Sir Keir Starmer has promised an inquiry into the events around the Southport murders committed by Axel Rudakubana, saying there are questions about the ‘Westminster system’. ‘I’m angry about it,’ the Prime Minister says. ‘Nothing will be off the table in this inquiry.’
It is not yet clear who will run that inquiry, or how. There will no doubt be an assumption that the inquiry must be on a statutory footing and led by a judge. Such inquiries are generally seen as the gold standard; anything that isn’t a statutory inquiry led by a judge will likely lead to political trouble for the Prime Minister.
But is appointing a judge the best way to unravel complicated problems of public administration and policy?
For years now, thoughtful observers of inquiries have been suggesting that, actually, a judge-led inquiry isn’t always the most effective route to the truth – likewise the statutory status that allows the inquiry to compel witnesses to attend.
The failings of legalistic inquiries have been clear for several years now, and nowhere more so than the Covid investigation. Five years on from the pandemic, and three years since it began, the Covid inquiry is moving glacially – it might just manage to hold its final public hearings next year, but may not report fully before 2028. Compare that to Sweden, where the equivalent inquiry reported in 2022.
A significant – and, some think, growing – problem with judge-led, statutory inquiries is that everyone involved has a lawyer and everything discussed has to be passed through multiple lawyers. This is, in a narrow sense, quite right and healthy – in a quasi-judicial process with the scope for consequential criticism, everyone involved should have legal advice.
Yet inevitably, the more lawyers a process involves, the longer it takes. And, some say, the harder it is to get to the facts; the Covid inquiry illustrates the point, as politicians taking the stand for questioning adopt a defensive crouch rather than frankly discussing their decisions.
This can be tricky territory. Due process is important. Laws are important. Lawyers are, sometimes, important – but not always. Yet in some political conversations these days, it feels as if anyone questioning the authority and primacy of lawyers and judges is at risk of being damned as a Trumpian fascist intent on ending the rule of law.
Well, I’m a lifelong centrist and product of the ‘Westminster system’ that Starmer is now decrying, and I don’t think that judges and lawyers are always the right people to run public inquiries.
I am not alone in this view.
As long ago as 2014, a House of Lords select committee challenged the dominance of judge-led inquiries, concluding that ‘ministers have in the past been too ready to assume that a serving judge would be the most suitable chairman.’
The successor of that committee is the Statutory Inquiries Committee, appointed to consider the efficacy of the law and practice relating to statutory inquiries under the Inquiries Act 2005.
It is chaired by Lord Norton of Louth, one of Britain’s leading authorities on public administration, and includes a battery of heavy-duty Lords lawyers.
In September, the committee produced a report that is well worth reading in the context of the Southport inquiry. It once again asks whether appointing a judge or even giving an inquiry statutory powers is the best way to investigate contentious public policies and administration.
It notes that some of the most successful public inquiries of recent years, such as the Hillsborough Independent Panel, had neither a judge as chair nor statutory powers.
I don’t think that judges and lawyers are always the right people to run public inquiries
This shouldn’t be surprising. A legalistic process isn’t always the best way to discover and explore issues via candid discussion. When witnesses are forced to lawyer up and address an inquiry via its counsel, they can also clam up; an inquiry should always be investigative rather than adversarial.
As such, Lord Norton’s committee cautioned governments against reflexively appointing a judge with statutory powers to run every inquiry:
Ministers should select the legal basis and chair of an inquiry on a case-by-case basis and not feel tied to a particular model. Ministers should keep in mind the option of holding a non-statutory inquiry (given its relative agility) and then converting it if witnesses fail to cooperate. Ministers should also consider selecting non-judge chairs or appointing a panel.
Intriguingly, the government was due to respond to the Norton committee in November but still has not yet done so.
The Lords committee offered good advice for getting the best out of a public inquiry, by questioning the political orthodoxy around judges and statutory powers.
Will Sir Keir Starmer KC, a man steeped in the traditions of the law, including the veneration of judges, take that advice and ask someone other than a judge to investigate the Southport horror?
Comments