Fairness and the inquisitorial inquiry
It seems a bit obvious to say it; but an inquiry inquires. Principles which apply to an inquiry are very similar to those which apply to a judge; but the component which is investigatory, inquisitorial, inquiring – call it what you will – goes beyond what judges do. This note looks at this inquisitorial aspect a little more.
Three fundamental components apply to any inquiry:
- That it be fair: that is, that it hears all points of view, and that when it considers those points of view it is free from bias
- That it investigates without favour to anyone all matters which arise during its work
- That it commands the trust, so far as possible, of all those concerned with the inquiry
Perhaps it need hardly be added: that fairness is a cornerstone of our judicial and administrative system; and that it should be reflected in political life and appointments also.
Fairness and impartiality: freedom from bias
I’ve gone on a lot about ‘impartiality’ and, its opposite, ‘bias’ over the past few days (eg in an open letter to Fiona Woolf, its proposed chair: https://dbfamilylaw.wordpress.com/2014/09/07/csainquiry-open-letter-to-fiona-woolf-on-bias/). Fairness as a fundamental legal principle demands two things: that as a decision-maker (tribunal, judge, panel of inquiry etc) you hear both sides of the case before making up your mind (or as lawyers put it: audi alterem partem); and that in making up your mind you have no bias as between the arguments put to you, or as between the people putting forward the arguments. If you are asked to investigate, there must be no bias in favour of, or against, any person you are investigating.
The job of an inquiry panel – whether it is discretionary (as now set up by the Home Secretary for child sexual abuse issues) or statutory (under Inquiries Act 2005) – is to inquire. Its function is inquisitorial.
It follows from this that an inquiry has a dimension which is absent in a judge or jury’s decision-making. A judge hears two (sometimes more) opposite arguments and has to decide between them. These arguments are put before a court or tribunal by opposing parties: they chose the issues and the judge acts as an arbitrator between them.
An inquiry investigates. Its job goes much further than that of a judge, which is essentially passive. Like a police investigation the inquiry – by definition – must make sure all stones are turned. A judge only hears about and deals with what is put before the court by the parties to the case. An inquiry may have to go further than investigating immediate issues; and then may need to follow up leads which those issues turn up.
The checks against bias must therefore be more rigorous than with a judge in his/her refereeing role. How difficult would it be – for example – for an inquiry member if s/he was required not only to hear from, but then also to have to demand more incriminating information from, a friend, neighbour, political or work colleague?
Trust in the inquiry
Fairness and what it demands (eg in terms of partiality) is a matter of law. The need to investigate is a matter of fact deriving from the terms of reference and subject matter of the inquiry. Does a third dimension apply? In a case where there are individuals whose mistreatment is in issue, surely the Government Minister who sets up the inquiry must be sensitive to the concerns of those individuals?
Broadly people trust judges. They accept they have a professional job to do, and have been appointed to do it. They accept their role – mostly – without undue question. If a court is called upon to decide a complaint or deal with a prosecution then – with a few notable exceptions – the fairness and impartiality of judges is accepted. But where there are serious questions raised for an inquiry by individuals closely involved in it (the clients of the inquiry, for want of another word) their trust in the inquiry panel is surely a factor the minister who sets up the inquiry should take into account in a clear and express way. The independence of a judge is a given. That of a lay chairman or other panel member is not. That affects confidence in the inquiry.
Lord Hutton’s inquiry into the death of David Kelly has been regarded as a whitewash; but that is less because of the character of the judge who conducted it than with the way it was set up, its terms of reference and the way the enquiry was used to prevent a proper inquest. And the Attorney-General – another Government minister – blocked any further progress with that inquiry: eg by reconvening the inquest.
Consequences of impartiality, illegality
If after the event it is found that a judge has not declared an interest, or is found to be biased his/her decision must be set aside. Remember Lord Hoffman, whose wife was a member of Amnesty International and who sat as a judge on the Pinochet case: the decision on Pinochet in the House of Lords was set aside because Lord Hoffman might be biased; or Lady Porter’s unsuccessful attempt to have the council auditor sacked for bias? One adjudication set aside, another upheld.
If a tribunal member is found later to be biased their report probably cannot be set aside; but what does that bias do for public perception of the extent of their investigation or the value of any investigations they put forward?