- The outbreak
of foot and mouth disease ("FMD") in Great Britain last year was a national
disaster. Its impact upon large sections of the community was profound and
devastating. Its consequences for livestock farming, for tourism and for many
other areas of the rural economy can hardly be overstated. Some suffered financial
ruin, others emotional trauma, a few, alas, were driven to suicide. Memories
of the crisis remain fresh in all our minds, sharper and bitterer no doubt
for those most directly affected. The unprecedented scale of the outbreak
may be indicated by a few bare statistics. Anything between four and ten million
animals were slaughtered. The cost to the nation has been variously estimated
at between £4 billion and £10 billion, some would say much more. Livestock
was killed on over 9,000 farms; 170,000 premises were subject to animal movement
restrictions. From the outbreak of the epidemic in mid-February until the
last confirmed case on 30th September, FMD held the country in
its grip.
- The calls for
a full-scale open public inquiry into the outbreak were, not surprisingly,
widespread and impassioned. They were not, however, answered. Rather, following
the Government's return to power in the June 2001 general election, a different
decision was taken, the decision to set up three separate independent inquiries
to receive evidence for the most part in private. Those three inquiries were
announced on 9th August 2001 and have been referred to respectively
as the Lessons Learned Inquiry, the Scientific Inquiry, and the Policy Commission.
That is the decision under challenge in these proceedings and at its heart
lies the contention that nothing short of an open public inquiry would satisfy
the requirements of the law.
- The three groups
of claimants are variously farmers, veterinary surgeons, hoteliers and others
gravely affected by the outbreak. They are supported in their challenge by
the Interveners who operate a number of national and regional television channels,
radio services and newspapers, together representing a substantial part of
the national media.
- With that brief
introduction, let me turn next to indicate something more of the three inquiries
in fact set up.
Policy Commission
- The terms of
reference of this Inquiry were:
"To
advise the Government on how we can create a sustainable, competitive and
diverse farming and food sector which contributes to a thriving and sustainable
rural economy, advances environmental, economic, health and animal welfare
goals, and is consistent with the Government's aims for Common Agricultural
Policy reform, enlargement of the EU and increased trade liberalisation."
This
Commission was chaired by Sir Donald Curry, CBE who sat with ten members.
It has already reported.
Scientific Inquiry
- This is a scientific
review by a committee of the Royal Society under the chairmanship of Sir Brian
Follett, FRS, whose terms of reference are (and I quote part only):
"To
review scientific questions relating to the transmission, prevention and control
of epidemic outbreaks of infectious disease in livestock in Great Britain
and to make recommendations by Summer 2002."
The
Inquiry was instructed to "take close account of related inquiries, notably
the administrative inquiry into the handling of the 2001 foot and mouth outbreak
[the Lessons Learned Inquiry] and the policy commission on the future of agriculture".
At an early stage the Inquiry established three working groups respectively
on i) vaccination; ii) surveillance and diagnostics; and iii) prediction,
prevention and epidemiology. Initial views were sought by 12th
October and detailed evidence by 30th November. Since then various
open public meetings have been held.
Lessons Learned
Inquiry
- The terms of
reference of this Inquiry are:
"To
make recommendations for the way in which the Government should handle any
future major animal disease outbreak, in the light of the lessons identified
from the handling of the 2001 foot and mouth disease outbreak in Great Britain."
It
is being conducted by Dr Iain Anderson, CBE, working with a secretariat drawn
from various Government departments. The Inquiry was to begin once it became
clear that it would not distract from the eradication of FMD, and then aim
to report within a further six months.
- The main focus
of the claimants' challenge has been on the Lessons Learned Inquiry. It is
this Inquiry, directed as it is to consider the handling of the 2001 outbreak
so as to learn lessons for the future, which they contend as a matter of law
must be held in public. Let me, therefore, at this stage flesh out its bare
terms of reference by quoting first from a Question and Answer document published
simultaneously with the decision to set up the three Inquiries, and then from
a Framework Document issued by Dr Anderson on 14 December 2001 when the Inquiry
formally began its work:
"Question
and Answer document
Q6 Why
hasn't a public inquiry been established?
A6 We
have always said that we wanted to see an inquiry that is carried out fully
and effectively and uncovers the answers as expeditiously as possible and
at as low a cost as possible. It is important that we get the right answers.
...
Q10 What
is the role of the 'Lessons Learned' inquiry?
A10 It
is an independent inquiry to make recommendations for the way in which the
Government should handle any future major animal disease outbreak drawing
on the lessons identified from the handling of the current foot and mouth
disease outbreak in Great Britain.
Q11 Who
will conduct the inquiry?
A11 It
will be led by Dr Iain Anderson, who has extensive experience of contingency
planning, supported by an independent Secretariat drawn from the Civil Contingencies
Committee.
Q12 Too
big a job for one person?
A12 Don't
believe so. Dr Anderson will be supported by an independent Secretariat.
Q13 Will
he have access to all Government papers? Including in 10 Downing Street?
A13 Dr
Anderson will have our full co-operation, will have any papers and may speak
to all Ministers including the PM.
Q14 Will
Dr Anderson have the right to publish internal Government papers?
A14 No,
but a report of his findings will be published.
Q15 Will
the Inquiry apportion blame?
A15 The
Inquiry is concerned with learning lessons and producing recommendations for
the future handling of animal diseases. It is not intended that it should
be judge and jury on the performance of individuals, it is not concerned with
recriminations about the past."
"Framework
Document
Key
Questions
The
Inquiry welcomes views from everyone about the recent outbreak of foot and
mouth disease. People and organisations can comment on any issues that they
wish to in relation to the crisis, but there are also a number of general
questions to which the Inquiry would be interested in receiving responses.
These are as follows:
How
adequate were the contingency plans at national and local levels for dealing
with foot and mouth disease in Great Britain? What were the specific strengths
and weaknesses?
How
effective and timely was the Government's response to the emerging crisis
nationally and in local communities?
What
roles did MAFF/DEFRA, the State Veterinary Service, the devolved administrations
in Scotland and Wales, local government, the Armed Forces and others play
in the crisis? Were they adequately organised, co-ordinated and resourced
to do so?
How
ready was the farming industry to handle a major infectious disease like foot
and mouth and did the existing national and EU regulatory regimes have any
influence? What more could be done to prepare for possible future outbreaks
of infectious disease?
Once
the scale of the crisis became clear, was the response proportionate to the
impact on the wider rural and UK economy?
Would
the use of vaccination have made any difference to the scale and/or duration
of the outbreak, and its wider impact?
What
could have been done differently to alleviate the economic, social and animal
welfare impact of the unprecedented level of culling and disposal?
How
effective were the communications systems for handling and responding to the
outbreak?
[There
was then set out the proposed timetable indicating that the Inquiry intended
to complete work within six months and to submit a final report by mid-2002
with the possibility of interim findings meanwhile]
Overall
approach
The
Inquiry will be independent. Its central objective is to draw out the lessons
to be learned from the outbreak and to do so as quickly as possible, consistent
with ensuring that the process is inclusive, thorough and fair. The Inquiry
intends to identify those areas where there were significant shortcomings
and failures in processes and will make appropriate recommendations to remedy
them. It will also be in regular contact with the other Government-appointed
inquiries into foot and mouth disease to ensure a complementary approach.
The
Inquiry will not be adversarial. The intention is not to apportion blame on
particular individuals. The Inquiry will not be seeking to name particular
individuals who may have been at fault, though it reserves the right to do
so. Anyone who is subject to potential criticism will be informed and be given
the opportunity to respond before the Inquiry report is published.
...
The
Inquiry wishes to provide the widest opportunity for people to contribute
to it. It hopes that everyone with an interest in doing so will take the opportunity
to submit their views on the handling of the outbreak and what changes should
be made in future for tackling animal diseases of this kind.
...
The
Inquiry intends to visit the key regions affected by foot and mouth disease
in England, Scotland and Wales to gather information at first hand. The regional
events will take the form of private round-table discussions with invited
groups of local stakeholders and community representatives, local visits and
open public meetings.
...
The
Inquiry has already identified a preliminary list of key individuals and organisations
from whom it would like to seek input. These will include those in Government
involved in the outbreak and those involved in tackling the disease on the
ground. ..."
- In subsequent
statements and published procedures Dr Anderson has made it plain that he
will hold a range of private interviews with various individuals and organisations,
that "information given will remain confidential save to the extent that we
need to disclose it to carry out our Inquiry properly and to the extent that
we need to rely on the information to support the findings in our final report",
that no material will be published during the currency of the Inquiry but
that on publication of the report written submissions will be published as
appendices "unless authors specifically request otherwise".
- That, I think,
sufficiently indicates the essential nature of this Inquiry and its procedures.
Various criticisms were sought to be advanced as to the clarity and consistency
of Dr Anderson's descriptions of his working methods. One particular comment
he made at a recent public meeting appeared to suggest an intention to treat
information provided by ministers and senior officials differently from that
received from others. The transcript of the meeting, however, having now been
examined in the minutest detail and the matter clarified by way of a number
of specific further statements, I am perfectly satisfied that this is not
so.
