THE INQUIRY SYSTEM
The starting point in assessing the status of any public authority is whether it is a tribunal or body exercising the judicial power of the State;[36] if it is not such a tribunal or court of law, then what is it? The public body springs from the declared provisions in the scope of the statute and its principal procedures, now the Inquiries Act 2005.
It is the nature of the beast - its legal labelling - that has tended to dictate the essence of the process. When, in 1974, Lord Scarman classically declared that a public inquiry was decidedly not a species of litigation, and to be conducted inquisitorially, he did not elaborate upon the procedures of other inquiries; he assumed that other methods of eliciting evidence could prevail. And little (if anything) was said about discarding the forensic habits of legal practitioners, beyond stating the limits of questioning of witnesses by advocates. Not for another two decades (until Sir Richard Scott’s assault in the Arms for Iraq inquiry in 1996) did the procedures of public inquiries come into conflict, both within the inquiry and extracurially. The chairman of a public inquiry asks himself initially what procedure is to be adopted, both statutorily and by way of the chairman’s discretion, to dictate the manner of investigation. Overall, one will want to know the basic principles that lie behind the inquiry’s process. Until 7 June 2005 (when the Inquiries Act came into force) the practice was variable until the Royal Commission of Tribunals of Inquiry (the Salmon Commission) reported in 1966, very much by then under the influence of legal habits adopted in legal proceedings. Thus a dose of legalism was injected into the practice, although the recommendations, generally acceptable, did not induce any legislation. But the legal profession neatly converted the procedure: it avidly adopted its habit of conducting inquiries ‘adversarially’, rather than ‘inquisitorially’. Legalism played a distinct role in the conduct of the inquiry; it hijacked the process as if it were a trial. It adopted the euphemism of ‘semi-judicial’, whatever that meant precisely.Traditionally and historically, the common law of England, in contrast with Continental systems of western Europe, established a litigious process whereby the plaintiff in civil litigation and the prosecution in the criminal court engaged in an adversarial role: the claimant (or prosecution) has to prove his claim, in a civil court on the balance of probabilities, and in criminal proceedings to a higher standard of proof, that of being ‘beyond reasonable doubt’. The system of trial by jury in civil cases was almost entirely abolished in 1934; trial by jury for serious crime continues to this day in 95 per cent of criminal cases. But the standard of proof remains
40 Public Law: Judicial and Judicious Review distinctively higher, conveying the message of the severe onus of this mode of trial.
By contrast, the rival European civil systems of a single judge (or a mixture of professional and lay members) adopted the more logical process of ensuring a true verdict, as opposed to the jury system of legally admissible proof, failure to attain which had the effect of acquittal of crime. The systems are based on opposing modes of trial, although the European Court of Human Rights has declined to differentiate between the two modes of trial. The verdict must rest on a ‘fair trial’ by either system. So in 2010 in Taxquet v Belgium (a country which had until than adopted the system of trial by jury), the case turned on whether extracurial, untestified statements by an accused violated the Convention. But if the adversarial versus inquisitorial modes of trial remains rooted in the two systems, it is no longer sensible to regard the binary systems of trial as poles apart: over the years, much more borrowing between the systems has been displayed.
The scene, if not the landscape of the judiciary in public inquiries, has perceptibly changed as a result of a House of Lords Select Committee report (The Inquiries Act 2005:post-legislative scrutiny),[37] which generally endorses the workings of the Inquiries Act 2005, although the report wishes to sweep away some procedural rules affecting freedom of speech.
The report awaits parliamentary debate and public discussion. What follows from the report about judge- led public inquiries?The basic role in the civil courts imposed on the legal system a duty of active case management. Historically, litigation had been fundamentally adversarial, in the sense that evidence was proffered by the rival disputants to support their claim or defence, rather than by the court itself through witnesses, although increasingly it is forced to adopt the inquisitorial process, as, for example, with family law cases. Truth, if it emerges, does so only inferentially, as a by-product of evidential proof. But the Inquiries Act specifically debars the inquiry from the exercise of any ‘power to find or determine any person’s civil or criminal liability’. It goes on to provide that the inquiry is not to be inhibited in the discharge of its investigative function by any likelihood of liability being inferred from the facts that the inquiry finds, or the determinations that it makes.
