House of COMMONS
MINUTES OF EVIDENCE
PUBLIC ADMINISTRATION COMMITTEE
Thursday 11 November 2004
MR JOHN GIEVE CB, SIR BRIAN BENDER KCB and PROFESSOR SIR LIAM DONALDSON
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Taken before the Public Administration Committee
on Thursday 11 November 2004
Tony Wright, in the Chair
Mrs Anne Campbell
Mr Kelvin Hopkins
Mr Ian Liddell-Grainger
Mr Gordon Prentice
Memorandum submitted by Mr John Gieve CB
Examination of Witnesses
Witnesses: Mr John Gieve CB, Permanent Secretary, Home Office, Sir Brian Bender KCB, Permanent Secretary, DEFRA, and Professor Sir Liam Donaldson, Chief Medical Officer, Department of Health, examined
Q557 Chairman: Could I call the Committee to order and welcome our witnesses this morning? Thank you very much for coming along. As you know, the Committee is getting into the concluding stages of its inquiry into inquiries. In framing our thoughts we wanted to take some views from senior civil servants as well as from ministers, which is what we are doing in our two sessions this morning. You and your departments are extremely seasoned in the matter of inquiries. My research tells me that you have between you accounted for a third of all inquiries since 1990; and, indeed, if we take out transport accident inquiries, the figure goes up to 54%; so you are very much the people we would like to hear from. I do not know whether any or all of you would wish to say anything by way of introduction or whether you would just like us to fire some questions at you?
Sir Brian Bender: I do not think I do. Did you provide a memorandum?
Q558 Chairman: We have had a memorandum.
Mr Gieve: I did put in a note, but I do not want to add to that.
Q559 Chairman: To get us going could I ask a rather general question. With your departmental experience and personal experience also of thinking about inquiries, setting them up, running them, what happens when they report, and so on, given the fact that the inquiry tradition is a central part of the way we do public policy and politics in this country, would you tell us in general how you think this tradition is now working? What state is it in? Do inquiries serve us well or do we need to revisit it all?
Sir Brian Bender: I was struck by your statistics, Chairman. One of my colleagues on the Defra Management Board described this as the "department of biblical disasters" if you take floods and other things as well! I do not want to sound obsequious, but I think the timing of your Committee's inquiry is highly relevant. We do live in a culture where the media, in particular, are looking for who is to blame, and that is not necessarily the purpose of an inquiry. The purpose of an inquiry is usually somewhere in the spectrum of investigating what happens, and, in the case of one of the main inquiries, my department was affected, as was Liam's, by BSE. The investigative element was the purpose, and the other end of the spectrum is learning the lessons and looking forward. Certainly in the latter sense, and foot and mouth was intended to be that, then identifying who is to blame and trying to nail people is not the intention of ministers in setting up the inquiry. I deplore the tendency to try and finger people, as opposed to finding out what happened and what the lessons are, what, therefore, needs to be done to minimise the risk of them happening again, and if along the way there are individuals failing or systemic failings, they need to be addressed. Looking at this issue in the round and seeing whether there are any lessons for the future and how they are conducted must be right.
Professor Sir Liam Donaldson: I very much agree with what Brian has said. To my mind there is a pool of information about things that go wrong in the public health services from which we need to learn. At the moment inquiries probably cover a relatively small amount of that pool. We are a little bit different to the other two departments in that we control a large public service, and so lot of my experience is about the scrutiny of things that have gone wrong in the National Health Service and, to a certain extent, in the social care system, rather than purely what the central government department did. Striking a balance across the board between learning and accountability is very important. Essentially it is not enough to have inquiries; you have got to have some other system of analysis or investigation which will lead to learning. We can perhaps talk more about that in the work we have been doing on safety in the NHS. That is my first point. My second point is that there is a great practical problem with many of the incidents that we inquire into of having to stand back whilst the police or the coroners investigate so that we do not prejudice their inquiries, which might lead to prosecution or to findings at an inquest. That sometimes means not just that there is a delay in learning the lessons but everything grinds to a halt and there is a policy blight whilst it is going on; and by the time you eventually get to the end of the criminal prosecution and have your inquiry, it is so long in the past that you really do wonder whether lessons can properly be learned. Finally, I think the way in which recommendations of inquiries are framed are very critical. In my experience, whilst the recommendations of inquiries are very helpful, sometimes the inquiry does not have the expertise to redesign the system that it is inquiring into, and very often they try to do that. You are sometimes stuck with recommendations which, as a manager or a policy‑maker, you know would not work, but, at the same time, you want to take on board the inquiry's findings. Finally, and very briefly, I often find that the "lessons learned" element of an inquiry is not actually so much in the recommendations that are at the end of the report but in reading the account of what went wrong, essentially findings which may be either explicit or implicit. Those things tend not to be acted on. People usually go very bureaucratically to the recommendations and do not absorb themselves in the inquiry report and its findings and observations, because often there are very striking things that do not necessarily create a specific recommendation.
Q560 Chairman: I think that is very interesting indeed. John Gieve, do you want to add something
Mr Gieve: As my paper shows, the heavy end of inquiries that you are looking at is one part of a plethora of other independent or semi‑independent investigations. In any organisation, perhaps particularly in our sort of organisations where we have got police, prisons with enforcement powers over the citizen, it is very important to have some independent checks and to have as much transparency as you can as to what is being done, and so on. We have therefore instituted as part of our process a large number of statutory inspections, and other things, by independent people in order to create transparency and to provide a practical check on how those powers are exercised. I cannot imagine trying to run my department or that sector of the public service without having a regular and an institutionalised independent assessment at lots of different points in the system. I guess the public inquiries or the independent headline inquiries come where there is also a great need for public reassurance that we are taking account of the lessons learned. I think the pressure for that is increasing all the time, and there is a risk that we overdo it and go over a lot of events which are very similar where there are not a lot of new lessons to be learned, but I accept that as an inevitable development over several years.
Q561 Chairman: Do you think we sometimes have inquiries when we should not have them?
Mr Gieve: You are going to ask me for examples, are you not? The answer must be, "Yes", but I cannot think of the right example. It is also the question of what sort of inquiry do you have. I gave an example, which was quite contentious at the time, over some immigration schemes which we got a member of our department, a director, to inquire into, and there was a lot of pressure that it should be a full public inquiry, it should be done by lawyers, and so on. At the end of the day it came out with a perfectly sensible, adequate report which people have not really questioned afterwards. That was an example, if you like, where we were under pressure to go one stage further or two stages further, which, in the event, proved unnecessary.
Q562 Chairman: That is the second order question: "Having decided to have an inquiry, what kind do we have?", and so on?
Mr Gieve: Yes.
Q563 Chairman: Sticking with this initial thought about having them, it would be quite interesting to hear from the perspective of permanent secretaries. We have inquiries when something has gone wrong, and people like us say, "Something must be done. We should have an inquiry." Tell us how that works through the official machine? How does the discussion go as to: "Should we have one? If so, what kind might we have?" Who takes the key decisions about whether to do it or not? Who should lead it? How does it work? Give us a flavour of it?
Professor Sir Liam Donaldson: The key people involved would normally be the very senior official, either the permanent secretary ‑ although I happen to be a permanent secretary as well, I am the Chief Medical Officer ‑ or the official who is responsible for that area of work in consultation with ministers, sometimes in consultation with the local service body, if there is one, and, on occasions, in consultation with any victims. The first thought is: is an inquiry a proportionate response? We have difficulty there because there are no ground rules written down, and so I suppose it is a case of looking back on the inquiries that have been done and trying to say, "Why was that one a public inquiry, or a major inquiry, and that one not?" My response on that is that, generally, if there are a larger number of victims involved, a number of people have died, for example the Bristol children's heart surgery issue, if the issues raise new areas of policy, for example, the organ retention in Alderhay Hospital ‑ we did not have a clear policy on what should be done about that. It was clear that the existing legislation was outmoded, but we did not have a clear position on how consent should be used, and so on and so forth - although it started with a tragedy or some adverse circumstance, there is a need to look at it, not so much to find people accountable and to blame, but to illuminate an area of policy which needed to be reviewed and updated, and so on. Those are two of the principal reasons. I suppose, being realistic, the third factor is how much pressure you come under from the media, from people who have been harmed or people who have a strong case to make. Increasingly that is complicated by the fact that lawyers often draw victims together, sometimes from different parts of the country, to create a class action or at least a campaign to have an inquiry, and sometimes, rightly or wrongly, departments would give way to that sort of public pressure in order to calm the situation and have a process for resolving it; so the inquiry might partly be used as process to resolve conflict. Briefly, let us say, for the sake of argument, you had five premature babies dying in five units in five hospitals in five different parts of the country perhaps due to the faulty use of a device or a faulty medical procedure, then you could have a situation where five sets of parents and MPs and media in five parts of the country were all demanding their separate inquiry, whereas the mechanism that would probably save the life of the next premature baby would be to pool the information from those five incidents, analyse it quickly with experts and look at the circumstances, perhaps find a common cause, and then, within a few days or a few weeks, send out a directive that would ensure that practice was standardised around a safe procedure. That would save babies lives, whereas an inquiry, which might sit and work for two years, is not going to have any effect.
Q564 Chairman: Would it be helpful if there was a standard yardstick within government against which you measured all these things? Not inside individual departments, but across government as a whole, because these are common considerations, are they not?
Professor Sir Liam Donaldson: Yes. It would be very helpful to have some guidelines on the threshold for initiating different sorts of inquiries. I think that is one set of considerations. The other set of considerations are cultural and to do with the way that society strikes this balance between accountability and learning, which is much more difficult. For example, the safety system which we have initiated in the NHS, which is one of the first in the world, to try and learn lessons, rather like the airline has the presumption that, in general, a lot of things that go wrong are honest failures, they are systems failures, you need to learn from them, but if they were constantly challenged by the threat of inquiries for all such incidents, the whole system would grind to a halt. There is that side to be sorted out, and then, within the range of inquiries that are available ‑ "Should we have one, should we not? What sort should we have?" ‑ some guidance would be very helpful, particularly on thresholds for initiating.
