16th December 2021
Yesterday it was announced that the forthcoming Covid public inquiry will be chaired by Heather Hallett, the former appeals judge with an outstanding reputation as a lawyer.
Nothing in this post should be take to gainsay that appointment.
Instead, this post examines the general question of whether judges – or barristers – are really the best people to chair public inquiries.
In the United Kingdom judges are not usually investigators.
Instead the facts and documentary evidence on which they are to decide cases are put together by the parties to the case and their lawyers.
A judge will – despite spirited fictional depictions – not go and find out new facts and evidence for themselves.
In turn: most (though not all) judges are also barristers.
Many barristers also do not go and find out new facts and evidence in the case on which they are instructed: the facts and documentary evidence are provided to them usually by instructing solicitors or other professionals.
In essence: for all their many undisputed skills and talents, little in the background of judges and barristers fit them to be investigators.
Any investigations are normally conducted by others.
Once the evidence has been put together, judges and barristers will then often be very good at assessing and weighing that evidence, and in applying that evidence to the law (and applying the law to that evidence).
But the uncovering of the primary facts is normally done by others.
This is why – especially in civil cases – it is those who have the best controls over the flow of evidence that will tend to control the verdict.
And this is also why many public inquires are (or seem) to be ‘whitewashes’.
This is not (usually) because the head of the inquiry deliberately wants there to be a ‘whitewash’.
The ‘whitewash’ is often further upstream – in how the evidence is presented to the inquiry.
As techies say: garbage in, garbage out.
I know this, in part, because I used to work with public inquiry lawyers when I was a central government lawyer.
They worked backwards from the outcome they wanted to achieve so as to marshal the appropriate evidence.
That was their job.
So what is needed in the head of any inquiry is to have someone who is not reliant on the nicely packaged evidence and facts as put together by skilled and experienced public inquiry lawyers.
But to have someone with the skills and experience to get to the facts and evidence that powerful parties may not want to have put before an inquiry.
A person who will use the statutory powers available to public inquiries for compelling evidence, so as to balance the experienced public inquiry lawyers doing whatever they can to avoid putting certain evidence in.
Sometimes this person may be a judge, but sometimes it may not be.
But there is nothing particular in the background of most judges and barristers that equips them for investigating things.
Garbage in, garbage out.
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Sir Keir Starmer QC went to the CBI Conference recently and announced the setting up of a skills advisory panel to ensure Labour has the right policies on preparing young people for work.
A three person panel made up of Lord Blunkett, its chair; a former Government lawyer, graduate of Cambridge University and an IVF salesperson and rising star in the London Labour Party, who studied law at Oxford.
Narrow gene pool or what?
Starmer particularly emphasised how much Labour wanted a partnership with business albeit one seemingly casting Labour in the role of a responsible adult, guiding by the hand a wayward child.
Starmer’s skills advisory panel will we learnt on the morning of the conference, consult children (sic), parents and educational experts to provide the intended guarantee for employers.
There was no mention of consulting employers; trades unions; experts in vocational skills delivery in all three sectors of the economy; academics; local government; the devolved administrations …
I am beginning to think my helping elect a smart barrister, leader of my party was not such a clever move, because I had thought, clearly erroneously, that the skill set was a little different from that you describe.
It does explain why Starmer is definitely at his best prosecuting something or someone.
And I take it his aversion to calling on Boris Johnson to resign stems, in part, from that being unusual behaviour in a court of law.
One imagines opposing counsel rarely call upon each other to resign.
I have even lower hopes, now, for the work of Starmer’s skill advisory panel than when I wrote this blog about it …
https://jodatu.wordpress.com/2021/11/22/team-starmer-couldnt-sell-air-conditioning-to-arabs-in-the-sahara-desert-but-they-might-interest-them-in-natural-and-mild-in-vitro-fertilisation/
Oh, I have a bit of background in skills and as a civil servant was trained to interview, using techniques that bordered on those suitable to undertake an interrogation.
Sir Keir Starmer QC went to the CBI Conference recently and announced the setting up of a skills advisory panel to ensure Labour has the right policies on preparing young people for work.
A three person panel made up of Lord Blunkett, its chair; a former Government lawyer, graduate of Cambridge University and an IVF salesperson and rising star in the London Labour Party, who studied law at Oxford.
Narrow gene pool or what?
Starmer particularly emphasised how much Labour wanted a partnership with business albeit one seemingly casting Labour in the role of a responsible adult, guiding by the hand a wayward child.
Starmer’s skills advisory panel will we learnt on the morning of the conference, consult children (sic), parents and educational experts to provide the intended guarantee for employers.
