Macfadyen Lecture 2012

15 March 2012

“THE ROLE AND CONDUCT OF PUBLIC INQUIRIES”

The Rt Hon. Lord Saville of Newdigate PC, QC*

[1] I am most honoured to be asked to give the Macfadyen lecture this year, in succession to previous speakers of very great distinction. Coming as I do from what may soon be a foreign country, I had to choose a subject that neither offended my hosts nor ran the risk of my not being allowed back into England. However, the choice in the end proved fairly easy, as the last ten years of my judicial career — all but a few months — was spent conducting the Bloody Sunday Inquiry1. Thus I have chosen as the subject of my lecture, the role and conduct of a public inquiry — on the grounds that my knowledge of anything else connected with the law is not only limited but almost certainly out of date.

[2] My experience is of conducting a large scale inquiry costing a large amount of money and taking a long time. The lecture is not about the best way of conducting every sort of inquiry, whatever its size or importance, for much depends on the subject matter of the inquiry and the circumstances being investigated. However, I shall have something to say about the cost and time required, especially since there were, and doubtless still are, those who would say that the only subject I would be qualified to speak on would be “How to waste enormous amounts of time and public money” or, perhaps more charitably, “How to get into the Guinness Book of Records for the most time and money ever spent on a public inquiry.”

[3] To my mind the starting point of a lecture on the role and conduct of public inquiries is to ask what purpose is served by having public inquiries at all.

[4] The statute under which the Bloody Sunday Inquiry2 was conducted was the Tribunals of Inquiry (Evidence) Act 19213. This Act was repealed by the Inquiries Act 20054. Both these statutes were applied to the whole of the United Kingdom.

[5] Under the 1921 Act a public inquiry could be established if both Houses of Parliament resolved that it was expedient that a tribunal should be established for ‘inquiring into a definite matter described in the Resolution as of urgent public importance’.5

[6] Before the 1921 Act 6 came into existence the usual method of investigating events that gave rise to public disquiet about the alleged misconduct of government or governmental institutions was to set up a select parliamentary committee or an ad hoc commission of inquiry, in many cases the former rather than the latter.

[7] Select parliamentary committees of inquiry have had an unfortunate and unsatisfactory history. From the 17th century such committees tended to divide on party lines, rather than seeking to discover the truth. An early example was Samuel Pepys, who was wholly unjustly found guilty by Parliament of ‘piracy, popery and treachery’, but the tendency to reach conclusions actuated solely by party political motives continued throughout the following centuries. In 1895 there was an armed raid into the Transvaal, known as the Jameson Raid, whose purpose was to overthrow the Boer Government of Paul Kruger. A parliamentary inquiry exonerated the Colonial Secretary Joseph Chamberlain of complicity in the incursion7, but there were many who doubted this finding. It so happened that Joseph Chamberlain was a member of the committee of inquiry.

[8] Then in 1912 there occurred what became known as the Marconi Scandal. The Postmaster General accepted a tender by the English Marconi Company for the construction of a chain of wireless telegraph stations across the Empire. Rumours soon spread that the Government had corruptly favoured the Marconi Company and that ministers of the Government had improperly profited from the deal. The Chairman of the Marconi Company was a close friend of the minister who had awarded the contract and the brother of the then Attorney-General. Marconi shares rose from about £2.50 to about £6.75 before the contract was made public. Hilaire Belloc, editor of the political weekly the Eye-Witness, was convinced that members of the Government had bought and sold shares with what is nowadays known as insider knowledge. A select parliamentary committee was established in 1913 to inquire into the matter8. As is usual with parliamentary committees, the members represented the respective strengths of the two main parties at the time, the Liberals and the Conservatives.

[9] The Liberals were in the majority in parliament and thus also on the committee. The committee’s majority report exonerated the members of the Government concerned. The Conservative minority on the committee also produced a report, in which they concluded that ministers of the Government had been guilty of gross impropriety. When the majority and minority reports were debated in Parliament, the House again divided on party lines and exonerated the ministers concerned from all blame. To say that this was itself a scandal is, perhaps, an understatement.

[10] In 1921, grave allegations were made by a Member of Parliament against certain officials in, what was then the Ministry of Munitions. The unsatisfactory outcome to the Marconi Parliamentary Committee of Inquiry9, and the generally favourable impression produced by previous inquiries established by ad hoc commissions of inquiry, led to the proposal that these allegations should be examined by a commission of inquiry and legislation was prepared for the purpose of setting up such an inquiry. However, during the passage of this legislation through Parliament, it was decided that its scope should be widened so that the new machinery could be used, not just for the instant case, but for any future cases where there were allegations of public misconduct that merited a public inquiry. Thus there came into existence the 1921 Act10, under which, up to 2005, a number of inquiries were instituted by a joint resolution of both Houses of Parliament. It is of interest that this Act was rushed through Parliament, with hardly enough time to consider properly the ramifications of a statute designed to deal generally with public inquiries. The Bill was introduced on March 4, 1921 and received the Royal Assent 20 days later.

[11] I should note at this point that some months before the Bloody Sunday Report11 was published, a Member of Parliament, in the course of railing against the time taken and the cost incurred by the Bloody Sunday Inquiry12, recommended that such inquiries should be conducted by a select parliamentary committee. It seems to me that that Member of Parliament concerned must have been unaware of the unfortunate outcome of many such inquiries in the past. I must say that I wondered whether this was an example, as Shakespeare put it, of someone ‘drest in a little brief authority’,13 and being most ignorant of what he’s most assured.

[12] In February 1966 a royal commission was established under the chairmanship of Lord Justice Salmon (later Lord Salmon)14 to review the working of the 1921 Act15 and to consider whether it should be retained or replaced by some other procedure, and if the former, whether there should be any changes.

[13] This royal commission (the Salmon Commission) reported in November 196616. It recommended retaining the 1921 Act17 but also recommended a number of changes, for example that witnesses should have a statutory right to legal representation18, that the tribunal should have the power to order the payment of a witnesses’ costs out of public funds19 and that the members of a tribunal should have the same immunity of suit as superior court of record20.

