Setting up and running a

PUBLICINQUIRYGUIDANCE FOR CHAIRS& COMMISSIONING BODIES

2

3

CONTENTS

Throughout the course of this project CEDR worked with a group of experienced
professionals, each of whom have either led Inquiries of one type or another, been
party to their design and implementation, or have had a key role in their execution.
CEDR would like to take this opportunity tothank them for all their input and assistance inthe production of this report, while emphasisingthat this report does not necessarily represent
fully their personal or organisational views on theInquiry process or appropriate options for change.

uAndrew Aclandu

Heather Allenu

Tony Allenu

Judith BernsteinuHenry Brownu

Susan BryantuLord Carnwath of Notting Hill QCu

Ursula Caseru

Dorcas CrawforduCatherine Dixonu

Douglas Edwards QC

u

Sir Robert Francis QC

uDavid Frendu

Sue Grayu

Mr Justice Haddon-Cave QC

u

Lucian J. HudsonuProfessor Sir Jeffrey Jowell QCu

Sukhvinder Kaur-Stubbs

uLady Kennedy of the Shaws QC

uLawrence Kershen QC

uDavid Pearson CBuColin PhillipsuBernard Quorollu

Leonora Rozee OBEuSarah SackmanuAndrew Tait QC

u

Lord Woolf of Barnes QC

u

Irving Yass

Report Authors
Dr Karl Mackie CBEFrederick Way

CEDR would also like to thank its in-houseteam for all their hard work on this project.

Report Date
January 2015

CEDR’s Foundation Activity is made possibleby the support of its members.

CONTENTSSETTING UP AND RUNNING A PUBLIC INQUIRY

Preface5Foreword

7

Introduction

8

Finding the right Chair (and others)

11

Matching the Terms of Reference to outcome and success

17

A Nine groups a Public Inquiry must consider

21

B Creating effective Terms of Reference

30

Independence, objectivity and fairness

33

Emotions

37

Difficult topics

41

Working with groups

45

In the public interest

49

Handling the media

55

Creating effective follow-on

59

Reviewing process issues

65

Wider policy issues

71

Checklists

75

APPENDIX

81

1 CEDR’s investigation of the Public Inquiry process

82

2 Recommendations

84

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PREFACEPREFACETHE RT. HON LORD WOOLF OF BARNES

I

nquiries, how they are conducted and by whom they are led, are a frequent topic of news stories
these days. Inquiries play a very important role in our constitutional arrangements. The independence
and thoroughness of their work both contributes to public trust in those institutions which are subject
to review by Inquiries and means that the public places a great deal of trust in the Inquiries themselves.
Those who are responsible for conducting Inquiries and in particular their Chairs bear a heavy
responsibility to ensure that the way they are conducted meets the high expectations of the public.
There has recently been a review of the Inquiries Act 2005, which is the principal legislation dealing
with Inquiries carried out by a Select Committee of The House of Lords, of which I was delighted to
be a member. The Committee’s report contained a wide range of recommendations. The responseof the Government was very disappointing; many of the recommendations were rejected; some were
accepted but even then, if legislation was required this would not occur before the 2015 Election
and there is no hope of early implementation by the next government. In these circumstances it isfortunate that CEDR (Centre for Effective Dispute Resolution) have decided to publish their Guidance
for Chairs and Commissioning Bodies of Public Inquiries. Those who have conducted Inquiries know
how great the need for guidance is.
CEDR has rightly achieved a high reputation in the field of mediation and in particular, mediation in
conjunction with civil litigation. Ever since I became fully aware of CEDR whilst working on my reporton ‘Access to Justice’ (1996) they have been the leading promoter of mediation in the UK. They now
promote mediation on a global basis and have received plaudits for their contribution. The fact they
have extended their attention to inquiries is to be warmly welcomed. This publication will provide
Chairs with the practical assistance that they need throughout the process. I am also confident that
it will not only be the Chairs of Inquiries who obtain assistance but all who are involved in the process
will receive assistance as well.

And today more than ever, knowing about society involves first of
all choosing what approach the inquiry will take and that necessarilymeans choosing how society can answer.
JEAN-FRANCOIS LYOTARD, PHILOSOPHER, 1924-1998

Its format is clear and sensible. I suspect the checklist will be of particular assistance. It deals withthe stages ‘Before the Inquiry’, ‘During the Inquiry’ and ‘After the Inquiry’. This will be especiallyhelpful, as will the general text which deals with issues such as ‘Independence, Objectivity and Fairness:the challenge of impartiality’, ‘Difficult Topics’ and ‘The Public Interest’. Here what is needed may
appear obvious but this is not the case in practice and economic and clear guidance will be of value.
It is fortunate that CEDR has created a unit to undertake its charitable Foundation activities, to conduct
this type of initiative as a service to the public and CEDR is to be congratulated on a job well done.

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FOREWORD

FOREWORDSIR ROBERT FRANCIS QC

P

ublic Inquiries are generally commissioned to look into matters of great public importance, requiring
a rigorously independent, but fair and efficient approach to the issues involved. Almost never will
it be a simple matter to organise and deliver the processes required. It is therefore astonishing thatsomething like this guidance has not been generally available before now.
Those of us who have had the privilege and challenge of chairing a Public Inquiry will all have faced amoment shortly after accepting the role of wondering how to set it up and run it. Neither I nor any
others with whom I have discussed this were offered any guidance or ready-made solutions to the
myriad of issues that have to be resolved in order to do the job. The same applies to valiant Inquiry
Secretaries and Counsel. We have all found ourselves re-inventing the wheel in finding a way to do
our jobs.
Clearly each inquiry is likely to have its own separate characteristics, depending on the subject-matterand the expectations which have led to it. Nonetheless there is no reason why a common andsystematic approach cannot be offered which will often not only make the life of those responsible
so much easier, but will enable them to get on with the task in hand more effectively and quickly.
CEDR has performed a valuable service in bringing together a distinguished group of people withpractical experience in this field and identifying the problems faced by those setting up inquiries andthose responsible for running them and options for solving them. This guidance does not pretendthat the same solutions are appropriate for every inquiry, but offers invaluable insight into many of
the features commonly experienced. Starting with frequently ignored issues around the appointmentof an inquiry panel and formulation of the terms of reference, through to the monitoring of theimplementation of recommendations, this guidance is likely to encourage lateral thinking and help
produce a process which is better tailored to the task in hand.

Doubt is the incentive to truth and inquiry leads the way.
HOSEA BALLOU, THEOLOGIAN, 1771-1852

As the authors make clear this should be regarded as a ‘living’ document which can be developedin the light of experience. I commend it not only to those appointed to run or work in public
inquiries, but dare I suggest it, to the Ministers and their advisers when considering whether or how
to commission a Public Inquiry.

89

INTRODUCTIONINTRODUCTION

Dr KARL MACKIE CBE, CHIEF EXECUTIVE OF CEDR &FREDERICK WAY, CEDR FOUNDATION RESEARCH MANAGERINTRODUCTIONW

e start this guide from a simple perspective - inquiry is important. It can be challenging,
upsetting, difficult, unforgiving and at times potentially even dangerous, but it is critical that
we as free human beings living in a democratic society are able to inquire as to why situations havearisen; how they have occurred; what the consequences were of the action; who was involved; what
can be learnt from them and how the situation can be altered and improved for the next time it occurs.

CEDR’s work on public inquiries - The CEDR Inquiry on Inquiries - was first triggered by a sense that
there was scope for innovation in a process that had much overlap with many of the areas of conflictwithin which we operate. It is a process that is often triggered by a serious controversy about anincident, frequently accompanied by early allegations of blame and of defences to blame, that can
trigger quickly opposing camps on historical events, or on future paths to reform. It also has muchlinkage with the legal system, the call for a public inquiry often being accompanied by an assumptionthat a judge and judicial process may be able to unravel difficult issues and possibly even resistance tothe exposure of truth. And at the heart of the process is not only investigation but usually investigation
by oral examination, followed by reflection and judgement typical of court forensic findings.
Two other aspects resonate with our work as legal and commercial conflict experts. Around andwithin the process of public inquiry, social dialogue is a key ingredient if not directly within theprocess, certainly in terms of the triggers to make the process happen and in terms of the process
which ought to occur to ensure that the inquiry’s conclusions can assist all those who have sufferedor could suffer from the type of incidents which led to the call for inquiry. Second, the process is ahybrid between the assumptions of law - that truth can be uncovered and justice delivered; and ofpolitics - that social debate and audit will help society improve its workings.
Not least of the reasons for our interest is that it is clear that the inquiry process is becoming somethingof a fundamental tool for social investigation in contemporary society. Its use and calls for its adoption
are becoming more frequent in a society which grows more complex and whose failings are moretransparent and objectionable. Yet surprisingly it is a process that has received little analysis in termsof its design. Our research indicates that all too often inquiries have to ‘start from scratch’ - there isno established mechanism by which judges, government or civil service, or any other body, capture
the learning from previous inquiries.

Nor, in our view, has much thought been given to testing more innovative approaches to achieving
the core purposes of inquiries - investigation; fact-gathering and truth-finding; recognition for‘victims’; healing of wounds caused by social incidents; and engagement with practical methods of
implementation of recommendations.
We have also found in our research into Public Inquiries, many examples of Inquiries which have been
seen to have failed to achieve what they were intended to do. There are examples of Inquiries not
being held when there are particular interest groups/relatives of victims who want such an Inquiry(for example the initial lack of an adequate inquiry into the Hillsborough Disaster which led ultimately
to the need for the Hillsborough Independent Group Panel over 20 years later); or a formal process
has called for a Public Inquiry to occur only for nothing to happen (for example, the initial refusal
to hold a Public Inquiry into the death of Alexander Litvinenko despite the request for one from thecoroner at the inquest into his death).
Further there are inquiries which have been accused of failing to treat victims appropriately during
the hearing; been overly adversarial as opposed to inquisitorial in their tone; been unable to establish
workable recommendations; and even to have failed to hear critical evidence. Additionally, despite
being called ‘Public’ Inquiries, inquiries are frequently seen as failing to involve the Public.
Inquiries are frequently criticised for having overly limited or obfuscated terms of reference; and when
they do conclude there are many examples of Inquiries being criticised for having no effective impact.
It can be observed that frequently recommendations are either too easily rejected (The Leveson Inquiry)
or are never actually implemented.
Finally, there is still even in the aftermath of the Inquiries Act 2005, criticism of Public Inquiries as
taking too long and costing too much. And there are claims linked to this viewpoint that there aresimply too many inquiries. In January 2014, complaints were made about the fact that there weremore than 30 separate investigations in operation in regard to the child abuse offences of Jimmy
Savile. As well as the trauma and practical inconvenience witnesses face in dealing with these multiple
inquiries (potentially having to face the harrowing experience of providing 30 separate accounts of theoccasion on which they were abused) there is also the difficulty that the Inquiries may find conflicting
conclusions rendering the process inconsistent and unjust and thus discreditable. This is not to mention
the time and public cost involved which can ultimately add to the voices questioning the very efficacyof the Inquiry model as a mechanism for delivering truth, justice and social or organisational reform.
Much of our early reflection on these issues was further reinforced by the work we undertook to
explore the issues further, including carrying out a survey of 2000 members of the public to gauge
their attitudes towards public inquiries, convening a task force of eminent individuals in this field to
explore methods for changes and our holding of a major Symposium on our recommendations at
the Royal Society in 2013. Further information about the research we carried out can be found at
Appendix One.

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INTRODUCTION

Overall our major points for reform of the Public Inquiry process arising from the review process weundertook can be summarised as:
1 Emphasising the importance of clarity of the goals and nature of the Public Inquiry process forparticipants, chairs and the wider public;
2 Providing a stronger focus on victims and participants’ well-being and understanding, anddedication towards ensuring that key voices, including those of the public at large, are appropriately
heard;
3 Encouraging the use of alternative process techniques to simplify and speed up the process of the
Public Inquiry as well as better meet the goals of the process;
4 Ensuring that the recommendations that are produced by the Inquiry are valid and workable andmore likely to be implemented;
5 Enabling the Inquiry to capture information about technique and best practice so that lessons canbe learnt and passed on for future Inquiries.
Against this background, we wished to offer a collaborative and helpful contribution to the betterworkings of inquiries rather than just another opinion piece. This led to the ‘toolkit’ idea that is set
out in this document. It is not designed to answer the basic mechanics of the inquiry process, forexample on issues such as budget management, so much as to identify areas which can prove difficultand are not captured in much of the public or judicial commentary on the process. We wanted tocreate a ‘travelling draft’ as lawyers describe it, of a core framework for considering design of the
difficult areas of inquiry processes. By testing some of these ideas, and encouraging others to engage
with and refine our suggestions over time, we hope we can gradually make a major impact on theeffectiveness of inquiries. At the very least, we wish to make the process less of a ‘random walk’ forfuture chairs of inquiries, in considering what options are available to them to ensure a full, fair andmeaningful process which can capture the core purposes behind most inquiry processes.
This guide is written in the following format. We have addressed key issues that can occur ateach stage of the inquiry in a chronological format (i.e. from the start of the Inquiry through to its
conclusion) and on which additional thought needs to be given. For each topic we explain the issue
and then provide suggestions based on our experience and our task force’s suggestions of ways ofresolving the issues.
The guide can be read sequentially or it can be read in individual sections if you want to focus on aparticular issue. At the end of the main section of the guide are chapters on process issues in general
as well as wider policy issues. The guide concludes with checklists which can be used to review themain options available to a Chair and there are appendices of the methodology that CEDR used andthe recommendations for reforms that we initially proposed.
Over time we aim to provide more updates to this guide on our website as a continuing project andwould recommend readers of this guide also consult www.cedr.com/foundation for the latest updates.

Finding theright Chair
AND OTHERS

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FINDING THE RIGHT TEAM

FINDING THE RIGHT TEAM

Any Public Inquiry will need to have people to fulfil the following roles:
1 Chair of the Inquiry
The lead person in the Inquiry, the Chair, will both run the Inquiry and make findings afterwards.
This person is both the facilitator of the process and decision maker. This person will need to havethe following qualities in five categories. Not only will a Chair need to have these qualities but s/hewill also need to be able to demonstrate them in running the Inquiry:

IntegritynFairnessn
Honestyn
Independence - no connection to the events or partiesn
Impartiality (perceived and actual)
Leadership SkillsnCharisma/leadership qualitiesn
Experience as a Chair (not necessarily through Judicial experience alone,
but in other roles such as for example, chairing meetings)nAbility to control large and small groupsnAbility to handle process effectivelynEndurancenAssuredness/belief/confidence in own ability
Analytical skills/abilitynAnalytical abilitynLegal awareness (but not necessarily a legal qualification)nPerspective of the broader context of issues
Communication skillsnFacilitation and mediation skillsnExcellent communication skills (both orally and in writing)n
Active listening skillsnCompassion/empathy - ability to handle emotion and reflect concernnAbility to deal with different personalitiesn
Understanding of how to work with the media
Interest in issues and active awareness of surrounding factorsnInterest in subject matternKnowledge of subject matter (or ability to learn up on it quickly)nMedia awarenessn
Diversity awarenessn
Cultural awareness2 Lead Counsel to the Inquiry
A key position, this person will lead the evidence
for the Inquiry and will ask the questions that the
Chair wants to ask. Counsel will need to havethe following qualities/skills:nExcellent communication skillsnPresentation skillsnLegally trainednAbility to handle process effectively
and efficientlynAbility to handle sensitive information andto question around this

n
n
n

n
n
n
n
n
n
n
n
n

3 Junior/Other Counsel to the InquirynLegally trainednExperience in handling sensitive informationn
Process management capabilities
4 Solicitor to the InquirynLegally trainednAbility to handle large amounts ofsensitive informationnOrganisational and project management skillsnTeam working
5 Secretariat/Secretary to the InquirynFairness (and ability to demonstrate this)nImpartialityn
HonestynIntegritynOrganisational skillsnAbility to deal with different personalitiesn
Ability to represent the Inquiry toGovernment/Ministers etc.
nAbility to put witnesses at ease and familiarise
them pre-hearing so that they are able togive good evidencenAbility to organise other staff
Budgeting ability
Able to liaise well with Chair and assist
as appropriate
Compassion/empathy
Diversity awareness
Cultural awarenessExcellent communication skills
Legal awarenessMedia awareness
Perspective
Interest in the subject matter
Knowledge of the subject matter(or ability to learn up on it)
Endurance

6 Other Inquiry Staff
There will need to be staff tasked with:nOrganising the physical running of the Inquiry
including a workable calendar/timetable forwitnesses; the venue etc.
nRunning the Inquiry websitenPress/media relationsn
Dealing with legal aspects as they arisenDealing with witness arrangements andpeople management of witness andrepresentatives of the public
7 Panel Members
Sometimes it may be useful to consider additional‘wing members’ to assist a Chair, usuallythose whose background or capabilities mightcomplement or support the Chair’s effectivenesssuch as industry experts. Panel roles can varyfrom being ‘wing’ members of a tribunal tothose of occasional advisers for the Chair in his
or her reflections.