- The decision
to set up three closed public inquiries rather than a single open one was
not taken lightly. Mr Bender, the Permanent Secretary to DEFRA (previously
MAFF) states:
"The
decision making process in this case involved considerable consultation and
co-ordination between Government departments and with the Prime Minister's
office. The decision itself is the fruit of that process and was a collective
one, setting out a Government-wide stance."
- As to the essential
reasoning underlying the decision, the most directly relevant paragraphs of
Mr Bender's lengthy statement are I think these:
"42 The
Government's principal objectives now that there has not been a new case of
FMD since 30th September are to receive recommendations a) to enable
it to take rapid steps to minimise the risk of any future outbreak of FMD
(or other infectious livestock disease) and to optimise the effectiveness
of the handling of any such future outbreak; b) by quickly and efficiently
inquiring into the recent FMD outbreak and learning lessons from it.
...
46 Expedition
is a particular requirement of this process of Inquiry because FMD could recur,
with potentially devastating effect, at any time. It is a particularly virulent
and contagious animal disease.
...
48 There
is therefore an urgent need, with as much despatch as practicable, to address
and minimise existing risks from infectious animal diseases and to review
and improve contingency plans for handling them.
...
53 Large
inquiries held in public have tended in practice (whatever their intention)
i) to take a longer time to report and ii) to concentrate on any perceived
culpability on the part of individuals rather than the forward-looking recommendations
for the future. A recent example of such an Inquiry in which evidence was
taken and scrutinised in public (and in which, of course, DEFRA's predecessor
MAFF was centrally involved) was the Phillips Inquiry into the both BSE and
new variant CJD.
...
64 Given
the width of each of the key areas of Inquiry ... the Government considered
that one set of all-encompassing terms of reference, for one single Inquiry,
would carry the risks of becoming unmanageable, too slow, and insufficiently
rigorous.
78 ...
the aim of the ... inquiry process is to be forward-looking, and to assist
the Government in its policy objective of effectively meeting any future outbreak
of a major animal disease. It was the Government's view that this aim could
properly be achieved by taking evidence in private session. While, of course,
there is still an obligation to use fair procedures in such a situation, individuals
giving evidence in private session do not face the same risk of public criticism.
...
79 For
these reasons, and also because it was considered by ministers that the giving
of evidence by individuals (whether officials or private persons) in private
can contribute to greater candour, it was considered that the three inquiries
announced by the decision should proceed in that fashion.
...
90 ...
what is required in relation to FMD is for the body of knowledge about its
handling, transmission and control to be brought right up to date and any
new lessons be learned in order to inform future Government policy and practice.
...
92 The
Phillips Inquiry was very expensive. It cost in the region of £30 million.
There was a wish to avoid such substantial expenditure again, particularly
when such sums might more usefully be spent in the rural economy.
...
99 Even
now that the outbreak appears on its way to being finally eradicated, its
aftermath is generating a considerable degree of extra work and corresponding
pressure within DEFRA and the State Veterinary Service, including from [and
there are then listed eight specific activities placing pressure upon the
available resources].
100 The
Government considered that an Inquiry process in which evidence is taken and
scrutinised in public would involve more pressure on officials, compared to
an Inquiry process with evidence taken in private. In particular, it would
be likely to divert the limited number of professionally qualify experts,
such as vets, away from the already existing workload involved in fighting
FMD ... and from implementing the necessary changes to prevent future outbreaks
of the disease."
- In short, the
main factors influencing Government were: a) the need to learn lessons as
rapidly as possible so as to be in a position to deal more effectively with
any fresh outbreak of the disease; b) the expectation of greater candour on
the part of those assisting the Inquiry (in particular the Lessons Learned
Inquiry); and c) the saving in financial and human resources that would result
from a closed inquiry process.
- The BSE Inquiry
obviously loomed large in the department's thinking. That had been an open
public inquiry and had taken nearly three years to report. Its terms of reference
had been explicitly backward-looking:
"To
establish and review the history of the emergence and identification of BSE
and variant CJD in the United Kingdom, and of the action taken in response
to it up to 20th March 1996; to reach conclusions on the adequacy
of that response, taking into account the state of knowledge at the time;
and to report on these matters to [the relevant Secretaries of State]."
- It is convenient
at this stage to note the views of another of the defendant's witnesses, Ms
Ann Margaret Waters, as a result of her experience as head of the BSE Liaison
Unit. Again, I confine myself to just a few central passages from her statement:
"51 The
pressure on witnesses who gave evidence in oral hearings, particularly those
in Phase 2, was immense. This was intensified by the fact that the oral hearings
were in public with a constant media presence and in front of an audience
that frequently contained members of the families who had lost relatives to
nv-CJD.
...
54 Some
witnesses have since commented to me that because the Inquiry was held in
public it was not a forum in which those who had been involved in MAFF, and
other departments, and who were called as witnesses, felt able to express
their opinions about what could have been done differently. This was because
they felt that this might be seen as criticising colleagues or exposing them
to media attack. There was therefore no real opportunity for those with experience
and knowledge to make constructive suggestions about the management of the
disease and its handling which could have contributed to the Inquiry's thinking.
55 I
do not wish to suggest that, because of the public nature of the Inquiry,
witnesses did not provide full and accurate factual information. That was
not the case. However, the public nature of the Inquiry did mean that witnesses
did not offer views and express opinions as much as they might have done had
there not been such public scrutiny of what they said.
...
60 There
were a number of ways in which the involvement of lawyers (together with the
public nature of the hearings) impacted on the procedure before the Inquiry
and the duration of the Inquiry process.
61 During
the course of the Inquiry I became aware that there was a tension between
the role of lawyers, whose concern was to protect the individual interests
of their client, and the openness of the process before the Inquiry. Because
the witnesses were being advised by lawyers, and, frequently, their written
statements had been written with lawyers, witnesses were much more guarded
about what they said to the Inquiry than they might otherwise have been. I
was aware that certain witnesses were advised by their lawyers not to express
certain views or opinions because they might thereby implicate themselves
or others. I am convinced that witnesses were, as a result, much more defensive
about their actions when giving evidence."
- Ms Waters then
(in paragraph 64) quoted Lord Phillips' report with regard to Phase 2 of the
Inquiry:
"Fairness
demanded that individuals be given notice of any potential criticisms. Such
a course had its costs. Those notified of potential criticisms, and the lawyers
advising them, naturally devoted and diverted their efforts to attempting
to meet the potential criticisms. This tended to focus attention on the areas
to which the potential criticisms related, albeit that these were not necessarily
the most important areas of the Inquiry, and thus to unbalance the process."
- As Mr Bender
points out, before the Phillips Inquiry began it was clear that new variant
CJD was linked to BSE and was fatal to humans. This human health impact substantially
contributed to public disquiet and militated in favour of a public process
of Inquiry. In contrast, he suggests, "FMD is a relatively well-known, already
publicly well-documented scientific phenomenon" about which "there is nowhere
near the same degree of uneasiness and mystery".
- With all these
various considerations in mind it was accordingly judged appropriate to set
up the Lessons Learned Inquiry with explicitly forward-looking terms of reference
so as to concentrate rather on the making of recommendations for the future
than on allocating blame for the handling of the 2001 outbreak. Of course,
any form of lessons learned inquiry must inevitably look backwards to some
extent: it is only by examining past practices so as to identify where the
problems lay that better procedures can be devised and put in place for the
future. So much is obvious. But the emphasis is all-important. If, as with
the BSE Inquiry, the focus is expressly upon the adequacy of Government's
response to a crisis, then reputations are put at stake and judgments as to
culpability have to be made. The Inquiry starts to resemble a trial. Salmon
letters are written and lawyers are instructed. Of its very nature the Inquiry
becomes confrontational and adversarial. And it is likely to be held in public.
These consequences, indeed, march hand in hand. Proceedings designed to determine
culpability are best heard in public. Yet the very fact that they are open,
with the media present, tends to sharpen their confrontational aspect and
to focus attention on the past rather than the future. So it is that the proceedings
lengthen, their expense increases, witnesses prove less constructive in their
evidence and the process tends, as Lord Phillips suggested, to become unbalanced.
- That, of course,
is not to say that the benefits are all one way and that there are no advantages
to be gained from holding an Inquiry in public. Manifestly, there are. Most
obviously perhaps in satisfying the sceptical that lessons really have been
learned. Each process has its advantages and disadvantages and in any particular
case a judgment has to be made as to where the balance of advantage lies.
That essentially is the defendant's position.
- On what basis,
then, is it challenged? On what grounds is it said that it was unlawful here
to set up these Inquiries, and in particular the Lessons Learned Inquiry to
take evidence in closed session, rather than in public?