An inquiry, therefore, is not part of, nor does it emulate, the adversarial process (and does not ape the legal system): what then
is there left of the rival attributes of adversarial versus inquisitorial? Is the ban on affixing liability merely procedural in the conduct of an inquiry; or is it fundamental to the institution established administratively, by statute, on Ministers? And if so, how should the role of the judge-led inquiry be regarded?
Nothing should prevent an inquiry panel from seeking evidence which will allow it to perform the central task of eliciting the truth. What the witnesses want to say is not necessarily what the inquiry needs to know, but it is not debarred from ferreting out whatever relevant information it desires. In the sense that the inquiry is uninhibited in the search for truth, it is decidedly inquisitorial. As the House of Lords Select Committee observed (para 213, p 66), most of the Committee’s witnesses agreed that inquiries were best served by an inquisitorial rather than an adversarial procedure.
The report cited approvingly Jason Beer, QC, prime author of a text-book on Public Inquiries, who told the Select Committee that an inquisitorial model best serves its task of investigation. Itallows the inquiry to remain focused on its terms of reference... It allows the inquiry to focus on the issues that are of concern to it, to the chairman or the panel members, because an inquisitorial method has the inquisitor at the centre. Lastly, it allows often contentious and difficult issues to be examined and determined in a relatively dispassionate envi- ronment.[38]
The Committee recommended adoption of an inquisitorial method. It stated (para 215, p 67):
We agree with our witnesses that an inquisitorial procedure for inquiries is greatly to be preferred to an adversarial procedure, and we conclude that the Act provides the right procedural framework for both the chairman and counsel to the inquiry to conduct an inquiry efficiently, effectively and above all fairly.
But it fell short of abandoning the rival procedures, while recognising that both can be accommodated readily by the overall obligation to conduct the inquiry fairly. Insofar as the inquiry finds a technique of procedure taken from the courtroom (adversarial type) congenial, it can freely adopt that technique of acquiring evidence under its overriding duty to conduct the inquiry with fairness. Section 17 of the Inquiries Act explicitly treats ‘fairness’ as a prerequisite of the inquiry. Yet the House of Lords Select Committee surprisingly seems impliedly to single out the judge-led inquiry, in contrast to any inquiry being led by a non-judicial chairman. The chairman is treated without distinction, save for one matter. It states (para 270, p 81) that ‘we consider that a serving judge who has chaired an inquiry not concerned with the practice or procedure of the courts should play no further part after submitting his report, leaving this to Ministers, others to whom the recommendations are addressed, or Parliament’.
This recommendation was part of a wider responsibility on the chairman to follow up his own recommendations if he desires to do so. Should that responsibility (exercisable at the chairman’s discretion, whether to participate in public discussion of the inquiry) include the judge-chairman? The Committee stressed this point, whereas Lord Justice Beatson had encapsulated it as a vital aspect of contrast between the judge-led inquiry and one with any other chairman:Unless an inquiry directly concerns the administration of justice, or where there has been prior agreement about this (normally when the terms of reference are settled), a judge should not be asked to comment on the recommendations in his report or to take part in its implementation. This is the position of judges in relation to their decisions in legal proceedings over which they have presided. There are three principal reasons for the same principle governing judge-led inquiries:
(i) the judge may be asked to give an opinion without hearing evidence;
(ii) the judge may be drawn into political debate, with accompanying risks to the perception of impartiality, as discussed above; and
(iii) implementation is the responsibility and the domain of the execu- tive.[39]
Apart from the purported relationship between two of the three arms of government, there is no formal relationship between the judiciary and members of executive government. More pertinently, the rule (or convention) which excludes the serving judge from any external consideration of his/her recommendations as a chairman of inquiry applies only to a judge in the exercise of his traditional occupation within the legal system. And it does so only for the purpose of giving the rival disputants to the litigation of their issue a guarantee against potential bias in the subject under inquiry. Where, in a public inquiry, there is no discrete issue to ‘find and determine’ any civil or criminal liability, and, where the witnesses at the inquiry are not witnesses to anything other than to questioning administered by the inquiry without legal effect, the rule has no application.