[14] The royal commission reviewed the history of public inquiries, and I have drawn on this review for the purpose of outlining that history. I would, however, like to quote the Salmon Commission’s view of the circumstances that should exist before a public inquiry was instituted under the 1921 Act:

‘The exceptional inquisitorial powers conferred upon a Tribunal of Inquiry under the Act of 1921 necessarily expose the ordinary citizen to the risk of having aspects of his private life uncovered which would otherwise remain private, and to the risk of having baseless allegations made against him. For these reasons we are strongly of the opinion that the inquisitorial machinery set up under the Act of 1921 should never be used for matters of local or minor public importance but always be confined to matters of vital public importance concerning which there is something in the nature of a nation-wide crisis of confidence. In such cases we consider that no other method of investigation would be adequate21.’

[15] It is clear from the Salmon Commission that its members were exercised by the fact that an inquiry under the 1921 Act22 was inquisitorial in nature, rather than an adversarial contest between two or more parties. In their view, and I quote, ‘The inquisitorial procedure is alien to the concept of justice generally accepted in the United Kingdom23’, but the commission concluded that ‘there are, however, exceptional cases in which such procedures must be used to preserve the purity and integrity of our public life without which a successful democracy is impossible24’.

[16] Given adequate safeguards to protect the human and other rights of individuals, I do not share the Salmon Commission’s anxieties about the justice of an inquisitorial process. In the course of the Opening Statement that my colleagues and I made in 1998 at the outset of the Bloody Sunday Inquiry, we said this:

‘We should emphasise at this point that this is an Inquiry, not a trial. Trials are in the main conducted on an adversarial basis, i.e. where each party puts forward its case and seeks to answer the case put against it; where the tribunal acts as a sort of referee, requiring the parties to abide by the rules; and where, at the end of the day, the tribunal decides the case in favour of one side or the other on the basis of the material the parties have put before it.

An Inquiry like the present Inquiry is quite different. Here the Tribunal takes the initiative in trying to ascertain the truth. Unlike an adversarial contest, it is for the Tribunal to seek all the relevant material. Its task is not to decide the matter in favour of one party or side or another. Indeed, from the point of view of the Tribunal, there are no parties or sides. There will, of course, be those who have material evidence to give or who have a legitimate interest in challenging such evidence, but the Tribunal will not treat them as sides or parties in an adversarial contest, but rather as a means of seeking out the truth.

It follows from this that it is for the Tribunal to decide what material it should consider and what witnesses it should call to give evidence. It is also for the Tribunal to decide how to conduct the proceedings. We turn therefore to outline what we propose to do in relation to these matters. However, we should make clear that we want to adopt methods best suited to carrying out the Inquiry in the fairest, most thorough and impartial way possible, without, of course, incurring unnecessary delay or expense. Thus if people think that improvements can be made to these proposals, then they should make their views known in writing to the Inquiry Secretary. Again, this should be done as soon as possible, so that the Tribunal has the opportunity to consider any such suggestions25.’

[17] It was particularly important to make this clear in the Bloody Sunday Inquiry26. In general terms there were two principal antagonists, the families of those who had been shot and the soldiers who were in Londonderry on that day in 1972. The families alleged that the soldiers had been guilty of deliberately shooting people for no good reason, while the soldiers alleged that their firing was a proper response to attacks or threatened attacks on them by terrorists armed with lethal weapons. To allow the inquiry to descend into an adversarial battle, with the one side or the other seeking to deploy their forensic and other skills to improve their case or damage that of their opponents would in the nature of things make it less likely that the tribunal would be able to discover what actually happened, as opposed to concluding which side had put forward the better case. It is very important to remember that the latter is far from necessarily being the same as the former.

[18] The recommendations suggested by the Salmon Commission27 for changes to the 1921 Act28 were not implemented and the Act remained in force and unchanged until its repeal in 2005. Thus for my inquiry we had to obtain an indemnity from the Government for any liability incurred in the course of the inquiry; and could only make recommendations as to the payment of witnesses’ costs, though in all cases those recommendations were accepted. I should note that despite this repeal, the Bloody Sunday Inquiry29 continued to be conducted under the provisions of the 1921 Act, since in sec 44 of the 2005 Act there was a provision that in effect preserved the 1921 Act for inquiries that had already been established30.

[19] Apart from the 1921 Act31 there were many other statutes that provided for the holding of inquiries, for example into railway accidents32, matters concerning the National Health Service33, Health and Safety at Work34, the police35 and so on. One of the purposes of the 2005 Act36 was to provide a comprehensive statutory framework for all such inquiries, so that all the provisions in the many statutes providing for inquiries in differing circumstances were swept away. In general terms this was a beneficial change, simplifying the position on inquiries generally.

[20] The ambit of inquiries under the 2005 Act is set out in sec 1 of that Act, in the following terms:

[21] From this opening provision of the 2005 Act38 it will be seen that the purpose of public inquiries is to deal with matters of public concern and that accordingly, although inquiries under the 2005 Act are inquisitorial in nature, Parliament has chosen not in this Act to confine inquiries to matters, as Lord Justice Salmon put it, ‘of vital public importance concerning which there is something in the nature of a nation-wide crisis of confidence39’. Clearly, with an Act designed to cover all kinds of public inquiry, some such general provision was needed, but it is to be noted that no distinction was drawn between inquiries into vital matters of public concern giving rise to a nation-wide crisis of confidence and inquiries of lesser matters of public concern.

[22] I have no particular quarrel with the somewhat wider circumstances in which the Minister concerned can cause a public inquiry to be held. The old suspicions of inquisitorial inquiries voiced by the Salmon Commission40, as being somehow alien to our ideas of justice, seem to have faded away. Indeed, as can be seen in the English court civil procedures introduced after Lord Woolf’s report in the 1990s41, there is much in our modern civil justice procedure that can be said to be inquisitorial in nature, with the judges playing a much more proactive role in running cases than was the case in Lord Justice Salmon’s day.

[23] So far as I am concerned, therefore, I accept that public inquiries should not be limited in the way suggested by the Salmon Commission42 but should be available for the investigation in an inquisitorial fashion of matters that have aroused or are arousing public concern.

