2nd May 2021
It is a familiar routine.
Something horrible has happened and somebody is to blame, and so the demand is made that there is a public inquiry.
There is nothing wrong with this demand.
Indeed, this blog yesterday averred that the the inquiry into the Post Office scandal should be placed on a formal basis, with powers to compel evidence.
Similarly, all sensible people want an inquiry started as soon as possible into the government’s handling of the coronavirus pandemic.
There are also many other subjects that would benefit from the focus and dedication of a public inquiry.
But.
Many public inquiries, and most demands for public inquiries, are also implicit admissions of failure.
The admission of failure is that the other elements of the state – primarily the executive, the legislature, and the judiciary – have failed in their roles.
That there has been insufficient control and transparency within the government, and/or that there has been insufficient scrutiny by or accountability to parliament, and/or a sense of general injustice lingering after attempts to litigate specific matters in the courts.
Of course, there are certain discrete issues where inquiries are appropriate and do work which could not have been done otherwise – for example, the Cullen inquiries.
But if the other elements of the state had performed their proper constitutional functions, key issues of transparency and accountability – that are the stuff of many inquiries, and of most demands for them – could be addressed more directly and immediately by elected politicians.
This, I know, is wishful thinking and no doubt the counsel of constitutional perfection – yet each demand for an inquiry is, like the ringing of a bell, often an indication of wider state failure.
Politicians are comforted and protected by this habit of thought – as they can say and nod solemnly that there should be (or may be) an inquiry whenever something goes wrong.
Lessons will be given and then learned by having an inquiry – but we will never learn the lesson that perhaps we should be catching problems at an earlier stage of the political process.
How can we shift exercises in transparency and accountability back to earlier in the political process?
To be dealt with parliamentarians, holding the executive to proper account?
There is no easy and obvious answer.
Perhaps we should have an inquiry…
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When will we elect politicians with a greater sense of public service ?
Public inquiries are the successor to Royal Commissions, which were once described by former PM Harold Wilson as bodies which “take minutes and waste years”.
As a result, any failures of politicians are not represented the conclusions until they are long out of office and immune to the political consequences of their shortcomings.
It is also a serious weakness of public inquiries that they can only make recommendations. It is then for the government to decide which (if any) recommendations to implement. A cynical view is that recommendations addressing criticisms of non-government bodies tend to get acted on much more readily than criticisms of government.
The public enquiry is often a way of kicking the issue down the road until the public is no longer interested. Iraq was like that. The Grenfell Enquiry is full of shocking evidence of corruption in government and industry and yet barely raises a headline beyond the pain of people having to pay for rebuilding their homes. The executive is not engaged and the law has no levers, so the many conspirators will go free whilst the dead and the impoverished suffer the consequences.
Grenfell has had a major impact on the construction industry and brought changes to regulations. Too late its true and many of which are down to the state of the industry. The tragedy for owners trapped in their flats unable to sell is easily solved and yet Parliament couldn’t find the majority to do the right thing.
Public inquiries have a number of benefits for the government. If they come back with recommendations that the administration would like to implement, but fears doing due to the potential for controversy, then the fact that “the independent inquiry has recommended it” will often defuse opposition. Even if the recommendations are novel, and not already on the government’s radar, it still provides an excellent opportunity to be seen to be responding appropriately in a way that is hard for the opposition to gainsay. It’s always good optics to be able to say “we will implement the recomendations of the Foo Inquiry in full”. And, finally, even if the absolute worst (from the government’s perspective) happens, and the inquiry pinpoints significant failings in the government’s own decisions, then the chances are that the responsible individuals will already have moved on to other jobs and hence there will be no need for enforced resignations. The length of time before the matter being inquired into and the publication of the report encourages a “that was then, this is now” response that deflects blame from those currently in office.
That said, I do think that the Post Office Horizon scandal needs a full inquiry, not because it’s likely to cast any blame on the government but because we do need a set of recommendations which will help ensure that nothing similar ever happens again. And the government’s response to the Covid pandemic needs a full inquiry, even if it does end up pointing the finger at the administration, because the sheer magnitude of the circumstances deserves nothing less.
I think there isn’t really any realistic prevention of “things like the Post Office Horizon scandal”. It is essentially abuse of power by a public authority. An authority that can use its powers can abuse its powers.
It’s easy to say maybe figures of authority would be a bit more careful about it if there were more likely to be personal consequences for the maladministration. But I don’t see an obvious way of doing it short of paralysing administrators from administrating.
Consider this example, which I think might be an abuse of power, not perhaps as terrible as Horizon, but with consequences for many low income people. I refer to the hostile environment to disabled people applying for mobility payments. Meritorious applications are frequently turned down on grounds that are completely brainless. There is a high rate of refusal, a high rate of appeals, and a high success rate of appeals. At one point they even tried putting the places you had to go for assessment in upper floors of non-accessible buildings, though they only got away with that temporarily. My guess would be that the powers that be are content with this situation, as making it a huge runaround to get what is due to you deters people from claiming and reduces the cost.
In my view it would be a misuse of power to set up a system in a way likely to result in an inefficiently high error rate, for the purpose of discouraging applications, if that is what has happened. But I don’t really see what practical legal prevention there could be.
The Horizon scandal was facilitated by a legal system which was far too willing to accept unaudited, unverified evidence from a closed, proprietary computer system. One of the most valuable outcomes of any inquiry is the establishment of a principle, via legislation if necessary, that where data from a computer system is being used as evidence in court then the source code and algorithms of that system must be made available for independent, third party inspection.
The Horizon prosecutions would all have collapsed had the system been examined by a competant, independent team of systems analysts. The bugs which led to the faulty prosecutions only escaped detection because the only people in a position to observe them were the software’s own authors, who were under no obligation to grant access to anyone else and had no incentive to reveal their own errors. Mandatory third party audit is the solution to this, and the most valuable legacy of any inquiry will be to impose it.
