Public enquries need a Devil's Advocate

If we want to improve how public enquiries work, maybe we need to introduce a process that allows for stronger challenges to witnesses

Chris Snowdon has written an excellent article about the ongoing public enquiry into the UK government’s response to the Covid pandemic. Snowdon doesn’t mince his words:

“The COVID-19 inquiry is a colossal waste of money. Not only will it never establish the truth about what happened in 2020-21, it is going out of its way to falsify the historical record to cover the backs of the public health establishment. It is a kangaroo court rewriting the recent past to paint flawed scientists in the most flattering light at the expense of the then-government.”

The article goes on to illustrate, using the testimony of Professor John Edmunds as an example, how the enquiry is, in Snowdon’s words, ‘memory-holing’ the video evidence that suggests an entirely contrary narrative of the government’s response to the pandemic. The issue here is that, if Snowdon is right (and I think he is), then we have a problem with the manner in which public enquiries operate.

According to Jason Beer KC described by the Institute for Government as “...the UK’s leading authority on public inquiries…”, the purposes of an enquiry are threefold: to establish what happened, to assess why it happened and who is to blame, and to set out what can be done to prevent it happening again. A moment's reflection would lead us to realise that all three of these questions are contestable. There is always more than one narrative of events, the cause of events is often unclear, and the people responsible will always seek a position where they are not blamed. Above all, there has been (so far as I can find) no appraisal as to whether the expensively procured recommendations from public enquiries do indeed make for improved public administration in the area of investigation.

Back in 2017 the Institute for Government reported that over 30 years the UK government had spent £639m on public inquiries but that “...the process for following up on recommendations is inadequate.” Of the 68 public enquiries between 1990 and 2017 only six were followed up by Parliament’s select committees to establish how the government had responded to the enquiry findings and recommendations. We would be forgiven for believing that holding public enquiries is not about getting better government but is a kind of political theatre designed to show that government (and opposition) are taking the particular events, especially when they involve tragedy, seriously. 

Nevertheless, the problem that Chris Snowdon points to - a one-eyed approach from the enquiry chair and lawyers employed by the enquiry - remains a serious one. Expert witnesses, even when, like Professor Edmunds, closely involved in the events, are treated very differently from witnesses who are decision-makers or those arguing for a different narrative than that preferred by the enquiry. The consequence of this approach is that witnesses seen as helping the line of enquiry get, as with Professor Edmunds, what Snowdon calls “soft ball questioning from a sycophantic lawyer”. Nobody is present to challenge the enquiry lawyer’s line of questioning or to do the sort of simple challenge that we read in Snowdon’s article. While this approach does not make enquiries pointless, it does point to a huge problem with the process. Put simply the enquiry chair and his lawyers can set the broad outcome of the enquiry before a single piece of evidence is gathered and a single witness examined.

When the Blair government reformed the operation of public enquiries (Inquiries Act 2005) there were concerns raised that, because enquiries were commissioned by ministers, those ministers could constrain (or even thwart) the operation and outcome of the enquiry. It does seem, however, that the greater power rests with the person appointed to lead the enquiry rather than simply with the minister making the appointment, at least while the enquiry is underway. The enquiry chair sets the timetable and decides which evidence will be left on file and which evidence will be examined. No process exists for the choices of the chair (and their lawyers) to be challenged or questioned. The enquiry simply follows the chair’s interpretation of its terms of reference.

In UK courts we have, in most circumstances, an adversarial system where witnesses of any kind are cross-examined by lawyers representing both sides of the case. The result here is that an expert witness such as Professor Edmunds would not get “soft ball questioning from a sycophantic lawyer” but can expect robust challenges to his statements and arguments from the opposing side’s lawyer. If we want to improve how public enquiries work, maybe we need to introduce a process that allows for stronger challenges to witnesses as well as the questioning of the chair’s interpretation of the enquiry terms of reference.

We should, perhaps, learn from the Catholic Church:

“During the canonization process employed by the Catholic Church, the 'Promoter of the Faith' (Latin: promotor fidei), popularly known as the Devil's advocate (advocatus diaboli), was a canon lawyer appointed by Church authorities to argue against the canonization of a candidate.[4] It was this person's job to take a sceptical view of the candidate's character, to look for holes in the evidence, to argue that any miracles attributed to the candidate were fraudulent, and so on. The Devil's advocate opposed 'God's advocate' (advocatus Dei; also known as the 'Promoter of the Cause'), whose task was to make the argument in favour of canonization.”

Imagine how the examination of Professor Edmunds might have gone had there been a second lawyer whose task it was to try and destroy the credibility of the expert witness? Would those observations made by Chris Snowdon have been put to Professor Edmunds - that the government did have a strategy, that he knew about that strategy, and that he appeared more than once on TV to defend that strategy. We would have very different public enquiries if the process of finding truth was more contested and less under the direction of the enquiry chair.

Imagine also a public process at the start of the enquiry where a lawyer questions the chair on their interpretation of the enquiry terms of reference, where the public can see how these choices are made and how the narrative is framed from the start of the process. Under our current system, enquiries find what enquiries decide they want to find. And this does not, in any circumstance, represent the whole truth or even a balanced snapshot of the truth. In the case of the Covid enquiry we do not yet know what it will find but I am sure that the findings will include laying the blame on Boris Johnson and ministers not their advisors. And the recommendations will include the need for further independence for the likes of SAGE and greater operational freedom for public health bodies. I am confident that this will be the case because that has been the consistent thrust of questioning from the enquiry lawyers.

Imagine a parallel narrative from our Devil’s Advocate - a line of questioning that showed the problem lying with a flawed strategy from public health, inconsistent and often poor advice to ministers, and modelling approaches that produced inaccurate and misleading outcomes resulting in bad decision-making. Under these circumstances the chair no longer has one partial commentary but a record showing mistakes on all sides. Making recommendations becomes harder because the ‘blame’ is spread but this should lead to better recommendations and, we hope, better administration.