Public Inquiries and their Recommendations: Prospects for Reform

On 16 September 2024 the House of Lords Statutory Inquiries Committee published an important report on the future of public inquiries: “Public inquiries: Enhancing public trust”.

In its opening paragraphs, the Committee recognised what any reader of any newspaper will know to be true: that public inquiries are the subject of criticism on the basis of their length and cost, and a perceived failure in delivering what they are expected to achieve. “By combining elements of law and politics, public inquiries can appear to ‘freeze’ both”, the Committee remarked. A particular question that the Committee posed itself was how to ensure that an inquiry’s recommendations are implemented. The Committee noted why this was important: “had the recommendations from the inquiry into deaths at the Bristol Royal Infirmary in 2001 been implemented, then the patient deaths investigated by the Mid-Staffordshire Hospitals Inquiry in 2013 may have been less likely to occur. And we heard that if the changes recommended by the 2013 inquest into the Lakanal House fire had been made, then the Grenfell Tower fire might have been prevented”.

We have been here before. The House of Lords previously considered the Inquiries Act in March 2014, in its report “The Inquiries Act 2005: post-legislative scrutiny”. In that report, the Committee also noted that there had been a failure to make sure that recommendations were implemented. And although they were writing a decade earlier, they gave the same example: “The Bristol Royal Infirmary report preceded the failings at Mid Staffordshire NHS Trust… if the Bristol Royal Infirmary Inquiry recommendations had been implemented, Mid Staffs would never have happened”. They duly made recommendations so as to improve the situation (19 of which had been accepted by government). But the 2024 House of Lords report notes that of the 33 recommendations the Committee had made in 2014, only one could be identified as having been implemented in the following decade – and that one (the creation of a central Inquiries Unit, so as to ensure that experience gleaned from one inquiry is not lost when another is formed) was so little understood that one of the Committee’s own expert witnesses was not aware of the new Unit. It may not only be inquiries which are poor at having their recommendations implemented.

In Public inquiries: Enhancing public trust, the Committee considered different methods for scrutinising the government’s compliance with Inquiry recommendations. The first is oversight of compliance by the inquiry chair herself. But this runs into various difficulties. If the chair is a serving judge, then their judicial independence for other matters may be compromised if they take on a continuing role which involves scrutinising acts of the executive. For this reason, Sir Brian Leveson, when questioned by a Parliamentary Select Committee about whether, when and how his recommendations should be implemented, refused to answer (and in this, he had the support of the previous Lord Chief Justice, Lord Judge). Other chairs (for example, retired judges) have sought to follow up on their recommendations informally. But once they have reported and are functus, they and their secretariat move on to other jobs and they have no formal power to hold institutions to account. It is perhaps for this reason (as well as trying to ensure that the public see that they are acting swiftly in response to urgent safety issues) that chairs will now, increasingly, issue interim reports, so that progress in relation to any recommendations made can be monitored whilst the inquiry is still live. As an example, the Covid Inquiry is to monitor progress against the recommendations it has made in Module 1: the Chair has requested that the responsible institutions publish (within six months of the report) the steps they will take in response to the relevant recommendation and the timetable for doing so. If they do not do so, the Inquiry will write to the institution in question after 3, 6, 9 and 12 months (after 9 months it will register its ‘disappointment’ and after 12 months ask the institution to set out its reasons for not having responded). None of this has strong teeth, absent the institutions themselves wishing to comply (or media pressure compelling them to do so). Professor Alexis Jay expressed her disappointment and concern that she was not able to set up any group with the Home Office monitoring her recommendations in IICSA. Sir John Saunders has sought to establish public implementation monitoring following the Manchester Arena inquiry.

