Taken before the Public Administration Select Committee
on Tuesday 22 June 2004
Tony Wright, in the Chair
Kevin Brennan Mr Kelvin Hopkins Annette Brooke Mr Ian Liddell-Grainger Mr David Heyes
Examination of Witnesses
Dr Tim Baxter, former Secretary to the Ashworth Hospital Inquiry, and Mr Alun Evans, former Secretary to the Foot and Mouth Lessons Learned Inquiry, examined.Examination of Witnesses
22 JUNE 2004
DR TIM BAXTER AND MR ALUN EVANS Examination of Witnesses (Questions 336-339)
22 JUNE 2004
DR TIM BAXTER AND MR ALUN EVANS
Q336 Chairman: Could I call the Committee to order and welcome our witnesses this morning. We are delighted to have Tim Baxter and Alun Evans. We had hoped to have Lee Hughes as well but unfortunately he is unwell. We thought we were going to have a triumvirate of people who had served at recent inquiries, in fact we have just got the two of you, but that is a good supply. Tim Baxter was Secretary to the Ashworth Hospital Inquiry and Alun Evans was Secretary to the Foot and Mouth Lessons Learned Inquiry. As you will know, we are looking at inquiries in general, which is why we are trying to trawl amongst some recent ones to see what we can learn from them. I do not know if either of you want to say anything by way of introduction or shall we just go into the questioning?
Mr Evans: I welcome this opportunity to speak to you because since serving as Secretary for the inquiry, one felt one learnt quite a lot of use from the inquiry and this has been the first formal opportunity I have had to talk to anyone about it, so that is interesting in itself.
Dr Baxter: I would echo that. It is a learning experience and one you tend to only want to do once, but it is one where you would want to pass on your experience to others. So I very much welcome this opportunity.
Q337 Chairman: I think I heard that after you had done your inquiries you jotted down some of the lessons you had learnt and might pass on. Is that the case?
Mr Evans: That is the case. I will dig it out for the Committee if you would find that useful.
Q338 Chairman: It would be extremely useful to have it. Is this true of you, Tim?
Dr Baxter: I did jot down some lessons learned which I put on very restricted circulation. Some comments on certain individuals I do not think would interest the inquiry, but if you would find it useful I can certainly dig it out.Q339 Chairman: I think it would be useful. As your intention was to raise some wider issues and that is what we are interested in, it would be very useful if we could see that. What did you learn about inquiries?
Mr Evans: When I started as Secretary to the inquiry three years ago the first thing that I learned was that there was no procedure in place for setting up the organisational part of an inquiry, obvious things like personnel, getting a team together, finance, accommodation, IT support, etcetera, etcetera. Given that one of the things one was trying to establish was the independence of the inquiry, it was very important at least from our point of view and my chairman's point of view that we were seen to be doing this ourselves rather than just relying on Government to provide all the facilities. Although one of our objectives set by the Government was to report as quickly as possible, and we reported within ten months of the inquiry being announced which was not too bad, in the first two months or so a lot of my time was taken up with some of the routine minutiae of recruiting staff and getting accommodation. We actually changed offices three times before reaching the final one on which we could agree and have the rest of the inquiry. That was an irritant in terms of getting on with the job.
Q340 Chairman: Let us try and take these bit by bit.
Dr Baxter: I had a similar experience. My inquiry was set up in February 1997 and it is true to say that there had not been many inquiries in the previous few years, so it was not something the Department of Health was doing very regularly and one did not have a lot of people who were instantly thinking, "Ah, an inquiry, you need X, Y and Z". One spent a lot of time dealing with things which you would have preferred not to have been dealing with. The issues around simply paying people actually became quite difficult, that was an issue. I think it is better now that the department, as you will be aware, has conducted a number of inquiries since.
Q341 Chairman: Alun, you said you felt it was important that the inquiry did all these things for itself rather than have it done for them. How do you avoid the business of actually doing it?
Mr Evans: There is a balance to be had because in the end there is no point in setting up your own financial accounting system for an inquiry that is only going to last a year or so, so we used the Cabinet Office systems to pay for that. In terms of recruiting a high quality independent team for example, we took the decision that we could not just go to Defra and say, "Can we have staff from Defra who know about foot and mouth?" One of the unwritten assumptions we made was that we should not have any official who had worked for Defra or had previously worked for MAFF because it could have brought the accusation of a lack of independence. So we recruited ourselves internally from within the Civil Service and from beyond and that took up a lot of time. Things like the actual finance system, the accommodation, in the end we used part of the Cabinet Office estate, but we were in a new building separate from any other part of the Cabinet Office estate. One always sought a pragmatic solution, I thought, but one that could be justified in terms of protecting our independence.
Dr Baxter: I think that is true. What you need is some of the back office functions to be working for you, but also, as Alun said, you have to be very careful about being seen to be independent.
Q342 Chairman: Is your feeling there that the Government seems to be thinking about having some sort of inquiry unit that services inquiries? Is that a model that you would have found helpful, if they were going to take on board some of those initial setting up functions?
Mr Evans: Absolutely, I would have done. It would have taken a lot of weight off my job as Secretary and it would also have meant in our case that we could have started some of the work on the inquiry earlier than we did.
Dr Baxter: One lesson learned about inquiries is that every inquiry is different and Alun's was clearly a much more high profile inquiry which ran across Government whereas mine was a more parochial affair. It would have been helpful to have more expert advice from finance colleagues, IT colleagues, accommodation colleagues because just getting those kinds of things set up without in any way undermining that we were an independent inquiry would have made my life much easier, although quite how you create that organisationally is another matter.
Mr Evans: The one exception to what I said is actually in terms of legal advice where for our inquiry we got very good legal advice from the Treasury Solicitor immediately. So we did not have to buy in legal advice, the Treasury was acting in a fairly quasi independent role and it advised us on the legal process of setting up a non-statutory inquiry. Given that there was then a legal challenge in the High Court on the independence of our inquiry, it was very useful to have that provided.
