Inquiries: addressing some questions

According to the Scotsman on 15 January, Liberal Democrat leader Alex Cole-Hamilton wants “a ruthless and thorough public [coronavirus] inquiry that can go anywhere, speak to anyone and demand answers”, and he wants it to deliver its interim findings within a year of starting. All very commendable, no doubt, but in practice can he reasonably expect such a timetable? Would it actually be a good thing?

These are my own reflections, based on the Vale of Leven Hospital Inquiry in which I took part, and not necessarily shared by anyone else involved. But my experience does lead me to believe Mr Cole-Hamilton’s remarks to be unfortunate and ill-informed. In order to assess why inquiries often take so long, let me begin with the basics.

What is a public inquiry?

Public inquiries are a creation of statute. Their establishment and their conduct are governed by the Inquiries Act 2005 and rules made under that Act. Much of the procedure followed by an inquiry is therefore not a matter of choice; it is an essential requirement in law. That is a matter politicians would do well to bear in mind before they complain about the conduct of an inquiry. They – that is, Parliament – made the rules.

A public inquiry is independent. While it is established by and its terms of reference are set by Government, either UK or devolved, its conduct is under the control of the chair. That is vital if it is to be transparent and reach conclusions not influenced by ministers or others with a vested interest in the outcome.

Time limits

Any ministers tempted or pressured to set a time limit on an inquiry would do well to reflect on the experience of Nicola Sturgeon. With the Vale of Leven Hospital Inquiry, as Cabinet Secretary for Health and Wellbeing she announced publicly that she had set a time limit of 18 months. That was pointless. For one thing, it eroded the independence of the inquiry. For another, it was impractical, and she had been told so. Furthermore, it was impossible to enforce. The minister simply provided a stick for opposition MSPs to beat her with, having to insist to the Parliament in the face of inevitable delays that the conduct of the inquiry was the chair’s responsibility. But in addition there are sound practical reasons for not setting a rigid timetable. Quite simply, until a public inquiry embarks on its task of gathering evidence, it is impossible to predict what it will find or how complex or far-reaching its investigation will need to become in order to fulfil the terms of reference imposed on it.

What is involved?

So, what does a public inquiry entail? Why does it take so long? And why are public inquiries so expensive? Well, first of all there are many stages to go through, all of which take time.

The first task of a newly appointed chair is to put together an inquiry team, perhaps a panel of assessors to assist them, but certainly counsel to the inquiry, solicitor to the inquiry, secretary, and often their deputies. Often the solicitor, secretary and administrative staff will be made available on secondment from the Civil Service, but the ultimate choice lies with the chair.

Independence of the inquiry

This method of staff appointment does give rise to potential difficulties over the independence of the inquiry. I was seconded to the Vale of Leven Hospital Inquiry as a senior civil servant, under the chairmanship of Lord MacLean. But I did not come from the Scottish Government Legal Department, and to that extent could claim a certain independence in my dealings with it.

Certain tensions soon arose because Scottish Government not only played an important supporting role in the running of the inquiry, but was itself going to be an active party. Those two roles rapidly became rather blurred, and my arm’s length position was something of a comfort when I had to insist to the head of the Legal Department that strict separation and confidentiality must be maintained between those in his department acting in the two different roles.

The late Murray Sinclair, to his credit, readily agreed that that should be done, but in this and later dealings with Government lawyers I would have been concerned about my professional position had I been seconded direct from Government with the prospect of pursuing my career there once the inquiry was concluded. That is in no way to impugn the integrity of solicitor colleagues who might find themselves in that very position, but it is in my view unfair to subject them to such potential pressure. Nor is it a reflection on senior personnel in Scottish Government. But there is a risk that such a close professional relationship will raise doubts in the mind of the public as to the inquiry’s independence of Government.

As an indication of such independence in practice, when I retired from the Civil Service I was invited to remain as solicitor to the Vale of Leven Hospital Inquiry. The chair’s response to Government attempts to replace me was: “I appoint the solicitor to the inquiry, not Scottish Government.”

Setting up the inquiry

Once the team is in place, a database must be established to process the documents that will be recovered. This will in most instances have to be tailored to the particular needs of the inquiry. Furthermore, as public money is involved, Government tendering processes must be adhered to. It will at best be several months before the database is in place.

A public inquiry is not just for those who have lobbied for it to be set up, whether they be victims of abuse, former hospital patients, or those suffering the effects of infected blood products, to take a few examples. The chair of the Vale of Leven Hospital Inquiry raised a few hackles at an early meeting with patients and next-of-kin when he declared: “This is not your inquiry; it is mine.” But it was an important point to make: the interests of all parties must be respected and all must have a proper hearing. Ultimately, no single group, no matter how much sympathy one might have for them, can be allowed to dictate the path of the inquiry. Nor can any persons or group expect of right to have their evidence preferred to any other evidence. Fairness and impartiality must be maintained throughout.

It is for such reasons that the Inquiries (Scotland) Rules 2007 provide for the designation as “core participants” of persons who:

“(a) played, or may have played, a direct and significant role in relation to the matters to which the inquiry relates;

(b) have a significant interest in an important aspect of the matters to which the inquiry relates; or

(c) may be subject to significant or explicit criticism”.

