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Thursday 19 July 2012

Richard Reynolds

Inquiries, inquiries, everywhere


We need fewer inquiries and more politics, argues a paralegal currently working on public inquries.

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‘UK to become inquiry-based economy’ announced a headline on spoof news website the Daily Mash a couple of weeks ago following the numerous calls for an inquiry into Barclays’ Libor fiddling. The Mash is close to the bone on this one.

There are calls for judge-led inquiries everywhere, with the Leveson Inquiry into the culture, practices and ethics of the press often held up as the model way to do things. So whether it is in the worlds of media or finance, public inquiries seem to have become the catch-all solution to society’s ills. Little wonder that some think tanks and commentators are now calling for a ‘banking Leveson’.

Labour’s recent calls for a ‘judge-led independent banking inquiry’ represent a further worrying expansion of the remit of public inquiries. That is, by attempting to use an ‘impartial’ judge to answer the great political questions of the day, whether these involve media or banking regulation, our inquiry-obsessed politicians are further undermining democracy. After all, a judge can interpret the law and even, where the voice of the people is unclear, attempt to rationalise it; but it is the people, through their elected representatives, who ought to be making the law.

This is not to say that the Conservative-driven decision to hold a parliamentary rather than a judicial inquiry into the fiddling of the Libor rate should be welcomed. There’s no great democratic principle being defended by the Tories here. Their support for a parliamentary over a judicial inquiry stems from little more than an aversion to the cost and inconvenience of setting something up on the scale of the Leveson Inquiry.

Public inquiries, at their best, exist to provide a quasi-independent perspective, to allow the state to look at itself, to get a grasp of how, and to some extent why, it fails to live up to the standards it claims to. Inquiries have, however, been subject to many attacks, often with regard to cost or by suggestion that they exist simply to ‘bury’ issues until the public loses interest. Few but the worst conspiracy nutters, however, would claim that recent inquiries - whether it’s David Cameron squirming on the stand at the Leveson Inquiry or the humiliating conclusion of ‘corporate failure’ by the Ministry of Defence to protect Baha Mousa from being tortured to death in Iraq - represent effective or even intended cover-ups. That being said, both inquiries proved far more embarrassing than anyone in government expected when they started.

The financial objections to inquiries – the Tories’ main argument against a ‘Banking Leveson’ – are weak if one accepts the need for the state to examine its failures and learn from them. It is surely worth a budget of a few million to find out why a terrible mistake has happened if that error has serious future ramifications.

For a range of technical reasons, inquiries can sometimes enable a better understanding of great events than standard post facto litigation. An inquiry is bound, not to allocate liability (for example, work out who needs to compensate who), but to find out what happened. This is their strength. Parties in a court case have to fight to get the cash they believe they deserve. In an inquiry, truth – or, at least, a version of the facts – should be the aim of all participants.

But, crucially, inquiries are now being given remits to look into the ‘morality’, ‘ethics’ or ‘culture’ of the media (and possibly finance, too). They are being asked to go beyond identifying what happened, even to go beyond recommending what can be learnt from the mistakes of the past. Inquiries are now being asked to do something politics has failed to do: determine what we want our banking system to be. This represents a failure of politics - and the preference for conferring authority on unelected judges rather than mediocre politicians is far more damaging than Libor-fixing or phone-hacking.

Oppositions always call for inquiries, but in this case there are reasons why Labour was particularly keen to outsource such work to a judge. Ed Miliband and his shadow-cabinet colleagues were the foot soldiers of the ‘Third Way’. However much they may want to distance themselves from the mistakes of Blairism now, they were the youth wing of the most powerful movement for political mediocrity, the embrace of Fukuyama’s End of History.

In a world devoid of powerful political ideas, where the political class exists, as Fukuyama puts it, to provide nothing more than the management of ‘economic calculation, the endless solving of technical problems, environmental concerns, and the satisfaction of sophisticated consumer demands’, politicians exist to sell narrowly different versions of the same model. But without ideas to support their claims to political authority, where they exist not to lead but rather to ‘listen’, they have no authority. Our politicians cannot mediate their – or the state’s – relationships with the media or finance, nor can they defend them because they have little authority to do so. If the political parties represented mass movements representing living ideas, there would be no need for judges to tell us what’s wrong with the press or finance; politicians would have the authority to act without them.

Parliament is not credible or capable of interrogating such huge parts of our society, not because of its own corruptions or scandals, but because, despite being the representative democratic body of our society, it currently represents nothing.

Judges, however wise, and assisted by any number of the great and the good as ‘assessors’, are not fit to ‘judge’ the media and what’s in the public’s interest to read. Nor should they judge the culture and ethics of finance, although – unlike the media – the government should perhaps play some role in regulating the financial sector.

These are questions for the people - not for a court, or inquiry chamber. I’ve seen great crimes excellently interrogated by public inquiries, but inquiries have a time and a place. And how, and if, we should regulate the media or finance is not a question of law, or of fact, but rather of politics. No inquiry will answer these questions and, while they call for judges to so on their behalf, neither can our political class.

Richard Reynolds is a paralegal and trainee barrister who worked on the Baha Mousa Inquiry.

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