[24] This is not, however the only purpose of inquiries. An inquisitorial inquiry is not an end in itself, but the means to an end. In one sense its immediate purpose is to investigate the matter of public concern, to report the outcome of its investigations and, in appropriate cases, to make recommendations calculated, if carried into effect, to avoid similar circumstances arising in the future.

[25] There is, however, a wider and more fundamental purpose. Surely this is, by means of a public inquiry, to seek to grapple in an open and satisfactory way with the public concern that caused the inquiry to be set up in the first place so as, so far as is possible, to deal properly with that concern.

[26] To my mind this can only be done if the appointed tribunal is and remains not only independent, but is seen by the public to have this attribute. Without both the fact and appearance of independence, the inquiry is in my view at risk of failing to achieve any useful purpose at all. Indeed, in such a case it may have precisely the opposite effect, exacerbating the situation which led to the setting up of the inquiry.

[27] It is in this context that I have publicly voiced my concern about provisions of the Inquiries Act 2005 relating to restrictions on attendance at an inquiry43, or the disclosure or publication of any evidence or documents given, produced or provided to an inquiry44.

[28] There is no doubt that in the course of many inquiries, it is necessary to have in place restrictions of this kind. In the Bloody Sunday Inquiry45, we made a number of orders relating in the main to the personal safety of witnesses, since under the Human Rights Act 1998 we had an obligation to protect the right to life stipulated by Art 2 of the European Convention on Human Rights (the Convention)46. Security Service personnel who had worked in Northern Ireland, as well as former members of paramilitary organisations, were among those who required protection in the form, not only of anonymity, but also in the form of restrictions on who could see them giving evidence.

[29] The important point is that it was the tribunal which imposed these restrictions. Its orders, were, of course, open to judicial review, but this review was not by the Government but by judges who had taken an oath to do right to all manner of people, without fear or favour, affection or ill will.

[30] The 2005 Act provides that restrictions may be imposed by the chairman of an inquiry47. So far, so good; but the Act also provides that the minister may also impose restrictions48. The minister is almost bound to be the one in charge of the government department which set up the inquiry in the first place and who is charged under the Act with various responsibilities relating to the inquiry.

[31] It is worth quoting from the provisions of the Act, which define the circumstances in which restriction notices can be issued. Section 19 (3) to (5) are in the following terms:

[32] After the draft Bill was prepared I voiced my concerns about the powers given to a minister under these provisions, which contain a very wide description of the circumstances in which restrictions can be applied. I expressed the view that giving the minister such powers would make very serious inroads into the independence and appearance of independence of any inquiry and was likely to damage or destroy public confidence in the inquiry and its findings, especially in any case where the conduct of the authorities was in question. I went on record to declare that, as a judge, I would not be prepared to be appointed as a member of an inquiry that was subject to a provision of this kind. My views were shared by, amongst many others, the then Lord Chief Justice, Lord Woolf, Judge Cory of Canada (who had been asked by the British Government to recommend whether public inquiries should be established in relation to certain matters in Northern Ireland), my colleagues on the Bloody Sunday Inquiry50 (William Hoyt, the former Chief Justice of New Brunswick and John Toohey, former Australian Federal Judge) and the Association of the Bar of the City of New York. For those that are interested, the correspondence on this matter that I had with Baroness Ashton, then Parliamentary Under Secretary of State at what was then the Department for Constitutional Affairs (now the Ministry of Justice) has been deposited in the House of Lords library51.

[33] My efforts to dissuade the Government from giving such powers to ministers, at least without carefully restricting them so as to preserve the independence of the inquiry, were in vain. It seemed to me, and still seems to me, that the restrictions set out in the Act are those that should be considered and imposed by the tribunal. Government ministers would, of course, be entitled, as would anyone else interested, to make representations to the tribunal; and if displeased with the response, apply to the courts for judicial review, but as it is, the impression given to the public at large is that the minister of a department whose activities, or indeed inactivities, have given rise to public concern, is given special powers to interfere with the conduct of a public inquiry. As the Association of the Bar of the City of New York put it, inquiries should be independent from the government as a whole once they are established, as ‘[f]or an inquiry to be successful, it should not only be independent but also be seen to be independent from government as an institution52’.

[34] To my mind, this requirement for a successful inquiry is also a requirement for an investigation into events that fall within Art 2, the right to life article, of the Convention53. It is, of course, the case that although this article does not expressly stipulate that an inquiry should be held in any instances where there is suspected to have been a contravention by a state of this right, it has been settled for some time that to make this article effective, there should be an investigation into such circumstances. If a government or governmental institution is suspected of having contravened Art 2, it seems to me self-evident, and human rights laws to my mind require, that the investigation should be and should be seen to be independent of the government or governmental institution concerned.

[35] The right to an investigation has recently been widely expanded by the European Court of Human Rights in the Silih54 case and the United Kingdom Supreme Court decision in McCaughey55 last year. It now appears to be the case that the right to an investigation under Art 256 arises whether or not the incident in question took place at a time when the Convention was part of the law of the country concerned. As the courts put it, the right to an investigation is now to be treated as both independent and detachable from the basic right to life enshrined in Art 2. I must content myself by saying that I have yet to be persuaded that this is a correct application of Art 2. In my view, the dissenting judgments of Nicholas Bratza in the European Court57 and of Alan Rodger (now sadly missed) in the United Kingdom Supreme Court58, contain trenchant criticism of the views of the majority. The Human Rights Act 1998 requires the courts of this country ‘to take into account’ any decision of the European Court of Human Rights59, not necessarily to follow slavishly those decisions.

[36] Section 6(2) of the Human Rights Act 199860 prohibits public authorities from acting incompatibly with a Convention right. Section 6(3) of the Act provides that a court or tribunal is a public authority for this purpose61. Thus in conducting the Bloody Sunday Inquiry62 we regarded ourselves as under a duty to comply with the provisions of the Convention, although until the recent decision in McCaughey63 it did not occur to us (or indeed the Government) that despite the fact that we were investigating deaths occurring in 1972, we were conducting an Art 2 inquiry64. We did, however, do our best to conduct an independent inquiry; one that I trust satisfied the requirements of Art 2.