Sir Brian Bender: I agree with everything that Liam has said. I would like to pick up something John Gieve said in his opening comment. If one does have such a check‑list, then it is important within it to see what credibility existing inspection arrangements have. Clearly that ought to be the first line of response if something has happened. Is there a perfectly credible internal inspection arrangement which will, as a matter of routine, resolve the issues, or does it need to move to a different level?
Professor Sir Liam Donaldson: If you look at the situation of saying in some circumstances you would not have an inquiry, that does not sound good publicly. It sounds as if you are trying to hide things, not being open about things. I think this wider debate about the balance between learning and accountability in the public domain would be very helpful in increasing understanding about this.
Q565 Brian White: That brings us to the terms of reference that an inquiry has. How do you at the point that you have decided, for whatever reason, to have the inquiry decide what the terms of reference are?
Professor Sir Liam Donaldson: Usually by identifying a Chair for the inquiry, trying to find the right person to do it, and then the civil servants, drawing in ministers at the end of the process in consultation with the Chair of the inquiry, would usually draw up the terms of reference.
Q566 Brian White: You do the Chair before you do the terms of reference?
Professor Sir Liam Donaldson: Usually, because, certainly in the case of a judge, the situation would arise where they were not satisfied with the terms of reference.
Sir Brian Bender: I agree with Liam, though certainly the terms of reference cannot be finalised without the agreement of the Chair. If you take something like foot and mouth, the Prime Minister had been consulted and had reached a view on the broad direction. That was communicated to Dr Anderson orally, but, before he definitively confirmed in an announcement, the terms of reference were agreed with him.
Q567 Brian White: One of the things that came out with Lord Hutton and with Lord Laming when they were before is that, once the initial terms of reference have been set, having a period where you can stand back and say, "Are they the right terms of reference?" and the ability, some way into the inquiry, to review whether they are still appropriate or not. Have you any views on whether that should be a formalised process?
Sir Brian Bender: Taking BSE as an example, experience showed that Lord Phillips was perfectly able to explore the areas he felt appropriate without feeling totally constrained by three and a half lines in terms of reference. Certainly in the limited experience my department has had, there has not been a need to review the terms of reference part way through, it has been a question of some shared knowledge and understanding at the outset with the Chair of not only what the terms of reference are but also what they mean, and then clearly the Chair has, by definition, discretion along the way to use those terms of reference to explore the areas that they think are appropriate. As I say, certainly in the two areas my department has been involved in, I have not detected any feeling of constraint on their part that these are the wrong terms of reference to enable them to do what they felt was appropriate as the evidence developed.
Mr Gieve: You like to get your terms of reference right first time. In the inquiries that I have been thinking about recently, there has not been any problem because they have been fairly widely drawn. They have been quite permissive. Generally: "Here is an incident. Look into why it happened and what are the lessons for the future." Most terms of reference have something like that in them, and there is no problem about them.
Q568 Brian White: One of the things that Frank Dobson, who is giving evidence after you, said when he was looking at Bristol was getting the families involved in the terms of reference. How much do you go about trying to involve outside bodies, apart from the Chair of the Committee, whether that is other departments, whether that is the people involved in the inquiry, or whether it is parliamentarians, or whatever?
Professor Sir Liam Donaldson: In most of the inquiries in which I have been involved recently at the outset there have been meetings between the inquiry panel and relatives or victims, and, as a result of that, when the inquiry makes its opening statement or sends its letter out to witnesses it lists the areas that they will be investigating, and many of the subjects that they list arise from concerns of relatives or victims or things that need to be looked into, which, I think, does reinforce the point about most terms of reference allowing wider inquiry: because effectively, within a broad umbrella of terms of reference, the specific areas of initial inquiry are usually on the basis of some discussion with those most involved and the stakeholders, as well as, if it is a legally based inquiry, counsel for the inquiry having gone through all the documents and picked out the key issues.
Q569 Brian White: One of the things that obviously determines whether an inquiry is successful or not is the secretarial support, which is obviously selected at the same time, but there is no permanent support mechanism for inquiries. Should there be one?
Sir Brian Bender: I saw the transcript of the evidence that Alan Evans and his colleague gave to you. I think being a secretary to an inquiry is a pretty demanding task. The idea that one is doing it as a career option for the next 15 years is not something, 15 years ago, I would have chosen. One needs a source of expertise to turn to. The ideas that are being explored at the moment are having a standing unit to give advice so that each department that is faced with this is not inventing a wheel. I think that is right, but I am not sure I personally recommend going a step further and saying you need a standing group of staff who can always be called upon.
Professor Sir Liam Donaldson: Essentially my experience is that if the inquiry is legally based, which many are, it will be the solicitors to the inquiry that will organise most of the evidence. Increasingly, I think Chairs draft their own reports and findings, so the secretary's job is not as prominent a job as it might have been in the past, although clearly they are in the mainstream of the business and they are helping to organise it. If the concern is - and I can see that the public might have a concern - that insiders might be influencing the content of the report, I think that is a bit unlikely.
Mr Gieve: I was going add, in the areas where you have lots of inquiries regularly, of course we do have permanent staff. If you take police complaints, for example, which include now all deaths in police custody, there is a substantial staff which is permanent. It is really a question of whether you have a standing staff for the unexpected. I think answer to that is probably not, because you want to be able to pick people who will be able to work on a particular issue.
Q570 Mrs Campbell: I wanted to jump back a little to the purpose of inquiries. Sir Liam, you talked about the learning and accountability that is obviously important to inquiries, but we MPs often get victims or relatives of victims who need an inquiry as a sort of catharsis: they want some kind of therapeutic exposure. I think you have not really considered that in what you have said. I think it would be a very important part of the healing process. Obviously in some cases there is a very difficult balance to be struck between learning from events quickly and providing victims and relatives of victims with that necessary exposure. Would you agree with that?
Professor Sir Liam Donaldson: I understand the concern. Leaving the catharsis to take second place, sometimes why the victims want an inquiry is to find out the truth, the unvarnished truth, I think in the past there has been perhaps a lack of openness in situations where inquiries have not been held, and I think there is a way of squaring that circle by ensuring that the facts and the truth get out without necessarily the vehicle always having to be a formal statutory inquiry. I think the cathartic effect and the moving on after very damaging events is an important part of the inquiry process, but then it is a question of scale. There are probably many people every year that would benefit from the cathartic effect, but you cannot do it for all of them; so you are back to the point about proportionality but also trying to satisfy the second point of the need for people to find out what happened. Often people want to know that it will not happen to somebody else.
Q571 Mrs Campbell: It is not easy to build that into a check‑list, is it?
Professor Sir Liam Donaldson: No, but I think we should have a try at it, because at the moment it is just being done on judgment, experience and intuition, and I think it would be very helpful not least to have an auditable process: because increasingly we have judicial reviews calling for inquiries when departments might think that the inquiry is not the appropriate mechanism.
Q572 Chairman: As senior civil servants, have you put up papers to ministers saying, "Actually I do not think we ought to have an inquiry" for the reasons that we are talking about - the yardstick has not been met? They may want an inquiry, but we just should not have one?
Sir Brian Bender: I cannot think of an example. Most of the discussions I have been involved in, for example in relation to foot and mouth disease, were: "What nature of investigation/inquiry is appropriate?", because there is a need, at the very least, to learn some lessons. I cannot myself identify any, although I am sure there must have been some examples, because, as one my colleagues said earlier, there are weekly or monthly calls for investigations into issues.
Q573 Chairman: It is a brave minister who says, "We are not going to have an inquiry." It is not such a brave civil servant who says, "We are not going to have an inquiry"?
Mr Gieve: We get calls for inquiries all the time, and I cannot remember sending a minute saying, "Do not let's have an inquiry", but we have certainly decided not to on many occasions. If you are going to have an inquiry, the pressure is always to have as full blown a public inquiry as it is possible to have, and we certainly have resisted those. There is an element of judgment in it. As to whether or not it is particularly the officials who want it to stay a secret and ministers who do not, it depends on the circumstances. Also the real cost of an inquiry comes in, but also the diversion of staff time to make sure we get all the papers, and so on and so forth, and that is a cost to ministers and officials alike in terms of other work not done.
Professor Sir Liam Donaldson: I think in the case of the external organisations, the National Health Service bodies and the social services departments, the impact on normal business morale and time is very much greater. I think you would see a hospital possibly grind to a halt, but that is not to say that there should not be inquiries into some things; it is just that there is a downside to it.
Q574 Mr Liddell-Grainger: Can I ask about the foot and mouth episode? Why was it in private?
Sir Brian Bender: Let me run through the sequence of events that happened. First of all, the Labour Election Manifesto 2001 volunteered and proposed two inquiries: the first was on the future of farming and food, which became John Curry's policy commission, and the second was the scientific inquiry, which became the Royal Society Inquiry. It became very clear soon after the election that there was a need for a third inquiry that was looking specifically at the lessons learned. The Government's view, from the Prime Minister down ‑ so this was not something that was particularly based on the advice of civil servants ‑ was that, first of all, speed was important in this. If we wanted to learn the lessons, we needed to do so fairly soon and that the three years of the BSE Inquiry would not have been appropriate because actually foot and mouth had not been eradicated. It could blow up again. So, if there were lessons, we needed to learn them very soon. That process, particularly based on speed, led ministers to the view that, as we were looking for a forward‑looking inquiry with speed, it would best be obtained by taking evidence from key witnesses in private; and Dr Anderson himself was happy with that process, not least ‑ and I think Alan Evans said this in his evidence to you ‑ that this could contribute to greater candour in those sessions. That said, Dr Anderson, of course, did set out a process which involved public meetings as well around the country and then taking evidence in private, but it was primarily an issue of speed and getting something that was forward‑looking rather than something with all the elaboration of the Salmon procedures, legal representation, and so on, that would have been felt to have been necessary had it been evidence taken public.
Q575 Mr Liddell-Grainger: On the assumption that something like foot and mouth was a complete disaster for the nation, it spread across the entire nation with so many hundreds of thousands of people affected, obviously less children in Bristol and that is tragic as well, but that was a comparatively small number of people. Thousands of people were affected with foot and mouth. Surely we should have had some form of very public part of this to try and establish whether or not this will happen again. I also sit on the Defra Select Committee, and you have done an exercise that was not overly inspiring. If you have another epidemic I think you might have another problem on your hands. This inquiry itself surely should have had a very much more public part to try to work out why, when and how this might happen again: because a lot of what was recommended, I suspect, is still private?