A range of interested parties are therefore likely to become core participants, and are entitled to be legally represented throughout the inquiry. The inquiry team must therefore consider applications and make recommendations to the chair, who will determine which parties have the necessary level of interest in the proceedings.

In the case of some core participants it will be appropriate for the inquiry itself to fund legal representation, which along with the inquiry’s own legal costs can form a considerable proportion of its budget. Given the procedures laid down by the Inquiries Act, legal costs will always form a substantial part of the final bill for an inquiry.

The investigation

Next, and no doubt while a database is being set up, the inquiry will set about recovering the documents it requires to fulfil its terms of reference. These will inevitably run into thousands, perhaps hundreds of thousands. Some holders may be less willing than others to disclose them. It can be a lengthy process. If witness statements are to be taken (as is normally the case), it will be necessary to trace witnesses, arrange to see them, and if numbers are large to engage additional staff to undertake the work.

As the documents and statements arrive they are copied on to the database, and then must be scrutinised by members of the inquiry team. Sometimes it is only at this stage that the scale of the task becomes apparent: in the Vale of Leven Inquiry the number of infected patients (and indeed of deaths) turned out to be far higher than originally anticipated, and on top of that it was realised that expert reports on the treatment of each patient would be essential in order to assess whether treatment had been appropriate. Finding those suitably qualified as well as willing to carry out the work again took time, and it was many months before the reports (some 200 in all) were completed. None of this could reasonably have been foreseen at the time the inquiry was established.

Public hearings

Most inquiries hold public hearings of oral evidence. For these a suitable venue is required, and its nature will depend to an extent on the number of core participants and legal representatives to be accommodated. There are few such places available for months or even years on end, and one may need to be constructed or at least adapted for the purpose, as with the ICL Inquiry held at Maryhill. The Vale of Leven Inquiry was fortunate to be able to use the same premises, at a considerable saving of both time and cost to the public purse.

Public hearings cannot for logistical reasons be sustained for weeks on end. Evidence will generally be divided into “chapters”, perhaps lasting two to four weeks, following which the inquiry team will assess the transcripts and decide on the future course of evidence. But other work continues both during and between hearings, such as statement taking and recovery of further documents.

Once public hearings have been completed, the inquiry team embarks on a comprehensive assessment of all oral evidence, statements and documents and devises a structure for its final report (it may even at some stage have issued an interim report). The drafting of different sections of the report may well be delegated to team members in the first instance, but the final version is of course the responsibility of the chair. Once more this part of the inquiry process will take many months.

Warning letters

The Inquiry Rules provide that an inquiry’s report “must not include any significant or explicit criticism of a person in the report (and in any interim report) unless –

(a) the chairman has sent that person a warning letter; and

(b) the person has been given a reasonable opportunity to respond to the warning letter”.

Each warning letter must in addition:

“(a) state what the criticism or proposed criticism is;

(b) contain a statement of any facts that the chairman considers may substantiate the criticism or proposed criticism;

(c) refer to any evidence or documents which may support those facts;

(d) invite the person to make a written statement if the person wishes”.

This is a long drawn-out process, but a statutory requirement and unavoidable. What is more, there is little point in even beginning it until the inquiry report is in final draft form. At that stage it will be necessary to go through the entire report identifying such potential criticism. In the Vale of Leven Inquiry the senior members of the team met once that had been done to examine every such entry in the report, assess whether it indeed amounted to significant or explicit criticism, and decide whether it was justified by the supporting evidence – again a lengthy process but an essential one.

That completed, drafting the warning letters themselves could begin. The longest of these in the Vale of Leven Inquiry ran to 60 pages, given the statutory requirement for supporting evidence and documents, and once more it was a time-consuming process.

Time must be allowed for a response. Where a response was received, again the Vale of Leven team met to discuss every detail of that response, considering whether to amend the report in the light of it and minuting reasons where it declined to make amendments. Such a record would be essential in the event of an attempt to judicially review the inquiry’s findings.

The entire warning letter process in the Vale of Leven Inquiry on its own lasted over six months, and could not reasonably have been shorter while complying with legislative requirements.

Proofing and publication

The final report then required to be proofread in-house for grammatical and other errors as well as for internal consistency. When the French Consulate took over the building following our departure, I wonder what they made of the pile of discarded commas in the corner of my office! A professional external proofreader was engaged. Only when that task was completed could the report be sent to the printers.

Once a publication date can be fixed it is usual practice to give advance notice to interested parties. With the Vale of Leven report this was restricted to access on the morning, with strict confidentiality, the formal public event taking place later that day.

Final thoughts

Every public inquiry must be assessed on the quality of its report. And I believe we did a good job. More than 60 recommendations were made to Government, all of which were accepted. It appeared to me, too, that the former patients and their families were on the whole content with the chair’s findings, although some of the evidence must have been harrowing for them.

It appears that everybody these days wants a public inquiry, and a short one. Only it doesn’t work that way. There are shorter, and cheaper alternatives, if you are prepared to be satisfied with them. An inquiry under the 2005 Act, on the other hand, is a complex judicial process; it can be cumbersome, but when well conducted it is extremely thorough and it is fair to those concerned in it. But it will take a long time to pass through all the required stages, and given the level of legal representation involved it will be expensive.

Next time you hear a politician complain about how long it takes, please point out that they made the rules. We lesser mortals just comply with them.