There was no mention of consulting employers; trades unions; experts in vocational skills delivery in all three sectors of the economy; academics; local government; the devolved administrations …
I am beginning to think my helping elect a smart barrister, leader of my party was not such a clever move, because I had thought, clearly erroneously, that the skill set was a little different from that you describe.
It does explain why Starmer is definitely at his best prosecuting something or someone.
And I take it his aversion to calling on Boris Johnson to resign stems, in part, from that being unusual behaviour in a court of law. One imagines opposing counsel rarely call upon each other to resign.
I have even lower hopes, now, for the work of Starmer’s skill advisory panel than when I wrote this blog about it …
https://jodatu.wordpress.com/2021/11/22/team-starmer-couldnt-sell-air-conditioning-to-arabs-in-the-sahara-desert-but-they-might-interest-them-in-natural-and-mild-in-vitro-fertilisation/
Oh, I have a bit of background in skills and as a civil servant was trained to interview, using techniques that bordered on those suitable to undertake an interrogation.
But no chairs of enquiries (from whatever background) actually go out and hunt down the evidence themselves. What lawyers do have experience of doing (as well as posing questions and assessing evidence) is to advise/instruct as to what avenues should be investigated. There will also, no doubt, be independent counsel retained as counsel to the enquiry, to help in all of these matters.
Barrister explains the importance of barristers ;-)
And, in general, terms, what if that ‘independent counsel’ (acting for one party in legal proceedings, and therefore not truly ‘independent’, no matter what the law says they should be, i.e. to assist the court in the pursuit of justice, not just in the pursuit of fees) is not ‘independent, and neither the masonically connected judge.
Having been a victim of this scenario, maybe you can tell me how ‘justice’ ever survives?
In similar vein, I wonder if you were care to caste your opinion on the appropriateness of an enquiry alternatively being headed up by politicians, in this case, the January 6 enquiry, in an almost total partisan environment? I believe the UK is yet to have a promised Covid-19 enquiry and where there is also considerable partisanship.
I’ve always imagined the actual investigative work is done by a professional team and the chair just oversees and pulls it together, is that not the case?
Bless.
If the idea of the inquiry is to learn from what has happened in response to Covid, particularly in the context of pandemic contingency planning and its execution, with a mind to preparation for future such events then you would seem to be saying that this is not the right approach to take?
A judge led inquiry would seem to mitigate against the creation of a no blame environment in which people feel comfortable about being honest about what went badly and what went well.
Even what went well might not necessarily be approved of in some quarters.
There is also a question whether a lawyer’s basic approach is always the right one.
Think of the Grenfell Tower fire. Part of the problem seems to have been that fire regulations were not taken that seriously by some people.
That raises questions of social, organisational and personal culture; and of the incentive frameworks within which individuals and organisations operate.
For example, a regulator who has to compete for business has an incentive to be tough enough to maintain the value of their certificate but not so tough as to lose business.
Questions of culture are for anthropologists and sociologists, questions of incentives for economists.
That does not mean that inquiries have to be led by anthropologists or economists. Any leader could take those experts’ views into account.
But in some cases it might be easier for the leader to come up with recommendations if their basic training is in the discipline where those recommendations have to be formulated.
Surely there is a case for introducing the concept of the French Juge d’ Instruction?
“Working backwards from the outcome to be achieved so as to marshall the appropriate evidence”. This is one of the best assessments I have heard and applies equally to other areas of administrative justice. This comment more than adequately identifies the workings of the Information Commissioner, the Parliamentary and Health Service Ombudsman and can even be applied to Parliamentary Select Committees. Very few enquiries bring about meaningful change. Just look at all the ones which have taken place relating to health and child protection matters. Generally the result involves someone saying ‘lessons will be learned’. A phrase that should be banned
Absolutely correct David – and, as you know, I will be focusing on the PHSO shortly
That is really great to hear David. Someone needs to!
John Seddon, an occupational psychologist, researcher, professor, management thinker and leading authority on change in the public sector, wrote a piece for The Guardian on 13th February 2013, entitled the “Horsemeat scandal: the lesson from a Japanese car manufacturer.”
The final paragraph has stuck in my mind ever since I read it:
“Responsibility is an essential prerequisite for innovation, while compliance is innovation’s enemy. Witness the Mid Staffs inquiry: Robert Francis QC acknowledged the dysfunctional consequences of form-filling, cost-management and regulation, but promised more of the same. Doing the wrong thing righter, whether with health or horsemeat, will make neither our healthcare nor our food any safer.”
My Lawyer101 says – “A trial is NOT an exercise designed to discover the truth”. “The judge is not an investigator more an umpire”. So you might well be right, judges might be liable to copy their disinterest across into uninterest.