Sir Brian Bender: I hope not.
Q576 Mr Liddell-Grainger: Is everything out in the open?
Sir Brian Bender: Yes, absolutely. I would be interested, perhaps outside this formal session, to find out why you have said that the exercise, which involved several hundred staff from the department and across the country, was, as you described, "uninspiring". Exercises are hugely important in these issues and doing them regularly and learning from them, because any exercise throws up issues that you think, "We should have sorted that out." I hope and firmly believe there is nothing going on in private now. We did have a contingency plan for foot and mouth. It was available, it had been discussed with stakeholders, but it was still regarded as a well kept secret. The issue on foot and mouth was that we had something of unprecedented scale. The day that the first outbreak was detected we now know that the virus was on between 50 and 100 farms in the country. I could bore the Committee at length with what we are doing now and have done as a result of Ian Anderson's inquiry and the Royal Society's study to be better prepared, but I am sure you do not want that.
Chairman: No, we will skip that. We are quite keen not to be detained by the interstices of particular inquiries, only as illustrations.
Q577 Mr Liddell-Grainger: It is the private part that fascinates me, because other ones that have been in private have tended to be medical where sensibilities are affected. With no disrespect, I would not count cattle and sheep in quite the same category! Would you?
Sir Brian Bender: No, of course not. I can only repeat the point I made earlier, that the issues that led ministers to take the view that the evidence from key people should be taken in private related to speed and potentially candour, and there was a public element as well.
Q578 Mr Liddell-Grainger: Do you think in future that things like outbreaks of this severity ‑ and I am not asking you to look back I am asking you about the future ‑ should be held in public?
Sir Brian Bender: I think a real tribute to Dr Anderson was that he completed his report within six months of starting and 12 months of the inquiry being announced. That was an enormous achievement and it was a pretty hard hitting report that contained some powerful lessons. The question comes back to: what is appropriate in the circumstances?
Q579 Mr Liddell-Grainger: Yes, that I do not disagree with, but there are a lot of these other ones which have a much broader brief. We have a list here of the ones that have been undertaken by all three of your departments. Some of them are very, very comprehensive indeed. This one was the smallest brief: to make recommendations on the way the Government should handle any future major outbreak. Was it too narrow because you were trying to get speed? There have been inquiries into foot and mouth before. Is this the sixth inquiry?
Sir Brian Bender: You are probably better informed than I. The previous one was the 1969 Northumberland one.
Q580 Mr Liddell-Grainger: There have been more since then. There are not many years we have not had some form of foot and mouth. It seems to reoccur, does it not?
Sir Brian Bender: No, we had 1969 and then 1980, or 1986.
Q581 Chairman: 1922, 1954, 1968.
Sir Brian Bender: In the 19th century, the early part of the 20th century there were lots. 1967/8 was the last big outbreak, and then there was something small on the Isle of Wight in the 1980s. Do bear in mind that there were three separate aspects of foot and mouth that were inquired into. One can debate whether it was right to break it into three, but that is what ministers decided and each was conducted fairly efficiently. Therefore there was an inquiry on the future of the farming industry which had been in crisis, there was an inquiry on the scientific issues and there was something about what are the systemic lessons? My view is that the fact that each of those three was conducted quickly and gave fairly powerful lessons for government and stakeholders is a tribute to the processes. Whether we do it the same in the future, I could not say.
Q582 Chairman: The BSE Inquiry in 1997, which is the nearest equivalent to which your department was involved, was a very comprehensive three year inquiry under Lord Phillips. It was a very good report indeed. It went into enormous depth. One report ‑ okay it did take longer ‑ one inquiry. You are talking about basically four separate inquiries: Dr Anderson's and the Curry three. You had the scientific, you had the lessons and you had the future of farming. Surely with an inquiry of that type it would have been better, looking back on it, to have lumped them together, would it not, and do the more intensive inquiry that Lord Phillips carried out in 1997?
Sir Brian Bender: Again, the primary issue around BSE was the investigation over a ten year period.
Q583 Chairman: We are talking about a 100 year period?
Sir Brian Bender: Actually ministers did not want to talk about a 100 year period. Ministers wanted talk about the current science of foot and mouth and the lessons from the 2001 outbreak to minimise the risk of recurrence. I think the circumstances were different. I certainly think the circumstances around Curry were different from the circumstances around the Royal Society study and the Anderson inquiry, because the Curry one was forward looking on the farming industry, whereas Anderson and the Royal Society were looking at the issues around the outbreak. You could certainly argue that those two could have been combined and in future might be?
Professor Sir Liam Donaldson: Could I add briefly, Chairman, I think the problem with this question of public/private is not so much to do with medical confidentiality, it is to do, I guess, with whether you fulfil three things. The first is that there is a concern that if it is not in public the full truth will not come out, the second is that if you do not hold it in public then there is no public scrutiny of people's actions, as compared to the inquiry's own scrutiny, and the third is that the public do not get the chance to hear various people's opinions on the events, which the inquiry does get the chance to hear. I think the trouble is that it always sounds very bad publicly to say that you will not have a public inquiry, because it sounds as if you are trying to withhold the truth or facts from people and you are protecting people from being properly examined in the way that they are in a public hearing with the media reporting on events, and so on. I have to say, in my experience of some of the medical inquiries, that there are issues of length and cost, and so on, but the biggest difficulty is that if you put doctors, nurses, other witnesses in an environment where they are questioning the public, with tabloid newspapers reporting what they say, they will be very, very guarded in what they say and they would be unlikely to say something like, "In the case of Dr X, I was worried about him for ten years and I wrestled with my conscience about whether I should say anything about it to anyone", and so on, which would be an important bit of evidence because it opens up issues about the culture of the health service and whistle blowing regimes, all those sorts of things; but if that individual was fearful of being criticised, of being subjected to disciplinary action, of being heard to criticise a colleague, they are not going to say it; they are less likely to say it in that sort of environment. Again, it is the problem of the difference between the public's perception of what is best and the professional's view that, not wanting to cover anything up but wanting to do what the public want, the two things are at odds.
Q584 Mr Prentice: On that very point, the Bristol heart surgery inquiry was a public inquiry and Frank Dobson, who is coming to see us in 20 minutes, details in his memorandum that he was strongly advised not to hold a public inquiry. He goes on to say that he thought some of the people feared that it might reveal an embarrassing can of worms. I am interested on the number of occasions where ministers actually overrule the advice that they are given from the senior officials that urge caution but the minister decides to press ahead. I would like your comments on that?
Professor Sir Liam Donaldson: That did happen. I have read Frank Dobson's evidence. I think that is relatively uncommon. I think it was the right decision in that particular case. I think that more often the change of position is triggered by judicial review, or the threat of judicial review, by the victims; and without proper ground rules, I think it is going to be increasingly untenable to sustain private inquiries. The precipitation into public inquiries is going to become much more common. As Brian said, apart from all the issues we have discussed, the bottom line is that a public inquiry will cost you £20 million and a private inquiry will cost you £3 million, and then six months as compared to two and a half to three years. Those factors, although they sound rather crude nuts and bolts things when you are talking about victims, are an important thing to bear in mind when you are looking at public funds which could be used for other beneficial purposes.
Q585 Mr Prentice: Yet Sir Brian told us a few moments ago that the decision to have a private public inquiry into foot and mouth, it was imperative to learn the lessons as quickly as possible, a speedy inquiry, and yet there were huge numbers of people out there with farming interests, and so on, who were clamouring for a public inquiry?
Sir Brian Bender: Yes. I am not sure that is a rhetorical point. Coming back to your earlier question, my recollection, and Liam may recall better than I, is that in the case of the BSE Inquiry it was led by ministers - at the time I think probably Frank Dobson in the Department of Health and Jack Cunningham in the then MAFF - who wished there to be an inquiry of the sort that finally turned out. Coming back to your earlier question, that was an area where ministers led and dealt with some caution around some of the civil servants at the time.
Professor Sir Liam Donaldson: Essentially the problem that we are trying to solve is if an inquiry is held in private and the report of the inquiry is published in full publicly, then the concern has to be: has the inquiry report been modified so as to withhold some of the key facts, or failed to find some of the key facts, or protect people from proper scrutiny as a result of the process being in private? I would have said that the absolute key element in that is the independence of the Chair. If you appoint the right person who is independent minded, although it does not, as I say, look acceptable to the public, you could have a win‑win in that they delve much deeper than they would have done and they have it all out in a public report afterwards.
Q586 Mr Prentice: You have a huge amount of collective experience, the three of you. Are there any instances when, if an inquiry is commissioned by a department, the report goes back to the department and you feel it has to be edited in some way?
Sir Brian Bender: No. It has certainly not happened on the two in question. It would have been out of the question. The Chairmen in both cases, Lord Phillips and Dr Anderson, would have gone public. I think the Penrose Inquiry and Equitable Life raised questions that caused some consideration about what could be published, but in my experience of the two, that question has not arisen.
Q587 Mr Prentice: Can we say, as a matter of fact, that inquiries commissioned by departments are never edited before publication. Can we say that as a fact?
Professor Sir Liam Donaldson: No, I do not think you can say that as a fact. I think there will be circumstances where departments have been asked to comment on a draft where they will spot inaccuracies, rather like we do with the NAO when they produce a report before it goes to PAC. We are allowed to make comments or representation.
Q588 Mr Prentice: I do not want to make too much of that, but it is interesting. Can I pick up the point that you made at the very beginning Sir Liam, and I am paraphrasing here, that some of the recommendations you get from inquiries do not really work in the real world ‑ that was the gist of what you said ‑ because the people appointed to the inquiry are not experts ‑ again my own words ‑ kind of reengineering the system that you are criticising. While you were saying this, I thought to myself: would it not be interesting to get examples of this?