[37] The task of an inquiry like the Bloody Sunday Inquiry65 is to try and find out what happened — in other words to try and seek out the truth. In the nature of things there are likely to be fundamental disagreements about what happened, what the true position really was. That was certainly so in the Bloody Sunday Inquiry. On the first day of the public hearings of that inquiry, at the outset of his opening submissions, Counsel for the tribunal, Christopher Clarke QC, said this:

‘Not the truth as people would like it to be, but the truth pure and simple, however complex, painful or unacceptable to whomsoever that truth may be66.’

[38] This task of trying to seek the truth must be done in as open and transparent manner as possible. To its credit, the Inquiries Act 200567 makes this a requirement of inquiries. It is in the context of carrying this requirement into effect that information technology (IT) plays a very important role, particularly in an inquiry of any size. In the past, while on the face of it, inquiries were generally open to the public, in reality, in cases of complexity or where the tribunal was considering a number of documents, to attend an inquiry actually provided little in the way of openness or transparency. Without seeing the documents being considered or having available a record of the evidence (both written and oral) of witnesses, someone attending an inquiry would really have little or no idea of what was going on. The inquiry would, in truth, be public in name only. It would be prohibitively expensive and time-consuming to make available to the public, or even that part of the public interested in the inquiry, hard copies of the material being considered.

[39] The use of IT has changed the situation completely. In the Bloody Sunday Inquiry68, we made a digital record of all the many tens of thousands of relevant documents; the written statements of thousands of witnesses; the transcripts of evidence; as well as many hours of film evidence and countless photographs. During the hearings, any of these could be called up for display, not only for members of the tribunal and lawyers acting for interested parties, as well as the witness giving evidence, but also for the public on large screens; and by closed circuit television, made available to the media. Every evening, the documents and other material, as well as a transcript of the day’s proceedings, were posted on the inquiry’s website, thus being made available world-wide for anyone with a computer and internet access. By this means we were able, as I trust, to make the Bloody Sunday Inquiry a truly public inquiry, open to anyone anywhere who was interested.

[40] That there was such interest is perhaps demonstrated by the fact that on June 15, 2010, the day our report was published on our website, we received some 6 million hits.

[41] By the same means, we were also able significantly to speed up the conduct of the inquiry. In the old days, the documents, photographs, witness statements, transcripts and so on, would all be in paper form only. In a public inquiry of any size, this would amount to many bundles of papers. When questioning a witness, the questioner, the tribunal, the lawyers for the various interested parties, would all have to be directed to and find the appropriate bundle and the relevant page in that bundle. Immediately afterwards, it was often necessary to put that bundle away and take out another bundle and find another page, or even to have two or three bundles open at the same time. The time taken to do this was significant, amounting often to tens of minutes a day. This was, in truth, totally wasted time and thus totally wasted money. By using IT and presenting the material on screens, we were able to reduce that time to virtual insignificance. It usually took two or three seconds between calling for a particular item and its presentation on screen. By splitting the screen more than one item could be displayed at the same time. It is true that the Bloody Sunday Inquiry69 — the largest public inquiry that there has ever been — took a long time. Without IT, I believe that it would have taken immeasurably longer.

[42] Finally, on the topic of IT, the report itself is designed, in its electronic form, to contain hyperlinked references to the evidence and other materials on which it is based70. By this means, those reading the report, on DVD or the internet, can immediately access the evidence and materials in question, enabling them to check for themselves whether or not the conclusions we reached are properly supported.

[43] I turn now to the question of fairness. To my mind, it is beyond doubt that the tribunal, while seeking the truth in as open and transparent manner as possible, should treat all concerned with fairness. In the context of a public inquiry, this means a number of things.

[44] First, by its very nature, a public inquiry is likely to involve allegations of negligence or more serious misconduct by individuals. Often, preceding the institution of an inquiry, such allegations are put about with little or no material to support them. It is thus, as Lord Justice Salmon made clear in his report, of the first importance for the tribunal at the outset to consider whether there are facts and matters which justify an investigation into the conduct of particular individuals71. It would be entirely wrong to proceed to question individuals in public unless there was material to suggest that the individual concerned could reasonably be asked to provide an explanation for what had happened. The risk otherwise is that the ‘no smoke without fire’ brigade would have a field day.

[45] Secondly, it also seems to me to be self-evident, in a society which regards itself as conducting its affairs in a just manner, that those attending a public inquiry where they are likely to be the subject of criticism, should be fully informed of the allegations made against them, and given a full opportunity to give their side of the story. Again to its credit, the Inquiries Act 2005 makes this a requirement of public inquiries72. However, over the years, this requirement, which was also spelt out in detail by Lord Justice Salmon73, often produced what I regard as an unfortunate consequence. This took the form of what became known as ‘Salmon letters’74 sent by the tribunal after the main hearing was over to those it was minded to criticize in its report, setting out the proposed criticism and inviting the person concerned to make any response he wished to make to the criticism, before finally publishing the report.

[46] This might work in some cases, but it would certainly not work in cases where the criticism was being advanced or supported by others interested in the inquiry. This is because the obvious defect in such a procedure is that these others could be given no opportunity to deal with any response that the person concerned might supply. To give them such an opportunity would lead to endless or virtually endless exchanges between those subject to potential criticism by the tribunal and those advancing or supporting such criticism.

[47] We avoided this situation in the Bloody Sunday Inquiry75 by making sure that, at the earliest possible moment during the course of the inquiry, the persons concerned were given proper advance warning of any criticisms that the tribunal considered had some evidential support and were given a proper opportunity to provide their answer to those criticisms. It was made clear to them that there would not be another opportunity at a later stage to reply to any such criticisms. It was also made clear to all concerned that the tribunal would not consider criticisms that had no evidential support or which were made at such a stage in the proceedings that the person concerned had no proper opportunity to deal with them.

[48] Persons subject to possible criticism in public inquiries should in my view be entitled to legal representation. Lord Justice Salmon described this as an elementary right76. It is true that a public inquiry cannot find anyone guilty of a criminal offence or in breach of civil law obligations, but what it can do by its findings is to destroy careers or subject the individual to public opprobrium. These are consequences of grave concern to those involved.

[49] Persons not criticized but adversely affected by the events that have given rise to the inquiry should also in my view have the right to be legally represented. The inquiry may well be investigating, as indeed we were, matters that have given rise to the strongest feelings of grief and resentment at what happened.