- Two central
themes run through the claimants' and interveners' many arguments. (We were,
of course, addressed successively on their behalf by Mr Smith QC, Mr
Lissack QC, Mr Gordon QC and Mr Browne QC but I shall hope to be forgiven
if for the most part I address their submissions collectively). First and
foremost, they contend that only an open public inquiry could restore public
confidence in the Government's handling of this crisis and that to refuse
such an inquiry was either to fail to have regard to a material consideration
or to act irrationally. Secondly, they assert that the decision to hold most
of the Lessons Learned Inquiry in private violates Article 10 of the European
Convention on Human Rights. Although other contentions too are advanced I
shall turn to these much later in the judgment; at this stage it is convenient
to address just the two principal arguments, not least because it was essentially
by reference to these that a differently constituted Divisional Court (Kennedy
LJ and Jackson J) in July 2000 decided R (Wagstaff) -v- Secretary of State
for Health [2001] 1WLR 292, the authority upon which the claimants place
the greatest reliance. It will shortly become necessary to consider Wagstaff
in detail. For the moment, however, let me say no more than that the Court
there quashed the Secretary of State's decision to set up an inquiry to be
held in private by Lord Laming to examine the issues raised by the death of
so many of Dr Shipman's patients, on the ground that it was irrational; the
Secretary of State, on reconsideration, decided to institute a fresh inquiry
under section 1 of the Tribunals of Inquiry (Evidence) Act 1921 ("the 1921
Act") under the chairmanship of Dame Janet Smith. As is well known, that Inquiry
is now proceeding.
- The essential
basis of the claimants' case that the defendant failed to have regard to a
material consideration is to be found in paragraphs 72 and 73 of Mr Smith's
skeleton argument (paragraphs adopted also by Mr Lissack and Mr Gordon):
"72 It
is apparent from Mr Bender's evidence that the defendant (and the Government)
have made the wrong decision because they have asked themselves the wrong
question. The question they have asked themselves is, effectively 'How can
we discover most quickly and cheaply what we as a Government need to know
for the future arising out of the outbreak of FMD?'
73 But
the power to direct that an Inquiry be held in public rather than in private
is not solely (or even principally) concerned with the Government's own desire
to learn the appropriate lesson to ensure future better handling of a similar
situation. The power to order that an Inquiry be held in public is a power
which is concerned with the need of the public to understand what went on,
and how and why it went wrong. It is a power designed to restore the confidence
of the public in its Government which has been dented (or worse) by the public's
perception of the Government's handling of a crisis."
- In support of
this argument the claimants seek to rely on a succession of authoritative
pronouncements down the years, starting with the report of the Royal Commission
on Tribunals of Inquiry under the chairmanship of Lord Justice Salmon (as
he then was) in 1966 and progressing by way of Sheen J's report into the Herald
of Free Enterprise, the Lord Chancellor's 1991 guidance note on Disasters
and the Law: deciding the form of Inquiry, Clarke LJ's January 2000 report
on the Thames Safety Inquiry to, finally, Professor Sir Ian Kennedy QC's Bristol
Royal Infirmary Inquiry report dated 18th July 2001 (just three
weeks before the decision presently under challenge). To quote at length from
these various reports would, I fear, unduly lengthen this judgment; I must
needs be selective.
- Salmon LJ, under
the heading "Publicity", said this:
"115 As
we have already indicated it is, in our view, of the greatest importance that
hearings before a Tribunal of Inquiry should be held in public. It is only
when the public is present that the public will have complete confidence that
everything possible has been done for the purpose of arriving at the truth.
116 When
there is a crisis of public confidence about the alleged misconduct of persons
in high places, the public naturally distrusts any investigation carried out
behind closed doors. Investigations so conducted will always tend to promote
the suspicion, however unjustified, that they are not being conducted sufficiently
vigorously and thoroughly or that something is being hushed up. Publicity
enables the public to see for itself how the investigation is being carried
out and accordingly dispels suspicion. Unless these inquiries are held in
public they are unlikely to achieve their main purpose, namely, that of restoring
the confidence of the public in the integrity of our public life. And without
this confidence no democracy can long survive."
- Sheen J stated
in paragraph 60 of his report into the capsize of the Herald of Free Enterprise:
"In
every formal investigation it is of great importance that members of the public
should feel confident that a searching investigation has been held, that nothing
has been swept under the carpet and that no punches have been pulled."
- The Lord Chancellor,
Lord Mackay of Clashfern, in his guidance note of 16 May 1991,
offered "advice on the form of Inquiry to follow a disaster where there has
been significant damage or loss of life, and on the criteria to bear in mind
when deciding between the available options". I shall cite just paragraphs
12 and 13 under the heading "Which form of inquiry?":
"12 The
over-riding reason why judicial inquiries are held is the gravity of the incidents,
and the belief that both the public anxiety they cause and the interests of
the victims can only be satisfied by such an inquiry. In some cases public
confidence may be undermined if there is not a perception that an inquiry
is full, wide-ranging and independent of Government; for example, in cases
where the regulatory functions of the investigatory body are called into question.
There will therefore be cases in which public confidence requires there to
be an independent judicial figure to hold a public Inquiry.
13 It
is understandable that pressure for such inquiries has intensified. Public
concern about safety has increased. Expectations of compensation have also
increased and lawyers acting for the injured and the bereaved believe that
their interests are better served by a judicial than a technical inquiry.
However, except where the sort of considerations referred to in paragraph
12 apply, the range of options available should first be considered. The disadvantages
of holding a judicial inquiry which need to be borne in mind include the following.
First, the use of judges for inquiries is not the best use of judicial resources,
because it takes them away from their judicial work and it clothes them with
policy responsibilities. Secondly, the appointment of individuals drawn from
outside may undermine the role of the professional investigatory bodies. Thirdly,
judicial inquiries are necessarily adversarial and they may be prolonged and
expensive. ... Invariably, one or more counsel to the inquiry will need to
be appointed; whilst interested parties will be responsible for arranging
their own representation (and legal aid will not be available) such inquiries
often result in a recommendation that their costs be met out of public funds.
Technical inquiries, on the other hand, tend to be shorter and the expertise
to run them is almost always available 'in-house'. They are likely to be much
less expensive."
- Clarke LJ, asked
in 1999 to report "whether there is a case for a further investigation or
inquiry into the circumstances surrounding the Marchioness disaster and its
causes on 20 August 1989", in the course of concluding that there was, said
this:
"5.3 There
are ... two purposes of a public inquiry, namely ascertaining the facts and
learning lessons for the future. In the vast majority of cases the second
is a very important ingredient, especially in the sphere of transport, because
it is to be hoped and indeed expected that the detailed examination of the
causes of a particular casualty will yield valuable information from which
lessons can be learned. It does not follow that it is a necessary ingredient,
because of the public interest identified above, namely the ascertainment
of the truth. The public (and especially the survivors and the relatives and
friends of those who lost their lives) has a legitimate interest in learning
the truth of what happened, without anything being swept under the carpet.
In some cases that will necessitate a public inquiry, whereas in others it
will not.
...
5.8 The
purpose of a public inquiry is simply to ascertain the facts and to make recommendations
for the future. A public inquiry should only be ordered in exceptional cases.
Public inquiries are very expensive in terms of time and money and in very
many cases the facts can be established and lessons learned without such an
inquiry. There are, however, some cases in which the public properly expects
a public inquiry to take place.
...
6.4 ...
In my opinion, both the public at large on the one hand, and the survivors
of the collision and the relatives of those who lost their lives on the other
hand, were entitled to an open public inquiry into what happened.
...
13.2 ...
No private person or entity has a right to a public inquiry. The purpose of
a public inquiry ... is ... to ascertain the true facts and to learn lessons
for the future. Most inquiries will have both purposes, but there may be cases
where the public interest requires the holding of a public inquiry in order
to ascertain the true causes of a casualty, even if relevant lessons have
already been learned. A public inquiry should thus be ordered where there
is a need for full, fair and fearless investigation and for the exposure of
relevant facts to public scrutiny."
- Professor Kennedy's
report under the title Learning from Bristol included amongst its "Suggested
criteria for future decision-making about Public Inquiries": "Public confidence
in government, local or national, in the area under scrutiny, if it is to
be restored, cannot readily be restored without an independent examination
of the issue in public", and, under the heading "The purposes of a public
inquiry", having quoted from Clarke LJ's report continued:
"12 When
Lord Justice Clarke talks of restoring public confidence, we should add from
our experience that a Public Inquiry of itself cannot, and perhaps should
not seek to, restore public confidence. The public's confidence in any particular
organisation's or even government's role in any particular area has to be
won. Indeed, a Public Inquiry may reach the view that confidence is not deserved
unless certain actions are taken. It is here, as Lord Justice Clarke observes,
that learning the lessons of the past comes in, and, of course, the framing
of recommendations to give effect to those lessons.
...
14 Whatever
its particular terms of reference, a Public Inquiry should attempt to promote
understanding, not only of what may have gone on, but also what led to the
events which are the subject matter of the Inquiry, and what may have been
the motives and intentions of those involved. In this way, the complexities
that surround all events and actions can be exposed and explored. The black
and white uncertainties advanced by some may be shown to be illusory and unhelpful.