Judges, like all other inquiry chairmen, are treated statutorily on the same footing. Both are Commissioners of Inquiry; the chairman of an inquiry under the Inquiries Act 2005 is colloquially the long arm of the Minister, carrying out an investigation on his behalf. In every respect, the judge-led public inquiry is in no different position from that of any other chairman. It is the history of no definition to the public inquiry that leads the traditionalist to label it as ‘judicial’ in form.Recently, in the inquiry into the standards and ethics of the press, this fact was misinterpreted. The problem started with an appellation, and not just a case of a terminological inexactitude. Every public pronouncement called the chairman of that inquiry ‘Lord Justice Leveson’. But Sir Brian Leveson was sitting to conduct a public inquiry, not as one of Her Majesty’s judges sitting regularly as a member of the Court of Appeal with fellow Lords Justices of Appeal. He was a Commissioner of Inquiry, pursuing an investigation as a part of a process of public administration, acting under terms of reference dictated by a Minister or Ministers. What then was Sir Brian’s function, if he was not determining issues of criminal or civil liabilities of anybody? A public inquiry is palpably not a court of law. Legalism must play no part in its process, a process that has no legal effect. The conduct of the inquiry is flexible enough to allow the maximum amount of evidential material to be adduced and evaluated, and reported to Ministers.
The exclusive initiator of a public inquiry is a Minister (or Ministers) of the Crown, and it is an act of public administration outwith the legal system (there is now not even a requirement to obtain the authority of a parliamentary resolution and there is no appeal). The 2005 Act provides for Ministers to set Terms of Reference. The Minister appoints an inquiry chair, including specifically a judge as the chair. If the Minister thinks that the chair should be a serving judge, he is obliged to consult the head of the relevant judiciary. The inquiry is not permitted to determine civil or criminal liability of those appearing before it, but in the course of the finding of facts the inquiry is not inhibited from stating matters from which civil or criminal liability may be inferred. It is distinctly not a court of law and its recommendations cannot, and do not have any legal effect. At most, they may lead to other action such as a claim or a prosecution. The aim of an inquiry is to restore public confidence in systems or services by investigating the facts and making recommendations designed to prevent recurrence. Blameworthiness is not precluded, but it is a subsidiary function. Sections 17 to 23 of the 2005 Act regulate the conduct of inquiries, including the express requirement that the chairman must act fairly throughout the inquiry. There is no reference to the chairman acting judicially as if he were conducting a piece of litigation. The only legal control is by way of judicial review of any decision of the inquiry and imposes a time limit of 14 days for bringing an application for judicial review. Of the 13 inquiries conducted under the Act by October 2010, nine were conducted by retired English, Scottish or Northern Irish judges (although one of those nine retired during the course of the inquiry), and three were conducted by others not qualified; the other was chaired by a leading Queen’s Counsel expert in mental health cases. In July 2011 Sir Brian Leveson, a serving Lord Justice of Appeal, was appointed as the sole chairman of the Inquiry into the Culture, Practices and Ethics of the Press, and he reported on 29 November 2012. In none of the 13 earlier inquiries did the chairman elaborate on his or her function under the Act.
Anyone conducting a public inquiry under the 2005 Act is a Commissioner of Inquiry, who may properly in his professional life be a serving judge functioning under a judicial oath to determine issues between rival disputants in litigation. Apart from Sir Brian Leveson, none of the inquiry chairmen was a serving judge and was then not referred to publicly by other than his or her daily title. There is, of course, nothing improper in a Minister of the Crown appointing a serving judge as the inquiry chairman. But if he does, the judge is merely a Commissioner of Inquiry. Sir Brian purported throughout the inquiry that he was performing a judicial-like act. He was not.