[50] Take the example of the Bloody Sunday Inquiry77. The families of those killed and the wounded had long sought for another inquiry into what had happened. The parents, wives and children concerned wanted to see the truth of what happened emerge. If any of you were related to someone shot by a British soldier on the streets of a British city, would you not feel it to be only fair that you should be entitled to a lawyer, so as to assist in bringing out the truth?

[51] Take the soldiers. They were being publicly accused of using their lethal weapons in a wholly unjustifiable way. Senior politicians were being accused of being either actively complicit in a plan to shoot civilians without justification, or at least careless as to whether or not that happened. Surely as a matter of basic fairness they should be entitled to have legal representation to ensure that their side of the story was properly and adequately put before the tribunal.

[52] It is here that, in an inquiry of any size, substantial costs are likely to be incurred. Lawyers do not come cheap. In the Bloody Sunday Inquiry78 over half the cost, something over £100 million, was that of lawyers.

[53] This is an enormous sum, but the Bloody Sunday Inquiry79 was an enormous inquiry. We had hearings over 435 days, with over 900 witnesses giving oral evidence and a further 1,500 giving written evidence. There were about 250 volumes of documents and many hours of film and video material. The closing submissions of the interested parties and the summation of our own counsel, all of which we required to be put in writing to save time, amounted to over 14,000 pages.

[54] There were many interested parties. In one sense they could be divided into a few groups, such as soldiers; the families of the deceased and those wounded on the day; paramilitary organisations; the civil rights organisations who were responsible for organising the march on that day; and the politicians concerned, both in the government in Westminster and the then Northern Ireland government. But one lawyer for each of these, or one small team of lawyers for all of these, was in truth not enough.

[55] Let us take the families as an example. On the face of it, they had common cause. It was their belief that, with no justification, the soldiers had gunned down their loved ones. Surely it was sufficient that one team of lawyers could properly represent their interests? But what of those who objected, on reasonable grounds, to be represented by, for example, a particular firm of solicitors who others had already instructed. Should their reasonable objections be ignored and instead they be required to be represented by lawyers in whom they had no confidence? We thought not, for the simple reason that we thought it was an unfair thing to do.

[56] Much the same was the case with the soldiers. Some soldiers who were present on the day had substantial criticisms to make of the actions of other soldiers. It would hardly be thought fair by the former or the latter that they should be represented by lawyers who would have simultaneously to advance and rebut those criticisms.

[57] The net result of this was that, in the Bloody Sunday Inquiry80, we concluded that in the interests of fairness, there should be different legal representatives for different groups of families, and for different groups of soldiers, as well as legal representatives for politicians and others who were the subject of criticism on account of their activities on and before Bloody Sunday. This, of course, added substantially to the cost but our view was that this was a price that had to be paid in order to make the inquiry fair.

[58] There was, as it happens, another reason for taking this course. As you doubtless know, there was a previous inquiry into Bloody Sunday, conducted by the then Lord Chief Justice of England, Lord Widgery81. He completed his inquiry in 1972 in a matter of weeks but many felt that it constituted a whitewash — a denial of justice for the families. A campaign for a new inquiry continued for decades until, in 1998, the new Labour government instituted the inquiry I chaired. In the Widgery Inquiry, legal representation for the families was very limited. Indeed, they were not supplied with many of the documents that we considered were of central importance. This itself led to the feeling that the families had been unfairly treated, a feeling that we considered had some substance, so that was a further factor to take into account in deciding what the level of legal representation of interested parties should be for my inquiry.

[59] This leads to consideration of a suggestion made by some to the effect that it would be equally fair, and far cheaper, to have no lawyers save those engaged by the inquiry. Such lawyers would, ex hypothesi, be fair, impartial, and independent of any of the interested parties and thus in an ideal position to bring out the truth without fear or favour.

[60] This sounds good but, like Lord Justice Salmon, I consider that in practice it does not work in any case where individuals are the subject of criticism. As the Lord Justice put it:

‘No witness should ever be examined and cross-examined by the same counsel. This presents an air of unreality. The purpose of examination in chief is to establish the evidence being given by the witness. The purpose of cross-examination is to test and if necessary to destroy it. If both these tasks are undertaken by the same counsel, however brilliant the tour de force, the witness may be perplexed and left with the feeling that he has not been fairly treated82.’

[61] Such a proposal also puts the lawyer asking the questions in an impossible position. However clever the lawyer, it is difficult to see how he or she can simultaneously seek to bring out the evidence which the witness wishes to give, and at the same time seek to question its validity. No lawyer I know is capable of such acrobatics.

[62] I turn now to some practical matters facing those conducting a public inquiry. The first of these is preparation.

[63] In the nature of things, a public inquiry is only likely to be necessary where the facts and matters surrounding what has happened, indeed what has happened itself, are the subject of dispute. Thus, at the outset, the inquiry is faced with the task of collecting the evidence, analysing it, deciding on which people should be asked to give evidence, making sure that unfounded criticisms of individuals are treated as such, while equally making sure that those in respect of whom there are criticisms which appear to have some substance are so informed and given, as I have said, a fair and proper opportunity to provide their answer to those criticisms.

[64] Again, there is another reason for making the most careful preparations before launching on the hearings in an inquiry. As I pointed out earlier in this lecture, a public inquiry is an inquisitorial process. It is the tribunal which decides which issues can properly be investigated, which witnesses should be interviewed and give statements, which should be called to give oral evidence, and so on. Unless the tribunal, at the earliest possible moment, equips itself to the greatest possible extent with knowledge of the facts of the matter, the inquiry runs a serious risk of descending into an adversarial battle between those who hold differing opinions and beliefs as to what happened. Thanks to the unremitting hard work and the great expertise of those working for us, we were in a position, before the public hearings commenced in the Bloody Sunday Inquiry83, to have a greater knowledge of the events of the day and a greater appreciation of where the true areas of dispute arose, than anyone else, including the interested parties. We were thus able, from the outset, to control the conduct of the inquiry, instead of relinquishing that control to those who had a special agenda to promote.