15 A
Public Inquiry should aim, indeed it may be as much a duty as a purpose, to
be a means whereby all those affected by the events under investigation can
feel that their concerns have been aired and heard and that life can move
on. It is commonly the case that events leave those touched by them in some
kind of personal limbo, prevented by the past from creating a future. We found
this to be particularly the case in our inquiry: not just parents and doctors,
but the hospital trust and even the city were caught up in the Inquiry. ...
16 Further,
a Public Inquiry, whatever its formal terms of reference, offers the opportunity
for a form of communal catharsis. The importance of this purpose should not
be undervalued. It offers an opportunity for those in authority to be held
to account; it allows for the public venting of anger, distress and frustration;
it provides a public stage on which this can take place."
- All those advantages
of an open public inquiry, the claimants point out, are lost by a closed inquiry
of the kind presently being held by Dr Anderson. There will be no "communal
catharsis", no "opportunity for those in authority to be held to account",
no "public venting of anger, distress and frustration", no "public stage".
The claimants further submit that these advantages are obtainable without
any untoward lengthening of the inquiry process. In this regard too they rely
upon Professor Kennedy's report to indicate how this can be achieved:
"22 An
inquisitorial approach: the approach we adopted was ... wholly inquisitorial.
By this we mean that the Inquiry identified the witnesses it wished to hear
from and that the witness's evidence was explored and tested by counsel to
the Inquiry on the Inquiry's behalf. That is not to say that by adopting this
approach we ignored the ordinary principles of fairness and due process. Rather,
we designed our procedures to meet the needs of the Inquiry, respectful of
the duty at all times to show fairness to all those affected by the Inquiry.
For this reason, for example, everyone who could be said to be criticised
in a material way by any other witness's evidence was given an opportunity
to comment in advance of that evidence being made public. In this way, evidence
was always placed in a wider context. Equally, we greatly needed the assistance
of the lawyers who represented the many participants and pay tribute here
to the help they gave us. What was different was the role which we asked them
to play. Rather than proceed in the oral hearings by way of examination and
then cross-examination (sometimes by a number of parties) we formulated a
procedure whereby the questioning of witnesses was carried out by counsel
to the Inquiry. All other counsel, representing the range of participants
affected by or interested in the Inquiry, liaised with the Inquiry's counsel
to ensure that all lines of examination were pursued and questions put. The
opportunity to cross-examine existed, but the procedure worked with such success
(not least due to the co-operation of all concerned) that, in the event, no
application to cross-examine was made throughout the 96 days of the hearings.
Not only did this save time (and expense) but also ensured that the Inquiry
was conducted calmly and without rancour."
- Those admirable
procedures notwithstanding, the Bristol Royal Infirmary Inquiry, one may note,
took just over three years to submit its final report.
- Before turning
to Wagstaff, as shortly I must, there is one important decision of
the Court of Appeal to which reference should first be made, Crampton -v-
Secretary of State for Health (unreported, 9 July 1993). The Court of
Appeal in that case (Sir Thomas Bingham MR, Steyn & Hoffmann LJJ) refused
a renewed application for leave to move for judicial review to challenge the
Secretary of State's decision to appoint a non-statutory tribunal under the
chairmanship of Sir Cecil Clothier QC to inquire into the circumstances underlying
the convictions of Beverley Allitt, a hospital nurse, for the murder of four
children, the attempted murder of three more, and the infliction of grievous
bodily harm on six others. As to a secondary complaint that Sir Cecil was
intending to conduct the Inquiry and hear evidence in private, the Master
of the Rolls said this:
"...
in many cases where it is sought to allay public concern it will be thought
preferable to conduct the proceedings under the public eye, but the facts
of different cases vary infinitely and had the Secretary of State established
an Inquiry under section 84 [the major complaint being that he had failed
to do so] it would have been very hard, if possible at all, for the parties
to challenge a decision made then or thereafter that the Inquiry should not
be held in public."
- Of a further
complaint that, in view of the seriousness of the questions raised, the Secretary
of State had given undue weight to the question of cost, the Master of the
Rolls said:
"To
my mind the Secretary of State might well have been at fault had she treated
cost as the only consideration but she cannot be said to have erred in considering
cost to be a material consideration. It is an undoubted truth that
a statutory Inquiry conducted in public would last longer and cost more and
the money so spent would of course otherwise be available for the care of
patients. This was pre-eminently a matter for the judgment of the Secretary
of State."
- The tribunal
stated in its final report that every single witness whom it required to see
attended, and every document it wanted was produced and that "witnesses spoke
with a frankness impossible to find in a public arena".
- A number of
the families affected subsequently complained to the European Commission on
Human Rights that the failure to hold an independent public inquiry violated
Article 2 (see Taylor -v- United Kingdom (1994) 18 EHRR CD 215). The
terms in which the Commission held that application to be inadmissible appear
to me of some importance in the present case:
"The
Commission notes that the Inquiry which was held into the Allitt affair was
presided over by Sir Cecil Clothier, an ex-Ombudsman, and it is satisfied
that the Inquiry was effectively independent of the parties involved in the
case. Further, while the Inquiry did not have powers to compel discovery or
witnesses, it does not appear that the Inquiry was refused access to any document
or that any witness refused to attend. ... While the Inquiry did not conduct
itself in public, its findings and recommendations were made public. The report
identified a number of shortcomings which could have contributed to the ease
with which and the length of time over which Allitt had conducted her attacks,
and it made recommendations to avoid the same mistakes being repeated in future.
... The Commission acknowledges that neither the criminal proceedings nor
the Inquiry addressed the wider issues relating to the organisation and funding
of the National Health Service as a whole or the pressures which might have
led to a ward being run subject to the shortcomings apparent on Ward Four.
The procedural element contained in Article 2 of the Convention, however,
imposes the minimum requirement that where a State or its agents potentially
bear responsibility for loss of life the events in question should be subject
to an effective investigation or scrutiny which enables the facts to become
known to the public, and in particular to the relatives of any victims. The
Commission finds no indication that the facts of this case have not been sufficiently
investigated and disclosed ... The wider questions raised by the case are
... matters for public and political debate which fall outside the scope of
Article 2 and the other provisions of the Convention."
- Against that
background I come at last to Wagstaff, which, as already stated, followed
on from Dr Shipman's conviction on fifteen counts of murder, and led in turn
to Dame Janet Smith's 1921 Act Inquiry. So central to the present case is
it that I have really no alternative but to cite a substantial part of the
Court's judgment (at pages 319 - 321):
"Material
Considerations
What
then were the considerations to which the Secretary of State should have had
regard when deciding as he did, ... on 12th April 2000? ... There were a number
of factors which might be regarded as persuasively in favour of opening up
the Inquiry, namely -
(1) The
fact that when a major disaster occurs, involving the loss of many lives,
it has often been considered appropriate to hold a full public Inquiry, and
the case for such an Inquiry would seem to be enhanced where -
(a) there
is doubt as to how many and which deaths are properly attributable to the
known cause of many other deaths;
(b) the
fact that deaths occurred over a long period without detection is suggestive
of a breakdown in those checks and controls which should operate to prevent
such a tragedy;
(c) as
a result there is likely to be a widespread loss of confidence in a critical
part of the National Health Service which needs to be addressed.
(2) There
are positive known advantages to be gained from taking evidence in public,
namely -
(a) witnesses
are less likely to exaggerate or attempt to pass on responsibility;
(b) information
becomes available as a result of others reading or hearing what witnesses
have said;
(c) there
is a perception of open dealing which helps to restore confidence;
(d) there
is no significant risk of leaks leading to distorted reporting.
All
of this is clear from the 1991 Lord Chancellor's Advice, cases such as R
-v- Legal Aid Board, ex p Kaim Todner [1999] QB 966, 977; the Clarke Report;
and the experience of Sir Louis Blom-Cooper to which I have referred.
(3) The
particular circumstances of this case militated in favour of opening up the
Inquiry because -
(a) by
April 2000 it was clear that was what the families wanted, and that the Secretary
of State had been mistaken to think otherwise. As he chose to rely on what
he had believed to be their state of mind he should have consulted them before
reaching his decision of 27th January 2000, and he should therefore have given
them a proper opportunity to deal with his new reasons for maintaining his
position if he was not to accede to the written submissions of their solicitor;
(b) the
wide and unamended terms of reference gave those relatives and friends of
persons not named in the indictment good reason to believe that the Inquiry
would investigate how and why their relatives died;
(c) even
if Parliament was not misled, what had been said and what had not been said
in the House of Commons on 1 February 2000 had for obvious reasons given rise
to misunderstanding;
(d) there
was no obvious body of opinion in favour of evidence being received behind
closed doors;
(e) given
an inquisitorial procedure and firm chairmanship, there was no reason why
the Inquiry should take longer if evidence were taken in public, nor was there
any tangible reason to conclude that any significant evidence would be lost.
(4) Where,
as here, an inquiry purports to be a public Inquiry, as opposed to an internal
domestic Inquiry, there is now in law what really amounts to a presumption
that it will proceed in public unless there are persuasive reasons for taking
some other course. Although article 10 of the Convention is not yet incorporated
into English law it does no more than give expression to existing law as to
the right to receive and impart information.
