Disadvantages of a public inquiry

Effectiveness of a public inquiry

Some of the benefits of a pubic inquiry are that it will tend to establish the facts; assist in learning from events; encourage catharsis or therapeutic exposure and reassurance and may result in accountability, blame and retribution. The principal question in any given case is whether those aims are called for and whether they can be achieved by another method.

Ironically, the use of public inquiries can give rise to allegations of whitewash. A leader in the Spectator on 14 June 2003 said of Tony Blair, the then Prime Minister, “during his six years in office, the Prime Minister has perfected the use of the public inquiry as a political tool. When it comes to dubious events which have occurred during his own premiership, an inquiry is something to be strongly resisted as a waste of valuable time and money. When it comes to scandals which have occurred under previous administrations, on the other hand, no effort is to be spared in the quest for truth.” Among others, the Hutton Inquiry and the Bloody Sunday Inquiry have been the subject of significant criticism that they existed in order to misleadingly restore public confidence through whitewashes.

Cost of a public inquiry

Public inquiries are inevitably costly. If there is no realistic alternative to a public inquiry then the cost may determine whether the state takes any action at all. However, there is always likely to be some alternative, such as an inquest or a police investigation, and in such cases a cost benefit analysis will be called for, weighing the additional advantages of a public inquiry over the alternative solutions against the extra cost. There are various mechanisms for assessing and controlling the costs of a public inquiry which an inquiry team may consider.

Secrecy and restrictions

There are some situations that call for the advantages which attend a public inquiry but which would make a public inquiry unworkable. The obvious one is where the materials to be reviewed are secret or top secret. Many public inquiries are likely to encounter some such materials and will probably deal with them behind closed doors. The Rosemary Nelson Inquiry is a recent example. Although it is obviously preferable for all of the activities of a public inquiry to be performed in public, experience shows that most observers are satisfied with the procedure where there is a degree of anonymity, screening or non-disclosure of material documents. However, there comes a point where the proportion of secret material is so great that the phrase "public" inquiry would simply not be apt to describe the process.

Section 19 of the Inquiries Act 2005 contains the power for a Minister to issue a restriction notice to the Chairman of a public inquiry. By section 19(1) restrictions may be imposed on:

(a) attendance at a public inquiry, or at any particular part of a public inquiry;

(b) disclosure or publication of any evidence or documents given, produced or provided to a public inquiry.

Restriction notices must specify only such restrictions as are required by any statutory provision, enforceable Community obligation or rule of law, or as the Minister considers to be conducive to the public inquiry fulfilling its terms of reference or to be necessary in the public interest. Attention has focused on that public interest proviso. It must be applied by reference to matters set out in section 19(4) of the Act, which include harm or damage to national security or international relations. Some interest groups believe that such a power may be used in future to prevent embarrassing disclosures of precisely the type that a public inquiry is designed to expose.

The outstanding Patrick Finucane Inquiry is presently beset by the difficulty that the Finucane family believes that evidence which may show state collusion in Mr Finucane’s murder could be suppressed by the use of restriction notices. Feelings on that issue are running so high that Justice Cory, the retired Canadian judge whose review led to the establishment of that public inquiry, has publicly stated his belief that no responsible judge would accept its chairmanship now that the Inquiries Act 2005 will apply to it.

Any public inquiry concerned with the Iraq war is likely to need to see and refer not only to the intelligence which led Ministers to conclude that there were weapons of mass destruction, but also any underlying materials by which that intelligence should be analysed. Some of that material will have been obtained from foreign powers and by long standing convention the British Government will not disclose it without consent. It is entirely possible that the foreign powers will withhold that consent. However, David Milliband, in a statement to the House, said that the Government would give the Iraq Inquiry access to documents from other Governments that it holds. This is in contrast to the Government's decision not to publish the Cabinet minutes that concern the legality of the decision to participate in the invasion of Iraq under the Freedom of Information Act. Such a reluctance to expose the workings of the Cabinet is well settled and is justified by the arguments that if Ministers and advisers believe that what they say may later be released into the public domain, it will inhibit frank discussion in the future and may also damage national security. It would be wholly unsurprising if Ministers took that view in relation to the disclosure to or by a public inquiry of cabinet workings in relation to Iraq.