Professor Sir Liam Donaldson: I think we would have to probably comb through the reports to see whether we could give you examples, but essentially, quite often, whether it is an inquiry into something that has gone wrong or an expert committee looking at an area of policy, it is not uncommon to have committees recommend structural change. They will say: "We should have a national agency to take care of this now", or, "We should have a national bureau." It is that sort of thing I am thinking of really. When we look at what might achieve the change we are trying to achieve, it is often cultural and behavioural change we are seeking to achieve, but the mechanism, the key to unlock that particular door is not necessarily something that the inquiry might have come up with exactly because it requires a lot of further debate and thought. In fact, I have thought in the past, although this again could be open to misinterpretation, that in some areas of inquiries' findings and recommendations they may be prepared to say, "We are minded make these recommendations for change. We would now like to have some public discussion before we finalise our recommendation." Then somebody could say ‑ it need not be us, but some local service provider or a patient group ‑ "That will not work. Why don't you do this instead?", but that is not something that is built into the inquiry process.
Q589 Mr Prentice: I am interested in the views of your two colleagues there on recommendations that may be impractical. The point that Sir Liam made about recommendations to change structures which the people making recommendations may not be competent to make. Let us take some specific examples, if we may?
Mr Gieve: On the generality, I agree with Liam that very often the most illuminating and valuable bit of the report is the story, because very often it is the story that brings out what is properly functioning, what behavioural change is required and the lists of recommendations tend to be rather more formal according to reports, or reviews, or monitoring returns, or whatever, and, on the whole, we scrupulously put those into effect, but not always, because sometimes they are not practical. I think one question that is sometimes raised is when do you have a lawyer and when do you not have a lawyer? Take the Bichard Inquiry into Soham and the police work before those murders, one of the advantages of having Michael Bichard is that he has run a number of large organisations and he has done management at different levels through large organisations, and that, I think, gives him a comparative advantage over someone who has not done that in terms of thinking through administrative recommendations. So you have to choose your person, in a sense.
Q590 Mr Prentice: So there is nothing in the Bichard report that made you flinch in terms of the recommendations?
Mr Gieve: I think we generally agree with his recommendations, but I do not know that we are going to put them all into effect exactly as he wanted.
Q591 Mr Prentice: The interesting thing about Bichard is that he keeps coming back, does he not, following it up?
Mr Gieve: He does not keep coming back, but he is coming back. He is going to come back at the end of the year, beginning of next year, to see what we have done.
Q592 Mr Prentice: Are you going to implement some of his recommendations?
Mr Gieve: I think we are going to tell him that we are implementing nearly all of what he has recommended, but we are not ruling out saying, "We have found a better way of doing this or that."
Q593 Mr Prentice: Before we leave Bichard, he says, and it is your responsibility in the Home Office, "As a priority legislation should be brought forward to enable the Criminal Records Bureau to access the following additional databases for the purpose of vetting", and then he lists Customs and Excise, British Transport Police, and so on. Are we going to get legislation in the forthcoming Queen's Speech that will pick up on this: because he says it is a priority?
Mr Gieve: I am not going to announce the Queen's Speech in advance. I think we will do that when legislative opportunity allows.
Q594 Mr Prentice: That is not very satisfactory, is it?
Mr Gieve: It is the way of the world, is it not?
Q595 Mr Prentice: We are talking about the Soham murders and here is the Bichard Inquiry recommending that certain things happen as a priority?
Mr Gieve: Absolutely, but we cannot do all the things which are important at the same time. That is all I am saying.
Q596 Chairman: I think we know that the Home Office will not be under‑represented in the Queen's Speech.
Mr Gieve: I assure you, we will try and get it into our battery of Bills if we can.
Q597 Chairman: Can I stay with this for a second. Bichard is coming to speak to us shortly. I think Bichard is thought have been a successful inquiry, and you are indicating that too. That leads me to ask: what is an unsuccessful inquiry? Could you possibly think of one or two for us?
Sir Brian Bender: I suppose one that has lasted five or six years‑‑‑
Q598 Chairman: Saville is the easy hit, is it not? We could all gang up on that one. Seriously, it is rather a disciplining question to ask what makes a successful inquiry, what makes an unsuccessful inquiry?
Professor Sir Liam Donaldson: I would say it is a longer term judgment. It is whether the inquiry has improved and changed things and, in some circumstances, made them safer as a result of its existence. I think there are relatively few occasions where an inquiry's findings and recommendations are rejected wholesale or it is regarded as a flawed inquiry. Most of the time those concerned will embrace the recommendations, they may modify some of them, but they will move forward with them; but if, as a result of that, in five years time, or whatever, the system has not changed, then I think you would say: what was it about that inquiry that did not change things, or, what was it about the inability of the system to take those recommendations on board? It is back to my point. Maybe it was too technical a point to say that the way the recommendations are framed and drafted is very important. I think there are technical issues, but I think there are also wider issues about the impact of an inquiry. Sometimes, to be frank, you get ten volumes of an inquiry. Even with a good summary, it is really very, very difficult to expect the recipients to carry all of that in their minds influencing their approach if much of it is about cultural change, different ways of working and behaviour. I would certainly be an advocate for much shorter, more accessible inquiry reports.
Sir Brian Bender: I agree very much with the way Liam began that. The real question of success would be if one looked backed a few years later and not only said: "What did the inquiry recommend?", but also, "Is it evident that the lessons have been learned" in terms of the then current behaviour, and so on, or was it a rather good report that the department or the Government gave a response to and it is now lying on a shelf.
Q599 Brian White: Who should do that?
Sir Brian Bender: It is a very interesting question, and the Committee will have its own views. There must be a role potentially for Parliament on this. Taking foot and mouth, the extent to which the EFRA Select Committee itself wishes to check whether Defra is following up, in that particular case the National Audit Office also will be looking at it, but there clearly must be a role for Parliament in that. I am not sure most inquiry Chairmen, maybe Michael Bichard being an honourable exception, would want to be involved some time later in looking at it.
Professor Sir Liam Donaldson: I think the key question is: has history repeated itself despite an inquiry? We saw in the past in some of the child protection cases that history was indeed repeating itself, and it took possibly an inquiry like the Laming Inquiry, which did not just look at the specifics but grabbed the whole subject and tried to do something different.
All those individual inquiries made limited impact.
Q600 Mr Liddell-Grainger: Following on, looking at the Bloody Sunday Inquiry, which has gone on and on and on and which is nowhere near resolution, what lessons are going to be learned from an inquiry like that 30 years on? It is a rhetorical question. It is not your responsibility.
Sir Brian Bender: I certainly do not feel equipped to respond.
Q601 Mr Liddell-Grainger: It is a point well made?
Sir Brian Bender: I suppose it comes back to the questions that you were asking at the beginning. What is the purpose of the inquiry and, therefore, is it likely that setting up this process will get at it? If the process is the cathartic one that was being asked about earlier, that may well of itself be worth the process, but these questions need to be asked at the beginning.
Mr Gieve: I have three criteria. Did it reach the right criteria? Did it satisfy the public? Did it do it cheaply and quickly? Those are the three tests, are they not? I think the question of whether it then changed things is the ultimate test, but that is obviously a test of the Government and subsequent governments as much as of the inquiry itself.
Q602 Annette Brooke: Basically you have told us that by and large the recommendations are implemented unless it is not practical to do so. There was some evidence given earlier to this Committee from a lawyer that much lip service is paid to inquiry recommendations when they are published, but often there is little continuing monitoring to ensure that, once officially accepted, recommendations are implemented. I think my question ‑ and it is picking up what Sir Brian was saying ‑ is what is done now in terms of monitoring, and what should be done, and how do we as parliamentarians know, without having obsessive written questions, I suppose, ten years on, that all the recommendations have been implemented?
Q603 Sir Brian Bender: I am largely repeating my earlier point, but there is a difference between a response from the Government that could then become a tick-box exercise in subsequent years, as opposed to a hearts and minds and culture change over the period ahead. That is the question to get to the bottom of. If you take an area like the BSE inquiry, the four central messages from Lord Phillips were openness of information, communication and management of risk, joined-up working between departments, in the animal health/public health area, and the way in which scientific advice is sought and used for committees. There was a lot else, but those were the central messages. In that area, I would assert that Government has learned a series of lessons, for example the way the Food Standards Agency now operates in the public domain, et cetera. It seems to me that if you really want to get to the bottom of that, then it is not through specific parliamentary questions; it could be through a select committee saying, "let us look at this three or five years on and have a short inquiry, investigation, into whether not only has the Government done what it said it would do, but whether it has changed the world." You would have to set some time period. There is no point doing it a year later. One would need to look back on it retrospectively.
Professor Sir Liam Donaldson: It is a very interesting, but very difficult question. You said a lawyer had made this point. If you look at the implementation of recommendations bureaucratically, so that you say, "there are 32; how many of them have we implemented?" it is often relatively easy to tick the box. You can put ducks in a row, and say, "we are now doing this and doing that", and you could sign off many recommendations of an inquiry quite comfortably. However, essentially the spirit of most recommendations goes deeper than that. You might be able to point to a new policy document that you have written, but essentially you are looking beyond the recommendation, for example in Bristol, to make the culture of healthcare a safer one. There may not be a specific recommendation that is so broad and general, but actually you want something very broad and general to happen. The only prospect is of reviewing the subject area covered by the inquiry in a more rounded way and reviewing progress on it, rather than dividing up all the recommendations and seeing which have been implemented and which have not. We have in the Health Service inspectorates like the Healthcare Commission that would be able to do that, although the number of individual inquiries, both national and local, in public services probably add up to quite a lot, and the task of auditing and tracking every single recommendation would be quite a big one.
Mr Gieve: In some cases, institutionalised inspectorates will come back and look. The Inspectorate of Prisons goes back as a matter of course, to say, "have you done what I asked you last time?" They report again publicly on whether it has been done. In the one-off inquiries, we normally have fairly formal arrangements to pursue all the recommendations. That is so in the Bichard case: we have an inter-departmental group that is reporting to ministers on that, which reports to Michael Bichard; and we have accepted all his recommendations, although the manner of implementation of some of them is still being discussed. Since the Lawrence Inquiry the Secretary of State has chaired, and still chairs, a group to follow through the recommendations. I agree with Liam that it is sometimes quite difficult to encapsulate in a pithy sentence a change in behaviour, and you can get into a tick-box mentality. It is very difficult to avoid.