Chairman: I want to ask colleagues to come in on these points as we go through them. I do not know if anybody has anything to ask on this area to start with?
Q343 Mr Hopkins: I would like to pursue this question of independence a little further. You are career civil servants and no doubt appointed for your abilities, but to an extent you are loyal to the Civil Service and to Government. Did you feel you were detached and impartial? Were you not compromised in any way by the fact that you are career civil servants?
Dr Baxter: Career civil servants move departments and their loyalties are to the departmental ministers. If you move to be secretary to a judicial inquiry, your primary loyalty is to the chairman of that inquiry. I had an eminent judge and three other panel members of an impeccable reputation and integrity and they would have been very much on the case if I had been seen to try and offer the departmental line. There are tensions because one is dealing from time to time with colleagues back in one's own department and you have to remember where your primary loyalty is, but I did not feel it was an insurmountable problem.
Mr Evans: I agree. My home department was wound up whilst I was doing the inquiry so it prevented any loyalty coming into play. I would like to back up 100% what Tim said about the independence and integrity and value of a strong chairman. We had Dr Iain Anderson as our chairman and he has wide experience of industry, but he also knew the workings of government and he was very rigorous about the fact that as civil servants we should ensure absolute independence in the way we operated. I think in practice—and I would not build too much into this—some of us were so aware of the potential danger of the charge that we were not independent that it made us even more concerned to make sure that we were so and would challenge the departments as and when necessary.
Q344 Mr Hopkins: Government might not always be quite so detached in their attitude because clearly they have an interest in the outcomes of some inquiries. It is interesting that there are two rather different types of inquiries. One could concern a non-government organisation, say a hospital or a local authority, that could be criticised and Government could be critical without fear of being blamed itself. On the other hand, say foot and mouth, the Government could stand to be in the firing line and they would be very nervous about the outcomes of such an inquiry.
Dr Baxter: I think the high security hospitals had a slightly different relationship to central government and it was much more closely tied to the department and also the Home Office than your average NHS hospital trust, for example. Certainly, a part of the department was very much in the firing line for its stewardship and for its role in such a highly secure system. The Department of Health certainly had an interest and they also had an interest in the wider issues that my inquiry panel got into. They looked at the whole line of accountability from Secretary of State right down to the hospital and the front-line, so they certainly could not just say this was something we could ignore.
Q345 Mr Hopkins: If I take one extreme, the Climbié Inquiry, where clearly a local authority was at fault and the Government had to sort that out. Central government was quite at ease with doing that and ensuring corrective action was taken. At the other extreme you get Hutton, which could have blown up in the government's face and could have been very difficult. Getting the right people, the right kind of approach and the right conclusions was very important for the whole future of the government. One can imagine that the Government would be very concerned to have the right people conducting such an inquiry.
Dr Baxter: In general terms I think one can concede that. However, if you put credible people into this position they are not going to allow themselves to be used. In my Inquiry there was a judge who was recently retired, he had been at a court in Bristol, and there was a very senior Health Service manager who again had just retired from the NHS and a highly distinguished forensic psychiatrist, again just retired. The only person who was still serving in the NHS was a nurse member. They were all people who had collected enough baubles in terms of titles and honours, so they were not going to sell their reputation by doing anything other than being very straight. Generally speaking governments just have to recognise that if you set up an independent inquiry you are setting up some team, and it is usually a team with a fair degree of latitude, to inquire and search and present things as they find them. It is unwise to expect that you can control that. If you do put in place people who are obviously not of that calibre then the result would not be to your credit.
Mr Evans: That is not my experience, although I understand fully the arguments you are making. Talking about the inquiry I was involved in, at no time did I feel that I or any members of the inquiry team were put under any pressure by Government to do anything other than inquire in an independent and robust and rigorous way, and every request we made for information, facts, figures, etcetera, etcetera, even though we did not have statutory backing to do that, was met from the Government.
Dr Baxter: I concur with that.
Q346 Mr Hopkins: How much day-to-day contact did you have with other government departments? You may even have had lunch with someone who had come up with a thought which you may have absorbed almost through osmosis into your subconscious and later taken a slightly more sympathetic view of the Department.
Dr Baxter: I was housed in part of the department but quite distinct, with distinct reporting lines from the mental health division, which was the area of inquiry. So I was obviously talking to various individuals who were responsible not infrequently, it is hard to record at this distance, probably weekly or certainly once or twice a month, but it was very much, "We need so and so to give evidence", and at times, "Oh, sorry, he's going to have to give evidence, that is when the inquiry wishes to see them," and that kind of relationship. I certainly do not recall lunching with colleagues and asking them how things were going as it were. It was very much business-like interactions because I had to deal with them over various issues and at times it was to just check up on how the department was approaching the management.
Mr Evans: I met a number of departments in my work because obviously we were dealing with more than one department, we were dealing with Defra, and we were dealing with the Cabinet Office, the MoD, and a number of other devolved administrations. I do not think I ever had lunch with anybody from these departments during that time. I certainly would not have discussed the type of findings we might be bringing forward in the inquiry, although there was a lot of contact on a day-to-day basis. Sometimes one would be dealing with a department regularly throughout the day to chase down a particular piece of information, because on foot and mouth the information in some cases was poorly kept, poorly maintained, you were dealing with notes and inquiries that might have been written down somewhere else in the country. So it was quite an investigative process trying to get hold of some of the information and you had to have a lot of contact with the department with whom you dealt, but I do not know if there was a social discussion such as you asked about.
Q347 Mr Hopkins: I have a high regard for the Civil Service. Could anyone else really do the job? One might find House of Commons' staff could do the job, maybe not.
Mr Evans: I think other people could do the job, but it involves a number of elements. Obviously there is the administrative element, there is the written element, there is the scrutiny and investigative element and there was certainly in our case as well the communication skills one needed to handle the high level of interest in the inquiry. There were some elements in our inquiry where we did not have the expertise, for example on economics and statistical analysis and we brought that in from outside.
