Public inquiries in the dock

On 21 October, Jon Holbrook took part in a debate entitled ‘Public inquiries in the dock’, at the Battle of Ideas in London. His opening comments are published below.

To give you an idea of the nature and scope of politicians’ current obsession with public inquiries, the New Statesman is keeping a tally of the number of times Labour leader Ed Miliband calls for one. At the time of counting, it was nine. And the possible objects of inquiry included everything from Jimmy Savile, phone-hacking and rail franchises, to GCSE exams, banks and care-home abuse. Let us not forget that Miliband has only been leader of the opposition for two years. This makes it an annual rate of about four-and-a-half calls for an inquiry a year.

But in addition to the number of inquiries Miliband has called for, let us not forget that the prime minister, David Cameron, has set up the mother of all public inquiries – the Leveson Inquiry into the culture and ethics of the press. It may not be a judicial inquiry, but there is also the House of Commons home affairs select committee, which is now inquiring into banking and banking services in general. In addition to these, there are also ongoing inquiries, many of which do not come to the public’s attention. One that has been in the public eye, and will increasingly be so over the next couple of months, is the Chilcot Inquiry into Britain’s role in the Iraq War, set up towards the end of Gordon Brown’s Labour government.

So there is no shortage of public inquiries which are either being called for or are happening right now. But it’s not just the number of them which is troubling; it’s their nature. You see, something quite specific is happening with regards to most of these inquiries. That is, they are not focused on particular issues but on perceived institutional problems.

Public inquiries traditionally had a fairly narrow focus, in order to address particular incidents or particular personal failings. So, there was an inquiry into the Profumo affair in 1963, an inquiry into Bloody Sunday in 1972, an inquiry into the Falklands War. And then there were a number about particular matters of public concern to do with safety, such as the Kings Cross fire in 1987, the Clapham rail disaster in 1988, the Piper Alpha oil-rig disaster in 1988, and the long-running inquiry into the 1989 Marchioness disaster – to name just a few.

Most of those inquiries had a very specific and narrow focus. What tends to happen now with the call for a public inquiry is that the focus is very much at an institutional level. You can see that very clearly with the recent, successful calls for an inquiry into the Jimmy Savile scandal. The BBC even aped the language used by Cameron when he established the Leveson Inquiry, stating that it was to set up its own inquiry into culture and practices in the BBC. What this means is that it is not the specific actions of Jimmy Savile that are to be investigated; rather, it is the structure of the organisation over many decades which is under scrutiny.

And it is much the same with banks following the Libor rate-fixing scandal. The subsequent inquiry is not about the specific banking issue at hand, it is about banks’ culture in general. And even where inquiries do have a more narrow focus – I think you can say this about the Baha Mousa and Al Sweady inquiry into the military’s involvement with the murder of two Iraqi citizens – it is still assumed they will have broad consequences. In other words, we tend to look at the issues under investigation not as isolated problems but more as faultlines that run through the whole of an institution.

The question I want to ask is: why this is happening? Why are inquiries increasingly focusing on whole institutions? The answer to that question is to be found in the loss of support suffered by these institutions, particularly the support of the public and, moreover, the support of the establishment itself.

You can see that very much with the Leveson Inquiry. There was a lot of public unease about what the press had been doing but, more noticeably, there were very few individuals or organisations within the press industry itself willing to take a principled stand against the setting up of the Leveson Inquiry. You could see exactly the same thing with the calls for the Jimmy Savile inquiry, with no one really prepared to defend the BBC and say ‘look, for goodness sake, this all happened decades ago. Jimmy Savile is dead, end of’. No one felt as if they had the authority to come out and say that, allowing the BBC to get on with the business of producing and showing TV and radio programmes. And I think that is symptomatic of this twofold problem: the lack of public and establishment support for these institutions.

Of course, those advocating inquiries say large-scale inquiries can help to heal the faultlines running through institutions, and that they can help institutions set out on the road to garnering some public support. But I think inquiries have exactly the opposite effect.

And this takes us to one of the problems with the elite nature of public inquiries, the fact that they do not really engage the public in any meaningful debate about what these institutions ought to be doing. With Leveson, for example, there ought to be a public debate about free speech. Indeed, if there were a debate about the importance of free speech then it would be possible to gain much more public support for the idea of a free press. But until then, that public support will not be forthcoming. As it stands, the inquiries are just going to further the fragmentation of these institutions.

And finally, I think the fact people are usually calling for members of the judiciary to head up these inquiries is symptomatic of the fact that the judiciary is one of the few institutions that has not been subject to the same sort of critical scrutiny other institutions have experienced in the past decade. The only point I would make about this is that by taking judges out of the courtroom and putting them into forums to which they are not accustomed, where they do not make decisions within a legal framework, the likelihood is that the judiciary itself, as an institution, will also start to suffer the forms of fragmentation and loss of support that have affected other institutions.

Jon Holbrook is a barrister in London. The above is an edited version of a speech given at the Battle of Ideas in London on 21 October 2012.