew Green QC, with a report due before the end of 2016. Green says the report aims to address how ‘we might streamline the process’. There is consensus among most lawyers that, while putting criticism to individuals improves the balance and quality of the final report, a better middle ground could be found.

5 Essex Court’s Jason Beer QC adds: ‘People have found it cumbersome to implement. It does seem a bit much that after all the cross-examination you have to send a letter saying: “And another thing, you are about to be criticised.”‘

Around these inquiries, a defined band of lawyers has emerged (see box above) that have come to specialise in dealing with the rules and ad hoc systems for establishing inquiries and inquests. Eversheds, Fieldfisher and Kingsley Napley are all well known for inquiry work, while a number of other firms have experience of working on media inquiries following Leveson. And Leigh Day and Bindmans have frequently acted for claimants and victims.

An interesting aspect noted by a number of seasoned lawyers is the extent to which the use of public inquiries has been blurred with mounting numbers of corporate investigations and internal inquiries as companies respond to tougher policing of corporate wrong-doing. This widens the pool of firms handling inquiry-like matters. Baker & McKenzie and Reed Smith both took prominent roles on the BBC inquiries, and Linklaters and Olswang were major advisers to News International during the Leveson Inquiry.

 

Legacy of failure

In July 2014, then Home Secretary Theresa May announced the start of a far-reaching inquiry into child sexual abuse. By the time of its launch in July 2015 the inquiry was already on its third chair, with Dame Lowell Goddard QC, a retired New Zealand judge, appointed for her perceived distance from the UK establishment.

The inquiry came in response to several years of revelations of systematic abuse following the death of TV personality Jimmy Savile in 2011. Reviews were further held by the BBC under Dame Janet Smith into the broadcaster’s conduct and internal processes that had allowed Savile to abuse with near impunity. The investigations also revealed allegations against broadcaster Stuart Hall (Hall in 2013 pleaded guilty to indecently assaulting 13 girls aged between nine and 17 between 1967 and 1985). Instructed to advise the BBC Trust was Bakers’ then head of litigation Tom Cassels, with Reed Smith commercial litigation partner Richard Spafford advising the BBC alongside partners Carolyn Pepper and Ben Summerfield.

The government began considering plans for a panel inquiry into child sexual abuse spanning decades. Initially, former Lord Justice of Appeal Baroness Butler-Sloss was appointed to lead the panel, but stepped down after a week in July 2014 after it was alleged she was too close to the establishment. Former Lord Mayor of London Dame Fiona Woolf was the second choice, but resigned over similar complaints in October 2014.

Legal specialists have mixed views on the appointment process, noting the huge pressure to get a female chair without links to the establishment. For some the appointment of Butler-Sloss, then in her 80s, was not ideal to lead a long-running inquiry, while Woolf was a debatable choice given her background as an energy lawyer at CMS Cameron McKenna.

In March 2015, May confirmed the panel would be disbanded and a full statutory inquiry conducted by Goddard. Goddard was placed in charge of organising 13 investigations into alleged child sexual abuse, from the church to schools to high-profile politician the late Lord Janner. Fieldfisher partner Martin Smith was named solicitor to the inquiry. Matrix Chambers’ Ben Emmerson QC was appointed as counsel to the inquiry, leading a team of barristers in the investigations and examinations to come.

Yet as the months crept on and delays continued, questions began to arise about the suitability of Goddard as chair and the scope of the investigation. While there are varying views in the profession on the handling of the inquiry, most lawyers cite a fundamental issue of its sprawling remit. One partner close to the inquiry says: ‘The terms of reference are far too wide. It has been given a job that is impossible to achieve in any sensible timeframe.’

One criticism levelled at Goddard was her salary – £360,000 per annum – which became increasingly difficult to justify as The Times revealed she had spent more than 70 days away from the UK, working 44 days in New Zealand in addition to her allowed holiday. Views on Goddard among the profession are not enthusiastic, even if some are uncomfortable about the amount of leverage victims’ groups have applied during the process.

When Goddard ultimately chose to step down as head of the inquiry in August this year, her reasoning left a bitter taste for those hoping to see a swift and rigorous investigation. ‘The conduct of any public inquiry is not an easy task, let alone one of the magnitude of this,’ wrote Goddard. ‘Compounding the many difficulties was its legacy of failure which has been very hard to shake off.’