(5) If
the inquiry has been conducted in public, then the report which it produces
and the recommendations which it makes will command greater public confidence.
Since all members of the community, especially the elderly and vulnerable,
have been accustomed to place great trust in their GPs, such restoration of
confidence is a matter of high public importance.
The
decision of 12th April 2000
So
we come to look again at the decision of 12 April 2000. The Secretary of State
said that in making it he had three considerations in mind.
(1) Speed.
Obviously it is desirable for information to be gathered while memories are
still relatively fresh, even though some relevant deaths took place several
years ago, and it might well be desirable not to have a full adversarial Inquiry,
but the comparators which the Secretary of State chose were plainly inapposite
because of the amount of material with which they had to deal, and no reason
was advanced as to why a non-adversarial inquiry or one that severely restricted
adversarial methods should not fully eliminate the risks of delay.
(2) Candour.
The belief that an Inquiry shorn of its adversarial features and the distractions
of media interest can yield a far greater depth of information is a tenable
point of view. It derives some support from what was said by Sir Cecil Clothier
in his report on the Allitt Inquiry, but it is plainly now what might be described
as a diminishing minority point of view, incapable in the circumstances of
this case, where no vulnerable witnesses are apparently involved, of standing
up to the weight of the arguments in favour of an open inquiry, as the Secretary
of State might have appreciated if he had given the families a proper opportunity
to comment on this proposed reason for deciding as he did.
(3) The
assertion that a private hearing "will not be any the less exacting or vigorous"
is, Mr Ullstein submits with some force, self-evidently fallacious. If witnesses
do not know what others say they will not, unless invited to do so, be able
to comment on what has been said, and the inquiry may not even know that they
can assist. Thus the totality of the information available will be reduced,
and the ability to test one piece of evidence against another will be inhibited.
Conclusion
on Main Issue
...
Mr
Elvin invited us to regard this decision as to whether the inquiry should
sit in private or in public as policy-laden. We disagree, and for the reasons
we have set out we are driven to conclude that it was irrational."
- Wagstaff
clearly represents the high watermark of the claimants' case and much of what
the Divisional Court said there is prayed in aid here. That case, of course,
was concerned with human deaths rather than the slaughter of animals, but
the claimants say - and in this they are surely right - that FMD represented
certainly no less a disaster and occasioned no less widespread a loss of confidence
in the relevant public service. The four "positive known advantages to be
gained from taking evidence in public" (see the first numbered paragraph 2
of the passage cited) are, they submit, equally relevant here as they were
in Wagstaff. Unless the hearing is in public, they submit, "the totality
of the information available will be reduced, and the ability to test one
piece of evidence against another will be inhibited" (see the second numbered
paragraph 3 of the passage cited).
- Paragraph 5
of the passage cited is also urged upon us: by conducting the inquiry in public
"the report which it produces and recommendations which it makes [would] command
greater confidence ..., such restoration of confidence [being] a matter of
high public importance". And not least, of course, the claimants rely upon
the Court's conclusion in paragraph 4 of the passage cited, that "there is
now in law what really amounts to a presumption that [any inquiry save for
an internal domestic one] will proceed in public unless there are persuasive
reasons for taking some other course", there being, the claimants submit,
no such persuasive reasons here.
- In examining
these arguments it seems to me logical to start with the last of those points,
the supposed legal presumption. What is the jurisprudential basis for such
a presumption? From where does it spring? I confess to some difficulty with
these questions. Nor am I altogether clear how the presumption is to be reconciled
with the Court's earlier observation, at p309:
"It
is clear from the evidence before us that over the last decade there has been
no uniform practice, and no doubt in each case much has turned on facts peculiar
to that case such as the complexity of the information, the need for confidentiality
of material, the perceived demand for public accountability, the aims of the
inquiry, the need to obtain a speedy result, the desirability of obtaining
access to material which might not be available if one form of inquiry were
chosen as opposed to another, the costs involved and so forth."
- The many statements
made in the earlier Inquiry Reports so urgently pressed upon us (the most
prominent of which are set out in paragraphs 24-28 above) do not to my mind
give rise to a legal presumption of openness with regard to all forms of public
inquiry. I confine myself to a brief comment on each. Lord Justice Salmon's
report was written in the aftermath of the Profumo affair and is replete with
references to "misconduct", "evil", "the integrity of our public life", and
the like. Of course it is imperative when questions of that sort are raised
that inquiries are held in public. Their objective is above all to establish
the truth and the principle of open justice applies. They are closely akin
to trials and, as Lord Woolf observed in R -v- Legal Aid Board ex parte
Kaim Todner [1999] QB 966, 977 (referred to in the first numbered paragraph
2 of the passage from Wagstaff cited above):
"The
full glare of a public hearing ... is necessary ... [because] [it] ... maintains
the public's confidence in the administration of justice."
A
good example of such an inquiry (in fact non-statutory) was Sir Richard Scott's
inquiry into the sale of arms to Iraq (which, incidentally, took 3¼ years
to report). A paragraph of his report under the heading "Public Hearings"
included this:
"The
Inquiry was set up in order to investigate allegations regarding the manner
in which certain Government officials and Ministers had discharged their official
duties. The public, on whose behalf and for whose benefit government is conducted,
is entitled, in my opinion, to expect that an inquiry into the propriety
of acts of government will be open to the public save to the extent that
some overriding public interest requires the contrary." (emphasis added)
- Although, as
the defendant frankly admits, mistakes were undoubtedly made in the handling
of the FMD crisis, there is no suggestion here that those in charge lacked
integrity or honesty. The criticisms made go not to the "propriety of acts
of government" but rather to their competence.
- The Lord Chancellor's
1991 guidance note was similarly concerned with a very different problem from
that arising here: the choice, following a single physical disaster, between
a large-scale "necessarily adversarial" "judicial inquiry" and a "technical
inquiry" by some regulatory body such as the Health and Safety Executive.
The guidance note simply never addressed the spectrum of possibilities between
those two extremes.
- Clarke LJ's
report, valuable though it is in highlighting the undoubted advantages of
an open public inquiry where exceptionally this is adjudged necessary, must
also be read in context. Unusually in that case, indeed probably uniquely,
a senior judge was being asked to decide for himself whether a public inquiry
should be held into a particular disaster, a decision which ordinarily, of
course, is taken by Government. Given that Clarke LJ was expressing views
ten years after the event and that the only previous inquiry had been that
conducted by the Marine Accident Investigation Branch, his only real choice
lay between an open public inquiry and doing nothing. No possible object would
have been served by a public inquiry taking evidence in closed session; that
option simply did not arise. That such inquiries have successfully been held
in the past, however, can hardly be questioned: one such was Sir Thomas Bingham's
1992 inquiry into the supervision of BCCI. Another was the 1967 inquiry into
the last outbreak of FMD conducted under the chairmanship of the Duke of Northumberland.
Inquiries, in short, come in all shapes and sizes and it would be wrong to
suppose that a single model - a full-scale open public inquiry - should be
seen as the invariable panacea for all ills. Sometimes, of course, as Professor
Kennedy's report suggested, the balance will indeed fall in favour of an open
public inquiry in order that "those in authority [can] be held to account"
and "life can move on". But there may well be competing considerations in
play, and the judgment as to where the balance falls may be thought pre-eminently
a political one.
- With these thoughts
in mind, and reminding myself that "[i]n law context is everything" (per Lord
Steyn in R -v- Secretary of State for the Home Department ex parte Daly
[2001] 2WLR 1622, 1636, nowadays the most quoted dictum in all of administrative
law), let me now return to Wagstaff where, it will be remembered, the
Court, besides enunciating a legal presumption that any public inquiry must
sit openly, rejected the Government's suggestion that the decision whether
to sit in private or in public was "policy-laden". At first blush I confess
to have found Wagstaff a puzzling decision. How could a court, expressly
recognising that there had been "no uniform practice" as to the form of inquiry
held in the past, and itself bound by the Court of Appeal's decision in Crampton
(where the view was expressed that it would be "very hard, if possible at
all" to challenge a decision that an inquiry sit in private) rule that just
such a decision (to sit in private) was irrational? The answer, I have no
doubt, is to be found in the particular factual context in which Wagstaff
was decided. As close consideration of the judgment makes plain, there were
a number of features of that case which together impelled the Court to its
conclusion. They are conveniently to be found summarised in the first numbered
paragraph 3 of the passage cited above. First was the fact that the Secretary
of State there had mistakenly understood the families of the deceased to want
a closed rather than an open form of inquiry. Secondly, the terms of reference
for the Shipman inquiry were very wide and, indeed, remained so despite Lord
Laming's specific attempt to have them narrowed. They included the requirement
"to inquire into the role and conduct of the various statutory bodies and
authorities and to consider the appropriateness of their response to the information
available about Harold Shipman's clinical practices". This factor seems to
me of great importance in understanding the decision in Wagstaff: it
was, indeed, specifically upon this basis that the Court felt able to distinguish
Crampton. They said as much twice, the second time at p309 as follows:
"...
as we have already indicated, the objects of that inquiry [in Crampton]
as set out in its terms of reference were markedly narrower than the terms
of reference with which we are concerned."