We might ask exactly what is an enquiry meant to achieve. We do seem to have plenty of enquiries but the same old problems keep coming up. Lessons are not learned or the only lesson learned is how to get out from under an enquiry unscathed.
We have yet another child neglect case in the papers. Lessons have plainly not been learned – or have they? In this area we might wonder if someone has asked “well what would be the cost of sorting this sort of problem”. Answer = very large, cheaper to just let it happen from time to time and live with the tabloids screaming for a day or two.
Just suppose for a moment public sector managers were licenced – no licence no job. Further suppose that every screw up meant a point on the licence – say three points and you are out. But would government really want truly diligent public sector managers – who might well refuse foolish ministerial requirements or demand adequate funding. Probably not, so keep with the public enquiry playbook.
I remember attending a public enquiry regarding the closure of a footpath across a railway line. From what I remember, the evidence needed to be presented before the enquiry started and although individuals were questioned, they were not allowed to introduce new evidence, but the rail company was allowed to do this and although it was question by those apposite, this evidence was allowed. Quite frankly, those opposing the close didn’t stand a chance. The rail company had a team of lawyers etc. and the opposition had to rely on public donations and the skill of the team opposing. Not very fair at all?
And, in my experience, so it is with some/maybe all (civil) cases heard by the UK judiciary.
As an executor, trying to attempt to expose suspected fraud in the estate administration, I have suffered the ‘inequality of arms’, at best.
Not wishing to incur unnecessary legal costs to the estate, I acted as a self-representing litigant, against my co-executors, who sought to terminate my executorship, including two firms of solicitors and a barrister, retained by my co-executors – one of whom was a solicitor.
The case was riddled with irregularities, dirty tactics and sharp practice, all designed to debilitate and undermine a litigant in person acting alone.
It was also dominated by masonic parties, including the judge. I was never going to get justice.
The result: the destruction of a decent human being’s life; a punishment of £1/4 million pounds; bankruptcy petitions; eviction orders and life-damaging health and career detriments.
There is no doubt in my mind that Freemasonry was the ‘elephant in the room’ is all this, and the masonic judges’ oath to look after his fellow masons (the solicitor executor, the barrister, the other legal representative) took precedence over his judicial oath.
I believe this situation continues, and the ‘little man’, no matter what the facts, the evidence or the truth, will always be the victim of such corruption and fraud in the UK courts.
(Appeals are worthless with the inevitable response that judges have ‘discretion’ to deal with cases as they think fit (even when such conduct is clearly not fit for justice))
It’s an interesting question. Who in our society does have the expertise to investigate a complex subject, finding evidence that certain individuals may not want to provide, and ultimately letting the evidence determine the conclusion, not the other way round.
In theory, a senior police officer should fulfil that function (in practice many fall short), but having a police officer lead a public inquiry would make many people think the inquiry was looking to assign (criminal) blame for wrongdoing, which would be extremely unhelpful.
Someone like a forensic accountant might have the right skills, although a person with that mindset might be inclined to miss the wood for the trees. The better sort of consultant might be the right person – the problem being that you have to identify a consultant who is competent at their actual job out of all the consultants who are merely competent at persuading you that you need to hire consultants!
Ultimately, the best sort of person to lead a public inquiry might be aviation accident investigators. They look for evidence first, they believe in systems thinking and generally don’t start by trying to assign blame to individuals.
Now the real question: how do we get politicians to pick someone who will sincerely investigate a problem, and not someone whose skills or inclination will result in a whitewash?
Our political class, using the term in the widest sense, are addicted to old fashioned methods of inspection that would not have been out of place on the end of the track at British Leyland in the late 1970s.
For example, Labour’s current proposals for improving public sector procurement seem to be less about the processes and more about increased inspection of contracts after they have been awarded to see if they have been Value For Money or some additional last minute check just before a contract is signed.
One improves Value For Money of (public sector) procurement by improving the quality of the procurement processes not by adding an additional inspection process just before a contract has been awarded or some time thereafter.
The people best placed to tell you where things went right, wrong or indifferently are the people involved in the process.
I gather some sort of internal review into the Covid 19 response actually took place some months ago.
It would be interesting to have sight of that report.
Good, modern business practice builds assessment into a process and, if that had been undertaken in responding to Covid then we would just need to interrogate the regular progress reports and feedback.
In particular, we would want to see that lessons were being learnt and timeously acted upon as the crisis developed.
Toyota builds assessment into its production processes so as not to end up with 100s of 1,000s of cars at the end of the production line that do not meet their high quality standards.
Over seven decades, Toyota has driven power and responsibility down within the company’s structure so staff may, for example, identify and prevent faults.
