Inquiring into inquiries

The government sets up an inquiry when something goes wrong. When something goes very wrong, ministers set up a judicial inquiry. And when judicial inquiries go wrong, parliament sets up an inquiry into inquiries. Last week, a House of Lords select committee published its report on the Inquiries Act 2005. Its message was blunt; its timing fortunate, if fortuitous.

On 27 February, after we learned that letters had been sent to a number of Irish ‘on-the-run’ republicans telling them that they were not wanted by police forces in the UK, the prime minister announced that an ‘independent judge’ — what other type is there? — would deliver a full public account of this ‘administrative scheme’.

A week later, following an inquiry by Mark Ellison QC into the Stephen Lawrence inquiry led by Sir William Macpherson of Cluny, the home secretary announced yet another judicial inquiry – this time into undercover policing.

That won’t start for a while. As Ellison himself accepted, the priority must be for the police to review cases where non-disclosure by undercover officers might have led to miscarriages of justice. But, despite what Theresa May seemed to be arguing, the policing inquiry can and should be set up before that review is completed.

The on-the-runs review, as it is apparently to be called, is rather more urgent. David Cameron promised it would report by the end of May, although this date looks likely to slip. It has to find out whether John Downey, accused of the Hyde Park bombing in 1982, was not the only person to have been told, in error, he was not wanted by the police. Downey denies the accusation.

Even so, nearly two weeks passed before Lady Justice Hallett was given the job. Once the government had decided that the review should be conducted by a judge from England and Wales, the lord chief justice demanded to know its terms of reference and how long it would take. Everyone remembered Lord Saville’s Bloody Sunday Inquiry, which reported five years later than Saville himself had predicted.

Hallett has the advantage of having conducted the inquest into the London bombings of July 2005. But she has not done a review of this kind and will no doubt begin by looking at some 50 pages of guidance on inquiries provided by the Cabinet Office. Unfortunately, as the Lords committee pointed out, this contains ‘much about what needs to be done, but very little about how to do it’.

So she might turn next to the file of ‘lessons learned’ papers which, according to the Cabinet Office, every inquiry secretary must submit within two months of its conclusion. But when peers asked to see this, they were ‘astonished’ to find that only one such paper had been sent in since 2005. Nothing had been done to chase up the missing submissions.

The obvious solution would be for ministers to establish a ‘small, dedicated inquiries unit which can co-ordinate the setting-up and running of new inquiries’ – as the government itself had proposed in February 2004. But again, 10 years on, nothing has been done.

Lee Hughes, the former civil servant who has run more public investigations than anyone else, told the Lords inquiry that it was very dispiriting to have to reinvent the wheel each time an inquiry was set up. Millions of pounds could be saved in IT costs, he thought, if there was a single unit responsible for delivering inquiries. Peers recommended that the unit should be set up within the Courts & Tribunals Service.

When the Inquiries Act was passed, commentators praised its commitment to openness while criticising the the very wide powers it gave ministers. The government can limit public attendance, restrict the disclosure of documents, block publication of findings and even close an inquiry down. The committee did not think these powers had been misused. But it did recommend much stricter controls, of which perhaps the most important is that the government should not be able to appoint a judge to an inquiry without the chief justice’s consent.

Chris Grayling, the justice secretary, told me last week that he didn’t have a problem with that. He would normally accept the senior judge’s recommendation, although he might occasionally ask if a woman could be appointed. But the minister showed no enthusiasm for implementing the committee’s recommendations.

Curiously, no inquiry has been set up under the 2005 act for nearly three years; the Hallett review, like other recent inquiries, has no statutory powers. The Lords committee could not understand why ministers were so reluctant to use their custom-built inquiry powers, suggesting, in effect, that the government’s policy was incoherent.

It is; but there are advantages in informal inquiries. And it should be no surprise that on-the-runs will be investigated behind-the-scenes.