- Thirdly, although
the Court rejected a specific ground of legitimate expectation it clearly
concluded that many people had received the clear impression that the inquiry
would sit in public. Fourthly, no-one at all appeared to favour sitting in
private and indeed no advantages in such a course were perceived. Fifthly,
it was concluded that, even with the inquiry held in public, it would take
no longer - perhaps a surprising conclusion, but one then repeated under the
heading "Speed" in the second numbered paragraph 1:
"...no
reason was advanced as to why a non-adversarial inquiry or one that severely
restricted adversarial methods should not fully eliminate the risks of delay."
- In short, the
Court in Wagstaff could see nothing whatever in favour of a closed
inquiry, and on the contrary everything to be said for opening it up. Given
in addition that the factual context of the dispute was well within the Court's
own field of expertise and experience, the decision becomes clearly understandable.
- The circumstances
of the present case, however, appear to me strikingly different. The principal
differences are surely these. The terms of reference of the Lesson Learned
Inquiry are substantially closer to those "markedly narrower" terms with which
the Court was concerned in Crampton than those under consideration
in Wagstaff. By the same token that the Court in Wagstaff felt
able to distinguish Crampton on this basis, so too should we distinguish
Wagstaff. Secondly, no-one suggests that an open public inquiry into
FMD would take no longer than Dr Anderson's proposed six month inquiry (scheduled
to report in June 2002). On the contrary, however inquisitorial the procedure
and however firm the chairmanship, all experience dictates that an open inquiry
would take very appreciably longer, even putting aside the need to set it
up entirely afresh. One does not need to reflect on the Saville Inquiry to
recognise the risk of timetables slipping. Thirdly, the case on candour which
the defendant advances here seems to me both stronger than, and in an important
respect different from, that advanced in Wagstaff. The Court there
(at p310-311) quoted a statement made by Sir Louis Blom-Cooper QC in support
of public inquiries being conducted openly, remarking that "there was no evidence
put before us to the opposite effect" (albeit reference was made to Sir Cecil
Clothier's report on the Allitt Inquiry providing some support for the contrary
view). In the present case not only is there a statement from a witness, Mr
Richard Lingham, with great personal experience of health service inquiries,
who expresses himself as "firmly in favour of ... an inquiry that hears evidence
in private" (for much the same reasons as those given by Ms Waters), but Sir
Louis himself takes a perhaps more ambivalent view than Wagstaff suggested.
In his statement before us, he says this:
"It
is frequently asserted that witnesses before an inquiry held in private are
thereby more inclined to be candid about their testimony. My experience on
the whole accords with that view, but there is a distinct downside to that
benefit."
- Having then
explained that downside, essentially that witnesses in private tend to be
careless about accusations against others, Sir Louis concludes: "On balance
I prefer the even-handed approach which gives equal weighting to the evidence".
A view arrived "on balance" hardly suggests that the evidence is all one way.
In Wagstaff, moreover, the Court did not have the benefit of Ms Waters'
evidence that, because the BSE Inquiry was held in public, "those with experience
and knowledge [did not] make constructive suggestions about the management
of the disease and its handling which could have contributed to the Inquiry's
thinking". In other words, in an inquiry into a broadly comparable area of
concern, witnesses tended to be defensive rather than constructive in their
evidence.
- Before finally
turning from Wagstaff to consider the claimants' remaining grounds
of challenge I must address the argument arising under Article 10 of the Convention.
As has been seen, reference to that Article was made in paragraph 4 of the
Court's judgment in Wagstaff and it may be ,indeed, that the Court's
conclusion there, that Article 10(1) was engaged and that no reliance could
be placed on Article 10(2), at least in part informed its view that a legal
presumption of openness arises in the case of any public inquiry. Wagstaff
was decided, of course, before the Convention was incorporated into domestic
law: the Court considered, however, that Article 10 does no more than reflect
the position under the common law.
- It is, I fear,
necessary to quote again from the judgment in Wagstaff to see how the
Court arrived at its conclusion that Article 10 is engaged whenever, as here,
it is decided to hold a closed form of public inquiry. I cite only the passage
dealing with the Convention jurisprudence:
"[Counsel
for the applicants] submitted to us that the decision that the inquiry should
receive evidence in private interfered with the families' freedom of expression
because without sufficient reason it curtailed their right to receive information
from other witnesses, and to impart information to the inquiry as a result.
In
Leander -v- Sweden (1987) 9 EHRR 433 the European Court of Human Rights
was concerned with an applicant who had been refused a job because of information
on file which was said to indicate that he was a security risk. Dealing with
Article 10 of the Convention under the heading 'Freedom to receive information'
the court observed, at p456, para 74:
'the
right to freedom to receive information basically prohibits a government from
restricting a person from receiving information that others wish or may be
willing to impart to him.'
That
was relied upon by [counsel for the defendant], but we find it difficult to
understand how it assists his case. On the face of it the Secretary of State
is thereby prohibited, in the context of the present case, from restricting
a family witness waiting to give evidence from receiving information that
others who are currently giving evidence wish or may be willing to impart
to him, namely an accurate account of what they are saying, not based simply
on their own imperfect recollection after they have finished. Furthermore,
in Autronic AG -v- Switzerland (1990) 12 EHRR 485 the applicant company
had been refused permission to receive uncoded television programmes. The
European Court said that article 10 applied to profit-making corporate bodies,
and continued, at p499, para 47:
'Article
10 applies not only to the content of information but also to the means of
transmission or reception since any restriction imposed on the means necessarily
interferes with the right to receive and impart information.'
So
on the face of it, the present prohibition on reporting would appear to be
a breach of article 10 of the Convention.
The
same approach was adopted by the European Court of Human Rights in Vereinigung
Demokratischer Soldaten Österreichs -v- Austria (1994) 20 EHRR 56,
which concerned the refusal to distribute a particular magazine with military
periodicals distributed free to soldiers. The court said, at p 80, para 27:
Such
a practice was bound to have an influence on the level of information imparted
to the members of the armed forces and, accordingly, engaged the responsibility
of the respondent state under article 10. Freedom of expression applies to
servicemen just as it does to other persons within the jurisdiction of the
contracting states.'"
- It is essentially
upon those same authorities that the claimants (and more particularly Mr Browne
for the intervening media interests) rely in urging the same conclusion upon
us. That said, it is plain that we have had the advantage of substantially
fuller argument on the point than the Court enjoyed in Wagstaff and
have been referred to a number of additional cases. In the result I for my
part have come to the clear conclusion that Article 10 is simply not engaged
by a decision, as here, to hold a closed public inquiry. Let me as briefly
as possible explain why.
- The Court in
Wagstaff cited part only of paragraph 74 of Leander, the first
of the three Strasbourg cases referred to, and observed that it could not
assist the government's case. It seems to me, however, necessary to cite the
paragraph rather more fully:
"...
the right to freedom to receive information basically prohibits a government
from restricting a person from receiving information that others wish or may
be willing to impart to him. Article 10 does not in circumstances such as
those of the present case, confer on the individual a right of access to a
register containing information on his personal position, nor does it embody
an obligation on the government to impart such information to the individual."
(That approach, I may note, was subsequently applied by the ECtHR in Gaskin
-v- United Kingdom (1990) 12 EHRR 36 to rule out access to a case file
prepared on the applicant whilst in care.)
- The crucial
point made by Leander is that freedom of expression - whether the right
to receive, or the right to impart, information - is one thing, access to
information quite another, and that Article 10, whilst naturally conferring
the former, does not accord the latter. That distinction appears to me central
to this case. The true analysis of the complaint made here is that the form
of inquiry decided upon by government and now being undertaken by Dr Anderson
denies public access to the information being imparted at the closed sessions.
That, to my mind, is not a legitimate complaint. The fact that a particular
participant may be willing, even anxious, to have his contribution broadcast
is nothing to the point. He is, of course, entirely at liberty to say what
he likes to whomsoever he wishes. The conduct of the inquiry is not, however,
in his hands and it is the willingness or unwillingness of whoever controls
the inquiry's proceedings which must determine whether the public shall have
direct access to the information being imparted. Someone attending a closed
session of the Lessons Learned Inquiry is no more entitled to be accompanied
by the press and television cameras than if he were invited to participate
in a departmental meeting or, indeed, advise the Minister in his private office.
- In truth, under
the guise of seeking merely to remove supposedly impermissible restrictions
on the ability of willing participants to communicate their contributions
more widely and more accurately than is possible without media intervention,
the claimants and interveners are in reality seeking to enforce the setting
up of a quite different form of inquiry, namely an open public inquiry such
as Lord Phillips held into BSE. Article 10 contains no warrant for such an
exercise. It is not a corollary of the right to freedom of expression that
public authorities can be required to put in place additional opportunities
for its exercise. Article 10 imposes no positive obligation on government
to provide, in addition to existing means of communication, an open forum
to achieve the yet wider dissemination of views. Article 10 prohibits interference
with freedom of expression: it does not require its facilitation. In reality,
as it seems to me, the claimants' argument here seeks to pull itself up by
its own bootstraps. Had no inquiry been set up, Article 10 would manifestly
not be engaged. A closed form of inquiry having been determined upon, Article
10 cannot then be invoked to transform it into some quite different process.
