inquiry | The Constitution Unit Blog

The inquiry into the COVID-19 pandemic is due to start work in the spring, chaired by Baroness (Heather) Hallett, a former Court of Appeal judge. It will be one of the most complex inquiries in legal history, and highly charged politically, with over 150,000 deaths so far, and the pandemic far from over. In January, the UCL Political Science Department hosted an expert panel discussion to pool advice on how best to set up a complex inquiry to ensure that it works speedily and efficiently, victims feel they have been heard, and the findings are accepted as legitimate. Ioana Măxineanu summarises their contributions.

On January 13th, the UCL Political Science Department hosted an online seminar entitled Setting Up the Covid Inquiry. The event was chaired by Robert Hazell, and brought together three distinguished panellists previously involved in high profile inquiries: Lord (Nicholas) Phillips, chair of the BSE Inquiry (1998-2000); Margaret Aldred, secretary of the Iraq Inquiry (2009-2016); and Brian Leveson, chair of the inquiry into press regulation (2011-2012).

This post summarises the initial contributions of the three speakers. The full event, including a very informative and interesting Q&A, is available on the Political Science Department’s YouTube page.

Lord Phillips

Lord Phillips started by explaining the background of the BSE Inquiry. In 1986, the first case of BSE (mad cow disease) was identified in England. The disease deforms the proteins in the brain, and is inevitably fatal. The Conservative government appointed an expert committee to advise on the possibility of humans contracting the disease. The committee concluded that the risk was remote, a view the government passed on to the public. Unfortunately, that was wrong. In 1995, the first death of a man who contracted the human equivalent, Creutzfeldt–Jakob Disease, was identified. Many felt misled by the previous guidance.

In late 1997, a non-statutory public inquiry was set up by the incoming Labour government. Lord Phillips was provided with two assessors: June Bridgeman, a retired senior civil servant, and Professor Malcolm Ferguson-Smith, a geneticist. They were full members of the tribunal, so they could write appropriate sections of the report. Paul Walker, a barrister in Lord Phillips’ chambers, was appointed as counsel to the tribunal.

The inquiry’s terms of reference required Lord Phillips to report within a year, which he had to extend twice. In the end, the Inquiry took nearly three years. It looked at 10 years of government activity, with a huge amount of documents. A large team of young people, many of them students, was recruited to help digest the documents.

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The specific scenario in which select committees seek evidence from a judge who has chaired an inquiry generates a lot of heat and light. But Patrick O’Brien indicates that the research he conducted with Robert Hazell shows the practice of judges giving evidence to parliamentary committees has been widely accepted as a positive and productive form of engagement. What is more, it creates opportunities for dialogue and for judicial accountability.

When is a judge not a judge? Lady Justice Hallett carried out a public inquiry into the ‘On the runs’ scheme in 2014. In its report on the same issue in March 2015 the Commons Northern Ireland Affairs Select Committee commented rather sternly that

‘we chose not to summon Lady Justice Hallett to attend, but we consider it to be a regrettable discourtesy to Parliament that she declined our initial invitation to give evidence to the Committee, especially as she had not acted in a judicial capacity when carrying out her review‘. [at para. 11]

Is a judge who chairs an inquiry acting as a judge, or acting as an inquiry chair? Judges, concerned about the implications of being drawn into disputes that are often highly politically charged, tend to believe that they are acting as judges and that their reports should speak for themselves. Parliamentary committees can find this attitude defensive and frustrating. Several years ago the Commons Cultural, Media and Sport committee ran into a similar conflict with Lord Justice Leveson in relation to evidence he gave as chair of the inquiry into phone hacking.

The specific scenario in which committees seek evidence from a judge who has chaired an inquiry generates a lot of heat and light. However, research I have done with Robert Hazell suggests that such ‘judge-led inquiry’ sessions, despite the problems that may attend them, make up only 5% of all evidence sessions these committees have with judges. The reality is that the vast majority of judicial evidence sessions are uncontroversial. The practice of judges giving evidence to parliamentary committees has been widely accepted as a positive and productive form of engagement by both judges and parliament.

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