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FINDING THE RIGHT TEAM

FINDING THE RIGHT TEAM

Selecting an effective Chair (or other Panel members)
Ideally the selection of an Inquiry Chair should be an open process whereby both those involved in
the selection and the wider public can see how the selection was made; what the criteria were andwhy the person was considered suitable. As far as possible, ad hoc procedures or selection should be
avoided. This is frequently difficult if it is necessary for an Inquiry Chair to be selected quickly either
to satisfy a political need or to appease public sentiment/clamour. At the least a process should be
adopted which can be subsequently justified and made retrospectively transparent. It is also possible
to put out notices about the selection process to indicate that progress is being made rather thanrushing to a conclusion.
Below is a suggested method of selecting an Inquiry Chair. Whilst recognising that it may not bepracticable for this exact method to be used on every occasion that a Public Inquiry occurs, we would
still encourage the principles of this process (accountability and openness) be reflected in whateverselection procedure is used.

6 There also needs to be a review of the written ability of the applicant and the extent to which they
have previously written a report of this nature. A starting from scratch approach should be avoided.
7 After selection of the appropriate person, an announcement should be made of their selection
and why they have been picked etc. Additionally, if necessary the new Chair should be provided
with as much background material as possible and potentially training in certain areas: for example
how, to handle emotions/facilitate difficult conversations etc. If there is particular specialist
knowledge that would greatly benefit the Chair of the Inquiry as background (for example, ina death in custody Inquiry, how prisons in general function, or about how a specialist piece ofmachinery operates or process occurs), then it may be appropriate for the Inquiry Chair to takepart in this sort of induction prior to commencing the Inquiry proper. (Though practical mattersor further issues arising in an inquiry, may make later study visits/workshops more appropriate.)
Any training should be recorded and documented. Similarly it is important for a Chair to be partof the final selection process of any potential Panel members.

How to carry out an effective process
1 Initially, a selection panel will need to be appointed. This panel should be made up of those who
can be readily perceived as being independent and separate from those involved in the process
to show impartiality. Ideally, the panel will have representatives not only from those who arecommissioning the Inquiry but also assistance from the Secretariat for the Inquiry; a former Inquiry
Chair and members of the Public/Professional bodies.
2 If it can be seen that the Inquiry has potential to criticise the Commissioning Body (likely in many
Inquiries) then it needs to be made clear that those from the Commissioning Body do not holdsway over the selection process and that it is fair and independent.
3 Selection can be made from a relatively small pool of potential appointees, those who haveexperience of Chairing. A recommendation that we have made is for training of potential Inquiry
Chairs in the key skills that we refer to later in this guide. This training could be given to those who
may potentially lead a Public Inquiry such as judges, Chairs of professional panels, lay Chairs etc.
4 Once a pool of potential appointees is drawn up based on skills required and approached to be
invited to interview, these interviews should be held as soon as practicable.
5 Interviewees should be assessed against set criteria with questions designed to assess their ability
to deal with effective processes, difficult witnesses, information handling, analysis etc. Particularcare should be taken in Public Inquiries that potential appointees have no perceived conflicts ofinterest or experiences/affiliations which might subsequently cast doubt on their impartiality andindependence.

IN SUMMARYnnn

An Inquiry requires an individual to chair who shows capabilities of integrity, leadershipskills, analytical skills/ability, communication skills and interest in the subject matter.
As open a process as possible should be used in recruiting an Inquiry Chair or other Panelmembers so that the process can be seen to be fair and appropriate.
Where considerations of public urgency necessitate a short circuiting of a full selection
procedure, the rationale and process for selection should be retrospectively transparent
and justifiable.

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“An independent study commissioned by CEDR found just
27% of the 2,000 people polled had confidence in theInquiry system while 58% believed they were too costly.”
HUFFINGTON POST, 23 MAY 2012

Matching
the Termsof Reference
to outcome
and success

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TERMS OF REFERENCETERMS OF REFERENCE

What are the Terms of Reference relevant to an Inquiry?
Terms of Reference are absolutely critical to an Inquiry as they define its purpose and parameters,
and provide the Inquiry Chair with the authority to probe particular areas and lines of Inquiry.
However, frequently, terms of reference can be too limited in their scope; become misunderstood or
misinterpreted by those who need to refer to or understand them, or they can become misalignedwith an evolving public debate or with the inquiry’s own evolving sense of the key issues.

Why are Terms of Reference so important?
A major difficulty in compiling terms of reference is that because they come so early in the process,they can contain discrepancies in the issues that are considered or foreseen as being important earlyon compared with the issues that emerge as important later in the process. Additionally, it is often
the case that terms of reference do not fully relate to all of the groups who might be affected by a
Public Inquiry because those who are creating the terms of reference are not aware of or aligned withpotentially affected groups (especially if that group is not vocal) or how the terms of reference mightcome to be interpreted/misinterpreted. Further, there can be an issue whereby the terms of reference do
not factor in potential outcomes of a Public Inquiry in the way that they should. If there is a potential
outcome which has been linked to a starting point of consideration for the Inquiry, then it makes theInquiry much stronger in that regard: for example, an Inquiry which specifies that it will consider all
mechanisms for change management in a prison system including the ability to consider whether
or not certain prisons should be closed, is in a much stronger position to recommend that prisonsbe closed than an Inquiry which has not had that specific point mentioned in its Terms of Reference.

What needs to be consideredwhen drafting terms of Reference?
The Inquiries Act 2005 starts with the premise that an Inquiry can be called by a minister where ‘itappears to [him/her] particular events have caused, or are capable of causing, public concern’ or‘there is public concern that particular events may have occurred’. The key point here is that the test
is related to ‘public concern’. This is an open definition and it is difficult to think of what major event
could be considered not to be able to cause public concern. Private Inquiries and Public Inquiries
which are not commissioned under the Inquiries Act 2005, alternatively, can be set up to cover any
topic. The only limitation in what a Private Inquiry could cover is that of practicality in that a Private
Inquiry is unable to compel witnesses to attend or give evidence.

An Inquiry can therefore consider a vast array of different topics. Major recent Inquiries have covered
diverse areas ranging from such topics as deaths in custody, failures of child or patient protection,
through to complex political controversies over the Iraq War, the media and phone hacking, andbanking practices.
For a Public Inquiry under the 2005 Act, the terms of reference will be set by the Minister underwhose Department the Inquiry is held and there may be limited scope for the Chair of the Inquiry to
be involved in defining what the Inquiry’s terms of reference are. However, we would argue that itshould be possible for the Inquiry Chair to suggest ways that the Inquiry’s terms of reference might
be improved. This power should therefore be reserved for the Chair in an initial inquiry phase, even
if provisional terms have been drafted as part of a ministerial effort to allay public concern quickly.
There will be specific things that an Inquiry will not be able to do. A key point that is made at s2(1)Inquiries Act 2005 is that ‘An Inquiry Panel is not to rule on, and has no power to determine, any
person’s civil or criminal liability’. This is slightly tempered by s2(2) which states that, ‘But an Inquiry
panel is not to be inhibited in the discharge of its functions by any likelihood of liability being inferredfrom facts that it determines or recommendations that it makes.’ This issue is likely to limit certain
terms of reference and how the Inquiry functions. Although an Inquiry may not be able to determine
whether or not someone is criminally responsible for an action, it may well go extremely close to
so doing and witnesses who know that they are going to be criticised are likely to be contrite andguarded in the evidence that they provide to the Inquiry. There are examples of sanctions being taken
against individuals as a direct result of an Inquiry - for example following the Azelle Rodney Inquiry, a
Police Marksman (E7) who was found by the Inquiry to have had ‘no lawful justifications’ for shooting
Azelle Rodney, is likely to face criminal prosecution. The Inquiry was subject to an unsuccessful judicial
review application by E7 in relation to the fact that the conclusions that the Inquiry Chair found were‘irrational’, [as reported in The Guardian, 5 August 2013]. An Inquiry therefore needs to be awareof what impact its findings and recommendations may have before it creates its terms of reference
so that it is able to cover these possibilities (subject to the s(2)(1) constraint noted above).
Finally, in constructing Terms of Reference - but also in determining later process design - it is vital toremember Public Inquiries normally contain several ‘purposes’. The exact chemistry of ingredients willvary with different Inquiries, but it is helpful to consider how an Inquiry might satisfy these purposes.
The key purposes can be classified as:12
3
4

Investigating past incidents to establish what has happened
Allaying public concern
Addressing the particular concerns of those who have been directly ‘harmed’ by events
Establishing whether there is a need for reform/change, and if so in which respects and inwhat manner
5 Reporting to commissioning bodies for them to take responsibility and take action to prevent
future recurrences or improve future outcomes

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TERMS OF REFERENCE

NINE GROUPS
THAT A
PUBLIC INQUIRYMUST CONSIDER

GOOD TERMS OF REFERENCE SHOULD:n

Be clear.

n

Identify the issues which are going to be explored and what is to be determined.

n

n

n

Ideally identify what is not going to be considered (this is particularly important if a majorgroup thinks that something is going to be considered or determined when it in factcannot be, for example if an Inquiry is not going to determine somebody’s criminal liability
or impose sanctions).
State the ways in which the Inquiry will be conducted (for example if it is going to work
under certain rules or follow certain procedures).
State the groups likely to be affected by or particularly involved in the Inquiry and name‘interested parties’.

It is worth considering what each group will expect,what they would like to see and what they would
not expect from a Public Inquiry and then determine
whether or not the terms of reference will satisfy
these groups. In conducting this exercise, it will ofcourse not be possible to meet everyone’s aspirations(nor would this necessarily be appropriate), however,
it is important that the inquiry team is actively awareof what these groups might want at an early stage.

Provide assurances of appropriate fairness, legitimacy, legality, stakeholders to be consulted
and confidentiality/publicity.

nGive an indication of planned timescale for the Inquiry.

nGive an indication of budgeting for the Inquiry.

nThere are nine groups affected by any
Public Inquiry, all of whom should beconsidered when compiling terms ofreference and in process design.

Give an indication of who will take responsibility for overseeing potential implementationof recommendations.

PART An

The nine groups are:1 Government/commissioning body
2 ‘Victims’
3 ‘Those in a responsible position’4 Direct witnesses to the particular incidents
5 Experts who may draw inferences/conclusions
from the direct witness evidence
6 Legal/professional community
7 Communities of interest
8 The media
9 The wider public

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NINE GROUPSNINE GROUPS

These groups interact in the following way:
The fourth and fifth groups are separate from these groups and will be witnesses (direct and expert)
who have no explicitly invested interest in outcome. That is not to say that they will not be underpressure to present their evidence in a way that agrees with a particular side’s view or more generally
public sentiment about an incident. These witnesses will need encouragement to give their evidence
in a way which is truly open and explicit.

GOVERNMENT/COMMISSIONING BODYLEGAL/PROFESSIONAL COMMUNITY

THOSE IN A RESPONSIBLE POSITIONEXPERTSVICTIMS

DIRECT WITNESSESMEDIAWIDER PUBLICCOMMUNITIES OF INTEREST

As can be seen by the above diagram, the nine groups are interconnected. The first group that isconnected with an Inquiry is the Government or Commissioning Body. They will have set up theInquiry and will be both held directly responsible for whether or not the Inquiry has achieved what
it is intended to do and against whom ultimate responsibility for what has happened is likely to belevelled. As explored further below, the commissioning body may well be under extreme pressure
itself for solutions to be found and so may want the Inquiry to demonstrate not only its impartiality
but also its robustness and ability to make tough decisions and find responsibility. The government/
commissioning body may also, but not necessarily, be a party that gives evidence to the Inquiry.
This may present it with a challenging perspective and so it will be necessary for the Inquiry team
who will have been selected by the government/commissioning body to demonstrate that there isno conflict of interest.
The second and third groups are those who will give evidence at a Public Inquiry and who can beseen to be directly concerned in the incidents giving rise to public concern. Firstly, there are those
who can be described as in ‘the responsible position’ for whatever reason, leading to the incidents
or state of affairs triggering public concern. Secondly, there are those who perceive themselves as
the ‘victims’ from this state of affairs. Both of these groups will have their own particular desires forwhat is included in the terms of reference and it may be that groups either want something to be
included so that a topic is specifically covered or they want something to be excluded from coverage.

Interaction between ‘victims’ and those in a ‘responsible position’ and between those groups andthose responsible for the Inquiry, including the commissioning body is often filtered through the legal/
professional community who will represent them at the Inquiry and also make representations on
their behalf outside of the Inquiry as attempts are made to resolve an issue. The legal/professional
community will modify the way that the Inquiry is conducted and the way in which answers arepresented and analysis framed. This will include the ‘indirect’ expert witnesses who are asked to
draw inferences from the factual evidence. The legal/professional community are also likely to be
the group who have the most direct resource to monitor whether or not recommendations from theInquiry have been followed up etc.
On the other side of the table are the wider public and the media. The wider public will have aninterest in the Public Inquiry but this is likely to be only at key times, e.g. when it is set up, whencertain key witnesses give evidence; and when the Inquiry report is published and recommendations
are made. The Public’s understanding of what happens is likely to be filtered through what the media
portray the Inquiry as achieving. The Media are likely to consider a Public Inquiry in a variety of ways
and may have their own agenda. Not only can the Public Inquiry be considered to be a scrutiny of
the affected groups but the way that the Public Inquiry is run, can itself, be analysed to see how it
can be argued the government/commissioning body has demonstrated its handling of the crisis.
Finally there may be communities of interest such as say, local community organisations in an Inquiry
on race riots, who see themselves as significantly affected by the outcome of the Public Inquiry but
who have not been directly involved either as a named responsible party or as a group of victims.
These interest groups’ views are important if not vital to an Inquiry and indeed it may be seen thatwhether or not an Inquiry is successful depends on whether or not these groups’ needs have beenaddressed and their ways of working understood (because of the practicalities of implementation andrecommendations). In working with these groups, therefore there are certain issues that need to beaddressed in ensuring that these groups’ interests are appropriately identified so that the terms ofreference and Inquiry can be conducted appropriately to address all the relevant points.

24

25

NINE GROUPSNINE GROUPS

The particular considerations that the various groups may have:
GROUP

GOVERNMENT/COMMISSIONING BODY

INTEREST IN PUBLIC INQUIRYThe Public Inquiry will have been set up by this group in order
to investigate an area of concern which the Government
consider cannot be resolved by any other method. There
will always be political issues associated with a Public Inquiry
and representatives of the Government may also be called as
witnesses. The Government will also ultimately have control
over how the report is received, distributed and implemented.