- Neither of the
other two cases relied on in Wagstaff to my mind assist the claimants'
argument. Autronic was a clear case of governmental interference with
the right to receive information: the Swiss authorities were restricting the
company's right to make use of Russian transmissions. So too was Vereinigung
Demokratischer Soldaten Österreichs -v- Austria, where the Austrian
authorities took a positive decision to interfere with a means of communication
(the distribution of magazines) already in being and available to the armed
forces. It is one thing to terminate an existing process for the transmission
of information; quite another to decline to institute such a process in the
first place. We are here concerned with the latter situation and the central
question arising is whether the setting up of an inquiry to take evidence
in closed session of itself violates Article 10.
- A number of
further authorities to my mind support the conclusion that Article 10 is not
engaged in the present case. I mention them only briefly. The complaint in
Taylor -v- United Kingdom (referred to in paragraph 34 above) was based
solely on Article 2, by reference to the McCann -v- United Kingdom
(1995) 21 EHRR 97 line of authority; no-one suggested that Article 10 had
any application.
- Guerra -v-
Italy (1998) 26 EHRR 357 concerned a complaint about the failure of the
authorities to inform the public about the hazards, safety measures and emergency
procedures to be followed in respect of serious health risks resulting from
a malfunctioning chemical factory. An investigation into these matters was
still continuing. The ECtHR in paragraph 53 of its judgment quoted from paragraph
74 of Leander and continued:
"That
freedom cannot be construed as imposing on a State, in circumstances such
as those of the present case, positive obligations to collect and disseminate
information of its own motion."
- Dame Janet Smith's
judgment in Decision on Application by Cable News Network (CNN) (unreported,
25 October 2001) and the Lockerbie trial judgment in Petition (No 2) of
BBC [2000] HRLR 423, both point in the same direction. In each case the
tribunal had to rule on a television network's application to be granted a
means of access to information which was in any event being broadcast in other
ways, in the Shipman inquiry to television screens set up in the Hyde Public
Library and the Manchester City Hall, in Lockerbie to the families of victims
in the United States. Both applications were refused on the basis that Article
10 had no application. I shall confine myself to the citation of just two
paragraphs from Dame Janet Smith's long and careful judgment in the CNN application:
"59. I
accept that there is a right to film or photograph an event taking place in
public. I am not convinced that it is a right which is guaranteed by Article
10. However, I am prepared to accept for the sake of the present argument
that it is. If that right is guaranteed by Article 10, why does Article
10 not guarantee a right to film the Inquiry? If a television crew wishes
to film a man who is addressing the crowd from a soap box at Speakers' Corner,
there is nothing the man can do about it if he does not want to be filmed.
(All he can do is to stop and go away, thereby losing his right to freedom
of expression.) The television company is in the same position as Autronic.
It has a right to film him even if he does not consent, because in practice
he cannot prevent it. A police officer would not help him to prevent it, unless
perhaps he thought that the filming would give rise to a breach of the peace.
In the course of argument, I asked [counsel for the Attorney-General] why
the proceedings of an Inquiry are different from an event taking place in
a public street or park. His answer was that the difference lies in the Inquiry's
inherent right to control its own proceedings. No-one has any right to control
the public event. I think he was right. A similar distinction can be drawn
between an event taking place on the street and one which takes place inside,
say, a football stadium, where an entrance fee is charged. The public has
right of access, on payment of a fee, but does not have the right to film
the match. Neither do the television companies, who often pay dearly for permission
to film and broadcast such an event.
60. My
conclusion is that Article 10 does not provide a right to film a public event
if the person with lawful control of the event is not willing to allow it.
This is a direct application of the principle in Leander. If no person
has lawful control, then there is a right to film, because in practice there
is nothing to prevent it: see Autronic. ..."
- There seems
to me to be some force too in the Attorney-General's argument that were Article
10 to have the effect here contended for, it would not be necessary for Article
6(1) to specify the entitlement of litigants to a "public hearing" of their
disputes. The very fact that Article 6 makes express provision for this suggests
that no such right exists in relation to other forms of state inquiry.
- Before leaving
Article 10, I should add this. Even had I been persuaded to the view that
the decision here to set up a closed rather than open form of public inquiry
constituted a restriction on the claimants' or media's right to freedom of
expression, I should nevertheless have regarded the decision as one properly
capable of being justified under Article 10(2). The justification would be
that it was necessary for the protection of the rights of others, namely the
rights of all those who would suffer from any further outbreak of this virulent
and potentially devastating animal disease, a disaster which the Government
hopes and seeks to forestall by calling for as rapid a report as possible
on the lessons to be learned from the last outbreak. There is, of course,
room for two views as to whether the interests of the country (and the farming
community in particular) will be better served by obtaining an early report
from a closed inquiry or a later report from an open inquiry - and likewise
no doubt as to whether additional monies should be expended on the inquiry
process or on other things. To my mind, however, such choices plainly lie
within the executive's "discretionary area of judgment" - see the well-known
passage from Lord Hope's speech in R -v- DPP ex parte Kebilene [2000]
2 AC 326, 380-381 - and are not, even in a Strasbourg context, for the courts
as primary decision-takers. In short, the critical judgment to be formed here
was whether the advantages of a closed inquiry outweighed those of an open
inquiry, pre-eminently a judgment for government. Obviously, in weighing the
advantages of an open inquiry, the benefits of openness had to be put into
the scales. For my part, however, I see no reason to doubt that these benefits
were recognised, albeit in the end they were thought not to prevail. I would
reject the claimants' case as set out in Mr Smith's skeleton argument - see
paragraph 22 above. I see nothing wrong with government having asked the question:
"How can we discover most quickly and cheaply what we as a government need
to know for the future arising out of the outbreak of FMD?" providing only
that they recognised that a closed inquiry would leave many unsatisfied as
to whether the lessons had in truth been learned and without confidence, therefore,
in government's ability to handle any future crisis. But there is no reason
to doubt government's awareness of this, and it would be naïve to do
so; they can hardly be expected to demonstrate that awareness in their published
writings.
- I come finally
to three subsidiary grounds of challenge advanced by the claimants which,
important though undoubtedly they are, I propose to deal with altogether more
briefly.
- First is the
contention that, by the same token that McCann -v- United Kingdom (an
Article 2 case), Assenov -v- Bulgaria (1998) 28 EHRR 652 (an Article
3 case) and Kurt -v- Turkey (1998) 27 EHRR 373 (an Article 5 case concerning
the disappearance of the applicant's son whilst in the custody of the Turkish
security forces) establish in certain circumstances an obligation on the state
to set up an effective official investigation whenever arguably one of those
particular Articles has been breached, so too the Government here is required
to set up a comparable investigation because, say the claimants, the FMD outbreak
gave rise to arguable breaches of Article 8 of the Convention and Article
1 of the First Protocol to the Convention. I unhesitatingly reject this contention.
Whatever positive obligations Article 8 and Article 1 of the Protocol may
impose upon the State, they certainly cannot extend to setting up inquiries
any more independent or effective than those set up here. Taylor -v- United
Kingdom, I repeat, was an Article 2 case and yet the complaint with regard
to Sir Cecil Clothier's closed inquiry was nonetheless held inadmissible -
see paragraph 34 above. The claim that Convention law requires a State to
procure a full-scale open public inquiry in the event of any national crisis
such as the FMD outbreak seems to me exorbitant. It is, indeed, acknowledged
that it carries with it the contention that the court, if asked, would itself
have ordered the BSE Inquiry. I certainly would not.
- Secondly, the
claimants contend that the defendant acted "unlawfully and irrationally by
expecting [the Lessons Learned Inquiry] to report within six months on the
range of matters and in the manner set out [in its terms of reference, the
Inquiry 'Q & As' and the Framework Document], given that [Dr Anderson]
had no relevant scientific or agricultural experience or experience of previous
enquiries [and] would sit alone". No evidence is adduced in support of this
contention; rather it is advanced simply as an assertion. Dr Anderson refutes
it. Amongst his statements in the case are these:
"I
believe that I have a daunting task but am determined to produce a valuable
and comprehensive report on the issues within the remit of the Inquiry. ...
I firmly believe that an inquiry conducted in the way that is currently proposed
is the best means of fulfilling the terms of reference. I do not feel that
I am being put under time pressure with the result that I will be unable to
follow up potential lines of inquiry. ... I have repeatedly made clear that
it is my intention to conduct a thorough, independent and rigorous inquiry
which produces meaningful recommendations. That remains my intention and the
inquiry is conducted in such a manner as to realise those aims."