Dr Baxter: There is nothing magical about civil servants doing this work, but I think it does call on what you might call classic Civil Service skills, which Alun has mentioned and purely personally, I would be sorry if it was a task removed from the Civil Service. I think we are well placed to do this given the value and integrity the Civil Service plays in this kind of work.
Q348 Chairman: Having done one inquiry, do you think you would be better placed to do another inquiry?
Dr Baxter: Theoretically, yes. I enjoyed immensely doing this inquiry, but in terms of the demand this made on my time and I did not see as much of my family as I would have liked, I do not think it would be wise.
Q349 Chairman: So it is a punishment you dole out periodically, it is not a career path.
Dr Baxter: It is a fascinating thing to do, but many fascinating things you only want to do once and we have learnt from them.
Q350 Chairman: I am just thinking of some sort of unit that services inquiries. I imagine part of the thinking is that there could be a pool of people who only know about doing inquiries and so when an inquiry is needed, as they are regularly, you have the people there whose business it is to run them and they just go off and do it.
Mr Evans: I agree with the idea of having some type of inquiry unit or inquiry capacity so that one does not have to go through the same learning and setting up process to begin with. I do think there is a difference between being secretary, head of the team and just playing in the team. I am not making out that the secretary is the absolutely pivotal role; I think the chair is a more important one, but it is quite a pressure doing this for a year. Although I would not rule out doing it again, I think I would like a break before I do it again.
Chairman: We started off quite well in trying to identify the lessons learned and your first one was about setting up support functions and then we got into questions of independence associated with that. I would quite like to stay in this area if we may.
Q351 Mr Heyes: The thought that was in my mind was, apart from being grounded in the Civil Service ethos, what would the specification look like for someone to do the secretary role? Maybe you could answer that by saying how you came to be appointed.
Dr Baxter: I was sitting in my office and I got a call from the secretary to the head of personnel saying, "David wants to see you tomorrow morning at nine," and they did not say what it was about. So I went to see him and he said, "Well, we've got this job that we would like you to do." I then went to see Sir Alan Langlands, who was then the Chief Executive of the NHS Management Executive, who explained the role. The reason I was chosen was because I was someone who had been around the department long enough and who had some experience of the mental health field, although not the forensic field, and would have the right kind of experience, interpersonal skills, to actually manage several difficult relationships. In my case actually ensuring that the relationship between the inquiry and the hospital worked well and I was making sure the panel members were working well. There are a number of interpersonal issues. I suppose that is one of the characteristics you are likely to want to see often, knowledge of the system, the governmental structures, drafting skills, it varies from inquiry to inquiry. This is the inquiry report and I drafted about half of this, the judge drafted half and then one chapter was done by the forensic psychiatrist. So those kinds of skills are also important.
Mr Evans: My introduction to being secretary was similar to Tim's in that I had left my previous job and was looking for another challenging post and I was rung up and asked if I could go and see Dr Iain Anderson who had been identified by the Prime Minister to chair it. I went to meet him and he asked if I could start doing this inquiry as soon as possible. I took it on with some apprehension, but it seemed a challenging task to take on. As well as the skills that Tim referred to, I think the one thing they wanted from me was someone who knew his way around Whitehall and its departments, who could actually represent Dr Anderson at high levels because obviously departments from the Prime Minister downwards were interested and gave evidence to this inquiry. The other thing that I was involved with heavily as secretary was the writing of the report, as Tim said, and our one came out that size.
Q352 Chairman: That explains why he is less keen to do another one than you are.
Mr Evans: Maybe, yes.
Q353 Chairman: Let us try to work through this. So we have got the area of setting it up and support and all that. What about further lessons? Are you going to take us through some more of those? What else?
Mr Evans: In our case the biggest challenge we had was in establishing the reputation of the inquiry because Government, MAFF, anything to do with foot and mouth were pretty much discredited at the end of 2001. In addition, there was a strong demand for a public inquiry per se, that it must be better than a private inquiry. The Government were very concerned, particularly because of the way in which the Bloody Sunday Inquiry was dragging on. In terms of the inquiry that they set up for foot and mouth, it had to be quick, it had to be independent and it had to be robust, but they were not convinced that a judicial inquiry by a judge would necessarily deliver a lessons learned report quickly. Some of the inquiries that have come since, Hutton and Bichard today, have picked up on the issue of time and the speed of a judicial inquiry, but that was a reason why they set up our inquiry as they did. They also set up two separate inquiries on the future of food and farming and on the science of foot and mouth disease, so we did not have to go into those in detail. The important thing was establishing the integrity of it. As I said earlier on, there was a judicial challenge to the inquiry. One of the things we had to do—and this was almost a communications as well as an administrative task—once the inquiry was set up was to justify publicly and in the High Court that the inquiry was going to be independent, that although it was not a public inquiry in the technical sense of the term, it was not, therefore, a private inquiry. One of the things we did first of all was set out our rules and procedures of operation, the method. We said that in all the main areas of foot and mouth we would hold public meetings which would be fully public and transcripts would be put on the web straightaway, how we were holding what we called stakeholder meetings, which were small round table meetings, to which a cross-section of stakeholders affected by foot and mouth attended, and we made clear as well the fact that there was going to be information publicly available and that the press would be welcome to attend and report on them. Although it was not a public inquiry, we had to do everything we could to give the image and reality that this was going to be a full, open and independent inquiry and I think we managed that. Certainly the judgement of the High Court was that the integrity and independence of our chairman could not be questioned and that argument went away. That took up about two months of our time earlier on.