‘There is a whole sorry story of what has been going on internally in the IICSA. I wouldn’t confidently bet that these are the last exits.’
A partner close to the inquiry

What has followed is a tit-for-tat as Goddard denounced the press for its ‘malicious attacks’ on her character, instructing lawyers from Carter-Ruck to defend her against ‘defamatory’ allegations. She also attacked the Home Office for failing to protect her in the investigations. Conversely, the head of the Home Affairs Select Committee Yvette Cooper MP branded Goddard’s actions ‘disgraceful’ as she declined to return from New Zealand to give evidence in person to the committee relating to the inquiry in November this year.

One partner close to the inquiry says: ‘There is a whole sorry story of what has been going on internally. I wouldn’t confidently bet that these are the last exits.’ Another suggests it had been ‘politically expedient’ to set such broad terms of reference, but adds: ‘You see the problems coming in the implementation. I suspect Theresa May will be regretting it now.’

Goddard was in August replaced by professor Alexis Jay, a social worker by professional background, who led the Independent Inquiry into Child Sex Exploitation in Rotherham, South Yorkshire. Says one partner: ‘She’s not a lawyer but she did do a previous inquiry very well. It couldn’t be someone close to the establishment. The victims’ lobby has been far too powerful. Good luck to her.’

On 28 September, media reports circulated that Emmerson had been suspended from the inquiry. The QC instructed Bindmans over the allegations, but just a day later a statement appeared on the IICSA website stating Emmerson had resigned, adding ‘there is no truth in suggestions that he has resigned due to a difference in opinion with me [Jay] about the next steps of the inquiry’.

But other members of the counsel team have since stepped aside, including Matrix Chambers’ Elizabeth Prochaska and Landmark Chambers’ Toby Fisher amid claims of discord, while a victims’ group representing children abused in Lambeth also pulled out of the process last month.

The case highlights a familiar tension in inquiries, with historical events making it difficult to effectively focus on reforms to current policy. Says one lawyer: ‘It was not necessary in order to work out what’s needed for the future to examine the past 50 years in forensic detail.’

 

Uncertain boundaries

While the IICSA has demonstrated many of the most challenging issues to face public inquiries, the process frequently attracts controversy.

 

The risk of judicial chairs is illustrated by Leveson where the veteran judge (pictured) performed strongly in running hearings only to produce a report that was disconnected from the practical realities.

 

 

Inquiries often encounter criticism in the press, from politicians and victims’ groups. The challenge of competing forces can be a lot for a chair to handle impartially. A look back over past inquiries shows the different ways inquiries have been forced to deal with opposition.

One example is the Hutton Inquiry in 2003 into the death of Dr David Kelly, a former UN weapons inspector and the alleged ‘sexed up’ report into Iraq’s weapons of mass destruction that was investigated by the BBC. While the inquiry was controversial and is still questioned for heavily criticising the BBC’s decision to air the report, lawyers who worked on the case maintain appeal judge Lord Hutton, appointed by the Labour government, did good work as the inquiry’s chair. For some lawyers, Hutton got the process right but failed on perception, arguably a failure in a process supposed to command public confidence.

Former government lawyer Parkinson says: ‘Hutton did a great job, even though he was criticised at the time.’

Meanwhile, the Chilcot Inquiry into the Iraq War, launched in 2009 and published in 2016, was a non-statutory inquiry. While many in the profession felt that lack of senior legal figures hampered the process, overall Chilcot was viewed as a robust and fair process.

Led by former civil servant and British diplomat Sir John Chilcot, the inquiry took seven years to publish. Its final form called the case for war ‘far from satisfactory’ and came to more than 2.6 million words.

Says Beer: ‘They are a bit less independent. If you give [inquiries] fewer powers they cannot really summon witnesses or really require them to produce documents. This allowed the suggestion of concealment to be made in the Chilcot Inquiry.’

Some inquiries that have been deemed to be successful by professionals lingered less in the headlines, probably because the effective running mitigates controversy.

Richard Lissack QC of Fountain Court Chambers cites the ‘great success’ of the inquiry into the murders of doctor Harold Shipman, chaired with ‘enormous skill’ by Lady Justice Smith. He also cites the Bristol Royal Infirmary Inquiry chaired by professor Sir Ian Kennedy. He reflects: ‘Kennedy made recommendations for change that were very wide-reaching concerning the NHS. They are still being fed through and are of real value. But people in this world want a quick fix, and inquiries don’t deliver a quick fix.’

The BSE Inquiry into government handling of mad cow disease, led by veteran judge Lord Phillips and published in 2000, is likewise cited by several lawyers as a model of a sober dissection of the facts. The Saville Inquiry is judged as robust, albeit at huge cost and delay.