The House of Lords Committee also rejected the use of independent implementation monitors, as are employed in Australia to inspect (sometimes physically) compliance with recommendations. Instead, they preferred the model of a new, joint, select committee of Parliament: the Public Inquiries Committee (and, failing that, the use of a sessional committee of the House of Lords) to monitor implementation of recommendations. This body would publish all recommendations and reports in one place, undertake its own research and correspondence to establish what recommendations have been implemented, and publish the results. It is perhaps ironic that, more than a century after the failures of the select committee system (because they can act to protect the interests of the party in power) led to the Marconi scandal, and resulted in the Tribunals of Inquiry (Evidence) Act 1921, and the creation of Public Inquiries, we may now be enlisting the help of parliamentary committees in the system once again.

Will such a body assist? It is in everyone’s interest that well-founded recommendations from Inquiries be implemented swiftly. The difficulty however comes when trying to establish what amount to well-founded recommendations. Sometimes the recommendations may turn out not to be as good as first envisaged. An inquiry may be expert on its own subject matter, but hear relatively little evidence on reforms for the future, particularly if the inquiry places significant weight on a single expert witness and does not actively seek contrary views. As the House of Lords considered, when rejecting the proposal that inquiry chairs be given a formal role monitoring the implementation of their recommendations, the chair of an inquiry may not be best placed to take decisions which are the preserve of the executive – such as weighing up the potential cost of any reform as well as its benefits. Nor is it always sufficient to expect the government of the day to be able to say immediately which recommendations are good or bad: they may be under significant political pressure, when the inquiry report is published, to commit to implementing the recommendations in full.

One example of this may be the Grenfell Inquiry’s Phase 1 Report, in response to which Boris Johnson MP, then Prime Minister, stated broadly in Parliament that they would “accept in principle all the recommendations that Sir Martin makes for central Government.” In Rennie v Secretary of State for the Home Department [2023] EWHC 1794 (Admin) this commitment was said (along with a commitment made in sealing a consent order in another judicial review) to have founded a legitimate expectation that the Home Office would implement a scheme for Personal Emergency Evacuation Plans, notwithstanding the fact that (on the government’s case) their own investigations and consultations had shown that the recommendation would be too impractical and costly, and with too little benefit, to implement in practice. On the facts, the government succeeded in Rennie – their consultation was lawful and had discharged the legitimate expectation on them and there could not be said to be any breach of Article 2 ECHR – but it illustrates how a government can run itself into difficulties.

The introduction of a monitoring body may well assist in keeping pressure on, and will be welcomed, but perhaps the best way to increase the chance that government will implement inquiry recommendations is to ensure that it is wholly engaged in the inquiry process and has full opportunity to set out any objections to the inquiry’s proposals before the recommendations are made. In those circumstances they will be better placed to agree to implement recommendations, and more incentivised to do so.

Since this article was first published in Insight in November, the Government has published a response to the House of Lords Statutory Inquiries Committee (https://www.gov.uk/government/publications/government-response-to-the-house-of-lords-statutory-inquiries-committee-report-enhancing-public-trust/government-response-to-the-house-of-lords-statutory-inquiries-committee-report-enhancing-public-trust-html). The Government agrees that monitoring should be carried out a select committed, and has recommended to the Liaison Committee that formal implementation monitoring should be undertaken by a new, joint, select committee of Parliament: the Public Inquiries Committee. Should a new joint committee not be desired, then monitoring should be carried out by a sessional committee of the House of Lords. The committee should track the implementation of recommendations by way of a traffic light system, and conduct thematic research and meta-analysis of recommendations common to multiple inquiries, so as to identify systemic policy failures and prevent future disasters. The Government has also accepted the suggestion that when an inquiry’s recommendations are published, the Government should respond to them by putting a statement before the Houses of Parliament setting out which recommendations are accepted and which rejected, albeit that they are to do that within 6 months of the publication of the Inquiry’s recommendations, and not 3 as had been asked of them.

Rob Harland acted in Rennie v SSHD on behalf of the Defendant and is currently representing the Cabinet Office (including Number 10) in the Covid Inquiry.