Q604 Mr Hopkins: I hope it is not too cynical, and I think it is real politique that the primary concern for ministers on whether or not to have an inquiry is the effect it will have on government. John talked about the heavy end of inquiries, and I will leave that to one side for the moment; but even at the light end was it not the case in the Climbie case for example that Government, while no doubt wanting to get the truth out, was not uncomfortable about that because it could have reduced the repute of local government and helped them in the reform of the local government process?
Sir Brian Bender: My experience has not been that ministers' approach has been at all cynical in that kind of way. I was not involved in that particular inquiry, but I have not seen evidence in any of my discussions with ministers that they are approaching it with a more Machiavellian motive in order to achieve something or other. It tends to be a response to the sort of issues that Liam and the rest of us were outlining at the beginning of this session.
Q605 Mr Hopkins: I was not suggesting that that was the primary motive but that they would find it easy to say "yes" to an inquiry because it would actually serve their purposes in other ways as well. If one looked at the heavy end, one can imagine a debate between Sir Humphrey and Jim Hacker about what they do in a very difficult circumstance, where the Government is clearly in trouble. Is it not simply the balance of advantage, the balance of damage limitation: if you refuse an inquiry you will get flack; if you have an inquiry, then if you perhaps get the right chair and the right terms of reference and the right result, that might be less damaging than refusing that inquiry in the first place?
Mr Gieve: That makes it sound very sinister and cynical. My experience is that, first of all, ministers do want to know what has happened; they genuinely want to know the facts. Secondly, they want to reassure the public. Then the question is, "what will reassure the public, and what will do it most effectively?" Part of the answer of whether you hold things in private or in public is around that issue. You might think, "if we can produce a definitive report in nine months and publish it, that will reassure the public rather better than a series of oral hearings over a period of years". Those are the two considerations, and there is nothing particularly sinister in that.
Q606 Mr Hopkins: Would it not be advantageous for our democracy if there were a degree of separation between the decision-holding inquiry and government so that it was much more objective than when in the hands of ministers and even the Prime Minister?
Sir Brian Bender: Ministers are ultimately accountable to the public and to Parliament. It seems to me that separating it out calls into question to some extent their accountability to the electorate and to Parliament. I am sure one could think of examples along your line of questioning where it might have been advantageous, but I would have thought that if one went in that direction one would be risking undermining the accountability of ministers, the government, to the electorate and to Parliament.
Q607 Brian White: Lord Butler told us that one of the issues was about departments giving all the evidence to the inquiry, and there is this certification process that you have to give. Can you explain what permanent secretaries do in that certification process?
Mr Gieve: I do not think there is a certification process in general; I think he was suggesting that that might be the case. What we do is to send out instructions and employ staff to try and find all the papers. That can be more or less easy, but the instruction goes out to co-operate with our inquiry, and people not doing so will be asked why.
Q608 Brian White: We have to trust that you have given all the evidence to the inquiry.
Sir Brian Bender: We get into the Donald Rumsfelt "known unknowns and unknown unknowns"! Certainly, if I had any indication that a member of my staff was trying to hold something back, I would tackle it and address it; but, again, if you take something like BSE, one is looking at ten years' worth of papers. My predecessor sent an instruction to the department to identify the relevant files, list them, and send them to a central point.
Professor Sir Liam Donaldson: This problem might go away when we have electronic storage of all information, which we are very close to, when word searches can be done and so on
Q609 Chairman: John Gieve, you said the key thing on much of what we have been talking about is to choose the right person. Who chooses the right person?
Mr Gieve: Ultimately, the minister setting up the inquiry. In the cases where we have employed lawyers, like Mr Justice Keith on the Mubarek Inquiry, we have relied on the Department of Constitutional Affairs to tell us who is available. That is one key point; you have to have someone to do it. One reason that we often employ lawyers is that they are often in a position to drop everything and put several months' full-time work, or perhaps several years' full-time work, into doing an inquiry. It is sometimes harder to get people with executive positions to do that.
Q610 Chairman: You would say to the DCA, "we want in inquiry; have you got a name for us?"
Mr Gieve: Yes.
Sir Brian Bender: If you want a judge or a QC.
Q611 Chairman: That was my other question. In terms of our discussion about what made a good inquiry and the point about whether people understand the structure when they come to make recommendations, the sort of person to, as it were, tell the story, is different from the kind of person you might want to tell you things about structures and organisations.
Sir Brian Bender: In the case of foot and mouth, the perceived need was someone who understood systems, understood crises and would address systems issues; and therefore the brainstorming around names that went on in various parts of government before Dr Anderson was chosen was, "what sort of people can we think of who would approach it from that point of view, rather than necessarily a judge?"
Mr Gieve: The comparative advantage in appointing lawyers is that they know about evidence, about questioning, adversarial questioning, and so on; so they are the experts in the process. In a number of cases we have tried to appoint advisors or panels alongside them who can bring a bit of specialist knowledge, and sometimes that works very well.
Professor Sir Liam Donaldson: There is also a problem of availability. Lawyers are paid to do it and it is just like sitting in court and doing the same sort of thing, but with non-lawyers you are often faced with somebody who is at or near retirement, because otherwise people would be taken out of circulation for a year or sometimes two years at once; so there is a dearth of opportunity to get younger people, who might be absolutely in touch with the issues.
Q612 Chairman: Do we need a cadre of professional inquirers to be called upon when needed?
Sir Brian Bender: It so happened that Dr Anderson was a businessman who could make the time, and who had retired from his executive post, but if you want that type of person I am not sure how you would have them available.
Q613 Chairman: I am conscious that we have simply scratched the surface of a much longer conversation, but we have had a lot of value out of it, for which we are very grateful. If there are other things that you think we have not asked you about inquiries that you would like to tell us, please drop us a note. We do need to know how it feels from the inside.
Sir Brian Bender: There is one area that we might want to reflect on between us, which I was expecting you to ask about, and that is the impact on the staff involved. If you take BSE and some of these other things, there is clearly a conflict between the wish of the departments, the government and the individuals to understand what happened, but there are personal pressures on them. There is no simple answer to that.
Chairman: If it were not for having two former ministers chafing at the bit at the door, we would have asked you that and much else, but thank you very much indeed for your time.
The Committee suspended for two minutes' silence
Memorandum submitted by Mr Dobson
Examination of Witnesses:
Witnesses: Lord Heseltine, CH, a Member of the House of Lords, and Mr Frank Dobson, a Member of the House, examined.
Q614 Chairman: I should like to extend a very warm welcome to our witnesses this morning, Lord Heseltine and Frank Dobson. We wanted to hear a couple of former ministers who had been at the rough political end of the inquiry business. We are about to conclude our inquiry into inquiries which are an important part of the way we do public policy in this country; and we have taken a variety of evidence from all kinds of people, but we would like to explore the ministerial end of inquiries. We are very grateful to you both for coming along. Frank, thank you very much for your very interesting paper, which I am sure we will want to ask you about. Do either of you want to say anything by way of introduction about the general sense you have of the role that inquiries play in our public life, or do you want to take some questions from us? Frank, do you want to say anything about what is behind your paper? You have both been involved in setting them up, living with them, having them report to you, and the politics around them. How are they?
Mr Dobson: It seems to me that there are some issues that gain so much public attention that it is necessary to look into them rather more publicly than would normally occur under the processes of government. Therefore, having some sort of inquiry, not necessarily what people would think of as a public inquiry, is a way of dealing with that problem; but that should only be done where it is genuinely believed in advance that there are wide-ranging lessons that might be learnt across the piece. I do not think it would be worthwhile having a government inquiry into a particular incident that did not appear prime facie to have any consequences, other than to the limited number of people involved in the first place, particularly as it takes up a huge amount of time and money.
Q615 Chairman: We live in an environment where there are always demands for inquiries - people like us make them all the time, do we not? When a demand hits a department and a minister's desk, can you give us a feel of how it plays? How do you evaluate whether there should be one, even before getting on to deciding what kind of inquiry it should be?
Lord Heseltine: If a politician calls for an inquiry, what you know is that they do not want to commit themselves one way or the other to a view, but they have to say something so they call for an inquiry, and that deals with the vast majority of such claims. No government wants inquiries; they are usually in circumstances where the government is in trouble, where it is felt that there is something to be found beneath the bland spin-doctoring of national politics, and so governments will do their best to avoid inquiries. If they have to have them, there is the oldest saying in the world: "Reach your conclusion and then choose your chairman and set up the inquiry." They are not popular things for governments. I am not saying that is true of every case because there may be some big horizon-stretching issue that governments do not have views about and do not want to have a view about, and it is very easy to kick the whole thing into the long grass by saying, "we will set up a commission" or something like that, and it will go away for a few years. Governments, like anybody frankly, are only a reflection of the human condition - very few people welcome inquiry behind the closed doors where people normally live, and governments are no different.
Q616 Chairman: Usually something has gone wrong.
Lord Heseltine: Yes, or could go wrong, or "we do not want to have this on the agenda, but it is a big issue".
Q617 Chairman: Do ministers find themselves in the position of seeking to avoid having inquiries, of trying to apply some judgments as to whether we should have one, and are those judgments political judgments or are they to do with the nature of the case? Frank, you have given us some very good evocative examples in your paper of how this worked for you. I was particularly struck by the Bristol case, where you were engaged in a continuing dialogue with the parents about conducting an inquiry and what kind of inquiry it should be. You had a view that it probably could be a private inquiry, but they were pressing for a public inquiry.
Mr Dobson: The description that Michael gave is quite right in relation to the kind of inquiries he was referring to, about the sort of things that might be major subjects of party contention; whereas the three that I was responsible for establishing were not really. They were major matters of concern about the Health Service or an aspect of the Health Service, and they were not that party-political. To some extent they were inquiries into what had happened under the ancienne regime from my point of view, so it was no skin off my nose to have them. That may have affected my judgment, as, indeed, I say in the paper I produced. One of the things that I was always bearing in mind was the cost in terms of people's time but also the costs of paying money to lawyers and things. The Bristol Inquiry, which I am sure it was right to have as a public inquiry although it was conducted in a rather limited way - even that cost more than £14 million of NHS money, which is a lot of money.