LIKELY TO WANT MENTIONED
IN A TERMS OF REFERENCE

u
u
u
u
u
u
u

Accountability
Practical methods for dealing with future problems
Analysis of what happened
Visibility that the issue has been dealt with
Appropriate costs
Efficient procedure
Protection of sensitive material

UNLIKELY TO WANT MENTIONED
IN A TERMS OF REFERENCE

u

u

u

u

VICTIMS

Victims have a clear interest in the Public Inquiry in that insome way they or incidents affecting them or those close tothem have led to the Public Inquiry. However, it is important
to note that they are a disparate group and that not all victims
will want the same things from the Public Inquiry. Many will
be concerned with their own particular circumstances andmay have little interest in wider failings or the broader picture.
Alternatively, there will be some people who will be extremelyinterested in seeing a complete picture and having as muchdetail about all of the events as possible, for understandingor to prevent a repeat occurrence.

u
u
u
u
u

u
u

u

u

THOSE IN ARESPONSIBLE POSITION

Those in a responsible position are the people and organisations that may be seen as being responsible for the issues
that have caused the Public Inquiry. They are extremely likely
to be alert to criticism or damage to their reputations andthe potential for the Public Inquiry to raise issues that they
don’t want to be raised. At the same time, a Public Inquiry
has a potential benefit to these parties in allowing them toshow what they did; explain themselves etc., identify flaws inprocess or thinking. Additionally, it may allow these groups
to gain a greater understanding of events and other people.

u
u

u

u

u

Accountability
Practical methods for dealing with future problems
Analysis of what happened
Visibility that the issue has been dealt with
Scope for the Inquiry chair to consider issues
beyond the strict definition of the terms of reference
and petition for a widening of the terms of reference
Recognition of the impact of events on themManageable process, recommendations,media coverage
Process for identification of what and who is toblame and for acknowledgement for the harm done
Possible remedial measures

A final resolution
A fair process which is not focussed on
apportioning blame
An analysis which is not purely‘hindsight judgement’ based
A clear procedure that is set out and which is
not going to be deviated from/subverted
Manageable publicity and sensible recommendations

u

u

u

u

u
u

Scope for the Inquiry Chair tomake maverick recommendations
including those not derived fromevidence the Inquiry has received
Scope for the Inquiry Chair toconsider issues beyond the strict
definition of the terms of reference
Free rein for the Inquiry Chair to use
any mechanisms that s/he sees fit
Open-ended costs

Scope for the Inquiry Chair tomake maverick recommendations
Free rein for the Inquiry Chair to use
any mechanisms that s/he sees fit
Ability for the Inquiry Chair toignore issues that this groupconsiders relevant

Scope for the Inquiry Chair to makemaverick recommendations.
Overemphasis on blame
Scope for findings which allow
future legal suits etc.

26

27

NINE GROUPSNINE GROUPS

The particular considerations that the various groups may have:
GROUP

DIRECT WITNESSESTO THE‘PARTICULAR INCIDENTS’

EXPERTS WHO MAY
DRAW INFERENCES/
CONCLUSIONS FROM THE
DIRECT WITNESS EVIDENCE

MEDIA

INTEREST IN PUBLIC INQUIRY

These witnesses can be seen as being third party witnesses
to the incident and are giving evidence to the Inquiry on thebasis of neither being victims nor responsible for the events.
It is important that the Inquiry does not, however, consider
that these people are unaffected by the events of the Inquiry,
nor that they are under any pressure to give evidence in aparticular way. These witnesses may well see it as their duty
to give evidence; they may be interested in the outcome of
the Inquiry; alternatively they may be reluctant to have to give
evidence. All of these witnesses are likely to see the Inquiry
as being an opportunity to discharge their duty to provide
evidence.

These witnesses will be giving evidence to the Inquiry normallyon behalf of a group; however, their duty remains to theInquiry not to the particular group. In dealing with experts, it
is important to recognise their expertise whilst also considering
their own particular interests and concerns with the Inquiry.

This group’s interest in the Public Inquiry is to find a Public
Interest story and present the Inquiry in a way which allows
them to tell a story and provide compelling evidence. They
are unlikely to be interested in overly procedural matters andare more interested in content than other methods.

LIKELY TO WANT MENTIONED
IN A TERMS OF REFERENCE

u
u
u

u

u
u

u

u

u
u
u
u

u

A final resolution
A fair process
A clear procedure explaining what is goingto happen
No victimisation on the basis of other evidence

Analysis of what happened
Opportunity to consider details from an intelligent
and informed perspective
Important changes that affect broader issues andexpert opinions

Accountability/a way of finding
someone responsible
Analysis of what happened
Exposure of hidden material/etc.
Visibility that the issue has been dealt with
A clear ‘trial’ of questions in the public arena
caused by incident(s)Televised proceedings

UNLIKELY TO WANT MENTIONED
IN A TERMS OF REFERENCE

u

u

u
u

u

u

Scope for the Inquiry to recall 		
witnesses
Scope for the Inquiry Chair to use 		
any mechanisms that s/he sees fit

Ability for the Chair to ignore issues
Overemphasis on blame

Possibility that unable to find 		criminal/civil sanctions
Any curtailment of access to 		
documents or what they can report

28

29

NINE GROUPSNINE GROUPS

The particular considerations that the various groups may have:
GROUP

INTEREST IN PUBLIC INQUIRYCOMMUNITIESOF INTEREST

This is a large group and covers not only interest groups(who may be very aware of the issues raised and be extremelyinterested in what the Inquiry can determine) but also thosegroups who may not be directly aware that the Inquiry is
happening, but for whom the outcome of the Inquiry isimportant. Indeed these communities of interest may containmembers who are not even aware that they are membersyet (For example, an investigation into how asylum seekers
are held, may concern those who are unrepresented asylum
seekers, interest groups working on behalf of asylum seekers,
and also those who are yet even to claim asylum but who will
use the services in the future and so will be concerned by theoutcome).

WIDER PUBLIC

The Wider Public are likely to be concerned with the broader
picture in relation to the incidents and concerns triggering
the Inquiry and what the major conclusions are. They are also
likely to want costs to be kept down.

LIKELY TO WANT MENTIONED
IN A TERMS OF REFERENCE

u
u
u
u
u
u

u

u

u
u
u
u
u
u
u

LEGAL/PROFESSIONAL
COMMUNITY

The Legal/Professional community are likely to be concernedthat the Inquiry is conducted fairly and according to strict
process so that it achieves an efficient outcome. They will also
be concerned that the Inquiry allows them to protect/promote
the concerns of their particular clients. Also that the process
shows them in a good light to clients and/or the public.

u
u
u
u
u
u
u

Accountability
Practical methods for dealing with future problems
Analysis of what happened
Visibility that the issue has been dealt with
Quick procedure
Scope for the Inquiry chair to consider issues beyond
the strict definition of the terms of reference
Scope for the Inquiry chair to make recommendations
that go beyond the strict definition of the termsof reference if they are of wider benefit
Ability to intervene to protect other professional orindustry interests or reputation

Accountability
Practical methods for dealing with future problems
Analysis of what happened
Visibility that the issue has been dealt with
Low costs
Quick procedure
A mechanism by which it can be felt that the truth
is out and that justice has been done

Accountability
Clarity of procedure
Practical methods for dealing with future problems
Analysis of what happened
Visibility that the issue has been dealt with
Appropriate procedure
Rights of clients protected despite
inquisitorial format

UNLIKELY TO WANT MENTIONED
IN A TERMS OF REFERENCE

u

u

u
u

u

u

u

u

u

Free rein for the Inquiry Chair to use
any mechanisms that s/he sees fit
Scope for the Inquiry Chair to makemaverick recommendations
Low costs
Narrow focus

Scope for the Inquiry Chair to makemaverick recommendations
Scope for the Inquiry Chair toconsider issues beyond the strict
definition of the terms of reference
Free rein for the Inquiry Chair to use
any mechanisms that s/he sees fit

Scope for the Inquiry Chair toconsider issues beyond the strict
definition of the terms of referenceOver-analysis on cost control

30

31

CREATING TERMS OF REFERENCE

CREATING
EFFECTIVE
TERMS
OF REFERENCE

n

n

n

FOR THE COMMISSIONER
AND CHAIR

The following practical steps can betaken into consideration when creating
the Terms of Reference:nnnCanvas the ‘big picture’.

nIdentify some boundaries.
nPART Bn

Decide if there are other ways to throw lighton certain topics.

nDefine best process.

nConcentrate on a few key priority areas.
nnnInclude necessary flexibility for the Chairregarding process and recommendations,
possibly also for amending terms of reference.
‘Mind map’ (using a diagram of) what theissues are and what all possible outcomes arethat an informed reader from the General
Public would want to know and what issues
and outcomes all of the above groups would
be concerned with.

Consider canvassing opinion from leaders of relevant interest groups as to what issues they think
helpful to determine. This may take the form of an open meeting to consider the Terms of Reference(not necessarily wholly public but certainly consulting key stakeholders).
Establish early on if there are certain issues that cannot be determined or can only be considered
in a limited way, e.g. criminal liability. Decide if this is going to be a difficulty for the Inquiry andwork out how the Terms of Reference can cover this problem, also what other proceedings might
become necessary or overlap and how this might affect the Terms of Reference and process of
the Inquiry.
Establish what issues cannot be considered by the Inquiry but may be of interest to certain groups(e.g. an Inquiry may be limited to making recommendations which only relate to a particularinstitution at a particular time rather than multiple institutions. Campaigners may want theInquiry to make wider findings about an entire system rather than recognise that the Inquiry isnecessarily limited. Good Terms of Reference will make clear if the Inquiry would not be able to
make this finding.)
Consider making sure that the terms of reference allows for sufficient flexibility to allow the Inquiry
room for manoeuvre when the Inquiry starts but that it keeps a clear set aim.
Consider carefully all words used in the Terms of Reference so that it is clear that it is understood
what they mean. If a term is not obvious, it may be necessary to provide definitions attached to
the Terms of Reference.
It would be useful to have a period of time after the launch of the Public Inquiry (say a month)where the terms of reference are in draft form only, to allow for reflection of the terms and fora newly appointed Chair to influence wording, and for changes to be made if necessary. This
could also allow for key groups who were not already consulted by the Inquiry commissioner tomake any suggestions they have to the Inquiry which might influence the direction of the Termsof Reference and what the Commissioning Body wants the Inquiry to consider.
In having draft Terms of Reference, there are two different ways of doing this. The first is to haveit on a relatively informal basis, where it is noted in the Terms of Reference that they are not final
Terms of Reference until a certain date. This allows the Inquiry Chair after consideration with therelevant Secretary of State or Secretariat of the Inquiry to amend the Terms of Reference (or agree
the current Terms of Reference) by a certain date. This would allow the Inquiry Chair only withthe consent of the Secretary of State to change the terms of reference to reflect public opinion ass/he sees it but does not compel the Terms of Reference to change. Alternatively, this process canbe done on a more formal basis whereby there is a formal consultation process for the terms ofreference and groups are invited to submit their comments on the terms of reference by a certain
date, after which time all feedback will be considered and the terms of reference amended following

32

33

CREATING TERMS OF REFERENCE

a report on the submissions. This would necessarily take a period of time and come at a costwhich makes such an option appear initially less attractive (it would be necessary to ensure thatthe feedback and consideration was considered in an effective and appropriate way). However,
the argument for doing so is that it would enable the Inquiry to state that it had considered andwas reflecting public concern, providing it with a stronger remit and helping to prevent criticism
later on that the Inquiry had failed to serve its purpose or that another Inquiry is required.
nFinally, consider whether certain issues (e.g. acknowledgement) would benefit from a parallel orseparate process allowing the Inquiry itself to be more precisely focused in terms of investigation
and/or recommendation.

Independence,
objectivity
and fairness
THE CHALLENGEOF IMPARTIALITYIN SUMMARY
n

n

n

n

Be clear and precise as to what the Inquiry will cover and that this report will inform
understanding and meet the needs of the various stakeholders.
Consider stating clearly what the Inquiry will not do.
Consider a one month consultation period on draft Terms of Reference for consultation
with the stakeholders or a potential Chair/Panel.
Craft communications and process with key stakeholder groups in mind.

34

35

IMPARTIALITY

IMPARTIALITY

What do independence, objectivity and fairness
mean in relation to a Public Inquiry?
Central to the remit for a Public Inquiry is the need for the qualities of independence, objectivity
and fairness to be applied in relation to the subject matter and people or organisations involved
and therefore for impartiality to be observed. This is both in relation to the Inquiry in general as aprocess which is managed to demonstrate these characteristics, as well as specifically that the Inquiry
Chair demonstrates these qualities in hearing and commenting on evidence. The salience of thesecharacteristics in Public Inquiries explains why so often there are calls for Inquiries to be conductedby judges as they play a role which is, in itself, defined by such traits.
Independence, objectivity and fairness are familiar words that are often used in judicial and quasijudicial contexts but it is important to define what we mean by these terms when we use them.
Independence - the Inquiry and its principal
members should be separate from the organisations that are involved with the events thathave led to the Inquiry or its commission, andthe Inquiry should be able to reach its conclusions
without the need for deference to any other party
as to how to reach that conclusion (that is to saythat the Inquiry is able to conclude what it wantsof its own volition, not that it is steered by others
into a particular conclusion or recommendation).
Objectivity - The Inquiry and the Inquiry Chairshould be seen to consider the evidence presented
to it from a basis which reflects rational objective
criteria, whilst recognising the potentially,
prejudicial perspectives that can be associatedwith witness testimony, e.g. hindsight, bias, aself-serving nature etc. They need to be seen tobe ‘approaching the case with an open mind’.

The Inquiry must not, in reaching its conclusions,be seen as coming from any subjective or partisan
viewpoint. This quality of independence can also
apply to considerations of which witnesses andevidence to call.
Fairness - In its dealings with witnesses and inits considerations of the evidence, a Public Inquiry
must be seen as being fair to those involved in thatit deals with evidence in a way that is consistentand balanced across all witness testimony. The
process for choosing witnesses should be open
and rationally based. This requires the Inquiry
to consider the evidence in a manner which canbe seen to have considered the interests of all
and follows the rules of natural justice includingtransparency of decision making and appropriatebalance in hearing different viewpoints.

Why is it particularly important to show these aspects?
By actively demonstrating the above mentioned qualities when conducting a Public Inquiry, theChair signals a couple of key principles; 1) that there is an effective review process over the eventsof concern, and 2) that the public can have confidence in the Inquiry process and the outcome andrecommendations that follow. By working in this way, the Public Inquiry is able to move the eventson for stakeholders, from past uncertainty, through fair, objective reflection, using a considered,trustworthy process.
Recommendations are also much more likely to be supported if they can be shown to have beendeveloped in a demonstrably independent, objective and fair way than if these concepts are only
implicit - or even lacking - in the conduct of an Inquiry.

How can these qualities be demonstrated?
n

n

n

n

n

n

The starting point for demonstrating these qualities is that they should be the default position for
how an Inquiry Chair acts throughout the Inquiry and that they should always be evident in how
a Chair is acting. Selection of an appropriate Chair whose manner supports the qualities is a vital
first step.
Further to this, therefore, an Inquiry Chair should be mindful to avoid any situation where s/he isbeing asked to act in a way which the Chair perceives as being in contradiction to these principles.
At the start of the Inquiry and at the start of the Inquiry report, explicit reference should be madeto the fact that the Inquiry is being conducted under these principles. Further, the Chair should
deal with any areas that are likely to arise in the Inquiry, where these principles could have thepotential of being compromised, or perceived as being compromised, and be explicit in outlining
his/her approach to these challenges.
During the Inquiry, the Chair should work with the Inquiry team and any panel members/assessors
working with him/her to check regularly that the Inquiry is being conducted in a way which
maintains these principles. This may at times during a sensitive Inquiry require recall of certain
witnesses or an open consultation on process with groups of key stakeholders.
In thinking about the questions that will be asked of participants, the Chair and the Inquiry teamshould use techniques such as considering what is being discussed from different concerned groups’
points of view to determine that the questions are being asked in a way that is independent,
objective and fair.
The Chair should reassure any witness of these principles if they seem unsure in giving their evidence,or if they openly challenge the Inquiry’s fairness and impartiality.
The Chair should enunciate the process in opening the inquiry and for the procedural hearing andat new key stages.

36

37

IMPARTIALITY

When is it particularly important to demonstratethese qualities?
nn

It is particularly important to demonstrate these qualities when there has been criticism of aprevious Inquiry or investigation into events for failing in these areas; when the events themselves
concern allegations of corruption, fraud, cover-ups etc.; where it can be seen that the commissioning
body has a vested interest in a particular outcome occurring.
It is also particularly important to be mindful of these parameters and how to manage them whenseeking to adopt innovative practices in Inquiry process.

