Timescales and legal fees

The experience of the Bloody Sunday Inquiry has taught a number of lessons. Perhaps the most important is that a public inquiry must from the outset have constraints and expectations about its cost and timescale.

Timescale and budgets

It may be possible to set a period in which a public inquiry is to hear evidence and deliver its report. It may also be possible to set a limit on its cost. Those absolute constraints are only likely to be possible where the matter under investigation is straightforward or, as in the case of the Hutton Inquiry, where there is perceived to be an urgent need for a resolution. Conversely, however, the Bloody Sunday Inquiry teaches another important lesson on this issue. A hastily-performed public inquiry may be seen as a whitewash and its subject-matter may then need to be revisited with meticulous attention and huge cost – on one view that is what happened with the Widgery Inquiry, which led to the Bloody Sunday Inquiry. Furthermore, where the public inquiry is to have a legally-qualified Chairman, it may be difficult to find a candidate who is prepared to accept the obligation of producing a report in a set timescale and to a budget when he or she has not seen the evidence and has not been able to assess issues such as what degree of representation may be necessary for interested parties. That problem may be overcome by a high degree of involvement of the prospective Chairman in the planning process prior to setting timescales and budgets.

Legal fees

The principal component of the costs of a public inquiry is likely to be legal fees for witnesses and interested parties. There is a lively debate about the extent to which public inquiries have become too reliant on legal representation for all those involved, but fairness may dictate a bare minimum of representation for those whose reputations may be prejudiced by evidence given and conclusions drawn in a public inquiry. As Lord Scott said in the Three Rivers (No. 6) case, of legal advice privilege in relation to a public inquiry “The defence of personal reputation and integrity is at least as important to many individuals and companies as the pursuit or defence of legal rights whether under private law or public law. The skills of professional lawyers when advising a client what evidence to place before an inquiry and how to present the client and his story to the inquiry in the most favourable light are, in my opinion, unquestionably legal skills being applied in a relevant legal context.” Historically there have been a variety of approaches to the question who decides what funding is to be given to witnesses and others. In announcing the Robert Hamill Inquiry the sponsoring Minister undertook that the reasonable legal fees of all witnesses would be paid for preparing and giving their evidence. The public inquiry itself then decided what was reasonable for any particular witness or interested party. In other public inquiries it has been left to the discretion of the Chairman to decide whether, and to what extent, any funding should be granted. We suggest that this is an issue that could usefully be addressed at the planning stage.

Controls on legal fees

Many public inquiries which have been set up since the Bloody Sunday Inquiry have contained loose constraints as to costs. Thus the Robert Hamill Inquiry, Rosemary Nelson Inquiry and Billy Wright Inquiry had their legal fees subjected to caps on chargeable hours, and fixed hourly rates. In each of those public inquiries all counsel, whether retained by the public inquiry itself or on behalf of witnesses or interested parties, was entitled to public funding for no more than 40 hours work a week, at an hourly rate set by the public inquiry, which will usually be in tune with Panel rates for counsel. Solicitors engaged by witnesses and interested parties were subject to the similar restrictions.

Controls on timescales

The timescale of a public inquiry can also be made the subject of looser constraints. It may be possible, for example, to set target periods within which various stages, such as document collection, taking witness statements, hearing evidence and submissions, and report writing, are to be achieved. In particular, the most trenchant criticism of the Bloody Sunday Inquiry has now centred on the unexplained delay between the conclusion of the evidence and the production of the final report. Whether that criticism is justified is not entirely the point. The perception matters. If a reasonable timescale for production of the report is set for each future public inquiry then the public is likely to have far more confidence in the entire process, and any delays will be the subject of public explanation. In particular, the process can contain a provision for the Chairman to explain in writing to the sponsoring Minister any failure to meet a target. It is obviously impossible to generalise about the length of time that may be reasonable for any particular public inquiry to conclude any of its stages, as the timescales will plainly be dependent on the complexity of the matter under investigation. However, for many public inquiries it ought to be possible to produce a report within a year of the appointment of the panel, and discussions with the Chairman can be expected to result in an allocation of that time to the various stages. Government departments have considerable experience of public inquiries and they can draw on that to analyse how long each stage has taken in analogous situations.