Q618 Chairman: One of the issues we were exploring with our group of permanent secretaries a moment ago was what makes a successful inquiry as opposed to an unsuccessful inquiry. We could not quite get them to name unsuccessful ones; they were happier talking about successful ones, although they acknowledged there was a category of unsuccessful inquiries. I would like to ask you the same questions. The Scott Inquiry was widely criticised in a number of quarters. We have had witnesses here criticise it on a variety of grounds, one of them being that somehow this person did not understand how government worked. Would that lead you to think that that was an unsuccessful inquiry? I am looking at Michael Heseltine!
Lord Heseltine: He was very kind to me!
Q619 Chairman: I guess that is a sense of relief, is it not? You turn to the index first, do you not, and find you have got off all right, and find that it was not a bad inquiry after all?
Lord Heseltine: We are all human. I do not want to take a lot of time up, but the allegations that were made about ministers - and obviously one looked at this from one's own personal point of view because that is where you start - were scandalous. The suggestion was that we had tried to put people into prison. I had gone to enormous lengths to help defend the people who were accused, and some of the most "reputable" journalists of the day were making these allegations. Just as a little parenthesis to this, I told my press officers - because there was nothing I could do about it; they just kept writing this appalling stuff - to keep the cuttings. Normally, I am not litigious, but I had been pushed further than I thought any minister should be pushed. When the Scott Inquiry exonerated me with some credit, I asked the press officer to get me the cuttings, and we took legal advice. There was no question that what had been said was libellous in the most monstrous way. However, ministers have to prove malice and there was nothing we could do.
Mr Dobson: I would have judged the Scott Inquiry to be a success in the sense that the outcome of it carried sufficient weight to be generally accepted.
Q620 Mr Prentice: There are five or six volumes. When Geoffrey Howe was in front of us, he was very, very critical of Scott; he said it meandered all over the place; that the report, when it came, was indigestible; and he could not really get to the heart of the matter. I recall him saying to us that it would have been better if Scott had had what he called "wing men" to keep him on track. I am just saying that that is an example of a very unsuccessful inquiry as far as Geoffrey Howe was concerned.
Mr Dobson: It may have been as far as Geoffrey Howe was concerned, but I would have thought that from the point of view of the government, of which no-one here was a member other than Michael, it was a successful report in that it convinced most people that it had got at the truth. That must be the ultimate measure of success. It may upset some people, but if the report itself carries with it acceptance by the people who have been investigated and acceptance by the news media and the public that it has just about got at the truth, then that must be the best definition of a successful inquiry.
Lord Heseltine: I seem to remember that William Waldegrave was criticised by Scott, and I remember spending quite a lot of time looking at the evidence and believing that the accusations and allegations were just unreal. Again, it is a long time ago, and I remember what they said about me much more than what they said about other people. I think there is an important point to make about this - and this is a generalisation that was true of various other inquiries which John Major set up: it did not make the slightest impact on the parliamentary opposition that there was an inquiry taking place. They kept on with the allegations, and this is extremely difficult for government because, having set up an inquiry, you cannot say that the findings are unfair or wrong because you do not know what they are going to be. Therefore, you have to say rather hopeless things about waiting for the outcome of an inquiry; whereas the opposition went on and on repeating the allegations. This was true of Neil Hamilton. I remember very clearly when that was going on; and it was certainly true of the Scott Inquiry and I am sure all others. You could really ask, "Why bother?" The damage had been done actually.
Q621 Chairman: Frank, the test you have just given us as to whether the outcome is accepted when it appears - on that test, I suppose Hutton fails.
Mr Dobson: Yes.
Q622 Chairman: Why do you think that was?
Mr Dobson: In the memorandum I produced I mentioned the views of Sir Cecil Clothier, that no matter how public the inquiry part of an inquiry is, the deliberation and decision-making is private, and it was the deliberation and decision-making that brought Hutton into disrepute. Most people thought that the Hutton Inquiry was a brilliant exposure of all that had gone on, and most of the news media then concluded - there may have been some prejudice involved of course, but they concluded that any reasonable person listening to all that evidence would come up with "guilty as charged". When the person privately deliberating, after all the evidence had been given, came up with a verdict that was "not guilty as charged", then it lacked conviction, so I would say that the Hutton Inquiry did fail.
Lord Heseltine: I think the Hutton Inquiry is indicative of the very harsh judgment that I hope I portrayed to your committee about inquiries and government motives. You see, there were claims, and rightly in my view, for the need for a full inquiry into what, by many people's standards, is one of the most scandalous decisions of modern government, which is the decision to invade Iraq. John Major, for example, called for a public inquiry into the issues concerned, and certainly I and others did; but nothing was given by way of an inquiry into the substantive issue, which is really what the thing was about. I was overseas when I heard of the death of Dr Kelly. Immediately there was an inquiry into the circumstances, narrowly defined, of Dr Kelly's death. My reaction was absolutely immediate: "They have found a loophole; they have found a way of avoiding the thing everybody really wants, which is a proper inquiry into the substantive issues." So we had the Kelly inquiry, and it was great fun for the press because they loved all the nit-picking stuff about what journalists do and do not do. It was very rough on the Ministry of Defence because they in fact had done what any employer would have done in a circumstance where somebody is seen to be breaking the Official Secrets Act. We then got to the Hutton Inquiry; but this was not the Government conceding the need for a general exposure; this was the American system saying, "there has to be a proper inquiry and there is nothing a president can do to stop it; we are going to have one". Collapse of stout party in the form of the present Government, they had to have the inquiry here; and that is why we had the Hutton Inquiry. One has to see the attempts that were made to stop the inquiry. The inquiry itself of course revealed how bad everything was, but how lucky it was that no‑one was to blame. That was preposterous.
Q623 Mr Prentice: Were you disappointed with Butler, the inquiry that followed Hutton?
Lord Heseltine: The idea that you can have a systemic failure in the British constitution that takes you to war stretches the mind. If there had been a Tory government, Parliament would have been brought to its knees by the way the Labour Party behaved, but the Labour Party seems to have changed rather since I saw a lot of it.
Q624 Chairman: Let us not get too waylaid, but let us stay with the example because it tests the whole issue of inquiry, particularly the question of how we can have an inquiry when a government does not want it.
Lord Heseltine: It is quite easy: they just go to Parliament and put down a vote of confidence and get on with it, which in most cases they will do. They only concede the inquiry if they are forced, or if it suits them.
Q625 Chairman: You are giving us the case, and it is tested absolutely perfectly. Here is a major issue of public policy - you say the most scandalous thing since the war or something - which cries out for a systematic inquiry into the background of the decision. We sit around saying there ought to be such thing. We do not have such a thing; we have other inquiries instead. What does it say about Parliament and its ability to inquire into things?
Lord Heseltine: What it says about Parliament is that in the end the power of government is very, very substantial, and if you put the whips in on an issue of that sort, in my mind - incredibly, the Parliamentary Labour Party buckled. I just could not believe that they could live with what they all know to have been the background facts, but they did. That means that with a majority of this size, government is all-powerful. If it has to set up an inquiry, it sets up an inquiry, but it sets up an inquiry by choosing the terms of reference and the personnel that are going to conduct the inquiry. If they put in a brilliant civil servant of the highest integrity - and we have all seen the quotation: "this Committee is not here to bring down the Government" - who told him that, if he said it? I do not know. I think he did say it as a matter of fact, but I cannot prove it.
Chairman: You are provoking us now!
Q626 Mrs Campbell: I do not think any of us here voted for the war!
Lord Heseltine: It is not surprising you have been banished to Portcullis House!
Q627 Mrs Campbell: I am fairly struck, listening to you both, about the reasons that you as former ministers would go for a public inquiry. You talked about kicking an issue into the long grass, blaming predecessors in government, paying lip-service to something, and buckling to public pressure for the need to examine the facts. However, when we talked to our previous witnesses, who were all senior civil servants, they did not mention any of these things at all; they talked about expansion of facts, learning from the experience, and demonstrating accountability. You would think that two such different approaches would lead to very different views about whether or not one should hold an inquiry. Was it your experience that when your instincts were either to hold a public inquiry or not to hold one, you were being advised in a different way by your civil servants?
Mr Dobson: I think their position and mine on the three that I established are reconcilable because all three of the ones I set up seemed to me, right from the outset, would display systematic failures of the system. Those inquiries proved that there were massive failures of the system, which therefore justified having had an inquiry, over and above me just saying privately, "I want to know what is going on". In terms of what triggered them initially, the first one, the Devon and Exeter breast-screening scandal, led to a private notice question in the House. The thing that determined me, even before I appeared in the House to try to answer the question, was the appalling lack of information that the Department of Health possessed in relation to how they assessed the quality of service being provided. The fact that they could not provide me with an adequate brief in order to answer the question suggested to me that there was something systematically wrong. When people say the NHS is a Stalinist system, I cannot believe that Stalin knew as little about what was going on as the senior officials at the Department of Health! In the case of the Bristol inquiry, my Conservative predecessor had announced that there would be some sort of inquiry into it, and it was quite clear that most of the senior civil servants, senior doctors, and the various internal pressure groups, were very much against having a public inquiry, because I think they thought it would expose a can of worms, as indeed it did. There were other legitimate considerations against a public inquiry, one of them being the possibly harrowing nature of exposing a bereaved parent to being really got at by an aggressive lawyer representing a doctor or manager whose job might be at stake; so that was a consideration. After I had first met the parents, I concluded that if they wanted a public inquiry I could not in all conscience deny a public inquiry. However, the non-adversarial approach that the Chairman of the inquiry, Sir Ian Kennedy, insisted on, got rid of a lot of the other possible disadvantages of a public inquiry. The third one was such a widespread scandal involving gynaecological malpractice on large numbers of women in Kent that it seemed to me, again, that it demonstrated that there was not in the system at the time it happened any means of spotting that this was happening in various locations, and doing something about it. Again, it was something systematic that needed to be dealt with. Had it been just one individual, I do not think I would have agreed to a special inquiry.
Lord Heseltine: It is very interesting because I do not remember ever having a situation like the one Frank is talking about, where some organisation for which I had some nominal responsibility had got a problem that needed inquiring into. The real fundamental difference between what I am talking about and what Frank is talking about is that he was able to set up an inquiry into an outside body, whereas I am talking about inquiries by government into the central machinery.