IN SUMMARYnAn Inquiry Chair should ensure that the qualities of independence, objectivity and fairness
are practised and demonstrated throughout the Inquiry, particularly if there is a context orpractice where there could be a perception that these qualities might be lacking.

Emotions
WORKING WITH
THOSE AFFECTED

38

39

EMOTIONSEMOTIONS

What is the issue for Process Management?

How does one deal with emotion?

There is always emotion involved in Public Inquiries because emotion is intrinsic in matters of publicconcern, and sometimes this can be in intense form due to the fact that likely ‘victims’ of some kindassociated with serious incidents will be involved in the Inquiry process. This will also include those
who are portrayed as ‘perpetrators’ or feel that they are going to be represented in that way. Even
those who have a relatively minor role within the Inquiry may still feel that they need to have theiremotions heard and dealt with, or feel under stress because of the formal nature and significance ofthe process and/or its media exposure.

There are various techniques for handling emotion but a key framework CEDR recommends is toremember the three Rs - Recognise, Respect, and Respond.
n

In dealing with these emotions, it is important to note that they do not occur only when a witness isgiving evidence, but that some listening to the Inquiry may become distressed at other evidence they
hear or in anticipation of giving evidence. Therefore, it is important that the Inquiry has the means
to be able to direct victims and members of the public to appropriate resources and support groups
at times other than during the formal evidence giving.

Why is it important to deal with emotion?
There are several reasons why it is beneficial to anticipate how to deal with the emotion in an Inquiry:nnnEmotion is important in itself as an issue. It is often important for a witness’s own confidence in
the Inquiry process that they feel that a significant emotion is recognised as well as helping theInquiry to understand the importance of what the person is feeling about a situation and perhaps
why. It can be a vital part, sometimes the vital part, for the witness in the enunciation of their story.
Emotion and its management can also change the way a story is told or events
remembered and affect readiness for a solution. It can also obfuscate the issue and thesolution to the problem. And it can influence perceptions of the fairness or objectivity ofan Inquiry process. Whilst people are focussed on emotion, they are less able to understanda problem, find a solution or listen ‘objectively’ to others. It is extremely difficult to consider
something to have finished/been resolved, if you still feel emotional about it to the same
degree. Pent-up emotion is a serious obstacle to progress or moving on from previous incidents.

Is it practical to deal with emotion in a Public Inquiry?
It may not seem so, but emotions can be respected in the way statements are made, witnesses aretreated and examined, and conclusions are drawn and reported.

n

Recognise the emotion
The first task when someone is being emotional
is to recognise that it is occurring. This may
sound obvious and it will, of course, beobvious in particular circumstances. However,there are different ways that people express
themselves and somebody who is extremely
reticent, or who is sighing, clenching theirfists, etc. can be indicating as much emotion(albeit in a different way) than those who are
loud in their protestations. Silence, nervousness or highly judgmental language may
equally reflect a presence of strong emotions.
Respect the emotion
The person has a right to feel the way that they
are feeling and express this (assuming that theemotion is not being displayed in an abusiveway) and it is important for those dealing withthat to appreciate that fact and respect theemotion. An important thing to remember isthat the emotion that the person is displaying
is not how the person is always going to act
or even necessarily what their general feelings
are on something. Rather it is how they feelat that particular moment in time. We allchange how we act and we have all acted‘poorly’ at particular times. Be generous to
the person displaying that emotion in yourattempts to understand it. Recognise it as asignal of serious intent and concern.
Respond to the emotion
Deal with the emotion in a respectful andconstructive way. There are various methodsof doing this that are appropriate dependingon the circumstance:u

Tackle the emotion by directly naming it to thewitness and asking them to explain why they
feel that way? e.g. “[Witness name], you[sound as if you might be/clearly are] very
upset about [issue]. Might we ask you to
explain to us what it is that has upset you?”That allows the witness to feel that they
have been heard and to be free to have theiremotions expressed. Frequently, after being
allowed to have such an expression, thewitness will be significantly calmer and lessemotional in their further evidence.

u

Alternatively, keep quiet and give the witness
time to express themselves in their own way.
Stay patient and calm with such a witness.
The last thing that an extremely upset witness
needs is to be hurried through or asked
questions that are out of alignment with
their current feelings. Equally, an empathetic
hearing - recognising the fact of emotion
and being generous with time to hear it out,
without judging its validity in the context - canmake it easier for a witness to find their way
through the evidence they want to give.

uConsider if a witness box and examinationby counsel for the Inquiry should be precededor supplemented by other process routes notnormally used in ‘court trials’ but available toInquiry Chairs. For example, can a family beallowed to talk together about their experienceto give a collective account with less associatedstress and confusion? Is there scope for apre-examination conciliation process between‘victims’ and alleged ‘perpetrators’ so that

40

41

EMOTIONS

pent-up emotions and pre-established ideas
can be reviewed in a less threatening andmore human context before giving formal
evidence?
u

If necessary, it may be appropriate for thewitness to be given time out to reflect further
on what they want to say, if they are ‘freezing’
during formal examination.

u

If it is clear or likely that the witness is going
to be extremely emotional before they give
evidence, consider whether it would be helpful
to have a member of the Inquiry team talkthem through the process and the likely areasof questioning before they give evidence. (Thisshould be done under the guidance of theInquiry Chair.) Similarly a helpline available tohave someone to talk to or a post-session
debrief, may be useful following the giving of
traumatic evidence.

When is dealing with emotion particularly important?
1 Where the Inquiry’s subject matter relates to death, personal injury, allegations of abuse, negligence,
etc., there are more likely to be concerns of a deeply personal nature.
2 Where there are issues to do with blame which are not going to be resolved by the process itself.
For example, where the Inquiry process is not going to be able to find anyone criminally liable. It
may be that the parties want this to be achieved even though it cannot be.
3 Where there have been delays in the amount of time in getting to the Inquiry process or othercomplexities making it a confused process for participants.
4 Where there are a number of divergent perspectives and no simple answer to the issues of publicconcern raised - even experts bring underlying emotions of good/bad to their thinking!
5 Finally, it needs to be borne in mind that the ‘perpetrators’ are also likely to be in a state of strong
emotion, and not only ‘victims’.

IN SUMMARY
n

n

n

n

Emotion is likely to be a major feature of any Public Inquiry and a Chair will need to respondto it appropriately and have the personal skills to do so.
People show emotions in a variety of ways and a Chair should be aware of how emotions
are expressed or repressed.
In dealing with emotions, Chairs should use the 3 Rs techniques - Recognising the emotion;
Respecting the emotion displayed; and then finally Responding to it appropriately witheffective communication skills.
Adjustments to the process of the Inquiry - such as group meetings, preparation for giving
evidence, post evidence debriefs - may be called for where emotions are particularly marked.

Difficulttopics
WHAT PEOPLE DON’T
WANT TO HEAR OR SAY

42

43

DIFFICULT TOPICS

DIFFICULT TOPICS

What is the difficulty/complication?
Frequently in Public Inquiries, people will need to discuss issues which are difficult for many reasons.
The issue may be connected to, or associated with, very strong emotions; they may feel that there ispotential blame associated with giving evidence, which can lead to negative consequences; they may
find that it is simply a difficult topic to discuss because they do not know what the answer is or they
are unsure what their opinion should be. Chairs may find the answers they receive to questions on
difficult topics to be evasive or limited. In this regard, it can be difficult for the Chair to know thats/he has actually established the facts around a specific issue and so the Inquiry may potentially bedenied a perspective or opinion which would be helpful at an early stage.

How does one deal with this difficulty/complication?
nn

Why is it important to address difficult topics?
An Inquiry is likely to particularly need to investigate these difficult issues and reach a conclusion.
Beyond the Inquiry’s need to give a full and fair account of a particular incident, however, is the
additional point that it is beneficial for those giving evidence to address these difficult topics at an
early stage. This is because these topics are likely to come up again if there is unsatisfactory exposure.
It will also be unhelpful if those involved do not answer the question at the Public Inquiry and thenfind that they are going to have answer the question later or their evidence is queried by the media
for example.

nProvide context. Give participants enoughinformation so that they know the purposeof forthcoming questions and the values ofopen disclosure including acknowledgementof uncertainty.

nAcknowledge that what you are about to
discuss may be difficult or painful for thewitness to hear or answer. Acknowledge
emotions, particularly if a key element.
(See previous section).

“I believe we have heard from other
witnesses that junior staff felt underpressure. My question is not toapportion blame but to see if you
agree a) that the pressure was real;
and b) that it did have consequences
for patient treatment?”

Avoid moving into detail too quickly. Start
from an open question and avoid questions
which contain assumptions or immediateconclusions.

A ‘priming’ comment like this may allow thewitness to give a fuller response.
n

For example, contrast:“Why wasn’t the hospital adequately
staffed on November 11, 2008?”
n

When is addressing difficult topics/conversations
particularly important?
n

n

with:
“What were the reasons for thehospital’s staffing levels on November
11, 2008 being lower than normal?”

When strong emotions are present or likely to be present, particularly when the subject of theInquiry is related to matters where there is a strong personal attachment or involvement.

n

The second question has no implication in theway it is phrased nor is there potential criticism
of the person within the question.

Where delays in arriving at the Inquiry have caused frustration in participants and, subsequently,
have raised a general level of anxiety of those involved and about the process as a whole.

nnnWhen there is a sense that blame may attach as a consequence of answers given.
Where it is problematic as to how best to give an account of a complex set of circumstances orrelationships or organisational responsibilities.

n

Take a best guess as to what the witness might
be thinking when you believe that s/he would
like to say more but still does not feel safe.
For example:

Show that you have actively listened to the
responses to questions through paraphrasing
and summarising. Develop a conversation
rather than simply moving from one closed
question to the next which can create a toneof interrogation.

nTake care that your body language does not
signal what you are thinking about responses
to your questions.
As in a courtroom investigation, check forcollaborative evidence or testimony on
uncertain or difficult issues.
Consider a group discussion format as anevidence method which may bring out the‘whole picture’ more readily and quickly.
(See next section).
In reporting evidence, articulate where there
might be alterative scenarios/assumptions
where there has been evidence that is notparticularly clear.
Be patient!

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“Public Inquiries should avoid mock trial image, says a new
study: The Centre for Effective Dispute Resolution also suggests
Public Inquiries often promise more than they can deliver.”THE GUARDIAN, 21 MARCH 2013

Workingwithgroups

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WORKING WITH GROUPSWORKING WITH GROUPS

What is the difficulty/complication?

How does one work with groups?

Inquiries tend to have large numbers of witnesses, representing a variety of groups. Sometimes thesepeople may be better represented as groups rather than individuals (for example several relatives ofa dead person or members of a hospital management committee). The problem comes that either
the Inquiry traditionally opts to interview all of these people in a serial order which can be timeconsuming and ineffective, or the Inquiry does not call certain witnesses. Whilst it can be importantin certain situations to determine what certain individuals thought or remembered, at other times itshould be remembered that it can be of benefit to have group discussions to create a more holistic
picture of ‘the truth’.

There are specific techniques which should be considered as an alternative to serial witness evidence
gathering and which will work differently with different groups:

Why is it important to work with people in groups?
In groups, people are able to correct or quickly supplement each other’s evidence and collectively cometogether to present a full story. If in a group, tense witnesses may give more relaxed testimony. If agroup of experts, other experts may be immediately able to refine or explain language descriptions
or correct nuances of interpretation or provide alternative inferences from factual evidence.
Further, working with people in groups facilitated in a skilful way, can encourage those who areshyer to give evidence which is helpful and to tell their story openly. Additionally, if the alternativeis that these people are not called as witnesses at all then there is the potential that they will feelunrecognised and unheard in the Public Inquiry process. This can be a significant problem in enablingthese people to find their own sense of resolution from the process.
Finally, working with people in groups can make the process significantly more efficient and costeffective.

nGroup Review This is a process whereby groups of people are brought together in a group topresent their evidence. As a group the Chair or counsel for the Inquiry can ask them various questions
which are a trigger for informative exchange of views. It owes its origins to an Australian techniqueknown as ‘hot-tubbing’ whereby multiple witnesses, usually experts, are brought together to give
their evidence in a group discussion format. This is useful because it allows witnesses to clarify
detail, language and possibly memory together. For example, where a family has a sense that theirrelative suffered alleged neglect in a hospital where the relative has died. As the Inquiry is not trying
to determine anyone’s civil or criminal liability (instead it is trying to determine what happened andmake recommendations for the future), it has the ability to hear evidence in a format which would
not necessarily be possible in such a trial because witnesses can remind each other of a sequenceof events. Therefore, it’s possible for the family to discuss what happened and remember details
together (for example what time they arrived at the hospital to visit a patient) and develop together
an idea of what happened. This can be a considerable aid as it means that the Inquiry team canconsider together what the evidence from the family is and it may indeed be more revealing.

Expert Groups In a similar manner it may be possible to bring experts together and have them
openly discuss and critique the evidence. (This was the first application of group review). Whilst there
is obviously benefit in having experts before a hearing compare their evidence to reach a consensus
on what they agree on and what the major points of difference are, it can also be of considerable
benefit to have experts give witness testimony together collectively. Not only does it give the Chaira greater understanding of how to compare these evidence strands, it also allows for the witnesses
to clarify their points/thinking and also potentially amend it based on what others are saying, or to
explore nuances in their approach. It is also an extremely efficient way for the Chair to cut out jargon
and find a way of having the evidence presented in a way that makes it the most comprehensible
and immediately comparable.

n

Focus Groups If there are large communities of interest connected with an Inquiry such asprofessional or industry sector bodies, it may be appropriate to run focus groups or seminars, and/or conduct surveys etc. through a polling company in order to gain broader perspectives. Not only
would this enable an Inquiry to know what the wider public perspective or stakeholder group viewmight be, but it also gives an understanding of what percentages of people thought particular points
were important, as well as potentially being able to be used to define/refine the ‘industry standard’.
This makes it easier to justify an Inquiry making certain recommendations if they match what the‘public’ think. It can also be an important stage in winning over or influencing groups who have toimplement or live with recommendations from the Inquiry.

n

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WORKING WITH GROUPS

It also potentially allows those who have certain key interests to be targeted following the Inquiry
with further information and suggestions about the recommendations that are important to or
would benefit them. This process is already widely used in major infrastructure and major planningexaminations and Inquiries. It is challenging for the Chair to ensure that evidence is properly tested
but it is a very productive and time-saving way of elucidating the facts which can be agreed, and inchallenging opinions.

When is working with groups particularly important?
Working with groups can be particularly important when there are a large number of parties involved
and there is a need to give understanding to individuals but the practicalities of so doing make thisnot possible or not so efficient. Similarly, there can be an issue where much of the information fromvarious witnesses is likely to be extremely similar. Whilst an easier method may be to have a sample
from such a group or to use representatives etc., it can also be more helpful for those involved tofeel that their view has been heard to be actively consulted together in regards to their evidence.
Alternatively, there is benefit to having people together in groups when there are a large number ofpeople giving evidence which is likely to be both similar and contradictory and it is more protracted
to test this by sequential testimony - for example, where there are multiple experts or similar.
Working with groups may also be vital if the recommendations from the Inquiry have to be adopted
by professional communities or organisational players such as trade bodies.

IN SUMMARY
When working with groups the Inquiry should:nnConsider how groups of experts or family groups can be brought together to give theirevidence, saving time and helping them consider what they are saying in a way where they
can correct each other and/or draw collective conclusions or emotional comfort.
Consider how to use groups to test the water on stakeholder views and particularly options
for policy recommendations.

In thePublicInterest

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PUBLIC INTEREST

PUBLIC INTEREST

What is the difficulty/complication?

n

A primary purpose of a Public inquiry is to alleviate public concern over an event by investigating
it appropriately and making apposite recommendations. It is therefore important that the Public
Inquiry process actually remembers that the public are following the Inquiry and will need to findout what is happening whilst the Inquiry is in progress and after it has concluded. The traditionalroute of defining ‘Public Inquiry’ as one of simply making the Inquiry room open to the public (whilst
this should occur) is not enough. Thought needs to be given to how to create active engagement.