Toyota’s plant in Burnaston in a normal year pre-Covid was mass producing 150,000 cars to bespoke standards.
Intriguingly, a few years ago, an NHS hospital was marked down for the number of incident reports its staff filed. That made it a bad hospital, in comparison with a good hospital in the group that was under review. In that hospital a much lower number of reports were filed.
To cut a long story short, the good hospital encouraged staff to not complete incident reports. The bad hospital encouraged staff to complete them (in a no blame culture) so it might learn from them to improve the quality of its processes and patient care.
After an exchange of good practice, the good hospital became a bad hospital, going by this paper measure.
The sort of questions that need to be asked are surely about the behaviour of the key players such as Ministers, including the Prime Minister, and how they inter-acted with officials and how the two groups inter-acted with their respective peers.
I recommend the Dardanelles Commission report for the sort of detail one would want to see a Covid report contain.
For example, in 2020, on whose advice or against whose advice were the Nightingale Hospitals commissioned and built when it appears that it was known from the outset that there were not enough trained medical personnel to staff them?
What was the opportunity cost of that use of time, resources and military and civilian personnel?
The members of the Dardannelles Commission were:
Earl of Cromer (initial chairman, died 29 January 1917)
Sir William Pickford, chairman
Andrew Fisher, former Prime Minister of Australia
Thomas Mackenzie, former Prime Minister of New Zealand
Sir Frederick Cawley, Chancellor of the Duchy of Lancaster
Lord Clyde, Privy Counsellor
Stephen Gwynn, MP for Galway
Walter Roch, MP for Pembrokeshire
Admiral of the Fleet Sir William May
Field Marshal The Lord Nicholson
The Commission’s findings do not point the finger of blame for the ultimate failure of the Gallipoli Campaign on Winston Churchill, the First Lord of the Admiralty, but then neither did Major Clement Attlee, the second to last man off the beaches.
Attlee thought the campaign had been worth the gamble, because the prizes for success included Turkey knocked out of the war, freeing up 100s of 1,000s of Allied troops across the Middle East for campaigns elsewhere, in the Balkans, Northern Italy and on the Eastern Front; a secure, relatively short route to supply the Russian Empire via the Dardanelles with the materials for continuing the fight against the German and Austro-Hungarian forces and an example of how the war might be shortened, if not won without the need for further Allied sacrifice on the Western Front.
There was also a large body of Allied troops bottled up in Salonika, described by the Central Powers at the time as the largest prison camp in the war. Those troops would have been released by an Allied success in the Dardanelles.
Incidentally, those who make much of the casualties in the Dardanelles should reflect that many of units deployed there were transferred to the Western Front, where they suffered, in many cases, a higher proportion of casualties than they had at Gallipoli.
Of course, that is not how most people see matters, even today, despite a rigorous official inquiry …
Evelyn Baring, 1st Earl of Cromer, GCB, OM, GCMG, KCSI, CIE, PC, FRS was a British statesman, diplomat and colonial administrator.
William Pickford, 1st Baron Sterndale, PC, was a British lawyer and judge. He served as a Lord Justice of Appeal between 1914 and 1918.
Andrew Fisher was an Australian politician who served three separate terms as Prime Minister of Australia – from 1908 to 1909, from 1910 to 1913, and from 1914 to 1915. He was the leader of the Australian Labor Party from 1907 to 1915.
Sir Thomas Mackenzie GCMG was a Scottish-born New Zealand politician and explorer who briefly served as the 18th prime minister of New Zealand in 1912, and later served as New Zealand High Commissioner in London.
Frederick Cawley, 1st Baron Cawley PC, JP, known as Sir Frederick Cawley, Bt, between 1906 and 1918, was a British businessman and Liberal Party politician. A wealthy cotton merchant, he represented Prestwich in parliament between 1895 and 1918 and served as Chancellor of the Duchy of Lancaster between 1916 and 1918.
James Avon Clyde, Lord Clyde, KC, DL was a Scottish politician and judge.
Stephen Lucius Gwynn was an Irish journalist, biographer, author, poet and Protestant Nationalist politician.
Walter Francis Roch, Liberal MP for Pembrokeshire from 1908 to 1918 was a Welsh politician and landowner.
Admiral of the Fleet Sir William Henry May GCB GCVO DL was a Royal Navy Officer.
Field Marshal William Gustavus Nicholson, 1st Baron Nicholson, GCB was a British Army officer who served in the Second Anglo-Afghan War, the Mahdist War, the Third Anglo-Burmese War, the Second Boer War and the First World War. He became Chief of the Imperial General Staff in 1908 and was closely involved in the reorganisation of the British Army in the early years of the 20th century.