Dr Baxter: This process is the key thing. Every inquiry is different, but actually getting your process robust and right early on is very important. We had two preliminary hearings where the judge set out the rules of engagement and was pretty clear about how he was going to operate. In terms of running the inquiry, the actual inquiry parties were represented, so you had a lot of barristers sitting around and it was very important to have very tight control of the proceedings and there was a judicial chair. One lesson I would say is that if you are going to have parties represented and obviously often you do not, but if you have a judicial chair it brings with it particular experience and a capacity to keep proceedings under control. In our case we had things like guillotines for speaking, so people were allotted a set time to ask their questions and after that they had to sit down, we had timetabled hearings and actually we got through the business without any extensions. We did not have any judicial review applications, although I was threatened with it regularly, but actually when it came to it people were not able to sustain an argument. So getting the processes right is a lesson learned. Those processes will vary, but getting them clear and out in the open as quickly as possible is very important.
Q354 Mr Liddell-Grainger: I seem to remember that at the time this was seen as a political decision to split this inquiry up into different parts because the ministers did not want to be dragged through the mire as in the BSE inquiry. Was it not the case that ministers were very concerned that unless they broke this up it was going to be become a political football and that what they were trying to do was to muddy the waters by having different parts of this inquiry?
Mr Evans: That was certainly an argument that was put. I found it a slight difficulty when I was doing the job having to defend the decision as to why ministers set up that inquiry in the way they did because I was handed it and told "This is how it is going to be"; I was not in on the process of discussing it. The line on why it was set up was the one I gave earlier. I am quite sure you are right, that ministers were scarred and affected by the BSE inquiry, both the length of it and the impact when it finally came out, but we did ask the Prime Minister about this and one of his overriding concerns was to come out with effective, useful, practical recommendations from the three inquiries as soon as possible. I really think time drove a lot of this. Whether or not ministers were trying to avoid the potential embarrassment of an enormous all-singing, all-dancing inquiry, I am really the wrong person to ask about that.
Q355 Mr Liddell-Grainger: The only reason I asked the question is that surely, because of the fact you had so many parts to this inquiry, the conclusions at the end were muddied because you then had Lord Haskins and others running round the country saying they were going to do this or that. If you look at it in the cold light of day now, do you not think that perhaps you failed?
Mr Evans: No, I do not think we failed. I am very proud of this report, I think it is well written and the recommendations are fairly on the ball and I think very pertinent. People turn to this when they are looking for lessons learned elsewhere in the world if they have to respond to crises. I do not think, although your criticism is perfectly potentially valid, that you could have three inquiries and they contradicted what each said because we developed a fairly effective way of working between the three chairs and the three secretariats and we did divide up the territory quite clearly. One was on the future of food farming, the scientific inquiry stuck to the science of foot and mouth and other exotic animal diseases and we focused on the more political territory of lessons learned for Government and the administration. I do not think the criticism you put, which we heard a lot, stacks up.
Q356 Mr Liddell-Grainger: The 1969 Northumberland Report was very clear as to what should and should not happen in foot and mouth, in fact that was the basis for a lot of things that went on at the time. Your report is much more difficult to understand exactly what the lessons learned are, ie this is what we are going to do, this is what should happen and this is what it should be about. Do you not feel that it was not precise enough given the disaster that foot and mouth created?
Mr Evans: I do not agree it is not precise. If you read page 11, there is one page that sums up nine lessons to be learned. Also, if you compare this with the Northumberland Inquiry report, this is a much more user-friendly and approachable one. Where I think you would have a very good argument is in saying why have the Government not done enough about it? One of the things we might get on to later on is what is the process for following up inquiries and making sure that the 81 recommendations have been carried out? I have no idea because I left the inquiry team. I think there is a case for saying that Government and the country should be much more rigorous and robust in following up the recommendations of the inquiry because, to take your comparison with the Northumberland Report, if that had happened the extent of the foot and mouth disease crisis would have been much less than was the case.
Q357 Kevin Brennan: I would like to take the more general point rather than the specifics of foot and mouth. Effectively you were given an inquiry and at the end you had to make up the reasons why it was a good way to do it, that is what you said to us a moment ago.
Mr Evans: That would be a different way of saying what I have said, but we will go along with that.
Q358 Kevin Brennan: That is essentially what happened.
Mr Evans: Government took the decision of how the inquiry was set up.
Q359 Kevin Brennan: One of the things that interested us at the outset and motivated us to look into this area was the thought that this is done in a very ad hoc way. The initial decision is political rather than to find out what went wrong and take the heat out of a situation sometimes. One of the thoughts we had was whether or not it would be possible or desirable to set up a pull down menu of inquiries so that it would be pretty obvious in most cases the type of inquiry that would be appropriate for a particular situation, whether it is a full judicial public inquiry under the Act, whether it is a minutiae inquiry or a speedy one or an inquiry light or whatever. Is that thought in your experience a useful one or does it always have to be made up in this way on-the-hoof?
Mr Evans: I think that is very useful. I agree with that analysis.
Dr Baxter: I think the Cabinet Office has got guidance on inquiries, but I did not have time to try and search it out. There is knowledge if you know where to look. In the health arena you have got various options, the 1921 tribunal right at the very top, down to private inquiries and the 1977 Act. There would be people around who can advise you. It would be helpful to have clearer and more available advice.
Examination of Witnesses (Questions 360-379)
22 JUNE 2004
DR TIM BAXTER AND MR ALUN EVANS
Q360 Kevin Brennan: There has been a lot of innovation with Hutton and I am sure in your inquiries as well.
Dr Baxter: Every one is different. They probably all go back to Salmon and read the Salmon six principles and think, "Yes, this is a good guide". It is a moving, dynamic area and certainly it is an area where Government should be concerned to keep the learning up-to-date.
Mr Evans: It was only after our various inquiries that your inquiry started off and it was only after the Department for Constitutional Affairs constitution paper that anyone in Government drew together all the various inquiries there had been and looked at issues such as legal powers, scope, funding and staffing, etcetera. So I think this whole process is helpful. The only caveat I would put is to be careful of avoiding government by inquiries. I think your suggestion of some type of menu which goes through a process of thinking-does it fit within this, does it fit within that or is the inquiry not appropriate, would be worth doing.
Q361 Chairman: This business about the occasion on which it is appropriate, have you given thought to that?
Mr Evans: It is a pity you have not got the secretary of the Hutton Inquiry here.