Why is it important to ensurethat the Inquiry respects the public interest?

n

As noted above there are several groups who are interested in the outcomes of a Public Inquiry
including communities of interest and the wider public. Ultimately an Inquiry’s purpose is related
to matters that have caused or are capable of causing public concern and therefore it is expectedthat the Public should be at the centre of everything that is being resolved. It is important therefore
for the Public to have good access to the Inquiry in terms of being able to hear evidence, have theInquiry consider public sentiment in terms of the questions that are asked, and involve the Public in
the conclusions to the Public Inquiry.

How does one improve public engagement?
There are several methods that can be used to improve and facilitate public engagement.
n

The simplest is for those conducting the Inquiry to determine beforehand what the interests ofthe public are in regards to the Public Inquiry, and create questions that will address these specificissues to enable it to be seen that the public’s views are incorporated. In treading this line, it
should probably be established that in general the public’s perception of what it is vital to consider
should be followed unless it is inappropriate to do so for some other significant reason which is
explained by the Chair in writing to be posted on the website of the Inquiry as to why it is not
appropriate. For example, if there was a public perception that some sort of cover up operation
had occurred in relation to an incident, questions about this should be asked by the Chair so that
there is a public record of the answers, even if the Chair personally thinks that a cover up did not
happen or is extremely unlikely. The Chair’s conclusion can dismiss this possibility but the questions
will have been asked and thus the Public Interest will have been satisfied. More commonly, thequestions that are of Public Interest are likely to be ones that the Chair thinks are relevant andso there is likely to be some agreement by the Chair as to the questions and how they could bephrased. This is important as it will show that the Chair has approached the topic with an open
mind which is critical to public perception.

In order to determine what questions are important to the public, there are several mechanismsthat could be used. The first phase of testing will often be in the exchanges of comment that
occur prior to final Terms of Reference being drawn. Later there can be a call for questions andsee what is received with the most frequent, and those that are considered particularly pertinent,
being asked by the Chair. Alternatively, the Inquiry could use other data gathering techniquessuch as surveys or focus groups or citizen juries or similar to determine what the public sentimentis. It may also be possible to use representatives from particular interested communities to sit asassessors with the Chairs and with whom the Chair can consult in terms of what their particular
views are and what questions might need to be asked. In using representatives from communities,
these would need to be agreed by those whom they represent and they would need to agree toappropriate terms of engagement with the Inquiry process.
There should be consideration of whether it is possible to have a public panel as a sounding board
or focus group to consider the evidence of the Public Inquiry and to assist the Chair. These panels
could take various forms. At their most involved, they could involve bringing in a ‘citizens’ jury’style panel who would listen to the evidence alongside the Inquiry panel and be able to provide
feedback to the Inquiry Chair on how they see the evidence. This obviously has some difficulties interms of composition, remuneration/transparency, independence, etc. However, for some private
Inquiries it may be worth constructing a group of this sort in order to ensure a more tangible senseof public engagement. A more practical mechanism may be to have an advisory panel from amajor stakeholder group such as core ‘victims’ to be consulted on the Inquiry process and areas
to highlight on a regular basis, whilst starting with a clear ground rule of the need to preserve
the Chair’s authority to take his/her own independent line.

Informing the public
via the media and the Inquiry websitenn

A critical conduit of the information about the Inquiry is the media. An Inquiry should have ideallya media professional on the team who is able to create press strategy so that those working on theInquiry know how it is presenting information to the media and then on to the public. Important
aspects of this press strategy should be an understanding of the importance of clarity about theway in which a Public Inquiry works in general and how this Public Inquiry works; what the Termsof Reference are for this Inquiry and what its potential outcome will be; and how evidence will begathered and what mechanisms there are for the public to get involved. The next section of thisGuide has information on how to handle the media.
There should be provision of a standardised press release explaining briefly what a Public Inquiry
is in general and why they get commissioned, whilst also explaining what is happening with theparticular Public Inquiry. This should also be clearly explained on the website of the Public Inquiry.

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PUBLIC INTEREST

PUBLIC INTEREST

Further, there needs to be monitoring of media reporting so that inaccurate reporting can be dealt
with. It would be useful for the Secretariat to have a review with the Chair of the Inquiry prior toits commencement of how s/he wants to deal with comments in the media and what they want
to do when things are reported inaccurately (i.e. what level of inaccuracy needs to be reached fora clarification to be put out? What types of issues? Who needs to be thought about - vulnerable
witnesses, those with potential liability?)n

We would also argue for increased use of social media by Public Inquiries - including possible
use of Twitter to provide links to the Public Inquiry’s official transcript for each day; links to witness
testimony etc. An Inquiry should promote its website as being an official source of information
and a ‘go to’ place about it. (Consider former examples of Inquiry websites such as The Leveson
Inquiry website - very good at being a source for updates and information; The Shipman Inquiry
website is an example of an extremely detailed resource. Other websites, for example Al Sweady,have been limited to publication of the transcripts etc. Al Sweady should be noted for its use of
an Arabic version as well as English to increase knowledge and understanding). Essentially a key
consideration for the Inquiry should be to ensure that the website is well considered by the public
as a reliable resource. This would work by making sure that it is sufficiently detailed and updated,and by using an appropriate team to ensure this. Additionally, newspapers, news websites, Twitterusers etc. could link to the website as a standard feature.

n

u

n

1
2
3
4
5
6
7

To make sure that the Public are kept informed
about what the purpose of the Public Inquiry
in question is, by specific reference to its termsof reference and how the Inquiry will end;
To make sure that the Public understand what
the roles of those involved in the Public Inquiry
are and what they do. In particular they needto understand the following roles:
Chair of the Inquiry;
Lead Counsel to the Inquiry;
Junior/other Counsel to the Inquiry;
Solicitor to the Inquiry;
Secretariat/Secretary to the Inquiry;
Witnesses - and what their duty is (to provide
information; not to protect themselves);
Counsel for witnesses, core participants,
departments etc. and specifically what their
duty/role is;8 		 The department that commissioned theInquiry and what their involvement is with
the Inquiry (to stress the independence of
the Inquiry/whether the department is goingto make representations to the Inquiry; how
the department will respond to the Inquiry
report/their respect for the Inquiry as aprocess);9 		 Other Inquiry staff - support staff, etc., what
their precise role is and confirm theirneutrality;
10 Any official observers, e.g. an assessor panel;
11 The general public - how they can get
involved/the importance of their position asreaders of the report and scrutinisers so thatwhat is recommended in the report happens;
12 The media - what their role is in terms of		 reporting the Public Inquiry;
13 Parliament.

On the launch of the Inquiry, it can say that
the Inquiry has been launched and that a Chair
has been appointed and provide the speech/
statement of the Minister who created the
Public Inquiry. It should then specify what ishappening at this stage (i.e. the appointmentof other Inquiry staff) and provide proposed
timetables for hearing of evidence and theneventually report publication.

u

It should then be made clear at all points up
to the start of the Inquiry what is happening.
Ideally these should be at least monthly
updates.

u

When the Inquiry starts, the website should
be updated daily (if not more often) with newmaterial. The Inquiry website should explain
in an easily accessible format what has takenplace. Web streaming (if permissible) should
be enabled.

u

It would be beneficial if the Inquiry provided
weekly summaries (i.e. on a Friday when often
a hearing is not sitting) - of what has occurredthat week and a summary of the evidence.
This should be presented in an entirely neutral
format and can be presented as a series of web
links, e.g. On Monday 11 April, evidence wasgiven to the Inquiry by [Witness name] startingat [*]. Counsel for the Inquiry asked questions[*] then other counsel etc. [*with hyperlinks
to the appropriate pages of the transcript].

Key features of use of press relations/social media etcn

To make sure that the public understandthe process of the Public Inquiry and what
the timetables are for hearing evidence.
More specifically, it is important that theInquiry does not ‘go silent’ at any point fromcommission through to report publication.
The Inquiry should explain on its website what
is happening at all points. For example:u

At the beginning of each week, there should
also be a brief paragraph provided on the front
page of the website naming what is goingto happen in the Inquiry on each day of thecoming week.

u

If the Inquiry conducts site visits or holds
seminars to consider key issues such as to test
potential recommendations, a summary of thisactivity and who was involved.

uWhen the Inquiry team retires to write thereport, there should be an update on thewebsite about the fact that this has happened;
an estimate of the time taken to complete
the report and a rough outline as to what
exactly completing the report involves andtime estimates (e.g. amount of time spent
reviewing all the material; time taken to draft
the report etc.). There should also be an
explanation of what the other support staff
are doing during this period and the amountof help that will be given to the Chair. For
example, it needs to be made clear to the
public that the support staff will provide
help in terms of typing/structuring but notwriting the actual content of the report. If
this is not the case, it should be made clear
precisely who has influence over how thereport is written; what their roles are andwhat their status/independence is; and there
should be an explanation of who is notshaping how the report is written (e.g. theMinister who commissioned the Inquiry, his/her department etc.). Potentially as well theInquiry Chair should express what is not going
to be taken into consideration (for example,
media speculation/inadmissible evidence).
Finally, it should be stated on this page as areference a reminder of what the Inquiry has
been created to look at and what is going tohappen in that regard.

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PUBLIC INTERESTuu

Prior to reporting the Inquiry, there should
be information provided about what the final
timetable is for release of the report, including
about any embargoed period/lock in when thedepartment/major figures/press etc. are going
to be able to read the report before its final
publication. It is also beneficial to explain the
purpose and reasoning for any embargoed
period/lock in.
On reporting the Inquiry, there needs toa press release issued etc. with the report,

explaining the entire Inquiry process andwhat the report is about, possibly answering
anticipated concerns.
u

It may be beneficial in some cases to publish
information about what the response is fromthose who have been criticised.

uFinally, the Inquiry website could be used torecord progress and updates in relation towhat has happened post the Inquiry and how
it’s being dealt with.

When is it particularly importantto have public engagement?
Overall, there needs to be a continued focus from all involved about the ‘victims’, the concerned
public and their attitudes in relation to this. There needs to be an understanding of the fact that‘victims’ views particularly need to be respected and understood and that the Inquiry is happening
because it is recognised that they have suffered.
Frequently, it is the case that these people have been subject to a completely unacceptable situation
which has caused them severe suffering, including an uncertain or difficult period of comment before
an Inquiry is arranged. One aspect of the Public Inquiry’s role (certainly a reason for its creation) is that
it is a public recognition of this suffering and the unacceptable state of affairs which has occurred.
It is an important part of the catharsis process that the section of public involved has been given an
opportunity to have their story told, plight heard and their recommendations for change put forward.
This happens with almost every Inquiry with the Inquiry preface (or equivalent which explains what’s
happening) expressing regret for what has happened etc.
What is important is that this message remains clear to all involved in the Inquiry throughout its
investigations and that the highest standard of professionalism and sensitivity is deployed by all while
retaining appropriate independence and objectivity.

Handling
the
media

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THE MEDIA

THE MEDIA

Handling the media
It is crucial that as soon as possible the Inquiry is capable of dealing with media enquiries and can
respond swiftly. Thanks to social media (and ‘industry sources’) the media tends to learn aboutsituations quickly. One should assume they will be in contact instantly that the Inquiry is announced(or new details emerge) whatever the hour. Not having clear lines of communication is likely to
exacerbate the situation. If a journalist cannot get a quick response from the Inquiry office they arelikely to track down the Inquiry Chair’s home number and call their family at home (particularly outof hours).
Having someone (or even a press team) tasked with dealing with enquiries is essential but so ismaking sure that all those working on the Inquiry staff understand the process for enquiries. By
having awareness of a process you can both avoid off-the-cuff remarks to journalists (that mightprove embarrassing) and channel journalists quickly to the right point of contact.
The person responsible for handling the media (and press team if there is one) should have a coremessage they are able to deliver about the Inquiry and any other pertinent issues. This core message- which may often be used as a statement to the press - would preferably be drafted jointly between
the person responsible, who will ideally have good experience of working with the press, and theinquiry chair.

Talking to the media and interviews, prior to, during
and after the Inquiry
Having identified the media’s first point of contact
the Inquiry should identify a spokesperson (orspokespeople - one of whom may or may not
be the Inquiry Chair). It may well be useful thatthe media’s first point of contact is an authorised
spokesperson, although it is often appropriatethat limits be put on what they say - mainly
delivering the approved message.

The truth is at an interview there is often little thatcan be said, but an interviewee should emphasise
four things in every interview:

Never do interviews on the spur of the moment- always make sure that the interviewee
understands the context, who the audience
will be and if possible know what some of thequestions might be.

n

n

n

n

Show they care about the people (or person)
involved
Show that the Inquiry is taking its independentrole and conduct seriously
Provide re-assurance about what the Inquiry
will doEncourage the public to follow the process
and become more engaged with it if they feelthat they can add value to it.

The spokesperson must be honest but notconjecture or accept responsibility for subjects
outside of the Inquiry’s remit or their knowledge
and try to only talk about things where they havedirect control or responsibility. The key is to becourteous and helpful while sticking to the points.
Try to communicate as outlined above and where
possible talk about any positive steps.
Journalists can become very forceful whenpursuing a news story (it is part of their job)
particularly where there might be someone toblame. Whatever happens you must remain
approachable and professional at all times;
otherwise your attitude might become part ofthe story. You will want to come across looking,sounding and behaving professionally at all times
that you are dealing with the media.

Press information
Decide what information you can and want togive journalists about the Inquiry and the issues
it is considering and produce a pack for media
outlets. This pack should contain any essential
facts or background information which puts theInquiry into context and ensures the media gettheir core facts correct. Be aware that you may besometimes asked for photographs to accompany
the story.
When necessary provide updates to the pack(or bulletins or press releases) in order to keep
journalists informed because the more you
are the provider, the less they will need to findinformation from potentially unreliable sources.

Off the Record
Everything you ever say to or in front of any journalist is potentially on the record,
to assume otherwise is very risky.

Facilities for journalists
and whether to hold press conferences
As well as having a clear line of communication for the media, prepared spokespeople and good
information when setting up the Inquiry, you need to consider what facilities you may want tophysically provide onsite. To some degree this will be determined by the venue used. If your Inquiry
takes place at an established venue, for example the Royal Courts of Justice in London, Glasgow
City Chambers or the Welsh Assembly there will already be many facilities in place, such as outside
broadcast points, Wi-Fi or processes such as press accreditation and passes. If your Inquiry is being
held at a venue where this has not happened before you need to make sure that your press teamare equal to the challenge of handling this to avoid potential chaos and frustration from journalists.

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THE MEDIA

There may be occasions when elements to be considered by the Inquiry are private or confidential. In
these instances either a clear embargo on reporting should be made or the press and public excluded
from a hearing. If either of these options are considered it is important to be as clear as possible
with the media as to why this decision has been taken and what the implications are (for example
for how long any embargo might be in place).
Having a press conference is not essential but can be useful when there is a huge level of press interest
as one can communicate to all the media in one go. To ensure things run smoothly you will need ahost to outline any rules and make introductions. Any presentations should be short (so set a time
limit although realise these things can start late) and allow time for questions. When there are ahandful of broadcast journalists you can allow time for interviews (although not if there will be somany it will take up the rest of the day). All of the above elements for handling the media shouldcome into play at a press conference - how you behave, good background information and having
a core message.

IN SUMMARYnnn

Be prepared for media enquiries by having a dedicated person or unit dealing with them.
When giving interviews, remember to reinforce the message that the Inquirya) cares about the issues;b) is investigating them fairly and impartially; andc) will reach a carefully considered outcome.
It is of benefit to provide a basic briefing pack on the Inquiry to journalists every time you
work with them.

