Jon Clements, Director of Development, Thursday 22 April 2021
Having worked on a number of public inquiries and closely followed others, Jon Clements, our Director of Development, considers the ingredients needed to make public inquiries a success.
It’s five years this month since I and my colleagues at Crest Advisory began supporting UK public inquiries. Our work was originally based around communications strategy and media handling. Over time, this has evolved into a broader strategic remit as our role has expanded to include planning, strategy and general problem-solving advice and management. We have learned a lot by working alongside chairs, secretaries, lawyers and other officials and are grateful for the opportunities we’ve had to support them. A few months ago, The Practical Guide to Public Inquiries, was published, offering “stage by stage ‘hands on’ guidance on the process of public inquiries into matters of public concern”. In response, here are some thoughts we have had on what makes an inquiry work.
Firstly, while a statutory inquiry is a legal process, it is not just a legal process; it is an exercise in restoring trust and confidence to a wide and diverse range of audiences, from people whose personal experiences have shattered their faith in authority, to the public as a whole. At times, the work of a public inquiry can resemble a Venn diagram of trauma, law and politics - illuminated by the brightest of media spotlights. In these circumstances, process - no matter how logical and robust - will only take you so far. At this point, I should note that The Practical Guide to Public Inquiries is a helpful, well-informed primer on an inquiry’s structures and processes and the legal hurdles it must clear in its first weeks and months, such as core participant status and funding. However, written by lawyers, it does not necessarily address the issue of 'how' an inquiry gets off the ground. For example, inquiries need skillsets which may not be readily available within the civil service or the legal profession. Persuading people to join an enterprise which aspires to put itself out of business as promptly as possible, with slim promotion prospects during that time, can be hard. Overcoming this may require novel thinking, a focus on the outcome and a determination to develop the capability required and not settle for the capability to hand.
Secondly, the biggest challenges to inquiries often arise in greyer areas where process may be of limited use. The authors note that it is preferable for an inquiry to build good working relationships with all core participants. Which is fine. But how, in reality, should an inquiry respond if a core participant (or their lawyer) has other ideas and declines to engage constructively or mishandles information? In what ways can an inquiry demonstrate it understands the pain, grief and anger of those most affected by the events under scrutiny, while ensuring an objective, impartial fact-finding exercise is completed? Where should the balance be struck between protecting the public purse and providing access and transparency, for example through venue design and technology? And how much should an inquiry bend or flex to avoid replicating the behaviours of the institutions it is scrutinising?
Thirdly, good process is absolutely necessary to an inquiry's success - from sourcing a venue (often an exercise in building trust and confidence in itself) to procuring IT systems and managing costs which may run into tens of millions of pounds of taxpayers' money. But it is not sufficient. Process alone cannot answer the big questions most inquiries must consider at some point: ‘What is our actual purpose here?’ ‘What is the value of our work going to be?’ ‘What legacy should our work have?’ Furthermore, there is no set process for building trust and confidence in an inquiry - because each is unique. Indeed, there are circumstances in which following an established process may have the opposite effect. Building trust and confidence is a matter of mindset as much as process, a principle to apply when taking decisions or considering what tone to adopt. It matters because an inquiry will struggle to call itself a success if people have stopped believing in it.
Fourthly, an inquiry is often shaped by forces and dynamics it has inherited. Because hearings are (usually) live-streamed, inquiries have become the closest thing the UK has to televised court proceedings. The look, feel and language of a courtroom makes it easy for people to forget that it was a political decision to set up a public inquiry; a minister has chosen not to leave matters to the criminal, civil or coronial courts, or to a regulator. A minister may be seeking to manage a crisis of confidence in the ability of the state to establish a particular set of facts, typically involving the conduct of senior public officials. They may be seeking to satisfy a constituency, typically after a long-running campaign, and believe an inquiry is the best way to do so. They may believe there is an urgent need to ensure the events in question can never happen again, and evidence-based recommendations are required to ensure fundamental change. As a result, inquiries typically take their first steps in the full glare of publicity and politics. The scrutiny is immediate, intense and unforgiving. Many people will offer opinions - on the choice of chair, on the terms of reference, on who is or isn’t a core participant and so on. There may be great expectations that an inquiry will deliver a particular conclusion - even before it has taken any evidence. There may be poor understanding of what an inquiry can and can’t do (no prosecutions, no fines, no compensation etc) and the legal framework it operates within. Few appreciate that an inquiry is often busiest when working in private, gathering and disclosing immense quantities of evidence in the months (or years) between an opening statement and public hearings. Dispelling the notion in a 24/7 media environment that during this period an inquiry is somehow in the Doldrums is a recurring challenge for chairs and secretaries.
If we were writing a Strategic Guide to Public Inquiries there would probably be more chapter headings such as “it’s a marathon not a sprint” and “people can forgive delays, they can’t forgive mistakes”. Already, there is speculation about what type of inquiry the government will establish into how various organs of state prepared for and responded to the Covid-19 pandemic, and the potential impact of those decisions. We will watch with interest to see how those decisions play out and how relevant our lessons are to them.