The tyrannical reign of the public inquiry

Nobody expects the Spanish Inquisition. Everybody does, however, expect the public inquiry. It doesn’t even seem to matter what the particular issue or event is. It could be banking practices, it could be phone hacking, it could be library closures. But one thing you can be pretty sure of today is that there will either be a public inquiry into it, or calls for one to be established.

We are, of course, all grimly aware of the Leveson Inquiry into ‘the culture, practice and ethics’ of the press, but that is just the tip of this mountain of official, largely judge-led inquiring that has come to dominate the UK’s political landscape over the past couple of decades. Other notable examples of the inquiry fetish include: three separate public inquiries into aspects of the Iraq War (plus other inquiries specifically on the behaviour of British troops); the (second) Bloody Sunday inquiry into the killing of 14 Catholics by the British Army; and one into the police’s handling of the murder of black teenager Stephen Lawrence in 1998. (Home secretary Theresa May even mooted the possibility recently of a second inquiry into Lawrence’s death.)

And for every public inquiry that does take place, there seem to be countless others in the offing. It is as if the prestige and authority that currently clings to the idea of the public inquiry is such that many politicians and political campaigners believe this quasi-judicial realm to be the best place to fight political battles. In the past year alone, opponents of public-sector funding cuts have called for a public inquiry into the closure of local libraries; angry academics have called for one into the increase in university tuition fees; and just this month, many in the Labour Party were busy calling for one into the Libor-rate-fixing scandal. In fact, far from there being a sense that there are too many public inquiries today, many seem to feel that there are not enough.

What’s odd about the proliferation of public inquiries is that so few seem willing to question it. The sight of the unelected Lord Leveson, or his bearded unelected sidekick, lead counsel Robert Jay, standing in judgement of the elected, be it prime minister David Cameron or culture secretary Jeremy Hunt, has barely raised a critical eyebrow. And little wonder: the moral superiority and authority of the judiciary over that of elected politicians is simply taken as given, often, it seems, by politicians themselves.

But how did this happen? How did the public inquiry become such a central part of British political life? More importantly, how did it become so acceptable, so normal, for political affairs to be settled by public inquiries? After all, it wasn’t always like this.

Up until the 1990s, public inquiries were far from the frequent affair they have since become. They were the state’s recourse of last resort, to be launched mainly in extremis. One such example was the Profumo affair in 1963, when the then Conservative secretary of state for war, John Profumo, was discovered to have been visiting the same prostitute as a Soviet official. With national security deemed to be at risk, and the British state’s authority called into question, Lord Denning was asked to hold a public inquiry. And the Denning inquiry served its function. Profumo himself was heavily criticised and resigned, but it gave a crisis-racked state a little bit of space to reassemble, to regain some measure of authority, and to mend itself before a sceptical public. Throughout the middle decades of the twentieth century, from Lord Widgery’s 1972 inquiry into Bloody Sunday to Lord Scarman’s inquiry into the Brixton riots in 1981, this was how the public inquiry was used – as an elite form of crisis management.

But something changed at the beginning of the 1990s. Public inquiries started to become routine. More significantly, their judgements acquired the authority that elected politicians increasingly seemed to lack.

The reasons for this can be traced back to the disarray in which the British state found itself at the beginning of the 1990s. Ostensibly, this chaos was manifest in several high-profile miscarriages of justice involving the convictions of putative IRA bombers, the Guildford Four, the Birmingham Six and the Maguire Seven – all of whom had their convictions quashed between 1989 and 1991. The response of the then Tory government was to establish the ‘mother of all inquiries’ – the Royal Commission on Criminal Justice, an inquiry into ‘all stages of the criminal process’.

Yet the discombobulation went deeper, too. If the prominent quashed convictions of the Birmingham Six and others led the state to question its means of administering law and justice, this questioning came against the profoundly disorienting background of the end of the Cold War. The old certainties of what the then Tory-led British state was for, born largely of what it was against – the Soviet menace – were no more. And it is to this existential crisis of the state that the public inquiry appeared as a soothing balm. Troubled by what it was for, and unable to withstand too much criticism, parliament began to use the public inquiry as a means of simultaneously passing responsibility for making political judgements and decisions, while also shoring up the state’s overall authority and legitimacy. Political problems deemed too challenging for uncertain politicians were transferred over to senior judges or other unelected members of the great and good with increasing frequency.

The significance of this development cannot be overstated: the authority of the elected to make decisions, to exercise judgement, was increasingly being outsourced to the unelected. And with it, the public’s ability to hold to account and to challenge those that represent it was also being undermined.

Two instances at the time capture this shift. First, in 1992, Lord Scott launched his commission into the arms-to-Iraq affair, wherein ministers were suspected of having relaxed guidelines on sales of goods to Saddam Hussein’s Iraq. And then, in 1994, the Lord Nolan inquiry began into the cash-for-questions affair, in which MPs were shown accepting money in return for tabling parliamentary questions. In these early manifestations of the current political mania for public inquiries, the hierarchy of authority was established. The behaviour and conduct of MPs and ministers was no longer to be judged by the public and its representatives in parliament; it was to be judged by those spuriously acting in the public’s name, that is, those heading up public inquiries.

As electoral turnouts fell and party memberships dwindled, so an increasingly dislocated parliament’s reliance on the public inquiry became further entrenched during the 2000s. Under New Labour, the government even formalised the political role and remit of public inquiries, until then quite vague, with the 2005 Inquiries Act. Indeed, so thoroughly was parliamentary authority and judgement outsourced during this period that the Iraq war, for which parliament voted unanimously in favour in 2003, was subject to three separate inquiries: the 2004 Lord Hutton inquiry into the death of British weapons inspector David Kelly in; the 2004 Lord Butler inquiry into Iraq War intelligence failures; and then, in 2009, Sir John Chilcot’s ramble through the reasons and events which led to the 2003 invasion. What politicians had failed to do when they had the opportunity – oppose the Iraq War, and exercise some political mettle – became the Sisyphean task of the public inquiry.

The ongoing clamour for a public inquiry into virtually every significant public issue shouldn’t blind us to their failings. As a predominant form of current political life, the public inquiry is at best profoundly undemocratic, at worst politically regressive. The disarray of the state in the 1990s has led to a situation in which our cowardly but elected representatives in parliament now routinely defer to the authority of the unelected and unaccountable. No wonder the near automatic response to any public issue or problem is to call for a public inquiry – that now seems to be where the authority to judge, to discriminate between political right and wrong, resides. So for anyone who cares about democracy, it is time to rescue the political from the clutches of the judiciary.

Tim Black is senior writer at spiked.