But the Post Office was aware of the software problem soon after it began prosecuting the sub-postmasters.
But nobody else was aware of it. And the defence teams had no way to know, because the Post Office and their suppliers did not share that information with them. If they had had the right to demand a third party audit of the system, and one of them had used that right, then the whole thing would have been nipped in the bud there and then. We would never even have got to this stage, all these years later.
In one sense, the appeal verdicts and the civil case judgment are the system working as designed, because they are now righting the original wrongs. It was always going to be the case that the Post Office’s “flat earth” refusal to acknowledge flaws in the system would eventually be exposed. But that has come too late for many of those wrongly convicted. There is nothing that can be done now to compensate the deceased. SPMs whose marriages broke up following their convictions are not going to find their former partners running to embrace them once again. Even those who have survived and kept their relationships intact have lost years of their lives. It would have been far, far preferable to have never got this far. And, although we can’t now turn back the clock and fuly recompense all those who suffered this time, we can at least make it much harder for anyone else to suffer in the same way.
“In my view it would be a misuse of power to set up a system in a way likely to result in an inefficiently high error rate, for the purpose of discouraging applications, if that is what has happened. But I don’t really see what practical legal prevention there could be.”
In theory, as regards disability there’s already anti-discriminatory legislation in place that should stop it and punish the individuals / organisations practising it. Equal access to services is a statutory right.
The problem is – as always – enabling those wronged to enforce their statutory rights. The network of good, free, local sources of help to enforce citizens’ rights has now been broken up. It can be brought back – but it would take political will, good funding and several years hard work to recreate it.
“Perhaps we should have an enquiry” – or perhaps integrity in public, and in particular, political and commercial life, might, in lage part, do the trick?
I am going to say that reliance on self policing always fails, if we had integrity etc we would not need laws.
I am not sure what DAG is trying to say here other than the obvious. I think the real problem is two fold firstly the most important part of Public Inquiry is the public bit. It requires the publicity and interest. Some upthread pointed out thead the Grenfell Towers Public Inquiry has uncovered horrific malpractice I would argue criminal negligence but it is hardly merits a column inch indeed it was almost 3 years ago and most people have forgotten it (thanks media!?!)
The success of public Inquries such as Iraq is the shedding of light of the rationale we went to war on changed people view of the war. If you map the changes in approvals to events at the time
https://yougov.co.uk/topics/politics/articles-reports/2015/06/03/remembering-iraq
the biggest shifts occured during the release of the Inquiries and I suspect the truth is that tainted the the Right wing of the Labour party and led to David Milliband losing to his brother but in my humble opinion whether he won or not havign to confront his support for what most people felt was a ‘bad’ war would not have helped him. It did not help Clinton who was seen as more continuity of bad decisions
Why do inquiries take so much time nowadays? The Aberfan inquiry was set up on 26 October 1966, just 5 days after the disaster. It sat from November 1966 for a (then) record 76 days, with over 100 witnesses. Hearings finished on 28 April 1967, and the report was published on 3 August 1967, less than 10 months after the event.
By comparison, the Grenfell inquiry was set up on 15 June 2017 – even faster than Aberfan: the day after the fire – and hearings started on 14 September 2017. A Phase 1 report was published on 30 October 2019, but Phase 2 is ongoing. Is the end even in sight? No doubt Grenfell situation is more complex, and delayed by COVID, but does it really need almost four years and counting?
One positive point of inquiries is politicians can’t get away with mouthing the passive platitude “lessons will be learned”. They hardly ever explain what the lessons are, or who needs to learn them, or indeed how we will check that the right people continue to have learned the right lessons in future. An inquiry should set out in black and white exactly *what* lessons should learned, and *who* should learn them. Not that there is always the political will to implement the recommendations, or indeed to complete the inquiry after it starts. Leveson, anyone?
As said, public inquiries are a long drawn out waste of time – next time is always different but not different.
Seems to me in these cases that it is likely that all down the chain of command managers could see there was something wrong. But they did not raise questions because to do so would make waves, brand as a troublemaker or be ignored. Easier and safer to go along.
Perhaps we could change the incentives for public sector managers. Licence them – no licence – no job. Six points and you are out. No more work for the public sector. Encourage pushback.
A Grenfell or a Post Office should be worth a great many points. The end result is that eventually however foolish and wrong headed the direction from Ministers (elected politicians are unlikely to be licenced) they will face serious pushback. A bit more ‘No Minister’.
A public inquiry into the COVID-19 pandemic is unlikely to reveal anything of importance we don’t already know but will put it into perspective. It needs to examine why, despite warnings, there was such a period of inaction from, particularly, 10th January (2020) when WHO issued guidelines; why when WHO said on 30th January that the risk to the world was high it took until 12th March for the UK’s four CMOs to raise the risk level here to high; and why the government didn’t act effectively on even stage 1 of the “battle plan” it published at the beginning of March last year.
Another “how do we bell the cat?” question arises but … maybe beefing up and extending the “misconduct in public office” legislation might help? The aim must be to deter wrong-doing by frightening those unaccustomed to taking risks with their futures (eg possible imprisonment) away from face-saving or profitable illegalities.
The right to prosecute cases at any level would need to be with ANY or ALL of the Crown Prosecution Services branches within the UK.
It’d be difficult for potential defendants to nobble every CPS, making it more likely that even the powerful could be held to account. And in view of the importance of prosecuting corporate / public wrong-doing, the costs of these cases would be wholly and promptly reclaimable from government.
It would take an unusually reforming and clean government to start the process of tackling corruption and injustice against the comparatively helpless by those with power. Maybe one day, some day such a government may get into power?