Mr Dobson: Not entirely, Michael, because there were faults in the hierarchy of the NHS and within the Department of Health exposed by these things, but generally speaking you are quite right; it was at arm's length at least.
Q628 Mrs Campbell: There were obviously processes at fault which they were not picking up earlier - some of the issues that your inquiries established. Given that, and given that many inquiries are internal into government and not outside organisations, is there not a natural reluctance of the civil servants to have these failures exposed to the public gaze? The preceding witnesses talked about the need to learn from the experience. How far have we gone along that route? How far has the culture of the civil service changed so that people are able to learn from their experiences rather than worry about the fear of exposure?
Lord Heseltine: You are asking about human nature.
Q629 Mrs Campbell: Yes.
Lord Heseltine: Nobody wants to be exposed in any organisation, however small - and civil servants are no different; they have a loyalty to their profession. My own experience is that they are a very high quality of administrator. My admiration increased, the longer I worked with them. That would be my view.
Mr Dobson: I am not sure I quite follow Anne's question.
Q630 Mrs Campbell: It is a comment more than a question. I am quite interested in the way the culture within the Civil Service is changing. Sir Liam Donaldson told us that he was trying to introduce a culture into the NHS particularly of learning from mistakes, and for that process to be open and transparent. I just wonder what your experience is and how far we have managed to achieve that.
Mr Dobson: Partly as a result of what I knew was happening that had led up to these inquiries and such like, I had a hand in getting Liam Donaldson to start off the idea of trying to have a much better system in the NHS for learning from mistakes. The difference he brought to it was pointing out that in the aviation industry they do not just learn from crashes; they learn from near-misses as well. Therefore, what he wanted to introduce - and as far as I know he has made quite a bit of progress on it - was getting people to report their near-misses, so that other people can learn from things that have gone wrong but which have not necessarily resulted in a fatality or somebody losing a limb that they were supposed to retain. That has been a very important development. One of the problems is that in the current litigation-ridden society, we are basically saying to a doctor or nurse or midwife, "if something goes wrong while you are actually in the hospital, own up, and tell everybody about it"; and then you get in your car, drive out of the car park, bang into another car, and your insurance company says, "on no account accept any responsibility whatever for what you are doing". People are being asked to work in two cultures, so it is quite difficult. The machinery that Professor Donaldson has been putting in place, with the co-operation of the profession, is very important, probably much more important in terms of improving the quality of treatment that people are getting than all the structural changes that have ever been made in the National Health Service since 1948.
Q631 Mr Hopkins: I have found what both of you have said very refreshing, and I hope that it will have an impact on our report. You answered questions that I put to the civil servants, the permanent secretaries, beforehand unwittingly, and you have given me the answers I wanted - and I am very pleased about that too. The primary concern in government deciding to set up an inquiry is the balance of advantage to them in the first instance, but there is a light end and a heavy end, and one of the permanent secretaries described it in those terms. The light end is an inquiry that will have results that will be beneficial to the public, one hopes, but which do not damage government. Frank has talked about an inquiry that would not damage the Health Service, but where the Government, if anyone, would receive the flack. The heavy end is whether or not, on the balance of advantage, the damage caused by resisting an inquiry is going to be more than allowing the inquiry to go ahead; and that seems to be the primary concern - "choose your conclusion, choose your chair" - as Michael said. It suggests, does it not, that there is a problem in government, in that government is not sufficiently democratic? It is too centralised, and power resides too much in one place. My final question is this: is there not something wrong with government, and should we not make it more democratic, more pluralistic, and perhaps inject more separation of powers by having someone else decide somehow whether an inquiry should be held, and not just leave it effectively in the hands of Downing Street?
Lord Heseltine: But who would appoint the other person? One thing I perhaps ought to say is that if I had been sitting here as deputy prime minister I would not have given the same evidence as I have given today; and that in part explains your very distinguished predecessors to Frank and myself, because they are now part of the system. How can they say the sort of things that I can say? I could not have said them either.
Q632 Chairman: You said some pretty outrageous things to us when you were Deputy Prime Minister, as I remember!
Lord Heseltine: Not in any way that could harm the Government.
Q633 Annette Brooke: Moving on with the inquiry, for whatever reason, whether it was forced or it suited, what should happen as far as the recommendations are concerned? We have heard varying views on that. The civil servants said that sometimes the recommendations just were not practical, so they had to lose those; but by and large recommendations were implemented. We have had other evidence to suggest that they are frequently not implemented and the impacts are not monitored. Should we be doing much more about at least monitoring what happens to the recommendations? What were you aware of that was happening in terms of implementing the recommendations, and do you have any ideas that we should pursue to improve this end of the inquiry?
Lord Heseltine: By and large, a responsible minister will look at the inquiry recommendations and will put through a check-list. It depends how effective he or she is as a minister. Certainly, I think I took select committee reports very seriously, and I checked whether the recommendations made sense, and whether we could do them - should we do them, and would I get colleagues' agreement to do them? I have a clear conscience, and whether justified I cannot claim, but I think I took it seriously, because they could always come back to you, and there is the parliamentary question and all the weight of opposition. If you ignore something serious, the chances are that in our present system, as I remember it, you get caught out. Mind you, I do remember Richard Caborn being enormously helpful to me when I had to close down all those mines because the fact is, as everybody knows, that there was no alternative to what I did; but it was an extremely difficult thing to do. I was in some very considerable political trouble on the occasion, and Richard Caborn came out with a rushed select committee report, and it saved me because it did not have any proposals of what could be done that were not broadly acceptable. It did not make any difference. I accepted. On the floor of the House, I said, "how grateful I am to the honourable gentleman opposite; I will do what I can to accept his report". That was the only time I can remember a select committee being helpful to me, but it was extremely helpful.
Q634 Chairman: I remember on that occasion you telling the House how select committees were not the government, quite forcefully. For historical completeness on this point, this is quite interesting because when we had Lord Butler here a week or two ago and talked to him about his report and the bit that was critical of the informal style of cabinet government now, he said that in his experience - and he said this during a contribution in the Lords too - there have been those occasions when key issues have not gone to cabinet, and not gone through the proper machinery, which had been the cause of a lot of subsequent difficulty. One of the examples he gave to us was the one you are citing now, which was the coal closures.
Lord Heseltine: I could look it up and let you know what my view is. I am not trying to invent an answer. I now remember this. The letter was circulated. It was Gillian Shephard who said she never knew that we were going to do it. She was Employment Secretary at the time, and this was seen as a lacuna in the arrangements. In fact, the letter from my department and probably from me was circulated to the Department of Employment to a junior minister. It is inconceivable in my mind, in the way in which government works, that such a serious letter would not have been circulated widely within the Department. If that is what Robin was talking about, my memory now is - I clearly understand.
Q635 Chairman: We will check the transcript.
Lord Heseltine: Yes, but my memory is that the letter was circulated to a junior minister in the Department of Employment, and they did know.
Mr Dobson: As far as I can recall, I do not think I consulted Downing Street on whether or not to set up any of these inquiries, or who their members might be; although I did consult Lord Irvine because he was always extremely helpful in these matters, I found. In terms of following things up, in the case of the Exeter inquiry it virtually endorsed everything that we were starting to do in terms of improving the arrangements for checking on what was being done; and there was a crackpot scheme for maintaining quality assurance of breast screening, for instance. It would not have worked in a million years, so we were changing that. However, setting up the Commission of Health Improvement, and putting the responsibility for the first time ever on hospital managements for the clinical standards at their hospital, which they had never had, and things like that were all followed up. In the case of the Bristol inquiry, which the British Medical Journal, apart from denouncing me, said would change the NHS as nothing else had ever done - that is the Government's response to the Bristol inquiry, which was not produced by me but by my successor; and more similarly to Exeter, the Kent gynaecological inquiry - most of the things they recommended there that the Government did were already underway. I would think that a good role for select committees would be in checking up on whether inquiry recommendations had been followed up, and if not why not. The only other thing is that sometimes people would say, "will you guarantee in advance that whatever the inquiry recommends you will implement?" to which the answer is plainly "no, I will not give such a guarantee" - and no minister in their right mind would, even though they had chosen the terms of reference and the membership of the committee.
Lord Heseltine: That must be right. You mentioned Robin's evidence on the informality. It is not surprising that in the way in which, in my view, standards of public behaviour have declined, ministers seek to conduct their informative processes in private. You can defend that in the narrowest, selfish terms, that everybody does it anyway, whatever they may say; but you can also defend it in that if you want to explore every reasonable option you do explore some pretty unreasonable options, and having those all out there as though this is new government policy could be positively harmful to all sorts of people. Secrecy is a perfectly legitimate part of the processes of government, as it is of every other human organisation. However, there is not secrecy today, and leaks are commonplace. The whole complexity of government, the speed of government, the numbers of people involved, the introduction of electronic and photocopying processes - all of these things, and the ever-pervasive role of the media, have brought about a culture where, broadly speaking, if you are at a serious level of government, you talk to people quietly in a corner and you do not put that much in writing without the realisation that everything in writing is likely to appear in the media world very rapidly. Of course, prime ministers have small groups and things are done on the telephone, and people meet in the division lobbies. It was ever thus, but it is much more now today than it probably was.
Q636 Chairman: So the Butler recommendations about putting the correctives in to take us back to the old regime you think are unrealistic.
Lord Heseltine: They will not do it. If you are looking at unpopular options - and there may be three options, all unpopular - you do not want the three of the groups offended when actually all you are going to do in the end is offend one group.
Mr Dobson: I agree with Michael on that. One of the startling things that has happened in my memory was when one newspaper managed to publish the verbatim notes of the cabinet meeting discussion on the Dome. If the cabinet cannot meet in private, then what the heck can you do? It was not bits and pieces; it was the whole note. In many ways I did not mind, because it demonstrated I was against the whole daft idea in the first place, but nevertheless it was very upsetting that that sort of thing should happen. There are real problems about having any vaguely confidential discussions.
