Seven Things to Consider Before Setting up a Public Inquiry

2019 is the fiftieth anniversary of the Ely inquiry – widely seen as the first public inquiry into a scandal in the NHS. Since then, NHS inquiries have proliferated. Yet there are still relatively few public inquiry guidelines available from central government. This is despite recommendations from parliamentary committees, the Institute for Government and others.

So what are the very basic questions that ministers and potential inquiry chairs absolutely should consider before setting up or agreeing to run a public inquiry? This article does not provide all the answers. It is a very elementary primer.

1. Be clear about the primary purpose of the inquiry

This might sound simple, but it is not. Leave aside a cynical interpretation of inquiries – that they are a means of kicking a difficult can down the road in the face of public pressure. They have more than one purpose.  As summarised by Sir Ian Kennedy, they are three-fold: the forensic (establishing the facts in order to discover ‘the truth’ about what  went wrong), the social (holding to account of organisations and/or individuals, plus catharsis and healing), and the remedial (prescribing recommendations to prevent a recurrence).

Providing at least a measure of  catharsis and healing is important.  But NHS inquiries repeatedly find the same causes of failure: weak management, poor communication, bullying, a refusal or a failure to listen to staff and patient concerns and, often, geographic and/or professional isolation.

2. Who best to chair an inquiry?

Judge‐led inquiries have undoubtedly in the past been seen by those affected and by the public, as the ‘gold standard’ – even if more recently, in the case of the Grenfell Tower inquiry for example, they have come under fire from those affected for being too much part of ‘the Establishment’.

However, although judges are capable of nuance, they usually operate in a world where the court is expected to come to a single verdict. Yet there can be more than one, sincerely and reasonably held, version of ‘the truth’ around particular events in a public inquiry.

Judges are also rarely experienced policy makers, so there is a case for casting the net wider. For example, the Soham inquiry, completed in 2004, into the murder of two schoolgirls by their school caretaker who had a record of being investigated for sexual offences, but no convictions. Soham was not an NHS inquiry, but it came to have a significant impact on the service. It was chaired by Sir Michael (now Lord) Bichard whose experience as a former local government chief executive and permanent secretary may well have contributed to the practicality of the subsequent recommendations: those that led to what is now the Disclosure and Barring Service.

3. Terms of reference

Although third in this list, because they are a matter for consultation with the chair, the terms of reference are of course of first importance. Too wide and the inquiry will sprawl, running the risk that it will satisfy nobody: a clear risk with the current inquiry into child sexual abuse. Too narrow, and the issue will not be resolved.

More recently such as Grenfell Tower and the infected blood inquiry, there have been consultations on the terms of reference. That may indeed help, but it is unlikely to satisfy everybody. The Grenfell inquiry, for example, decided against investigating the issue of social housing more broadly.

4. How should the inquiry be run?

This covers a multitude of issues that there is not room to explore here. They include how to ensure the inquiry is inquisitorial rather than adversarial; how to handle the media and social media; how to manage expert testimony and other issues. The Centre for Effective Dispute Resolution has very useful guidance on this.

5. Think, even at the beginning, about follow‐up

The Institute for Government calculated in 2018 that of the sixty‐eight public inquiries since 1990, just six had received a full follow‐up by a select committee, including Mid Staffordshire, the Chilcott inquiry into the Iraq war, and a ten year follow‐up by the Home Affairs select committee on the Macpherson inquiry into the death of Stephen Lawrence. If there is no formal mechanism for follow‐up to establish whether the government has, or has not, acted on an inquiry's recommendations, why not?

6. One longer term consideration…

There is a widespread perception, correct or not, that inquiries tend to make too many recommendations. Tightly focussed recommendations, tested ahead of the report for their practicability, stand a greater chance of implementation. The Soham report contained just thirty‐one recommendations, almost all tightly focussed on the systems needed to exchange information between the police, social services, schools, the health care system and others where adults have responsibility for children.

7. Should there be a public inquiry in the first place?

Full‐blown public inquiries take time, and the cost often runs into the many millions of pounds. Bristol cost £14 million, Shipman £21 million, and Francis almost £14 million. Yet, as already noted, many NHS inquiries make essentially the same diagnosis. Sir Ian Kennedy has quipped that one could almost substitute ‘Ely’ for ‘Bristol’ throughout his report.

Indeed, investment in training, development and talent management at all levels is likely to prove a better investment in prevention than waiting for the next multi‐million public inquiry. Fifteen or twenty million pounds would buy quite a lot of initial training and development.

Finally, just as the repeated recommendation for a central unit to hold the lessons learnt from previous public inquiries – and to provide support for new ones – should be adopted, such a unit should also embrace non‐statutory inquiries on the Hillsborough and Morecambe Bay approach.