Dr Baxter: Certainly, if you are inquiring into a public service, something like a hospital trust, there are established management chains and systems of accountability, so in theory those should be adequate. Only when those are demonstrably inadequate for sorting something out should you be thinking about an inquiry. At the time of my inquiry there were particular accusations about Ashworth and shortly thereafter there were accusations around Broadmoor. The approach ministers took was that the Broadmoor allegations could be sensibly dealt with by a management inquiry, bringing someone in from outside the hospital, whereas at Ashworth the reporting line seemed to have broken down. There was such a loss of confidence between the hospital and the government department on both sides that the existing management chain just was not going to be adequate. You can make a general statement about that. Picking up on Alun's point, you do not want to start having government by inquiries because they are expensive and potentially extremely difficult for everyone involved. You need to bear in mind the impact on the constitution. Mine was the second judicial inquiry within the past seven or eight years at Ashworth, they had had one in 1992, mine was in 1997 to 1999, so for two years the hospital faced this intense scrutiny. Obviously you would not want to do that unless you felt the other tools in your armoury were not actually going to work.
Mr Evans: I think, without trying to draft criteria, there are a number of elements which might call you to have a public inquiry: first, that something has demonstrably and seriously gone wrong, a big failing somewhere; second, that in a part of that there were either political, administrative or managerial failings or all three; and third, that the public or parts of the public have suffered harm in some way as a result of that failing. I think those type of areas would be the ones where you would then say do we need an inquiry separate from government to look into why this happened?
Dr Baxter: Cumulatively there is a reputation issue for the future of that area of public life, clearly foot and mouth, very considerable concerns in my area, serious concerns about forensic psychiatric services and possible child abuse. These are issues which then go to the heart of the reputation of particular areas of life.
Q362 Kevin Brennan: One of the problems is that everybody wants a public inquiry. People think if it is not a public inquiry it is not as good and they are not getting full disclosure or full analysis. Is there a case perhaps for new legislation that would call all of these things public inquiries but which would actually identify the different types of public inquiries? So when people called for a public inquiry, they would get the appropriate type of public inquiry rather than reserving that definition for the hugely expensive barristers' jamboree.
Mr Evans: I think there is a problem with the term public inquiry because somehow it conjures up the connotation that because it is public it is therefore better and must be the right way to go ahead. I do not know enough about the legal basis, but you have got a law which dates back to the 1921 Act and it may be the right time and worthwhile looking at some of the statutory bases for these inquiries. Equally, I think one needs something which says that just because you have not gone down the public inquiry route and therefore you have something which people would call a private inquiry, this is not necessarily worse nor will it be a whitewash. If that requires changes in the legislation or changes in the nomenclature of what we call inquiries then I would welcome that. Just changing the legislation is not a cure for that problem.
Dr Baxter: I am not sure about necessarily changing the legislation. I think the key would be to be much clearer about what are the different options and clearer about the arguments, say, for private inquiries. Sir Cecil Clothier who did the Beverley Allitt inquiry, which was done in private, I think somewhere marshalled the arguments for a private inquiry. It is much quicker to deliver the evidence you want and the reassurance to the people directly involved, in that case, grieving parents, that the issues had been highlighted and that nothing would be added by the panoply of a public inquiry. We do have an issue about public inquiry good, private inquiry bad. I am not sure legislation is the answer, but certainly it is in need of greater clarity so we know what are the various options and pros and cons of each and ministers will then need to be pretty robust about defending the way they go on any particular occasion.
Q363 Mr Heyes: I want to talk to you about the follow-up issues in the inquiries. I think you said that if, after the inquiry into the 1967 foot and mouth outbreak, the recommendations of that inquiry had been followed as clearly as they ought to have been then we would have had much less of a problem in the subsequent outbreak that your inquiry was involved in. What things should happen to make sure that the people running the inquiry see their recommendations put into action?
Mr Evans: In terms of this foot and mouth inquiry, one of the issues was that people had somehow decided that this was a disease of the past and it was not going to come back and therefore the inquiry of 1969, which had some useful information on how to handle future disease outbreaks, was just lying on the shelf. The same thing could happen to our report. There needs to be some type of process within the lead government department or departments which ensures that inquiries are live even when the subject matter which they have dealt with is not in the public domain. That is a fairly straightforward management mechanism. One of the recommendations we made on foot and mouth was that every two years Defra should do a review of the state of exotic animal diseases. With greater globalisation, climate change and everything like that animal diseases which were only based in Africa may be moving northward and that is something that the department could do, but it does come back to making sure that inquiries have some type of process within the lead government department for following up on the list of recommendations and reporting back publicly on what progress has been made.
Q364 Mr Heyes: What should those mechanisms be?
Mr Evans: For example, foot and mouth, although it might happen on other inquiries, the lead government department could quite legitimately be asked to make sure they put a public statement or public document on their website every year or two years on the progress of an inquiry or it could even report back to parliamentary committees that had taken an interest in them. I think any form of reporting back on scrutiny in the future would work. I would not like to define the format of that reporting back.
Dr Baxter: In the case of the Ashworth Inquiry, Frank Dobson, the then Secretary of State for Health, made a statement to the House and the Government published their response to the inquiry's recommendations. I think it is important independent inquiries make recommendations to Government and it is up to ministers whether or not they accept them. Certainly in our case I think they accepted every recommendation except for the recommendation that they should close Ashworth Hospital. You then need the management chain. There is an argument for some kind of mechanism for saying how are things going because, as I said a few minutes ago, Ashworth had an inquiry in 1991-92; the inquiry suggested liberalising the regime of the hospital and that happened. An argument in our report was that that had had serious effects on various parts of the patient population and so there is another inquiry. The last thing you want is serial inquiries. There needs to be the initial feedback, that is "Here are the recommendations; this is the action plan". I did speak yesterday to somebody in the Strategic Health Authority to see how things were getting on and I was reassured that it is now much smaller, things seem to be reasonably robust, but another point was about an institution like a high security hospital, it is a closed institution and there are certain places where you are more than likely to get serious problems because they are closed institutions; prisons would be another example. In terms of follow up, I think you just have to keep reminding yourself and re-reading reports. The best inquiry report I ever read was into the break out from Carstairs state hospital of two patients who killed three individuals and it is absolutely chilling reading. Anyone who is responsible for security in a highly secure environment should read something like that Carstairs report because it sets out how these two patients methodically, over a period of time, made their preparations, they killed a fellow patient, they killed a member of staff, they killed a policeman, stole a car, they could not drive and so they crashed. It is very instructive to return to particular reports and to think if we have still learned those lessons because in enclosed institutions it is very easy for things to go wrong.