[65] Proper preparation in an inquiry of any size requires the engagement of top rate personnel. In the Bloody Sunday Inquiry84 we held a ‘beauty contest’ to pick a firm of solicitors who would take written statements from witnesses. Taking proper statements from witnesses is a highly skilled job. We selected the firm of Eversheds, who provided a team headed by their Cardiff partner Peter Jones. Everyone is full of praise for the way in which they did their job. They of course charged for their services which lasted a long time and which required a great deal of highly expert work. But I can see no way in which the cost of properly trained lawyers to take statements can be avoided if a public inquiry of any size is to be conducted properly or fairly.

[66] The same applies to lawyers engaged to appear at the inquiry on behalf of the tribunal. It is in my view vital that the task of questioning witnesses is conducted by lawyers and not by members of the tribunal. If the tribunal takes upon itself the main burden of questioning witnesses it will also take on the burden of properly preparing to do so, rather than being able to spend the time considering all the other requirements of running an inquiry. Furthermore, to take on such a task runs the real danger that close questioning of a witness by the tribunal would give rise to the appearance of bias in the tribunal. Put another way, the tribunal should stand above and not descend into the arena.

[67] The Bloody Sunday Inquiry85 took a very long time and cost a great deal of money. During the period when we were preparing our report, there were those who complained, at times vociferously, at the length of time we were taking and the overall cost of the inquiry. However, none of these people appeared to have looked in any detail at what our task entailed. Instead they seemed to rely solely on the fact that the inquiry had lasted a long time and had cost a lot of money and that accordingly the inquiry had lasted far too long and had cost far too much. But there is a glaring non sequitur in such a criticism. You cannot deduce this conclusion from the amount of time and money spent. You must consider what had to be done if you are to produce a reasoned argument for suggesting that things could and should have been done differently and, further, to suggest that, if things had been done differently, substantial amounts of money and time would have been saved.

[68] In the autumn of 2010 I agreed to appear in front of the House of Commons Northern Ireland Affairs Committee86. This committee, perfectly reasonably, wanted to explore why this amount of time and money had been spent. The short answer was, and remains, that the proper, thorough and fair investigation of an event involving thousands of witnesses that had taken place decades earlier and which had already resulted in one inquiry whose report had been rejected by many, was necessarily going to take a lot of time and money.

[69] In this regard, however, the suggestion has been made, not by the committee but by others, that we adopted entirely the wrong approach to the Bloody Sunday Inquiry87, in endeavouring to examine the conduct of each soldier concerned individually and in trying to discover which soldier was responsible for which casualty, instead of looking at the matter in a much more general manner, without going into this sort of detail. Had we taken the latter course, it has been suggested, we would have saved a huge amount of money and time.

[70] I cannot accept this suggestion for a number of reasons. In the first place, I do not understand how such an inquiry could be conducted. How would one construct a general view of what happened and why it happened without looking at the conduct of each of those involved, both from the evidence of the person concerned and from the evidence of others relating to the conduct of that person? From where else could one obtain a general view? It seems to me that unless such evidence is examined in detail, the only other way to form a general view would be to make assumptions about what had happened, for example by assuming that the soldiers opened fire without justification. To do so would beg the central question at issue, namely the question why the soldiers opened fire. To my mind to conduct an inquiry by making assumptions about the very matters that are the subject of the inquiry is wholly impermissible and a very negation of the purpose of inquiries.

[71] In the second place, such a generalist approach would in my view be grossly unjust to the soldiers concerned or to others subject to criticism. To make a general assumption, without looking at the evidence in detail relating to any particular soldier, means failing to give each soldier a full opportunity to give his side of the story, and applying a blanket criticism to all without looking at individual circumstances. This again is not in my view a fair or proper way to conduct a public inquiry.

[72] In the third place, those advancing this criticism of our conduct of the Bloody Sunday Inquiry88 seem to have failed to bear in mind that this was the second inquiry into the events of January 30, 197289. The previous inquiry was done in weeks, it did not examine much of the available material, and to a significant extent it came up with general conclusions. In my view it would have been the height of folly to repeat what, to so many, had proved catastrophically unsatisfactory before.

[73] The point that I endeavoured to make to the committee90 was that it was vital, before instituting a public inquiry, that those concerned with deciding whether or not to do so should conduct as thorough as possible cost/benefit analysis — in other words to consider whether the potential benefit of conducting a public inquiry would justify its likely time and cost. This is a matter for politicians, not for members of a tribunal of inquiry.

[74] In some cases however, Bloody Sunday being one of them, I believe that it was not possible to form any meaningful view at the outset, about how long or how expensive the inquiry would be. The event had occurred decades earlier; no one knew what information was available or what researches could turn up; or even which witnesses were still available to give evidence. In such circumstances it is for politicians to decide whether the matter is of such importance and the need for a public inquiry so great, that it is politically necessary to institute an inquiry without having any or any clear idea of how long it will take or how much it will cost.

[75] Moreover, I should perhaps add this. We were examining an incident where over a dozen civilians were killed and a similar number injured, by army gunfire. For reasons I have already given, we took the view that we should examine each incident of shooting in the greatest possible detail, rather than looking at the events in general. In effect, we were conducting an inquiry into each individual incident, some two dozen in all. This cost some £200 million. This sum should perhaps be compared to the single incident examined in the Rosemary Nelson Inquiry91 into the murder of a Northern Ireland solicitor. That inquiry took seven years and cost £46 million. I can only repeat: proper, thorough and fair public inquiries into matters giving rise to widespread public concern with sharply differing views on what happened will, necessarily, often cost a great deal of time and money.

[76] I hope this lecture will not be understood simply as an opportunity for me to explain why the Bloody Sunday Inquiry92 took so long and cost so much, and to defend assertions that we wasted time and money, but rather to highlight the matters I consider face politicians who are considering whether to institute a public inquiry and those who are charged with conducting a public inquiry. For the reasons I have already mentioned, I believe that such inquiries must be open, thorough and fair. Openness, thoroughness and fairness more often than not require the expenditure of substantial quantities of time and money and, unless these attributes are met and ensured, any inquiry is likely to be self-defeating and may risk being a complete waste of money.

