PUBLIC ADMINISTRATION
When analysed, the public inquiry is part of the development of resolving public issues that are not or could not be encompassed in a system of law that is costly to the litigating public.
Stripped statutorily of any judicial function of adjudicating on rival disputes and enforcing its orders, the inquiry’s chairman has a primary role of fact-finding and evidentiary decision-making. These roles are exemplified by those administering the assessment and evaluation of evidential material, as well as the credibility and reliability of witnesses. As such, they require the attributes of practising lawyers and other regular decision-makers. They do not exhibit more lawyerly than qualification. Additionally, they should be equipped with good judgment and common sense. Wisely, the Inquiries Act 2005 makes no distinction among potential Commissioners of Inquiry. The skills sought are to be found in the selection of persons qualified both legally and otherwise; Ministers will select those deemed suitable, whether judicially qualified or not. The statutory requirement then is that, in proposing to invite a judge to be chairman, there should be consultation with the judge’s superior officeholder directed to the availability of members of the judiciary; it is a sensible precaution against the misuse of available talent, and not just selection preference. There is deliberately no requirement that inquiries should be judge-led, in contrast to Israel and some other jurisdictions. But it is noteworthy that the public demand latches on to its membership. They regularly call for a ‘judicial inquiry’; ‘elliptically’ in more senses than ‘judicial’.There are two distinct occasions where the choice of a judge as chairman should instinctively be preferred, primarily for his or her expertise in cases calling for objective adjudication. First, the Minister of the Crown sponsoring the membership (a chairman, with or without assessors) must decide whether the subject matter calls for a public function, well covered in the media, for such an inquiry.
The underlying question is whether the inquiry will depend on a fact-finding exercise, a test of a witness’s credibility and reliability. This is an exercise for which the elements of justiciability prevail. If, on the other hand, the topic to be inquired into evokes issues of social policy, or even requires a study of the systems and services at play, then the judge, unqualified on the topic, may not be a preferred choice, but will sit with assessors. The next stage is to define the powers of the chairman, as a Commissioner of Inquiry, exercising his procedure and conduct of the inquiry by virtue of the discretionary power in section 17(3) of the Inquiries Act 2005. Fairness is universal in decision-makers. The fairness of the inquiry procedure is as between the rival disputants; the public is simply a watchdog, observing critically. Equally, the latter is imbued with a sense of being considered fairly, not just collectively but personally.If the background to the establishment of an inquiry is a matter of public concern, the appointed chairman is, willy-nilly, embroiled in a matter of controversy, certainly less publicly articulated than the active politician or the engaged citizen. The enterprise of resolving disputes through the legal system, familiar to a judge, must not be injected into the inquiry system: section 2, which excludes any finding or determination of guilt by the inquiry, but endorses otherwise by comment any inference of blameworthiness on any person, means essentially that the judge is for that purpose not a judge. He is under no judicial oath, but is an extension of public administration, and carries out the statutory duty to carry out the inquiry on the terms of reference given to him by the Minister, and reports on his findings. The evidence binds no one. The Minister may decline to act upon the report and any recommendations. Chairmanship is an art, not always found in judges in the exercise of coercive powers. The chairman of the inquiry, whatever his normal occupation may be, is a Commissioner of Inquiry.
It is one thing that proceedings are conducted well in the matrix of factual evidence, but what if the conclusions fail to convince? There have been two examples which demonstrate the public reaction to the particular inquiry.The first example is the inquiry which Lord Hutton (immediately on retirement from the judicial House of Lords) conducted into one of the events leading up to Britain’s involvement in the invasion of Iraq in March 2003. A propos of the conduct of the sessions held to elicit the evidence, Lord Hutton was hailed as the essence of impeccable conduct, and the analysis in his report of the events surrounding the disclosure of the government’s approach to Iraq’s alleged weapons of mass destruction (WMD) was masterly. Otherwise, it was considered as faulty. Lord Hutton’s report concluded with the question of whether the Government had misled the public in its report into the relevant weaponry in the hands of Saddam Hussein, and whether the early morning unscripted broadcast by Andrew Gilligan on the intelligence gathering of the WMD report was the result of defective management by the BBC. On the two rival issues of palpable blameworthiness, Lord Hutton unwisely exonerated the Government, and strongly criticised the governors of the BBC. The public reception was in both respects unfavourable. Lord Hutton was denounced by some commentators as a lackey of whichever authority the reader of the report did not agree with. The judiciary was predictably regaled as expressing a politically controversial judgment, an impairment of the constitutional guarantee of judicial independence.
Whenever the projected inquiry presents within itself a host of political controversy, the judiciary may nevertheless be favoured, but only if on the panel of inquiry, the judge-chairman sits with assessors, to provide that element of expert knowledge of the topic under inquiry. There are within our society people well-versed in matters of procedural fair play - due process, if you will - to make suitable candidates for chairmanship.
It may be sensible to select as an assessor someone with legal expertise, such as a practising member of the Bar. That precedent was present in the inquiry into Legionnaires’ disease at Staffordshire Hospital in 1980 by Sir James Badenoch, a prominent physician, as chairman of a panel that included a leading Queen’s Counsel.For very different reasons, it was appropriate for a judge (with two Commonwealth judges sitting as assessors) to hold the second public inquiry into Bloody Sunday, which took 12 years to conclude and cost the public purse approximately £250 million. Among the legal profession at least, the subject-matter of the inquiry by Lord Saville into the tragic events of 30 January 1972 was very properly overseen by a very senior judge. The conduct of the case was a typical example of a public (lawyerlike) inquiry that was popularly described as a judicial inquiry - namely that it had the value- added quality of judiciality that endorsed public confidence in impartiality and judicial independence. In terms of cost and delay, it was a disaster, universally dubbed as ‘never again’. It prompted, nay compelled, the Government to introduce the Inquiries Act 2005. The Government had asked the Law Commission to consider its proposals, long before Lord Saville presented his report in June 2010.
Public inquiries today should no longer be described as judicial inquiries: they are acts of public administration, conducted on behalf of, but independent in their conduct from, the sponsoring Minister. The House of Commons Public Administration Select Committee, in a 2005 paper contemporaneous to the enactment of the Inquiries Act 2005, gave as its reasons to support the frequency of judge-led inquiries that they were, arguably, ‘a quasi-judicial forum’. After the 2005 Act the public inquiry ceased to have such a judicial quality. The point is made clear in a passage in the judgment of the Supreme Court in Kennedy v The Charity Commission:[40] if the Minister can decide whether to accept or not the findings of the Commissioner of Inquiry [under section 19 of the Inquiries Act] (whether it is judge-led or not), it becomes an administrative decision, not a judicial or quasi-judicial act. Section 18(3) of the Inquiries Act 2005 requires, as with the Freedom of Information Act, disclosure of documents to be left to the Minister; that too renders it outside the route of being judicial or quasi-judicial.
The day-to-day occupation of its chairman as a judge is, if at all relevant, purely formulistic. As with every appointee as chairman, the judge in the chair is properly described and functions as a Commissioner of Inquiry in pursuance of public administration. We must not accord a member of the judiciary any greater status by placing him on a pedestal that promotes civilly a special role.