Q365 Mr Heyes: You seem to advocate an ad hoc approach that relies on your continuing interest, goodwill and so on.
Dr Baxter: It relies on the management arrangements in place. In my case you have people who are focused not only on patient care, they are focused on patient care whilst recognising that security is an essential part of their job and they are mindful of the lessons. From outside it requires the right kind of oversight, people challenging whether the processes are properly integrated, the inspection regimes and so on.
Q366 Mr Heyes: We hear that Michael Bichard is intending to reconvene his inquiry at some future point to assess progress. Would that have been helpful in the case of the inquiries that you were both involved in?
Dr Baxter: One does not want to leap in again too soon is one thing I would say. You want to give the Government and the local services time to try and implement the action plan. I do not think it is a bad idea at all saying to a member of the panel, maybe not all of them would necessarily want to do it four or five years down the line, "Could you go into Ashworth again and see what you think about it?"
Mr Evans: I think it does depend on the nature of the inquiry. I can see why Michael Bichard has said what he said in the Soham case, because of the gravity of what he was looking into. In terms of something like foot and mouth, there are two elements to it. One is to make sure that government is doing what has been recommended or they have signed up to it, but, secondly, there is a wider thing about how you continue to engage with stakeholders and the general public, because obviously when foot and mouth was alive there was a big interest in the media and elsewhere. One of the issues is making sure that good practice in farming and animal management continues once the threat of foot and mouth or another exotic disease has died down. As well as keeping government in the loop there was the issue of how you keep stakeholders and the public engaged in something which is no longer big news.
Q367 Mr Heyes: I think the idea of a follow-up audit inquiry committee is a good idea. You were talking about the entry problems of setting up an inquiry and the cumbersome administrative business you have got to go through which delays you and can deflect you from the purpose. If you were to have a follow-up audit, say 12 months after the event, there are going to be administrative issues again. How would you deal with the exit and then the temporary re-creation of an inquiry?
Mr Evans: One of the things that I found slightly depressing at the end of my inquiry was that we had built up amongst our people a massive level of expertise, knowledge, understanding of local relationships on farming and everything like that and all that was lost. I do not think doing what you suggest, that is having a follow-up in six to twelve months' time, would be difficult at all if you knew at the time that you had to do it, because if you had the people, you knew they had the expertise, you could identify a system whereby they could come back and do extra work. The problem I had was setting up when you did not have that level of expertise.
Dr Baxter: We have the Commission for Healthcare, Audit and Inspection which would be the appropriate management mechanism to be inspecting this part of the NHS. It is more difficult three or four years down the track to ask one of the panel members or more, if they wanted to do it, to go and have a look, to see how it feels now just as a barometer of how they feel about it. I am sure there would be concerns on the other side, of the receiving hospital thinking, "Oh, no, not again".
Q368 Chairman: We heard from Lord Laming last week who was very emphatic on this question that inquiries by their very nature are one-off things. The idea of coming back, revisiting, absolutely not, these are things you do once and then you hand them on. I just wonder how you reconcile that with the idea that you are putting of accumulating this body of knowledge and expertise which, as you said, Alun, is then "lost". It may be one of the government's tasks to ensure that this is not lost.
Mr Evans: I am not quite sure the exact procedure one can envisage, but it cannot be beyond the wit of government to work out some type of procedure whereby the work is followed up and that the expertise of people more involved in it is tapped in some way. I do not know that it necessarily has to be the same judge or chair coming back to do it, but the best way to scrutinise how well an inquiry's recommendations have been followed up is to actually ask some of the people who were involved in that inquiry and who know the work ultimately. Whether or not you need the judge him or herself, I do not know.
Dr Baxter: I would be slightly concerned if we were going to set up a parallel system alongside the systems which should be delivering effective public services or safe food etcetera, but I can see a role for bringing people back just on a very ad hoc basis. The people with particular professional expertise will not have lost that expertise, maybe we should give them a remit to look at particular services, I can see how that could work.
Q369 Chairman: In most of these areas we have inspectorates and auditors of various kinds. Presumably these are the people who should absorb and take on board things that come out of inquiries?
Dr Baxter: I think that is right. As I say, it should be on a risk basis. We just think because there was such a problem here it would benefit from a particular further view, without undermining the role of the Commission for Healthcare Audit and Inspection.
Chairman: Thank you for that. I have got Ian and Kelvin. Ian, did you want to come in first?
Q370 Mr Liddell-Grainger: Mine was an observation going back to something Kelvin said, and sorry to drag it back. Surely one of the worst types of inquiry is like the Bloody Sunday Inquiry where all control seems to have been lost and it is getting more and more expensive and it is getting deeper and deeper into something that happened so long ago that by the time it reports is it going to be relevant in the first place. Is that not a knee-jerk government reaction to pacifying the situation? You were talking about government led by inquiry—is that not the very worst example?
Mr Evans: It is not for me to answer that question but I am not sure that the Government would think this was a classic example of how to set up a good inquiry to get good lessons learned at low cost.
Dr Baxter: I think it comes back to process really—that you want to find a way of getting a process which will carry enough credibility. You will not please everybody given that Bloody Sunday is an intensely charged political question but getting the process right and going back to the example of my inquiry just being very clear, yes, parties are represented but you are going to be time-limited in the time you can cross-examine people. That discipline, which was resisted rather by some of the barristers, by the end people felt, "It did sharpen up my cross-examining techniques and we got through the business and we got down to the key issues."