[77] I end by saying that I have yet to hear any reasoned and sensible suggestion that there is another and preferable way to conduct an inquiry like the Bloody Sunday Inquiry93, preserving the need for openness, thoroughness and fairness, but spending much less time and money. The Report of the Bloody Sunday Inquiry runs to over 5,000 pages. There is a chapter that details how we set about our task and how we performed it94. Perhaps there are those in the audience here tonight who would like to offer their suggestions as to how we could have done things in a better, quicker and cheaper way. But please do not all speak at once!

* Lord of Appeal in Ordinary 1997-2009; As Justice of the (United Kingdom) Supreme Court, disqualified from participation 2009-10. On January 1998 he was appointed to chair the "Bloody Sunday" Inquiry into the events of January 30, 1972 in Londonderry, Northern Ireland. The results were published on June 15, 2010. A fuller biographical note may be found at http://www.supremecourt.gov.uk/about/former-justices.html

1 The Bloody Sunday Inquiry [online]. Information about the Inquiry can be accessed at: http://webarchive.nationalarchives.gov.uk/20101103103930/http://www.bloody-sunday-inquiry.org/index.html (accessed March 15, 2012) [The Bloody Sunday Inquiry]. [back]

2 Ibid.. [back]

3 11 and 12 Geo 5 cap 7 [1921 Act]. [back]

4 cap 12 [2005 Act]. [back]

5 1921 Act, supra note 3 at s 1(1). [back]

6 1921 Act, supra note 3. [back]

7 See Report of the Select Committee of the Cape of Good Hope House of Assembly on the Jameson raid into the territory of the South African Republic, C 8380 (1897). [back]

8 See Report of the Select Committee on Marconi Wireless and Telegraph Wireless Agreement (HC Paper 152 and 185), June 13, 1913. [back]

9 Ibid.. [back]

10 1921 Act, supra note 3. [back]

11 Report of the Bloody Sunday Inquiry (HC Paper 29 I–X), June 15, 2010. The Report is available at: http://webarchive.nationalarchives.gov.uk/20101103103930/http://report.bloody-sunday-inquiry.org/ (accessed March 15, 2012) [Report of the Bloody Sunday Inquiry]. [back]

12 The Bloody Sunday Inquiry, supra note 1. [back]

13 W Shakespeare, Measure for Measure, Act 2, Scene 2 (Isabella). [back]

14 Royal Commission on Tribunals of Inquiry chaired by Lord Justice Salmon 1966 [Salmon Commission]. [back]

15 1921 Act, supra note 3. [back]

16 See Royal Commission on Tribunals of Inquiry, Report of the Commission under the Chairmanship of the Rt Hon Lord Justice Salmon, Cmnd 3121 (1966) [Salmon Report]. [back]

17 1921 Act, supra note 3. [back]

18 Salmon Report, supra note 16 at para 32, 3(a). [back]

19 Salmon Report, supra note 16 at para 32, 3(b). [back]

20 Salmon Report, supra note 16 at para 74. See also 2005 Act, supra note 4 at s 37. [back]

21 Salmon Report, supra note 16 at para 27. [back]

22 1921 Act, supra note 3. [back]

23 Salmon Report, supra note 16 at para 28. [back]

24 Ibid at para 28. [back]

25 The Bloody Sunday Inquiry, supra note 1, Opening Statement, delivered by Lord Saville, April 3, 1998. The Opening Statement is available at: http://webarchive.nationalarchives.gov.uk/20101103103930/http://bloody-sunday-inquiry.org/inquiry-background/opening-statement/index.html (accessed March 15, 2012). [back]

26 The Bloody Sunday Inquiry, supra note 1. [back]

27 Salmon Report, supra note 16. [back]

28 1921 Act, supra note 3. [back]

29 The Bloody Sunday Inquiry, supra note 1. [back]

302005 Act, supra note 4 at s 44(5):

44 Transitory, transitional and saving provisions

[…]

  • (5) The repeal by this Act of any statutory provision under which an inquiry has been caused to be held does not affect any power or duty conferred or imposed in respect of the inquiry, and accordingly—
    • (a) the inquiry may continue,
    • (b) any report may be submitted and published, and
    • (c) any proceedings arising out of the inquiry may be taken or continued,
    as if the enactment had not been repealed.
[back]

31 1921 Act supra note 3. [back]

32 See e.g., Regulation of Railways Act 1871, 34 and 35 Vict cap 78, s 7. [back]

33 See e.g. National Health Service Act 1977, cap 49, Part III, s 84. [back]

34 See e.g. Health and Safety at Work etc. Act 1974, cap 37, Pt I, s 14(2). [back]

35 See e.g. Police Act 1964, cap 48, Pt II, s 32 (repealed). [back]

36 2005 Act, supra note 4. [back]

37 2005 Act, supra note 4, at s 1(1). [back]

38 2005 Act, supra note 4. [back]

39 Salmon Report, supra note 16 at para 27. [back]

40 Salmon Commission, supra note 14. [back]

41 Department for Constitutional Affairs, Access to Justice : Final Report to the Lord Chancellor on the Civil Justice system in England and Wales by the Right Honourable the Lord Woolf, Master of the Rolls (July 26, 1996) (London, HMSO, 1996). The report is available at http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/civil/final/contents.htm (accessed March 15, 2012). [back]

42 Salmon Commission, supra note 14. [back]

43 2005 Act, supra note 4, at s 19.[back]

44 Ibid. [back]

45 The Bloody Sunday Inquiry, supra note 1. [back]

46 Human Rights Act 1998, cap 42, s 1(1)(a) (2), (3) and sch 1, Pt 1 [1998 Act]. See also the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4, 1950; 213 UNTS 221; TS 71 (1953); Cmd 8969), Art 2 [ECHR]. [back]

47 2005 Act, supra note 4, at s 19(2)(b). [back]

48 Ibid at s 19(2)(a). [back]

49 Ibid, at s 19(3)–(5). [back]

50 The Bloody Sunday Inquiry, supra note 1. [back]

51 Copies of the correspondence with Baroness Ashton can be obtained by contacting the House of Commons Information Office in writing. For further information see: http://www.parliament.uk/mps-lords-and-offices/offices/commons/hcio/contact-us/ (accessed March 15, 2012). [back]