Creating
effective
follow-on
FROM RECOMMENDATIONSTO OUTCOMES

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FOLLOW-ON

FOLLOW-ON

What is the difficulty/complication?
Many Inquiries come up with a series of detailed recommendations for ways of preventing a recurrenceof the events leading to public concern, but for a variety of reasons, these recommendations arenever successfully translated into successful outcomes. Recommendations which are made but are
not implemented ultimately can be seen to have failed. An Inquiry will have failed to achieve one ofits core purposes, if what it concludes is not implemented. Therefore it is in a Public Inquiry’s bestinterests that the report produced is comprehensible, comprehensive, practicable and has scopefor engagement with, and commitment from, those tasked with enacting the recommendations
contained within it.

nOne obvious corollary of such a goal is that there needs to be a mechanism for ensuring that therecommendations that are made are tracked to see if they are implemented.

How does one improve the effectivenessof and implementation of recommendations?
nSome of the earlier considerations we have outlined for dealing with groups or stakeholders can
assist both in formulating effective recommendations and building an early engagement withinquiry issues or developing thoughts. Starting with a clear purpose to the Inquiry therefore willboth allow for and enable far more effective recommendations and action plans later.
nnn

The most critical point of any Inquiry is necessarily the publication of its conclusions andrecommendations. Whilst there are considerable benefits (as we have outlined above) of carryingout the processes of the Inquiry in terms of reference to victim recognition etc., the ultimate successor failure of an Inquiry will be determined from whether it has clearly produced an analysis ofwhat happened and produced workable recommendations for review. Ultimately, if an Inquiry is
to have any impact, its conclusions will need to be reasoned, comprehensive, real world aware,
succinct and practical. Further, we would stress that the conclusion of the Public Inquiry should
not just be the publication of a report alone but also with the Chair of the Inquiry presenting thereport and stressing the most important elements of it. Further there should be a mechanism
following an Inquiry to check whether or not its recommendations have been implemented andto support the implementation of recommendations. The most appropriate person to check this
implementation may be the Commissioner of the Inquiry.
An Inquiry report will necessarily be both backwards and forwards looking. It will both have to
explain what happened, and why, as well as establishing what recommendations can be madefor the future.

n

The first major purpose of an Inquiry report is to explain more fully what happened and why.
This calls for the kind of clear investigative techniques and forensic examination typically associatedwith the court system - thus the frequent call for a judge to chair an Inquiry. It is also however,necessary to consider who the various readers are of the work. It should be considered how towrite the report in order to meet the needs of stakeholder groups, and ensuring engagementswith their evidence and with any recommendations. Conclusions and recommendations will havemore impact and force if they are written from a position of recognising the particular perspectivesof those for whom the Inquiry has been conducted. Unlike other settings where the messages
that are written in a judgement or conclusion will be filtered through lawyers etc. before being
understood by the client, with a Public Inquiry the conclusion will be read by members of the
public who may lack legal understanding/education. Whilst bearing that in mind, the reader
written to should be considered to be an intelligent reader who has no knowledge of the situation.
Unless the Inquiry is a Private Inquiry and only intended for a readership who have the requisite
technical knowledge, anything that is vaguely technical should be explained briefly for the reader
so that he/she can understand what is being said. A well-written Public Inquiry report should
be comprehensive enough in its coverage that the reader is able to follow the conclusions of thereport and how the recommendations have been developed without needing to consult external
documents or read external materials for understanding. For similar reasons, a good Executive
Summary at the front of the Report is vital.
The report needs to identify at the beginning what its remit is and the extent of knowledge andunderstanding that the Inquiry team have needed to be able to reach a conclusion. In drawing
conclusions as to what happened it should be determined where it was possible for the Inquiry
to make firm conclusions and where it was not.
If a particular factual scenario is in dispute then the Inquiry should determine whether it is necessary
for the Inquiry to make conclusions in relation to that particular factual scenario or not. It may bethat it is not relevant (i.e. either factual scenario would still be a fault) or that in the Inquiry’s opinion
it makes no difference to what is determined. In either of these circumstances it is still worth theInquiry stating why it makes no difference but explaining that it has taken it into consideration.
If the factual scenario is something that the Inquiry is able to determine and is important toonly one of the parties (for example certain campaigners may see a particular factual scenario as
important), then the Inquiry should state the factual scenario it finds whilst acknowledging that
it is non-determinative. Reasons for doing this are a) that it prevents difficulties later where theInquiry is criticised for not having considered an important element; and b) it provides ‘closure’
to those who consider the matter important and shows that the Inquiry is being conducted as amatter of public interest rather than from an overly legalistic or detached perspective.

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FOLLOW-ON

FOLLOW-ON

n

n

n

n

In determining a situation which favours one party’s views of events over the other it should be
noted that there is this discrepancy and it be explained why one party’s explanation of the situation
may have been singled out for attention. It should also be explained why a particular scenario
has been favoured over another. If it is considered that one party has lied or been economicalwith the truth about the situation this needs to be considered extremely carefully before being
found as a conclusion.
In writing recommendations, thought needs to be given to how to provide practical recommendations which are actually capable of or indeed likely to be performed. If a recommendation is
likely to be difficult to achieve or unwanted by the group that are tasked with carrying it out, thensteps should be taken to ensure that the recommendation is broken down and is actually a seriesof practical doable steps. Thought should be applied to how engagement can be assured. Few
organisations are likely to say that they do not want to carry out a recommendation but quite afew will say that the recommendation is impossible or difficult to carry out. If this is the case or
could be presented as being the case, no matter how valuable the recommendation is, it simply
will not happen. If a recommendation is particularly onerous this should be acknowledged andthe importance of the recommendation emphasised. Additionally, it may be worth thinking
about how you can build some flexibility into the way that the recommendation is carried out.
This means that a recommendation is more likely to be performed and by allowing an element ofchoice to the process it allows the party who is being asked to change their systems to consider
that they have retained an element of control.
When writing recommendations, it is worth considering if they can be placed in an order or
hierarchy identifying which are the most critical to be carried out. Whilst emphasising that all of
the recommendations should be implemented, this provides an additional impetus to priority
recommendations and makes them more likely to be implemented. A body that ignores therecommendation is ignoring something that has been designated as important. Equally attention
needs to be given to the number of recommendations - the higher the number, the less likely there
will be effective implementation.
Finally the effectiveness of recommendations may also arise from the way an Inquiry process
has been conducted. If there is ongoing and effective engagement with key stakeholder groups,
understandings may already have been developed - both as to what is practicable on the one hand,and on the other hand, what has to be changed by those accountable to prevent recurrence offailings in systems. In some instances, reforms may already have been prompted by the focus andprocess of the Inquiry, rather than delayed for a formal recommendation stage.

Monitoring of recommendationsn

It is worth thinking too about subsequent
surveillance of recommendations and how
this might occur. At the moment, there is
no requirement that a body implement any
recommendation made by a Public Inquiry.
There may be pressure on the body to
implement from certain groups, but there is
no legal mechanism requiring any organisation
to implement a recommendation of a Public
Inquiry. Nor are government departments
obliged to act, although a statement would
normally be expected from the relevant
minister. It is this lack of legal compulsion
which led to CEDR originally suggesting the
introduction of an Implementation Action Planfor recommendations whereby organisations
would be required to indicate how they had
responded to a recommendation within 12
months of the publication of the final report.
This would mean that recommendations could
not just be ignored by organisations but rather
they would be required to comment on how
they had implemented a recommendation andif they had not implemented a recommendation
their reasoning for not doing so. It would
also allow the organisation responding to
the Public Inquiry to detail timescales for
implementing recommendations and ways
in which this can be checked and clarified by
the Inquiry Chair or the body responsible for
the Inquiry.

n

n

n

Alternatively if the Inquiry Chair does notwant to police the recommendations thens/he should consider whether there is analternative body that could be identified tooversee the recommendations or if potentiallysuch a group could be created by combining
core participants or by alternative methods. A
section of the Inquiry Report recommendations
can endeavour to address this issue of effective
monitoring subsequent to the Inquiry report.
A Chair if using the above method should think
about what s/he will do if recommendations
are not implemented. The most obvious- and probably easiest - thing to do is for
the Chair to make a public statement saying
which of his/her recommendations havebeen implemented and which haven’t andif s/he is satisfied with the ways that therecommendations have been implemented or
the reasoning provided for not implementing
a recommendation. If s/he is not happy
with the way that the recommendation has
been carried out or the reasoning for not
implementing a recommendation, then s/hecan make a statement to this effect. In somecircumstances this of course may be difficult
either politically or because the Chair’s role
has effectively ended once the report is issued.
It may be practical and to be encouraged forthe commissioning department to report backa year after the report has been delivered
about what actions have been taken in relation
to the report in the preceding year.

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FOLLOW-ONnFinally, an Inquiry follow-up could note where it has had successes as well as failures with therecommendations. If there has been a major change in an organisation’s practice as a result of an
Inquiry’s report and recommendations and this is of major benefit to the public, then it would bepositive for the Inquiry to recognise this achievement and publicly comment on it. A criticism of
the Inquiry process is that it has no effect so it is important that positive results are communicatedto the public and understood. As with some of our other recommendations, this is news that
could be communicated well by an Independent Inquiries Office or the commissioning department.
Indeed it may be of benefit with Government commissioned Inquiries, for the Government toproduce an annual report of all the outstanding recommendations across all of their Inquiries andwhat the Government proposes to do about these.

Reviewingprocess
issuesPLANNING
AND TECHNIQUES

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PROCESSPROCESS

What is the difficulty/complication?
If we have one lesson that we have learnt from our years working in dispute resolution, negotiationand thought leadership, it is this: be aware of the significance of process and the importance ofgood process design. Its true significance can be lost in the heat of debates or inquiry about thesubstantive issues at the heart of the Inquiry.

nThis section aims to look at the ways in which planning of Public Inquiries can be done so that itallows for the most efficient and effective use of time and resources. Within the design phase of the
Public Inquiry there should also be the opportunity to improve the process of the Public Inquiry itself
by using process experts and skills to define the best way of conducting a particular Public Inquiry.
nAs a very basic principle thought should begiven as to how many Public Inquiries need tooccur into any event. There has been justified
criticism recently of the number of Inquiries
that occur through different agencies into
the same set of events - for example, it isstated that there are 30 separate inquiries andinvestigations into the allegations of abuseby the television personality Jimmy Savile.
Whilst it may be necessary for all of the various
agencies to conduct these investigations
to see what happened, it is clearly not themost efficient way to reach a conclusion tohave 30 separate investigations where theirconclusions and material considered arelikely to be similar or alternatively worryingly
inconsistent.
By having so many different investigations
into the incidents, it is likely to make theinvestigations more, not less, harrowing
for the victims of Savile’s actions as well as
creating the foreseeable problem of producing
different conclusions and conflicting
recommendations and mismatched follow-up.

For example, if the police are called as a core
participant in multiple inquiries and receive
different conflicting recommendations fromeach Inquiry, they will either have to decideon which recommendation to go with(creating a dangerous position of having a
potential hierarchy of Inquiry) or ignore therecommendations, rendering the process
ineffective. If Jimmy Savile had been alive, hewould potentially have been able to argue thatthe number of alternative investigations into
his behaviour prevented him from being able
to defend or represent himself appropriately
and that he had been denied due process.
The Crown Prosecution Service would not beable to bring 30 separate criminal procedures
against an individual simultaneously for thesame issues but rather would be required
to run them together. Therefore, it seems
odd that Inquiries do not follow the sameprocedure to prevent over-analysis andunnecessary cost.
Thus it is worth considering whether it ispossible to run Inquiries together withmultiple agencies and share resources.

nEqually, it may be useful to consider whether
there can be multiple processes or focussed
Inquiries running at once within the sameumbrella Inquiry. For example, it might bepossible to have a conciliation process runningfor victims and responsible players under theumbrella of a single Inquiry at the same time as
the investigatory processes. If it is possible toseparate out these processes it can be helpful
for those affected rather than have them wait
for the outcome of the Inquiry to begin having
these conversations with those that they
perceive as ‘perpetrators’. And often by thatstage when the ‘ashes are cold’, there may be
only legal action left to consider (itself a way
in which Inquiry processes can move on to
become protracted civil procedures).
A mechanism of doing this is to hold townhall style meetings between those involved
where the Inquiry Chair both explains theprocess of what is happening and allows those
who are attending the Inquiry to state what
it is that they want separate from the Inquiry.
That way these processes can be established
for them if necessary.

nnOne process which has worked in previous
Inquiries (e.g. The Stephen Lawrence Inquiry)
is to use mediators or a facilitator to liaise
between the Inquiry and communities ofinterest. This can enable communities
affected to have their opinions heard but
it also removes the need for an individual
citizen to have to follow every single momentof the Inquiry hearing to feel that they havea purpose and ability to contribute to thediscussion. A more recent innovation in
Inquiries has also been to hold ‘seminars’ on
specialist issues or for purposes of considering
recommendation options.
Thought needs to be given to scheduling andthe timing of producing witness statements
so that it is convenient to those who areattending the Inquiry and those who arerunning it. This will obviously be the job of
the Secretariat in liaising with witnesses as towhen they attend but the overall structure
should be considered by the Inquiry Chair.
In particular an Inquiry Chair needs to think
about when they want to broadly hear fromdifferent core participants and what thelevel of questioning should be. There canbe a utility to mixing up the order of core
participants from likely different perspectives
so that the Inquiry does not go into a default
litigation mode with a view of there being one
side of the story and then the other.

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PROCESSPROCESS

Style and tone of the Inquirynnnmake a recommendation or contend that it is still important in spite of the practical problems
presented. If recommendations and points are considered in this more reflective way then there
can be a deeper focus on possibilities for resolution before the Inquiry chair has to sit down andmake final decisions.

The default style of many Public Inquiries although intended to be inquisitorial is the (adversarial)
courtroom. Design thought should be given to whether this is optimal for an Inquiry or Inquiry
issue rather than following blindly the assumption of judicial manners.
The most appropriate style may use multiple different techniques. If you choose to run the process
in a traditional courtroom style (or even in an actual courtroom) be at least conscious of the factthat you have chosen to do it like that and your reasoning for so doing. If you are not sure why
you are doing it in that style, and especially if you don’t think that that style is the most appropriate,
then you should reconsider which other formats might be available and appropriate.
Avoid if possible the temptation for the Inquiry to enter traditional legal Examination-in-Chiefand Cross Examination mode. Not least because a true Inquiry should follow an inquisitorial model
rather than adversarial. If the Inquiry is trying to get as much information as possible, there is little
benefit in getting people to feel that they need to be guarded in what they present or for them toface a staccato line of questions. The ideal way of conducting an Inquiry is to allow witnesses tosay what they want to say as well as asking them questions to ‘supplement’ the information. In
that way the witness can feel that they have contributed exactly what they wanted to contributeand the Inquiry does not miss vital points from thinking that it has not heard evidence that itshould have done. Core participants will invariably prepare their own witness statements which
will be submitted to the Inquiry but it may be beneficial for minor witnesses to also be asked toconsider before they appear what it is that they want to say and to send a limited preparation.
Within mediation, we limit parties’ position statements in length which encourages parties to focus
on what they really want to say and prevents rambling. We also encourage people to express
themselves and what they want to say about the situation at the beginning of the process. This isan extremely useful exercise as it prevents the party from saying that they were unable to express
how they really feel about the process and by ‘venting’ their emotion early on they may be moreable to answer difficult questions later on more directly. It also helps with the commencementof the reconciliation process.

n

n

n
n

There are certain other techniques that can be used which are of help to the Public Inquiry Chair.
The first of these is explicitly to encourage parties to consider the views of others. This can bedone by asking the witness to put themselves in the other person’s shoes and ask what theywould do in the situation presented to them. The technique again allows parties to identify not
only whether what they are requesting is reasonable but also look at what practically could be
done. This is especially important for considering recommendations. For example, a relative of
someone who has died in an alleged police malpractice incident may want the police to change
their entire method of doing something. However, if that participant is presented with the factthat that cannot pragmatically be achieved, then the relative might either change their position
to suggesting something which is more practical, state that they do not have the knowledge to

If many witnesses are from the same location or the location is part of the ‘situation’ it may
be easier to move the Inquiry to their location for interview rather than move participants to you.
Choosing a space where people feel comfortable can aid memory, encourage honesty and makewitnesses feel less intimidated.
Additionally, there needs to be recognition by the Inquiry Chair of the distinction between opinion,
fact and emotion and how the Inquiry needs to understand all three concepts. Within a Public
Inquiry, it is likely that the evidence will need to cover determining what has happened, the impact
on the witness in terms of how they feel about the events that have happened (in many ways this isclarifying and establishing why the events were capable of causing public concern) and the impactthat the events have had upon them as well as gauging their opinion as to what should happen
next and how to resolve the problems that have occurred. Factual accounts should be considered
and used to build up an understanding of what occurred for the completion of the narrative partof the report. To an appropriate extent factual evidence can be challenged during the Inquiry to
make sure that the factual determination is accurate. Witnesses’ feelings about the event and theimpact on them should be respected and can be used to determine why the Inquiry is important,the impact that it has had on public feeling and where action priorities might be. Finally, in termsof considering opinions as to what happens next, these should be respected by the Inquiry panel
and can be explored with appropriate witnesses. Whilst it should be for the Panel to come to its
own decisions in terms of what recommendations are made, there are no reasons why it cannot
accept suggestions from witnesses for how something should be considered. There may also be
scope to consider separate process stages for the three dimensions of ‘evidence’ suggested here.
One of the striking aspects of the Public Inquiry system within the UK is that the report that is
produced at the end of the process can often come as something of a surprise to the general public
and participants. With the exception of the use of ‘Salmon letters’ where the Inquiry informs aparticipant that they are likely to be the subject of criticism within the report, there is frequently
little indication of what the conclusions of the report or the proposed recommendations are before
they come out. This secrecy has three unfortunate consequences: firstly, it raises anxiety levels ofparticipants regarding the report before it comes out; secondly, it makes recommendations less likely
to be implemented as key parties’ practical capabilities may be disregarded; and thirdly, it delays
the timing for recommendations to be implemented as they necessarily cannot be implemented
or worked on before the publication of the report. The effect of this is to cause delay in bringing
in important changes.