Mr Evans: Just to add one point about Bloody Sunday, it is very difficult to inquire into something that long after the event, by definition, and one of the problems we had in something you are doing a year after the event is that people have to remember what they did on a particular day a year ago and why they made those particular decisions. Whatever you do, if you take a decision to have a public inquiry, the nearer to the event you can have that public inquiry the better.
Q371 Mr Liddell-Grainger: I cannot remember the cost but I think Bloody Sunday is £100 and something million already and climbing rapidly. Do you think from both your points of view, having seen that close up, that is the sort of inquiry we in future want to try and avoid if we possibly can?
Mr Evans: I am sure we should try and avoid inquiries that go on for seven years, particularly if they cost £100 million, or whatever the cost is. Part of this comes back to the judicial basis of the inquiry. One of the issues for our inquiry, and not for Tim's, was that we did not have legal representation of witnesses. We did not stop them from bringing people if they wanted to but if it had been a public inquiry they would have had the right to have legal advisers with them. One of the advantages of that—and this is certainly something my Chairman Dr Iain Anderson thought was absolutely vital—was that it meant that because he was questioning people not in the public eye and they did not have legal representatives with them (by definition telling them how to frame their answers) he got a much more frank and honest appraisal of what they thought they had done and why, particularly in the way in which he questioned them, which was a very non-threatening, non-confrontational way. His view—and I asked him specifically about this last week in preparation for coming to see this Committee—was that he believes he got more information in evidence from them than he would have got from public scrutiny with legal representation for all witnesses.
Q372 Chairman: Just on the time-frame point, was the implication of what you were saying that it is a good idea to put some sort of time-frame around inquiries?
Dr Baxter: I remember Stephen Dorrell, when he announced the actual inquiry, talked about a time-frame of a year but in actual fact the criminal investigation at Ashworth took a number of months and then the Crown Prosecution Service took several months to consider whether they were going to prosecute anyone so actually the year was almost up by the time the criminal business was over. I think it is a good idea to try and manage expectations and set aspirations for how quickly you can do things. When you have got a criminal investigation which is carrying on alongside, then that takes precedence, and I cannot remember but that may have been an issue for Lord Laming in his inquiry in that he may have had to delay things. Obviously you cannot necessarily dictate how long the criminal investigations are going to take, so that is a difficulty, but I think you should definitely try and get an expectation of expedition as much as possible because the value of these inquiries will inevitably decline the further away from the actual original cause you are. You have got similar issues, I might say, in planning inquiries. I remember going to see the Heathrow Terminal Five Inquiry on their third anniversary and it took evidence for four and a half years, I think.
Q373 Chairman: How about a budget framework?
Dr Baxter: A useful discipline certainly. Again, you might well find that for various reasons you need to go back to the department but, yes, it is a useful discipline.
Mr Evans: I think both time-frames and budget frames are useful disciplines, as Tim said, but you must, in my view, give some leeway to the Chairman to do it as he sees fit.
Q374 Mr Hopkins: If I can just pursue the conversation of a little while ago. Listening to you and to the various inquiry chairs, it strikes me very strongly that the way it is done is quite good. I have become more inclined towards the public inquiry process than I was at the beginning of our investigation, particularly because it strikes me that there is this sense of energy, commitment and enthusiasm in doing it as a project. One comes out of one's regular job, does this project for which one might get kudos in time, it might help one's career, and it certainly helps the process of the inquiry. Having a central inquiry unit which would have civil servants who might think, "Oh well, I've got to do this inquiry this year but I might do another more interesting one next year," it just becomes a job and the atmosphere and attitude would be very different. Do you think that is a valid point?
Dr Baxter: I am not sure I would want to work there! I think there are two separate things. One is to have expert advice when you start an inquiry on the sorts of issues that Alun and I have identified—finance, IT, accommodation, legal, setting up an inquiry—and that would be really helpful, but then it is a matter, I think, of just doing it, as it were, and you will do things slightly differently on each one because of the particular matter in hand and obviously the personality of the Chairman, his or her style, etcetera, etcetera. So I think I would like almost a back office function, although that is not quite the right word, but expert advice on various key issues and then people being brought into this as something they will do probably only once as a very interesting job in their career. That is the kind of model I would like to see.
Mr Evans: I would agree with that. I thought the point you were making, Chairman, was about more what you, Tim, described as the back office function, the things you need in the way of supporting architecture to get an inquiry going and get it going efficiently and quickly. I still think to run an inquiry you need to have your chair or your panel and you need to bring in one or two supporting people because I agree with you very strongly about the idea of team working and almost camaraderie of a very small, focused group of people. Indeed, the way we ran our inquiry was on very strict project management lines and one which reflected partly my Chairman's industrial background. We had a project management session and set a very clear project plan with dates, milestones, evidence, and when we were going to deliver things by. We pretty much hit those targets and that was a useful discipline as well. I think that very much came from the senior part of the inquiry team, but would have been useful to have the other functions provided at the beginning rather than us spending a lot of time working on them.
Q375 Mr Hopkins: On a slightly different theme, I agree with you very strongly having seen it for 30 years before coming here when I worked in bureaucracies and saw on-going attitudes to things in the TUC or whatever. Another really important aspect of inquiries is the relationship between the chair and yourselves. One can have a chair who is not terribly enthusiastic, not terribly energetic, who essentially leaves all the work to what one might call civil servants in the secretariat and another who might choose to be very hands-on, draft most of the text themselves and really only take a bit of advice from time to time or say, "Check this through for me to make sure it is right", and do no more than that. The relationship seems to be very important to the final inquiry. How have you found that? This Committee does inquiries and I like to think we are very hands-on as committees go.