52 The Committee on International Human Rights of the Association of the Bar of the City of New York, An Analysis of the U.K. Inquiries Bill and U.S. Provisions for Investigating Matters of Urgent Public Concern, January 25, 2005, p 1. The report is available at: www.abcny.org/pdf/report/ABCNY_Inquiries_Bill1.pdf (accessed March 15, 2012). [back]

53 ECHR, supra note 46. [back]

54 Silih v Slovenia (App no 71463/01) [2009] ECHR 571; [2009] 49 EHRR 37 [Silih]. [back]

55 McCaughey and anr (Re) [2011] UKSC 20; [2011] 3 All ER 607, [2011] 2 WLR 1279 [McCaughey]. [back]

56 ECHR, supra note 46. [back]

57 Silih supra note 54, Joint Dissenting Opinion of Judges Bratza and Türmen. [back]

58 McCaughey, supra note 55 at paras 142–162. [back]

59 1998 Act, supra note 46, at s 2(1)(a). [back]

60 1998 Act, supra note 46:

s 6 […]

  • (2)Subsection (1) does not apply to an act if–
    • (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
    • (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

[back]

61 Ibid.

s 6 […]

  • (3) In this section “public authority” includes—
    • (a) a court or tribunal, […]
    but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.

[back]

62 The Bloody Sunday Inquiry, supra note 1. [back]

63 McCaughey, supra note 55. [back]

64 i.e. an inquiry under ECHR, Art 2 supra note 46. [back]

65 The Bloody Sunday Inquiry, supra note 1. [back]

66 Ibid at Transcripts, Main Hearing Day 1, March 27, 2000, p 6, lines 9–13. The Transcript is available at: http://webarchive.nationalarchives.gov.uk/20101103103930/http://report.bloody-sunday-inquiry.org/transcripts/Archive/Ts001.htm (accessed March 15, 2012). [back]

67 2005 Act, supra note 4. [back]

68 The Bloody Sunday Inquiry, supra note 1. [back]

69 Ibid. [back]

70 Report of the Bloody Sunday Inquiry, available at: http://webarchive.nationalarchives.gov.uk/20101103103930/http://report.bloody-sunday-inquiry.org/ (accessed March 15, 2012). [back]

71 Salmon Report, supra note 16, at para 32(1). [back]

72 2005 Act, supra note 4 at s 2. [back]

73 The ‘Salmon Principles’, Salmon Report, supra note 16 at para 32:

  • ‘1. Before any person becomes involved in an inquiry, the Tribunal must be satisfied that there are circumstances which affect him and which the Tribunal proposes to investigate.
  • 2. Before any person who is involved in an inquiry is called as a witness, he should be informed of any allegations which are made against him and the substance of the evidence in support of them.
  • 3. (a) He should be given an adequate opportunity of preparing his case and of being assisted by his legal advisers. (b) His legal expenses should normally be met out of public funds.
  • 4. He should have the opportunity of being examined by his own solicitor or counsel and of stating his case in public at the inquiry.
  • 5. Any material witness he wishes called at the inquiry should, if reasonably practicable, be heard.
  • 6. He should have the opportunity of testing by cross-examination conducted by his own solicitor or counsel any evidence which may affect him.’

[back]

74 Warning letters named after the ‘Salmon Principles’ (ibid.), which give fair notice to a witness in advance of publication of the final report of a public inquiry of any criticism of him that the report may contain. The ‘Salmon letter’ procedure has been codified under the 2005 Act, see the Inquiry Rules 2006, SI 2006/1838, r 13:

  • 13.–(1) The Chairman may send a warning letter to any person—
    • (a) he considers may be, or who has been, subject to criticism in the inquiry proceedings; or
    • (b) about whom criticism may be inferred from evidence that has been given during the inquiry proceedings; or
    • (c) who may be subject to criticism in the report, or any interim report.
  • (2) The recipient of a warning letter may disclose it to his recognised legal representative.
  • (3) The inquiry Panel must not include any explicit or significant criticism of a person in the report, or in any interim report, unless—
    • (a) the Chairman has sent that person a warning letter; and
    • (b) the person has been given a reasonable opportunity to respond to the warning letter.

[back]

75 The Bloody Sunday Inquiry, supra note 1. [back]

76 See the ‘Salmon Principles’, supra at note 73. [back]

77 The Bloody Sunday Inquiry, supra note 1. [back]

78 Ibid. [back]

79 Ibid. [back]

80 Ibid. [back]

81 See Report of the Tribunal Appointed to inquire into the Events on Sunday, 30th January 1972, which led to Loss of Life in Connection with the Procession in Londonderry on that Day: by the Rt. Hon. Lord Widgery, (HC Paper 220) (HL Paper 101 1971-72) (1972) [Widgery Inquiry]. [back]

82 Salmon Report supra note 16, at para 57. [back]

83 The Bloody Sunday Inquiry, supra note 1. [back]

84 Ibid. [back]

85 Ibid. [back]

86 See Northern Ireland Affairs Committee, Bloody Sunday Inquiry: oral and written evidence, Wednesday October 13, 2010, the Rt Hon the Lord Saville of Newdigate, (HC Paper 499-i 2010-12) (London, TSO, 2011). The Minutes of Evidence are available at http://www.publications.parliament.uk/pa/cm201012/cmselect/cmniaf/499/10101301.htm (accessed March 15, 2012) [Bloody Sunday Inquiry: oral and written evidence, Wednesday October 13, 2010]. [back]

87 The Bloody Sunday Inquiry, supra note 1. [back]

88 Ibid. [back]

89 Widgery Inquiry, supra note 81.[back]

90 Northern Ireland Affairs Committee, supra note 86. [back]

91 See The Rosemary Nelson Inquiry Report, (HC Paper 947) May 23, 2011. The Report can be accessed via http://www.official-documents.gov.uk/document/hc1012/hc09/0947/0947.asp ((accessed March 15, 2012). [back]

92 The Bloody Sunday Inquiry, supra note 1. [back]

93 Ibid. [back]

94 Report of the Bloody Sunday Inquiry, supra note 10, at vol 1, paras 1.1–1.7. [back]