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PROCESSnn

We would propose therefore that the Inquiry Chair considers options for allowing the public andparticipants to know the direction of their thoughts before the report is published and for potentiallya more explicit canvassing of ideas and options. A mechanism that we initially proposed for thisis the ‘first pass model’. This model operates where after the first 20% of time and evidence has
elapsed in the Inquiry, the Chair outlines initial thoughts on what s/he has reviewed so far andcompletes an interim report, potentially making any early provisional or tentative recommendations.
There is obviously a difficulty with doing this in that it can appear that the Chair has not considered
all of the evidence that will come before him/her before making a decision. However, the intention
with this approach is to give an early indication of where the thoughts of the Chair are going - notto provide a final report. The ‘first pass’ process is particularly useful where the Public Inquiry canseparate out overarching issues which might underpin the more detailed ones, e.g. broad funding/staffing issues in health cases - which may involve a different set of players from the more personaland detailed issues. Also, it can highlight areas where a fuller professional or public debate canbegin before formal recommendations arrive, in order to allow adjustment time.
Producing an initial report would also allow the Inquiry Chair to use process options such as
focus groups or panels (made up potentially of representatives of participants, experts in the field,
appropriate lay advisers, or members of the public) to review the options and conclusions that
the Chair was making and provide their own comment. This would be a way for the Chair to
explore his or her thoughts in a process which meant that he/she was able to clarify their thinking
and produce recommendations refined by iterative dialogue before they produce the final report.

Management and Budgeting
A core aspect of a good Inquiry process rests with the capabilities of an effective Secretariat who
will project manage much of the logistics of the Inquiry, assist in liaison with lawyers, witnesses andthe media, develop IT systems and assist in management of budgets. Chairs may not be required tooversee much of the detail of this, but clearly should contribute to effective and efficient managementof the process by assisting in selection of experienced managers, developing strategic objectives,
holding regular management meetings and tracking time and budget usage. While a Chair mustoversee these aspects, their particular focus should lie on more strategic process questions we havehighlighted such as witness examination issues and key stakeholder management.

Widerpolicy issues

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WIDER ISSUESWIDER ISSUES

From our work on Inquiries, we have several recommendations which do not fit
specifically into an Inquiry process model but relate to wider policy issues.
We include these here as a prompt to further creative thinking about the design of the Public Inquiry
process as a legal-political model given that Inquiries are so vital as a social audit, and growing infrequency as a political instrument.

Independent Inquiries Office
We think it would be useful to create a central Inquiries Unit, a unit we have given the nameIndependent Inquiries Office, and which would have the role of being a central administrative facility
for Public Inquiries, providing expertise in essentials such as how to set up a Public Inquiry, factorsthat need to be considered etc., but would also be a repository for information about previous Public
Inquiries, as well as being a watchdog for whether or not Inquiry recommendations have actually
been implemented.
There are few official resources for Public Inquiries in general and it is critical that those organising
Public Inquiries and the interested public have access to as full a provision of resources as possible. In
conducting an Inquiry it is of benefit to future Inquiries for the Inquiry to keep as complete and open arecord of how it has conducted itself so that it can report on lessons it has learnt about the process to
assist those organising future Inquiries and to allow for interested parties to review the methodologythat led to a conclusion as much as to just read the final conclusion and recommendations. We havefound that most Inquiry Chairs have this desire and are keen to share their views with others, however,there is currently no mechanism for this, meaning that every new Inquiry has to start essentially fromscratch. This is ultimately a waste of both financial and non-financial resources, and causes delay
to the progress of the Inquiry and possibly to the effectiveness of some Inquiries. An Independent
Inquiries Office which acted as a repository of experience and lessons learnt would be a great benefit.
Further, we would argue that the Independent Inquiries Office could be a go-to resource for membersof the media, researchers and the public to find out about past Inquiries. Although the subject matterof Inquiries can be diverse, the question of Inquiry process and management has many common
features. Equally it can be argued that such an office could potentially serve a useful ‘social audit’role similar to the National Audit Office’s financial caretaking on behalf of the public.

Increased training for Chairs
A second recommendation that we would make is that of increased training for potential Inquiry
Chairs in process techniques and the mechanisms that they can consider when conducting Inquiries.
Effective training would ensure that those who are tasked with the difficult duty of chairing a Public
Inquiry are aware of the possible process methods that can be used in order to improve Chairs’
knowledge and confidence in using different skills. There are some arguments for providing at leasta taster training in this area for judges who might be considered as potential Inquiry Chairs. However,a more proportionate approach would be to ensure there is an intensive induction session available
for a newly appointed Chair.

Greater public engagement
As a final recommendation for engaging with the public we would encourage teaching about Public
Inquiries to take place across the different tiers of education. It would be beneficial if some of those
involved in Public Inquiries would consider participating in future training programmes and sharing
their knowledge and experience. Some of our suggestions for training include:
n

n

n

n

Public Inquiries should be referred to within UK schools, for example Citizenship lessons whichcurrently teach the key concepts: 1) ‘Democracy and Justice’; 2) ‘Rights and Responsibilities’; 3)‘Identities and Diversity - Living together in the UK’. The topic of Inquiries would probably mostclosely fit in as a lesson in ‘Democracy and Justice’, and could be formulated in a simulative casestudy or role play format.
Promotion of Public Inquiries on legal/governmental and political courses (Higher Education and
Vocational Training). At the moment there is no direct training about Public Inquiries on the Bar
Professional Training Course/Legal Professional Training Course. Both could be encouraged to makereference to it as something that lawyers should know about and that requires different skills.
The way to encourage this would be to go through the Bar Standards Board/Solicitors Regulatory
Authority. There should be some useful experience in the Planning Bar as barristers who workin this area are used to engaging with various forms of Inquiry. A survey of UK politics courses
suggests that it is not covered in any great detail if at all.
Additionally, it would be good to promote Public Inquiries as an option for continuing professional
development for barristers and solicitors after they are qualified.
It would also be beneficial to provide information about what a Public Inquiry is to new members of
the Civil Service (or at least provide access to such material). It should also be included as something
discussed as part of any appropriate training course for current civil servants who might be involvedin an Inquiry as Secretariat. This would potentially allow for greater accountability.

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“With uncapped time frames and expenditure, Inquiries havein some cases racked up multimillion-pound costs for taxpayers- most controversially with the £200m price tag for the Savile
Inquiry, which took more than 10 years to report - raisingquestions over proportionality. In response, the Centre for
Effective Dispute Resolution (CEDR) has launched an ‘Inquiry
into Inquiries’ in co-operation with Lord Woolf to addressthese issues in the hope that they can put forward policy
recommendations to ensure that, ‘where you are going tohave an Inquiry, the Inquiry should be regarded as much closer
to the end of the story’ says CEDR chief executive Karl Mackie.”
LEGAL WEEK, 1 JUNE 2012

UsefulChecklists

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CHECKLISTCHECKLISTBEFORE THE INQUIRYPICKING AN
EFFECTIVE CHAIR

u

u

u

CREATING AN EFFECTIVETERMS OF REFERENCEuuu

INDEPENDENCE,OBJECTIVITY
AND FAIRNESSuCarry out an appropriate process using principles
of capability for purposes of the Inquiry
Announce the Inquiry Chair at an appropriate time

Write Terms of Reference in draft
Consider all groups
Consult within short window
Publish final draft

Ensure that qualities of independence, objectivity andfairness are expressed clearly in statements regarding
the Inquiry prior to its start and applied

DURING THE INQUIRY

u

u

u
u

u

u

u
u
u

HANDLING EMOTIONS

u

u

u

WORKING WITH GROUPSuu

Prepare people beforehandWork out where sensitivities lie
Handle room/waiting room layout sensitively
Separate the personal issue from people’sinterests/policy questions
Explore methods of acknowledging emotions while 		retaining objectivity

Work out who the various groups are
Determine strategy for managing an inquiry
Explore process for group management

u
u
u

u
u

u

u

DIFFICULT TOPICS

Identify what are likely to be difficult conversations/topics
in advance and methods of handling

u

u

u

u

AFTER THE INQUIRY

Let public know about how Chair
was selected via websiteuClarify Terms of Reference at start andwhat is and isn’t going to be covered
Publish on website
Maintain as reference pointu

Reiterate the qualities at the start of theInquiry as well as for any witnesses whoshow particular concern
Demonstrate in actionsuWork with people in an empathetic manner
3 Rs - Recognise, Respect, RespondConsider process choices for managing
group emotions effectivelyu

Use focus groups or seminars
Use other techniques,e.g. group review (‘hot-tubbing’)Consider parallel facilitation/mediation workuProvide context to those being asked
difficult questions
Avoid leading questions or those which
imply blame
Use active listening skills to receive
the responses
Explore from different angles

u

u

u

u

u

Share methodology withother commissioners/future Inquiries

Share best practiceEncourage commissioning department
to report on implementation

Make sure that the Inquiry’s conclusions
and recommendations are presented in a
way that is clear, independent, objective
and fair

Incorporate recognition in report
Encourage where appropriate 		
implementation that stays alert toemotional recovery needs

Send recommendations to particular groups
Encourage in report continuing engagementwith groups on whom implementation
depends

Identify what were difficult topics to beaddressed in the report and how thesewere handled
Consider use of interim tentative 		
recommendations or directions, tobegin policy or practice debates outside
formal Inquiry

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CHECKLISTCHECKLISTBEFORE THE INQUIRYu

IN THE PUBLIC INTERESTuu

Set up the website so that it has effective explanations
and continuing relevance
Engage with others/panels etc.

Identify a key spokesperson for the Public Inquiry
who media enquiries can be directed to

DURING THE INQUIRY

u
u

u
u

WORKING WITH
THE MEDIAuu

CREATING EFFECTIVE
FOLLOW THROUGH

Consider potential recommendations even when the Termsof Reference are being drafted so that the Terms ofReference will leave scope for effective recommendationsuu

Maintain website and update etc.
Consider use of juries/public panels

Provide appropriate facilities for journalists
Give interviews under the core principles ofa) showing interest/caring for the people
involved;b) showing that the Inquiry is taking its
role and conduct seriously;c) providing clarity and reassurance about
what the Inquiry will do
Update website regularly

Test out potential recommendations
with others in focus groups etc.
Write the report so that it has a set ofclear targets

AFTER THE INQUIRY

u
u

u

u

u

u

REVIEWING PROCESSISSUES - PLANNING
AND TECHNIQUESuu

FINANCIALMANAGEMENT
AND LOGISTICSuu

Use an effective project planning system to put in place
a way of separating out the various elements and making
them progress through in ordered manner

Plan spending
Book appropriate venue
Use the guidance and make sure have planned for effective
support etc.

u

u

u

Track project plan by phases, budget targets,regular reviews,etc.

Keep an eye on how things are going andmake sure that logistics are done/theInquiry is run appropriately
Provide public information on key targets
and progress, and reasons for diversion
if necessary

u
u

u
u

Clear press releases
Engage implementation of public reporting

Provide an appropriate press releasewith any Inquiry report
Explain how media enquiries will beanswered/dealt with now the Inquiry
has concluded

Make sure that there will be effective
engagement with recommendations
and that there is an implementation
plan/clear path
Ensure priority actions are highlighted

Share best practice and lessons learned
Highlight innovations that can be tested
in other contexts

Report on how much the Inquiry has cost
Provide report on areas where you feel you
could have saved money/cut costs/
have helped/lessons learned

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Appendix

The most all penetrating spirit before which will open the possibilityof tilting not tables, but planets, is the spirit of free human inquiry.
Believe only in that.
DMITRI MEDELEEV, SCIENTIST, 1934-1907

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APPENDIX

What did CEDR do toinvestigate the Public
Inquiry process?

APPENDIX ONE

I

n 2012, the CEDR Foundation undertook abold task of re-evaluating the Public Inquiry
process with an aim of seeing if the process
could be improved. Our starting point was arealisation of ‘the inquiry’ as a process for many
public contexts. Our objective was to develop
recommendations for how the Public Inquiry
process could be made simpler, more effective
and more responsive to the ‘public’ both in termsof helping enable reparative processes between
those affected by the events that led to the
Public Inquiry being commissioned and those
who are perceived as being responsible; as well
as more generally working with the wider public
to increase their understanding.
In order to reach our recommendations, we
carried out a period of consultation and research.
We started our research, by cross-comparing
different Public Inquiries conducted in the UK overthe last 30 years to analyse their effectiveness,the methodologies that they used and theirperception from those involved in them andthe wider public. We also looked at equivalents
to the Public Inquiry process in other parts of
the world, including the USA, Canada, France,
Australia, New Zealand, Ireland and others.
Our conclusions on this point are that there
does not appear to be any country which has
a particularly better way of managing its Public
Inquiries processes to an extent that we would
recommend adopting their model.

In March 2012, CEDR conducted a survey into Public Opinion of the Public Inquiry process by polling
2,000 members of the public. Of the 2,000 citizens polled, less than a third said they had confidence inthe system. More than half of those surveyed found them too long and too costly, and did not believe
recommendations were implemented. Over two thirds wanted more involvement from members of
the general public, while over half thought politicians had too much influence. The survey results
provide striking evidence of a widespread lack of confidence among the general public in the Inquiry
process and of the impoverished nature of the ‘public’ dimension within the traditional Inquiry process
Further to this, we set up a working group of experts in the Public Inquiry field, (including former
Inquiry Chairs, civil servants, lawyers, academics and others), chaired by Former Lord Chief Justice,
Lord Woolf and CEDR’s Chief Executive, Dr Karl Mackie CBE, to discuss the issues that they had
experienced when conducting Public Inquiries, identify the problems that are endemic to the Public
Inquiry process and discuss recommendations for reform.
From this, the group identified 11 key recommendations for reform (Listed at Appendix 2). These
recommendations covered topics such as improving the start of Public Inquiries by reforming theways that terms of reference are defined; increasing the use of alternative process options within
the Public Inquiry process; increasing the Public’s understanding of and involvement with the Public
Inquiry process, and changing the way that recommendations at the end of the Public Inquiry process
are followed up on and dealt with.
We then held a Symposium for a larger group of experts in March 2013 to discuss theserecommendations and the way that they might be progressed. As well as the experts who attended
in person, the Symposium was also covered by the media, and had an interactive element with the
public through Twitter and online coverage through a live blog, allowing the public to contribute
their comments and questions to the discussion that occurred. From the symposium, we were able
to gauge which of the recommendations were seen as valuable and how they could be taken forward
and improved. We also identified certain other issues (for example, the role of the media and Inquiries,
Inquiry budgeting) which required further thought.
From this evidence, we have further refined our recommendations and discussed them with senior
Inquiry experts. In July 2013, Dr Mackie was called to give evidence before the House of Lords
Select Committee on the Inquiries Act 2005 considering the work that CEDR has carried out and his
perspective on the Inquiries model. A transcript of Dr Mackie’s session is available to be read at theHouse of Lords’ website (http://www.parliament.uk/documents/lords-committees/Inquiries-Act-2005/
IA_Written_Oral_evidencevol.pdf)
Finally, we have conducted some additional interviews with further experts on the Inquiries process,for example Susan Bryant, Director of Rights Watch UK, enabling us to complete this final report.