Lord Heseltine: I have driven up Whitehall at one o'clock, listening to people telling me what had happened in the cabinet I had just left. An example of the horrendous danger of these leaks was the BSE situation, which was perhaps the most anxious of the many publicity-prone decisions I was involved in. Basically, Douglas Hogg came to see me at about four o'clock to tell me they had this dilemma, which could be all or nothing; it could go away; it could hardly have any consequence; but it could threaten the most appalling plague-like problems for the human species. I thought that the Prime Minister ought to know about this, and he knew about it within about half an hour. We went through the problems and called a meeting - effectively a cabinet committee meeting for early the next day. We knew that Parliament would want to know and was entitled to know. I remember being very preoccupied to tell Parliament on that Tuesday, which was the first time we could have properly done it, until someone asked the Chief Medical Officer whether there was a particular implication for children in all of this, and he said, "I cannot answer that question". I remember thinking, "if that question is asked on the floor of the House and the Minister is expected to say, 'I cannot answer the question', that will be an uncomfortable situation." We asked when he could answer it, and he said: "I probably could tell you tomorrow morning." With huge reluctance, we therefore held the story over the Tuesday night; and on the Wednesday the Daily Telegraph covered the story in a very responsible and modest way that caused no trouble. We went to the House on the Wednesday. The Daily Mail ran this on the next day, "Four and a half million cows to die!" That was the horrendous option - no balance, nothing. Of course, from that moment on, God knows what it cost the British taxpayer as a consequence of that grotesquely irresponsible headline. That is why ministers take care with what they leak.
Chairman: We have had the Editor of the Daily Mail in.
Q637 Brian White: I find it very strange that governments resist public inquiries, for the obvious reasons that Michael has given; and then they hold a public inquiry in which they give every single piece of information that exists under the sun to that inquiry which they have been resisting giving to select committees for years; and I do not understand how that benefited us.
Lord Heseltine: It is fair cop, is it not, really? I always try to help select committees. I thought they were dangerous beasts to cross, and I hope I did not withhold things that they reasonably could have had. But once you have a full public inquiry with all the press interest, trying to hold papers back just means cover-up allegations and you do not have a hope. Select committees are doing a lot of reports and do not command quite the significance of the big judicial inquiry.
Q638 Brian White: When we had Andrew Turnbull before us recently, he was still resisting giving select committees the same kind of access that public inquiries have.
Mr Dobson: In practice, what does that mean, because this Committee has powers to send for persons and papers, and that is all that the Bristol inquiry, a statutory inquiry, had?
Q639 Chairman: That is the gap between the theory and the practice, is it not?
Mr Dobson: Yes. I was quite strongly advised to withhold from the Bristol inquiry legal advice, which would be regarded as privileged; but I insisted that if they wanted to see it they could see it. I did not see any reason why not. We are talking all the time about public inquiries, and two of the inquiries that I referred to which had looked into quite important scandals within the NHS and had far-reaching consequences, were not public inquiries. They were conducted in private. Nobody challenges that they got to the bottom of the thing, and nobody so far as I know has challenged the processes, and none of the patients or their friends or supporters, even their lawyers, have ever said that those inquiries were in any way inferior to a public inquiry. I do think that there is quite a bit of merit in many circumstances in a private inquiry with a published report.
Q640 Brian White: When you were setting up inquiries, would you set a cash limit on the cost of the inquiry?
Mr Dobson: No. I think the highest estimate -----
Q641 Brian White: Exclude Saville.
Mr Dobson: I think the highest estimate for the likely cost of the Bristol inquiry was £10 million, but if they had said it was going to be £14 million, I would still have said "yes". One of the problems there was that there was this group of parents, and the whole system had refused to listen to them: the doctors, the hospital, the Royal Colleges, the NHS Region, the and the Department of Health. There had built up a huge pressure cooker of discontent on their part, to such an extent that the first time I met them, at the end of the meeting one of the women present said, "Mr Dobson, do you mind if I kiss you?" I said: "No, I like being kissed." So she kissed me, and I said: "Why?" She said: "Well, you are the first person who has ever listened to what we have got to say." Maybe there would not have needed to be an inquiry at all; but if there had not been an inquiry then the widespread ramifications would never have been identified.
Lord Heseltine: What is interesting of course is if the select committee had done the inquiry.
Q642 Brian White: One of the things that has come out of looking at this is that every time there is an inquiry the secretariat is recruited, the terms of reference are written, and the whole process is re-invented every time. Would there be any advantage in having a permanent secretariat whose job it was to do inquiries into government?
Mr Dobson: I am a great believer on almost anything in horses for courses, so I suspect it would become a bureaucracy all of its own, in the nature of our British society!
They do seem to recruit some very smart young people to do the work for them, and I have not heard anybody complain about the back-up and secretariat services that inquiries get, so I think I would stick to horses for courses, just as on the terms of reference and the actual nature of the inquiry - does it meet that particular need?
Q643 Brian White: Presumably, one of the tests is this: "Is it my department that is going to get hit?" If it is some other department then you are much more amenable to the terms of reference being as they are.
Lord Heseltine: But you could not set up an inquiry into another department without that department being consulted, and that would almost invariably send the thing up to Number 10.
Q644 Brian White: So it would then become a cabinet decision.
Lord Heseltine: Cabinets do not decide things!
Q645 Chairman: On the horses for courses point, I noticed from your memorandum that the conclusion from the cases you gave us - and it comes through very strongly in the examples that you give - one way of testing it a bit further, which we have asked other people about, is whether, if that is the case we ought to have a more systematic menu of options for inquiries. At the moment, we tend to make them up when we need one, and we say, "what did we do last time; or what might work in this case?" Should there be a checklist you might apply to a situation in deciding whether you have an inquiry; what kind of inquiry should you have; should you appoint a judge or somebody else; should it be public or should it be private? You could work your way through a system like that. On the political side, would that be helpful?
Mr Dobson: Paragraph 5 of my memorandum sets out the criteria any inquiry ought to meet. If you are talking about having five or six off-the-peg versions, it is a safe bet, Sod's law being what it is, that the first thing that would happen is that you would come up with some circumstances that none of them quite fitted. Then you might find people trying to bodge it so that it just about fitted, whereas designing it to meet the specific needs might be a better approach.
Lord Heseltine: You would also immediately have the allegation from the opposition and the press that you were setting up second or third-rate inquiries. You have a tier, top to bottom, and every opposition politician would say, "We want the really serious number one inquiry".
Q646 Chairman: As Frank has argued, that may not be the one that is most sensible to have.
Lord Heseltine: That would not deter opposition politicians.
Q647 Chairman: No! Can we finally come back to the bit that you can give us more help on than anyone else who has talked to us, which is the political end, the parliamentary end. We have touched on it already in talking about Hutton, Iraq and so on. Michael, you said just now that perhaps a select committee could have done the Bristol inquiry; but the reality is that a select committee could not have done it because it required an intensity of forensic examination over a sustained period of time, and some other vehicle had to do it. We saw in the Iraq case, did we not, that the attempt by Parliament to do the kind of inquiry that you say has not happened was a dismal failure? You could not do it; you could not get the material and did not come to any conclusions that stood up. There is a vacuum, is there not? We can say that Parliament in principle can send for persons and papers, and in principle Parliament could do these things that other inquiries are doing - and perhaps it cannot. The question is: are there things that we could do to Parliament to see if it could take on some of these kinds of inquiries? At the moment, they are done by somebody else, or in some cases they do not happen because the Government does not want them to happen.
Lord Heseltine: That is the essence of it. The inquiry that I was most involved in was the Westland Inquiry, which two select committees explored. There was quite a clear view that there had been a concert party, and a concert party is a criminal offence; and here we are, twenty years later and nothing has been done about it. I am sure there are plenty of other examples. I happen to know this one rather well! Parliament could have acted, but Parliament is actually run by a government and the whips are very powerful and Members of Parliament are very ambitious. If you tell me how to turn human nature on its head - I have no way of coping with that.
Mr Dobson: So long as we have a parliamentary democracy, that dilemma will be permanently present, and we will not get the degree of independence that the United States Senate or House of Representative committees manage to establish. Even so, it is quite right that there could not have been any question of a committee carrying out the Bristol inquiry. It could not have devoted the time to it, and there is the element of natural justice that you must always bear in mind in these things. I know I should not say this, but most select committees when having a go at witnesses are closer to a kangaroo court than natural justice. I think we would import the lawyers into the select committee system in a big way because I could imagine people getting a reasonable hearing in the Court of Appeal or even in the House of Lords about whether a select committee ripping into someone without counsel on their behalf representing them was actually covered by parliamentary privilege and various things like that. I think it would be a transformation of the whole system. That problem would arise in the examples that Michael has given, and in one or two of these, where an individual might be guilty; but it seems to me that some Secretary of State might reasonably think, "why do I not ask a select committee to look into a particular problem?"
Lord Heseltine: I think I did have that conversation. In the Westland thing, they got to the truth, and there it was in their report. Nothing happened, for all the very obvious self-interested reasons that the government would not let it happen. Even with your inquiries, which you know so much more about than I do, I would have thought that a select committee, if they had talked to the parents and knew of the allegations, would have got to the point where either the people who were called before them would have had to lie; or the select committee would have been able to say, "there is something very wrong here".
Mr Dobson: In a sense, I only set up the three inquiries because I thought already there was something very wrong. I am not a lawyer and I did not have a great deal of detail in front of me, but in each case there seemed to be something really, really seriously wrong. Again, maybe in some cases that process could be assisted by a select committee inquiry.
Lord Heseltine: It just occurs to me that you do not want to start getting ministers cosying up to select committees. That is not why they are there. I was instrumental in setting them all up in 1979. Norman St John-Stevas was the guy who thought it all up, but I happened to be taking some legislation through which made a big difference. The object is not to give the minister a new means of investigating; it is to put ministers on the spot.
Q648 Brian White: You said that there seems to be a lack of review of recommendations; there is no set process for following up on inquiry recommendations.
Lord Heseltine: That is the fault of the select committee.
Chairman: That is well said. We put this to you because this is the bit of it we have to get our minds around, whether Parliament can be more effective in a bit of the scene. The Government is doing its own inquiry into inquiries, but this is a bit that is off the radar, but it is the bit that becomes important to us, particularly in the circumstances where inquiries are not held for the reasons you give, and whether Parliament can be more active there. That is why we wanted to explore some of that with you. Thank you very much, both of you, for some very interesting evidence.