“In the time it’s taken for Terri to extract herself from her Bluetooth, this little inquiry has fused! It is now growing faster than the speed of bloody light! It’s not going to be something we can see from space, it’s going to be space!”
Thus spake Stewart Pearson, over a decade ago – thus illustrating once again that as a country we are much better served by our satirists than our politicians.
Last week, I looked at the row between the Cabinet Office and the Hallett Inquiry into whether or not the Government should hand over, unredacted, the entirety of Boris Johnson’s WhatsApp messages with 40 government figures.
It seems increasingly likely that the Government’s legal arguments will be actually tested in court, and it will be interesting to see the results. But a thought which struck me at the time, but I omitted for reasons of space, was this: why don’t they actually change the rules?
Recall that one of the major arguments advanced by the Cabinet Office for its resistance is the need for government to be able to deliberate in private, and the fear that handing everything over in this case will set a bad precedent.
Well, it might. But precedent is subordinate to new statute and codified rules. If the law governing public inquiries is out of date – and the relevant law dates back to 2005 – then the Government would be entirely within its rights to table a new Inquiries Bill which could, amongst other things, set out the rules governing their access to, say, instant messaging records.
This wouldn’t necessarily avert the current row, but it could at least narrow the grounds upon which the Cabinet Office resists handing things over, and would in any event help to avoid similar conflicts in future.
Besides which, there are plenty of other grounds for overhauling the law governing inquiries. Our own William Atkinson, quoting Geoffrey Howe, got to the nub of the problem:
“Why do we have inquiries? The late Geoffrey Howe suggested six principal reasons: to establish the facts, to learn from the events, to provide catharsis for those affected, to reassure the public that matters are being resolved, to allocate accountability and blame, and the political urge to show something is being done.”
Simply put, those are far too many objectives for an inquiry to attempt to accomplish. It’s an instance of what Ezra Klein has dubbed the everything-bagel mindset, in which policy and process, instead of trying to do one thing speedily and well, tries to do everything – inevitably, slowly and badly.
Worse, some of those goals are obviously in conflict with each other.
An inquiry aimed at establishing the facts and learning from events would logically adopt the so-called Black Box approach of the airline industry, encouraging all those giving evidence to be as complete as possible by assigning no blame (and probably taking evidence in secret, as did Sweden’s).
On the other hand, one aimed at allocating blame and providing catharsis for victims must necessarily look a lot more like our cumbersome, public-facing present arrangements. In the interests of fairness it ought also to include all of what Elijah Granet calls the “quasi-judicial” features which make proceedings so slow and expensive, such as “allowing public inquiries’ witnesses to prepare cases, call their own evidence, question each set of witnesses” and more besides.
As he explains, these features stem from the 1966 recommendations of Lord Justice Salmon, a judge, who justified his demands thus: “a few weeks more in preparing the material for arriving at the truth is a small price to pay in order to avoid injustice”.
Now to a modern reader the idea of “a few weeks more” will raise a bleak chuckle. But the bigger problem is Salmon’s (perhaps professionally inevitable) focus on “injustice”. He conceived of inquiries as trials, and so now they have the form of trials – except without any of the limitations on time, cost, or breadth of evidence imposed by the operation of the actual court system.
In light of this, there would seem to be a strong prima facie case for at least updating the law to create two distinct types of inquiry: an efficient and inquisitorial fact-finding and lesson-drawing one, distinct from the expensive, drawn-out, quasi-judicial circus of blame and catharsis (which neither press nor public would likely permit any government to actually scrap).
Crucially, if the latter were to be able to conduct its affairs in the Black Box manner – an idea Jeremy Hunt previously endorsed whilst Health Secretary – it would need to have its records protected from both FOI requests and requisition by the other sort of enquiry; the twenty-year rule which currently applies to documents covered by the Public Records Act would be a suitable minimum.
Such a system would doubtless be tested, especially if the subject of a future inquiry were as politically charged as Covid. After all, surely much of the testimony offered in those circumstances would be a rich seam of catharsis and/or blame (not to mention acres of news copy).
But the perfect is very often the enemy of the good. Public inquiries are not the only area the British state needs to shake off the everything-bagel mindset – but they’re a good place to start.