- If Dr Anderson
needs expert advice or assistance on any particular aspect of his inquiry,
I cannot doubt that it will be made available to him. Similarly, if he cannot
complete his report satisfactorily within the target period of six months,
he will no doubt delay it until he can. I would reject this ground of challenge.
- The claimants'
third and final contention is that the Lessons Learned Inquiry "lacked the
appearance of independence" because Dr Anderson "was a former advisor to the
Prime Minister" and "would be provided with a secretariat based in and staffed
in part by employees of the Cabinet Office" and because his "freedom to determine
the procedures to be adopted by the Inquiry would be fettered" as a result
of the Government's prior decision that it would not sit in public and that
it would have no right to publish internal Government papers.
- I am not sure
whether to describe this ground of challenge as courageous or regrettable.
Certainly it seems to me quite hopeless. No-one suggests that Dr Anderson
is in fact biased or lacking in independence with regard to his task. As to
the perception of independence, Dr Anderson's only previous contact with government
was a short-term appointment as a special advisor to the Prime Minister on
contingency planning in relation to the "Millennium Bug". In this case, as
in that, Dr Anderson has responded to the call and emerged from retirement
to work without remuneration. To suggest that his independence is "tainted
by his past association with the Prime Minister" is (at best) ill-judged.
His secretariat is made up of seconded civil servants (and one member from
industry), none of whom have any previous involvement with FMD. True, some
have been seconded from the Cabinet Office which is said to be "at the heart
of government", but Dr Anderson has made it amply plain that his secretariat
is independent of government and will remain so. As to Dr Anderson's
freedom to determine the Inquiry's procedures having been fettered, the point
is misconceived. Naturally, in agreeing to hold this inquiry, Dr Anderson
had to accept the parameters within which it was to be conducted. I find it
impossible to see, however, how this can be said to compromise his appearance
of independence. If that were so, it would follow that no-one could ever conduct
such an inquiry with the appearance of independence. This attack, in short,
is not upon Dr Anderson, but upon an inquiry in this form. In my judgment,
no fair-minded and informed observer could or would conclude that Dr Anderson
lacked independence. I add only this: it would have been perfectly open to
the defendant to appoint someone to chair this Inquiry who was plainly not
independent of government. As I have already endeavoured to explain, there
was no obligation here on government to set up any particular form of inquiry
at all. As it is, however, I am satisfied that Dr Anderson both is and appears
truly independent of government.
- It follows that
in my judgment no substance is shown in any of the many grounds of challenge.
I think it important, however, that in dismissing these applications the court
does not give the impression that it itself regards the decision to hold the
Lessons Learned Inquiry in closed session as necessarily the "right" decision.
The question for the court is not whether the decision is right or wrong,
wise or unwise. We are deciding no more than that it is one properly open
to government to take and incapable of being impugned as irrational or otherwise
unlawful. It is, to my mind, pre-eminently a political decision and one for
which the Government will ultimately have to answer at the ballot box.
- By way of a
final footnote I add just this. In the course of argument we explored with
the claimants' counsel just what orders they were in fact seeking not least
with regard to the continuation of Dr Anderson's inquiry. No-one, as I understood
it, in the end suggested that Dr Anderson's inquiry should be halted. That
would, indeed, be a remarkable conclusion: just imagine the consequences if,
say, next winter there were a further outbreak of FMD with no recommendations
in place based upon the lessons learned. Nor did anyone seriously suggest
that Dr Anderson's inquiry could now be re-constituted to sit in public -
not least because there remains the challenge to his competence and independence.
Rather what appears to be suggested is that the government must now be required
to reconsider the whole matter, with the Court meanwhile declaring that its
only lawful decision would be to set up a full-scale open public inquiry to
report after Dr Anderson has reported. That in reality is what the claimants
seek. I do not believe that it lies in the court's power to order it.
Mr Justice
Scott Baker:
- I agree that
these applications must fail for the reasons given by Simon Brown L.J. It
is beyond question that the outbreak of foot and mouth disease that occurred
last year had the most devastating consequences both within and outside the
farming industry. There is widespread disquiet about the manner in which the
outbreak was handled and a lack of confidence that any future outbreak would
be dealt with more effectively. Accordingly, a great number of people believe
there should be a public inquiry and have told the government so.
- The decision
whether to order an inquiry, and if so its nature, is one for the Secretary
of State. No one is entitled to a public inquiry. See Clarke L.J paragraph
5.1 Thames Safety Inquiry, Final Report.
- The focus of
the present applications is on the Lessons Learned Inquiry. It is this that
the claimants wish to take place in public. It seems to me that the decision
sought to be attacked by the claimants comes fairly close to the line of whether
it is justiciable at all. Although that point is not taken by the Attorney
General, he has emphasised in his argument that the decision is very much
one laden with policy with which the courts should be slow to interfere. There
are many factors that go into making a decision of this kind and the Secretary
of State is peculiarly well placed to assess their respective weight and she
has ready access to the relevant advice. Mr Bender in his evidence makes it
clear that the decision to hold three inquiries in closed session rather than
one open and public one was taken after wide consultation and was taken in
effect by the government as a whole. In the end, it seems to me, the crucial
consideration was whether public disquiet and lack of confidence trumped the
other factors that militated against the Lessons Learned Inquiry being held
in public. It was concluded they did not. That was an administrative decision
taken in the course of government. The court has no power to intervene unless
the decision was unlawful. If the decision was lawful, public disapproval
can be expressed through Parliament or, ultimately, the ballot box. It is
to be noted that Parliament has power to set up a public inquiry through the
Tribunals and Inquiries (Evidence) Act 1921 by a Resolution of both houses.
That course was not adopted and nowadays rarely is because there are powers
in many statutes to set up inquiries which may be directed to be held in public
or in private see e.g. the National Health Service Act 1977.
- As far as I
am aware Wagstaff is the only instance of a court deciding a Minister's
decision to hold an inquiry in private was unlawful. Like Simon Brown L.J
I regard the circumstances of the present case as strikingly different to
those in Wagstaff. I too have difficulty in understanding the provenance
of the reference to a presumption that an inquiry will proceed in public.
I can find no juridical basis for such a presumption other than that in section
2 of the Tribunals and Inquiries (Evidence) Act 1921 which, of course, relates
only to inquiries set up under that Act.
- I approach the
present case on the basis that there was no presumption either way. It was
up to the Secretary of State to weigh up the competing factors and make her
decision. The arguments were not, of course, all one way. The Secretary of
State's concerns were primarily forward looking, to put the authorities in
the best position possible to deal with any future outbreaks. This is not
a case where it is alleged that there was bad faith on the part of anyone
responsible for the management of the outbreak, merely lack of competence.
Nor is the inquiry trying to ascertain the cause of a single disaster that
resulted in multiple loss of life. It is, in my judgment, critical to look
at what it is the inquiry is charged with inquiring into.
- With that in
mind I turn to various considerations that the Secretary of State had to balance.
Not least among these was speed. Experience shows that public inquiries exceed
their original time estimates. There are many reasons for this, but it is
only necessary to look at the B.S.E and Bloody Sunday inquiries to confirm
that it is so. It was and is imperative to learn lessons quickly so as to
be better prepared to deal with the possibility of another outbreak. Closely
related to speed is cost. The longer an inquiry takes the more it costs. Again
B.S.E and Bloody Sunday are striking examples.
- Next comes the
sheer ambit of one inquiry. There was a danger it could become unmanageable
with the risk that some issues might not be explored as rigorously as they
should be.
- Candour was
another factor. There are two views about this but the government was entitled
to conclude that those assisting the Lessons Learned Inquiry would be likely
to speak with greater candour if the inquiry was held in private albeit its
report would be published.
- Finally, an
inquiry in public would not only add significantly to the cost but also to
the human resources required.
- As Simon Brown
L.J has pointed out, in considering these various matters and balancing them
against widely held public disquiet the government had the very recent experience
of the B.S.E inquiry and the benefit of the views of those who had been involved
in it.
- With these matters
in mind and bearing in mind that the purpose of the Lessons Learned Inquiry
was predominantly forward looking rather than to apportion blame for what
had gone wrong I find it quite impossible to classify the decision that it
should not be held in public as irrational or, in slightly less emotive language,
one to which no reasonable decision maker balancing all the relevant considerations
could reasonably have come. The defendant had to make a judgment. Others might
have made a different judgment, but the decision reached was not unlawful.
- I do not propose
again to analyse the Divisional Court's decision in Wagstaff having
already done so at some length in Howard and Wright-Hogeland v Secretary
of State for Health C0/2983/01 and C0/3846/01 in which the judgment is
being handed down today. Suffice it to say that that was a case decided very
much on its own particular facts. Furthermore, for the reasons given by Simon
Brown L.J and for the reasons I expressed in Howard and Wright-Hogeland
I am not persuaded that the decision to set up the Lessons Learned Inquiry
breaches Article 10(1) of the ECHR.
- Accordingly,
although I have considerable sympathy with the claimants in their desire to
have a full investigation in public into the way in which the foot and mouth
outbreak was handled, I have reached the clear conclusion that the defendant's
decision was a lawful one with which we cannot interfere.