Nevertheless, due to the blurred lines that many inquiries cross they are inherently controversial, with some feeling that judges should avoid being drawn into the politically-charged arena of inquiries. Obviously, despite celebrated examples of strong-willed jurists like Scott and Scarman, governments often appointed conservative judges with likely sympathy to the establishment. Perhaps a more nuanced take shared by some lawyers is that judges come into their own as establishers of facts but struggle in a more obviously political arena.

Beer adds: ‘In policy-laden inquiries perhaps it could be argued you shouldn’t have judicial chairs. They may be better reserved for fact-finding inquiries.’

This is illustrated for many by the Leveson Inquiry, where the veteran judge was widely regarded to have performed strongly in running the hearings only to produce a report that was disconnected from the practical realities.

One inquiry that was heavy in policy was the report by Sir Michael Bichard into the police procedures surrounding the Soham murders committed by Ian Huntley in 2002. Bichard’s recommendations led to substantial changes in police intelligence sharing and record keeping.

A reason some lawyers criticise the use of judges is that they see inquiries as more effective when the chairs proactively push for changes in policy, an alien skill to most of those coming from the bench. This was striking in the case of Leveson and the judge’s take-it-or-leave-it attitude to his report, which has in terms of reform been a wash-out by partly dismantling one model of press regulation without securing consensus for a replacement.

As Beer notes: ‘A good example is the Bichard Inquiry. It was conducted by a senior civil servant and regarded as one of the best inquiries because [Bichard] genuinely grappled with the policy issues and not just the minute details. Uniquely, he made his recommendations and called all the parties back to hold them to account and ask for a progress report.’

If a pragmatic commitment to change – together with a knowledge of how to pull the levers of government goes a long way – getting the balance right on independence is also important.

 

‘What has always stalked the public inquiry process is that basically nothing happens.’
Richard Lissack QC, Fountain Court

 

 

Some inquiry chairs, for example, limit the use of any government lawyers on the basis that the public institutions will be criticised, one reason private law firms have established themselves in the area.

Nicholas Griffin QC notes there will always be a difficult balance between quality, speed and depth. ‘Ones that have been done fairly efficiently were the Mid Staffs inquiry and Leveson. The issue there, particularly with Leveson, was the extent to which an in-depth approach was sacrificed by a need to get through things very quickly. There is a trade-off between having a very efficient and, relatively speaking, speedy inquiry. There is inevitably going to be some trade-off with how deep the inquiry can go.’

 

The value of openness

Talking to the professionals with experience of inquiries, the secret of running an effective process and improving the model is less about whether it is statutory or not or has a judge running it. There have been poor and effective inquiries in both models.

By consensus, the two most important issues are a workable scope to the inquiry and the quality and suitability of the chair. Scope needs to avoid either being so narrow that it leaves out key elements or so wide as to produce unworkable results. While having a judge running an inquiry has benefits, more important is determination to effect positive change.

As Lissack notes: ‘What has always stalked the public inquiry process is that basically nothing happens. You hold an inquiry over a long period of time at great public expense and it does not deliver change. I could name a lot of inquiries that have been said to have been failures in that regard as opposed to those that have been successes.’

Where there is agreement is that it would help if there was more ability to collect knowledge, skills and lessons from successful inquiries to build best practice. According to one City partner advising a client on IICSA, lessons are hard to learn without a process of retaining information in running inquiries: ‘There isn’t any central resource within government to ensure experiences are captured.’ As Francis dryly notes of his experience chairing a major inquiry: ‘I discovered the Cabinet Office guidance on public inquiries only after I had finished mine and the reason no-one ever sees it is because it is marked restricted – not very useful for guidance.’

Francis suggests a more open system is needed in appointing a chair, with the current process lacking any clear formality. ‘If you asked me why I was appointed chair [of the Mid Staffs inquiry] I would say I have no idea. A letter comes out of the blue and you do it, or not.’

Others oppose the rigid system that the Inquiry Rules ushered in.

Despite the evident flaws – the costs, the difficulty in choosing a chair and the ad hoc nature of inquiries – most lawyers involved still believe in the value of a system with the potential to hold power to account and provide catharsis for victims and their families.

As Tom Cassels, who last year moved from Bakers to Linklaters, concludes: ‘There is value in the process of inquiry. There is value in openness, and there is certainly something to be said for the transparency granted by a well-run inquiry.’

For many of the lawyers that worked on inquiries, the experience has lingered with them, as has their belief in the role of inquiries. ‘The bit that is most challenging but also most motivational is the idea that one is doing work of value,’ says Francis. ‘You encounter people who have genuinely suffered. I listened to stories from families, three families a day for around six weeks. It was intense and something that stays with me to this day.’ LB

matthew.field@legalease.co.uk