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APPENDIXRECOMMENDATIONSOVERVIEW

During the Inquiry Process

4

Separate investigation from recommendation
A recommendation to separate the Inquiry into two distinct phases - a first phase which isinvestigative and a second phase which is about recommendations.

5

Beyond the inquisitorial system
A recommendation to introduce different processes learnt from CEDR’s experiences in arbitration,
mediation and alternative dispute resolution into the Public Inquiry process as methodologies.

6

APPENDIX TWO

Increase the recognition and use of parallel track processes
Increasing the number of track processes so that inquiries can run in non-sequential format,
including options for parallel track processes.

CEDR developed 11 recommendations for
improving the performance of Public
Inquiries. These were as follows:

Before the Inquiry Process

1

Enhancing the capabilities
of Chairs and Panels
This recommendation proposes that Judges
should be given increased training; the Cabinet
Office should produce a Guide in Best Practicefor Public Inquiry Chairs and that there should
be a programme for training Chairs once they
are appointed.

2

Aligning Inquiry purposeswith intelligent methodology
A recommendation to improve the designof the Inquiry including taking on board
recommendations from process experts

3Managing potential
Terms of Reference
A recommendation of an introduction of aone-month draft terms of reference to allow
interested parties to debate what the terms ofreference should be before they are finalised.

7

Bringing the public into the Public Inquiry system
A recommendation to create a Citizens’ Panel who would feed back to the Inquiry’s Chairs andPanels to ensure that things are better prepared.

8

Setting parameters - the ‘First Pass’ Inquiry Model
A recommendation to introduce a ‘First Pass’ model whereby there would be a presentation offacts after 20% of the time has elapsed.

After the Inquiry Process

9

Implementation action plan
A recommendation for the introduction of an Implementation Action Plan, whereby relevant
parties would have to feedback how they had implemented the points made by the Public Inquiry
within 12 months.

Cross Process Recommendations

10

Building on know-how through the establishmentof an Independent Inquiries OfficeThis recommendation would bring in an Independent Inquiries Office to focus on Public Inquiries,
building knowledge and public involvement.

11

Enhancing public awareness of the Inquiry process
A recommendation to increase public knowledge, awareness and understanding of the
Public Inquiry process through increased academic and educational reference to Public Inquiries.

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APPENDIXAPPENDIXRECOMMENDATIONS IN DEPTH

Recommendations for once the Public Inquiry has started

4
Recommendations for establishing a Public Inquiry

1Enhancing the capabilities of Chairs and Panels
Recognition needs to be given to the fact that judges tend to have a key role in the conduct
and status of the Inquiry process and as such that they should be provided with increased training
to enable them to manage this role better. There should be a regular education programme aimed
at senior judges likely to be the source of recruitment for future Inquiry work, with contributions
from former Inquiry Chairs, civil servants who have managed Inquiries, and other facilitators of theInquiry process who have contributed significantly to Inquiry work. This programme should aim tofamiliarise the judges better with the different aims within an Inquiry, and the variety of techniques
and options available as compared and contrasted to traditional litigation objectives and management.
The Cabinet Office should produce at least every five years a Guide to Best Practice in Public Inquiries
for Chairs and Panels, including a regular section on ‘Innovation in Public Dialogue processes’, making
reference to pre-Inquiry work to be undertaken, and other aspects relating to recommendations below.
Overall, Chairs of Public Inquiries (whether they are former Judges or not) need to be given greatertraining before they undertake a Public Inquiry so that they are aware of the various techniques thatcan be used and to allow for a more considered and informed application of such techniques whenthe Inquiry begins.

2

Aligning Inquiry purposes with intelligent methodology
We believe that much of the dissatisfaction expressed around Inquiries and their outcomes arises
because the Public Inquiry ‘vessel’ is used to contain too broad a mix of purposes. We therefore
recommend that more careful design should be undertaken, including design advice sought fromprocess experts, at the preliminary stage of setting up a Public Inquiry, particularly focusing on key‘fault-line areas’ where purpose and practice/capability may diverge. A ‘purpose and design statement’should be issued at the outset of an Inquiry to indicate that there has been analysis of purpose andprocess choices rather than committing simply to a process based on default thinking. Further aspectsof this recommendation are embodied in our specific Recommendations 4 to 8 below.

3

Managing potential Terms of ReferenceTerms of Reference are notoriously a problematic area in the Inquiries field, embodying atension between the perceived need to move quickly for political and efficiency reasons, versus therisk that the terms might be seen to be driven by narrow political agendas and issued without properconsideration. We support the introduction as standard practice of incorporating a one-month ‘Draft
Terms of Reference’ system within which potential witnesses or stakeholders (including the public) will
be able to comment and suggest amendments. A brief reasoned statement can be issued explaining
the adoption of the final Terms of Reference and any obvious key alternatives that are to be discarded.

Separate investigationfrom recommendation
Arguably a very different methodologicalapproach and thought process is needed
when one is contemplating future possibilities
and making recommendations for the future,compared with ‘finding out what happened’. In
their traditional position, judges are particularly
suited and accustomed to working with thelatter, rather than the former. Equally, working
out solutions often requires a different mindset, a fresh dynamic, an appropriately attuned
methodology, an informed and affected stakeholder group, and a different political awareness,from the task of forensic analysis of a calamity.
Finally, an investigation conducted with apotential aura of ‘blame’ as an outcome, may
not be the most productive setting for articulating
how to prevent re-occurrences.
We therefore recommend that where there
are any reasonably complex or organisational
issues at stake in an Inquiry, that Inquiries areconsciously split into two phases and probablythat these two separate phases should have two
separate Chairs or panels. The first phase should
be charged with making ‘findings of fact andconcerns for future practice’. This report would
sum up initial findings of what took place inthe events that triggered the call for an Inquiry,
and as a subsidiary purpose be able to outline
the general direction in which future reforms
might be considered to prevent a recurrence ofa problem, or deal with gaps in policy uncoveredin the first phase investigation.
There should then be a defined time period forthe convenor of the second Inquiry stage to takethe general concerns raised in the first Inquiry
stage and place it in a broader, more informed

context of what practical recommendations canbe issued to meet the concerns of the first phase
Inquiry. There should still be an advisory role for
the Chair of the first stage, and possible overlap
in specialists/panel members who worked on thefirst stage, but the clearer delineation of purposesand separation of concerns and structure
could potentially lead to more sustainable
recommendations being drafted. It gives greater
flexibility in drawing on the qualities from otherprofessions for managing a ‘futures’ discussion.
The gap between the two phases would also
allow a time period for greater public and politicalcontributions to reform debates. This structure isalso aligned with other suggested reforms below.

5

Beyond the inquisitorial system
Coming as we do from a background in
mediation, conflict management and alternative
dispute resolution, we believe traditional Inquiries
are often too bound to the ‘litigation model’of evidence gathering - sequential examinationof witnesses whose testimony is judged forreliability and credibility, and compared to thetestimony given separately by other witnesses.
This emphasis has indeed been considerably
exacerbated in some recent Inquiries (Hutton;
Leveson). (Some recent Public Inquiries haveadopted an ambience of a mock ‘trial’ in how
they conduct their proceedings due to their useof existing courtrooms, potentially triggering
unfortunate habitual mind-sets amongst lawyers
attending and the Chair ‘on the bench’.)In our view, many of the issues in Public Inquiries
are capable of facilitated dialogue, where afacilitator helps a group of parties articulate
their assessments and thoughts on a topic, andencourages them to find common ground or to
identify key differences or core issues.

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APPENDIXAPPENDIX

This approach is most useful in an Inquiry context,a) to grapple with organisational dilemmas; b)
to consider recommendations for the future(phase 2 Inquiry in our model); c) to deal withgrief or shock experienced by participants tocalamities they have faced; and d) for experts
to engage in a dialogue about what they havein common and where the real differences lie in
their assessment of evidence (a process known
from the Australian literature as ‘hot tubbing’).
There is no rigid formula we can offer as to how
and when to adopt these practices, but we would
wish to encourage Inquiry Chairs and secretariats
to keep them as an option, and for government
to encourage their further piloting in forthcoming
Inquiries. (As an example, we are aware of one
Chair in an NHS Inquiry, who encouraged grieving
families to meet first in private with hospitaladministrators, before giving formal evidence,
so that they could feel the process had gonesome way to meet their needs). In any case, we
believe facilitated dialogue will be particularly
helpful in Stage 2 Inquiries, where the focus is
on future conduct and practical policy offerings.
Such facilitated dialogue may in some instances
also be able to encompass early discussions toaddress compensation for civil liability arisingfrom the findings of a first Inquiry.

6

Increase the recognition and useof parallel track processes
Not only does the sequential nature of Inquiry
hearings reflect a logic that is too bound toformal tradition, it limits the potential forworking with the Inquiry as a project that hasa range of purposes and sub-purposes, withpotentially varying timelines and focus points.
We therefore encourage the use of ‘second andthird track’ approaches to managing the Inquiry
process, where discrete topics are managed
simultaneously rather than sequentially.

The corollary is that separate Chair and/or
facilitators should be deployed - for example
to convene meetings of experts rather thanfactual witnesses, or to work with policymakers
on potential recommendations, or to ensure
participants in sensitive relations with one anotherhave opportunities to convene in more intimate
settings than across a witness box, etc. Evidence
gathered in Inquiries should also be available
for consideration in formal legal proceedings,
and even prima facie evidence of a finding offact if that is the conclusion of an Inquiry - thiswould help avoid duplication of costs. Not
least amongst such parallel track processes,
would be the inclusion of a ‘restorative justice’element, where those who might be perceivedas ‘victims’ of the incidents leading to an Inquiry
could engage in facilitated dialogue with those
who appear responsible or accountable in amore informal and safe setting than that of theformal investigative hearings. Even in planningand more ‘commercial’ Inquiries, there may besignificant scope for better quality of dialogue
and mediated discussions as is now provided bycourt-annexed mediation in the legal system. At
the very least, the government should encouragepilots of some of these alternatives to the formal
process, and provide appropriate resources fortesting new models.

7

Bringing the public into
the Public Inquiry system
It is somewhat ironic that something called the‘Public’ Inquiry, should so manifestly not engage
members of the public. Part of the reason forthis is that the process is owned by politicians in
its initiation, usually fast-tracked through fromannouncement of the appointment of a Chair,and then conducted by judges or other specialists
who may not place emphasis on the public
engagement nature of the process.

Other barriers have been the perceived and realneed for specialist understanding, the significant
sensitivities at stake, and the uncertain durationof the process or likely resources available.
However despite these difficulties, we believe
there is a case for extending participative
democracy in the context of the public objectivesof the process and the serious issues addressedin major Public Inquiries. Our recommendation,
however, limits public engagement to ensurethat it is focused and practical. We suggest thatwith every Inquiry, a ‘Citizens’ Panel is engaged.
It would have very specific functions to act as aconsultative focus group to support some of ourother Recommendations, namely to advise the
Minister and Chair a) on any issues concerning
the adoption of Terms of Reference; b) to adviseon the duration of the ‘first pass’ Inquiry (SeeRecommendation 8); c) to comment on thereport’s findings and whether further work might
be done; d) to act as an occasional sounding
board for the Chair as to the public perceptionof the value of the process in their role as citizens
and taxpayers, and opportunities for alternative
processes (partly informed by attendance on atleast some days of the Inquiry).

8

Setting parameters the ‘First Pass’ Inquiry Model
Once under way, it can be difficult for politicians- or indeed the senior judge responsible for the
conduct of the judiciary - to be seen to interferewith the conduct of an Inquiry. However thisabsence of control has arguably led to Inquiries
taking much longer and costing much more thanmight be seen to be either value for money orvalue for informing social insight. Their powers
or inclination to restrict evidence-taking, may also
be limited by the fact of witnesses and others
seeking to ensure their case is fully represented

or protected at the hearings. The procedural
openness of such an approach, is however clearly
vulnerable to ‘Inquiry drag’, where time and costlimits are easily exceeded and run out of control
or beyond predicted budgets in the interest of
being seen to conduct a ‘full, fair and fearless’
investigation. Proportionality needs to be reemphasised within the Public Inquiry model.
What is needed therefore is a process whichattempts to balance the urgency of the topic
under consideration and the need for public
efficiency, against the importance of ensuringthat an issue has been adequately explored andno material gaps in understanding left.
Our tentative structural suggestion to address
this issue is to adopt and paraphrase the ‘80:20
economists’ or managerial prescription. That is to
say that the most important 80% understanding
can be achieved in 20% of the time taken by
the typical lengthy Inquiry. We recommend for
major Inquiries, that there should be designed a‘First Pass’ Inquiry model, with strict time limits (3months, 6 months, or 12 months set at the outset
by the Inquiry Secretariat team in consultation
with the appointed Chair depending on theirinitial judgment of the scale of Inquiry involved).
Its function would be to act as if it were the fullInquiry investigation and report. Part of its final
report, however, would be to assess if there wereany outstanding or unresolved questions, andprovide some indication of how those might be
addressed cost-effectively. The Minister could at
this point make a judgement as to whether the
first phase Inquiry (before a Recommendations
stage) had sufficiently met its objectives of
informing and reassuring the public - as advisedby the Secretariat in consultation with the Chair
and Citizens’ Panel (see above).

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APPENDIX91

SETTING UP AND RUNNING A PUBLIC INQUIRY

Recommendation for after the Public Inquiry
has concluded

9

Implementation action plan
In order to ensure that the body authorising the Inquiry will take appropriate action, there
should be a time period set at the outset of an Inquiry, within which the authorising body will
respond to recommendations, and to explain its intentions with regards to such recommendations.
The reasoning behind having such a time plan is that it would compel action from the governmentand demonstrate to the public that the bodies involved are being held accountable for their actions.
A maximum of 12 months from the end of the Inquiry to the required response to the implement
action plan would seem feasible.

Cross Process Recommendations

10

Building on know-how through the establishmentof an Independent Inquiries Office
An independent Inquiries Office should be established to be the conduit for process design suggestions,based on monitoring and evaluation of Public Inquiries. Its resources should be made available notjust to government but also to local authorities, planning authorities, major public agencies, who
might be launching independent investigations into major issues. A know-how centre could become
a focus for expertise, as well as guidance on essential methodological concepts such as when to use
parallel track processes, appropriate selection criteria for Chairs and panels, the importance of roledescriptions, guidance on when and how to release Public Inquiry reports, how panel chairs can handle
press relations, etc. In particular such a body should encourage what one of our correspondents
described as a ‘known, pre-determined and visible process of due diligence’ in setting up an Inquiry.

11

Enhancing public awareness of the Inquiry process
Our research suggests limited public understanding of the Public Inquiry process. A simple
recommendation to ensure enhanced awareness would be to encourage schools and universities
to incorporate analysis of the process as a key element of politics and government modules andprogrammes. Indeed the range of topics covered by Inquiries, the challenges of the methods for
managing Inquiries, as well as in tackling the recommendations of Inquiries, would seem to make thisan attractive and dynamic focus for intellectual and practical student work. Related to this, perhaps
the Cabinet Office could produce for the press a more developed statement of how a Public Inquiry
works each time a major one is initiated.

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