Dr Baxter: The Chairman and his or her personality is key. In my case I was very lucky in Peter Fallon. I had never met a judge before I met him so I did not quite know what to expect but he was very informal and extremely kind and understanding to me in various ways, and the relationship worked very well. I can imagine that if that had not been the case it would have been a pretty awful couple of years because of the amount of time we had to spend in each other's company, particularly towards the end, drafting sessions and so on. I think it was also very important that the panel gelled as a panel, which they did. It took a little while but they did and they were very productive in working together. I think there is an argument certainly and the DCA document talks about training and so on and I think a key thing is to get the panel members together early and just try and get them to know each other and explore each other's working styles and early on decide how they are going to approach this together, be clear about their relative status, are they in it as an assessor or are they a full panel member and what does that mean for the way they approach the task.
Mr Evans: I would agree with that. The relationship between the chair and secretary is absolutely vital to the effective delivery of an inquiry. Again, I was lucky in that Iain Anderson had an industrial background and clearly had a view on how to run a project and how to treat an inquiry like a project. He also had very good public communications skills so, for example, when we held public meetings around the country although I chaired the meetings he would do most of the talking and that worked very well. Equally, he relied on me, as I said earlier on, for getting him round the Whitehall village and making sure we got the right entries at the right level within Whitehall. I think he relied on me to write a large part of his report, although the report was all his and nothing was written that he did not sign off at the end. He did a lot of the work himself. By the end of the inquiry he described it as working six and a half days a week so it was very intensive in the last month or two. The only caveat I would put in terms of what this Committee might be thinking about is this issue of whether or not you should have a single chair or a panel.
Q376 Chairman: We were going to ask you about that.
Mr Evans: Shall I go on to that now?
Q377 Chairman: Before we do—and I am almost there—can we stay with the judge point for a moment because, Tim, earlier on you were saying how indispensable judges were for all this.
Dr Baxter: I said in the context of where you have got parties represented, so you might have a room stuffed full of barristers all of whom, quite rightly, are seeking to promote the interests of their clients. In that circumstance there is a particular value, I think, to having a judge. In Peter Fallon's case he was Recorder of Bristol for a number of years so was very experienced at managing the process and ensuring that people kept to time. We had some fairly hot-tempered hearings early on when barristers were having to get used to that but we did keep to our timetable and we did not overrun by a day. It can be quite different if you have got a different kind of inquiry where people are not legally represented. There what you need is high-quality legal advice. The Bristol Royal Infirmary Inquiry, for example, had a QC who was counsel to the inquiry and he asked all the questions. I think I am right in saying that nobody had representation so we could not then have had barristers cross-examining. There you did not need a judicial chair. I think also judges by temperament and training are very independent people so if you want an independent chairman they are a good place to go. My only comment on the Hutton Inquiry would be that nobody was complaining about the lack of integrity and independence of Lord Hutton during the process. It was very clear that he was very, very independent. I think also judges are used to dealing with paper, frankly. In most inquiries you get a pile of paper this high. They are very good at analysing information quickly and coming to opinions.
Q378 Chairman: You have obviously been greatly impressed by judges.
Dr Baxter: By this particular judge I was, yes.
Q379 Chairman: But we have had the Laming Inquiry, for example, which was presided over very effectively by a non-judge and did have the parties represented, so the idea that it is only a judge that can conduct an inquiry in that form is clearly not right.
Dr Baxter: I can only speak for my inquiry and I know if we had not had someone with that kind of ability and experience we would have taken a lot longer and we would not have had such a good output. It was an appropriate appointment to my particular inquiry.
Examination of Witnesses (Questions 380-396)
22 JUNE 2004
DR TIM BAXTER AND MR ALUN EVANS
Q380 Chairman: If you look at the Bichard Inquiry that is reporting just now, Sir Michael Bichard is a very distinguished former civil servant not a judge and yet he is conducting that inquiry in a very judicial way.
Dr Baxter: Absolutely. Every inquiry is different. I am basing my comments on my one where I think Judge Fallon was absolutely a good appointment. I think you need to think about the competences of the person you need and if you are going to have a room stuffed full of barristers I would suggest a judge would be a good idea, or if you have not got a judge I think you need to be very careful about getting the right procedural advice otherwise the nature of what they are going to be doing, entirely properly, is very much to drive the interests of their clients and, if necessary, throw a spanner in the works of what the inquiry might wish to do.
Q381 Chairman: Let's move to the point you almost started.
Mr Evans: Can I make just one point on that which is—and I have not worked with judges so I cannot comment on judges—I worked with Dr Anderson, a former chairman of a company who had very good public speaking skills in my view, and one of the things we had to do particularly going round the country was represent the inquiry and make sure we were getting everyone to give their views to us, and that involved and required a very good skill in terms of public engagement so that as well as being shown to be a robust inquiry it also had something of a cathartic effect on the community that had suffered, and I think Dr Anderson did that well. Again depending on the type of inquiry, you must have somebody who is familiar and able to deal with the media in an effective way, as indeed Michael Bichard has in the Bichard Inquiry.
Q382 Chairman: Can we move to the point we almost started just now which is if you have a judge, indeed if you do not have a judge, is it not important to have wing members, whether we say panel members or assessors, people who widen the inquiry function in that way? Again it is a shame we do not have Lee Hughes with us because one of the criticisms of Hutton was that it simply was a judge dealing with areas which, it was said, required rather wider experience. When the Committee was in America recently we had it put very strongly to us by the person who is the secretary of the 9/11 Commission that in fact it would be almost impossible to do these kind of things relying solely upon rather narrow judicial experience. What I am asking is from your own experiences where you both did have inquiries where they were panels—
Mr Evans: —No, we did not.
Q383 Chairman: —I am sorry I thought you had had assessors.
Mr Evans: No.
Q384 Chairman: Let me then ask, as you come from different experiences here, what your view on this is?
Mr Evans: I am not particularly convinced that having assessors or panel members would have assisted the process. It might have done in terms of the workload—Iain Anderson had a very heavy workload—but he was quite clear that bringing in a different perspective would possibly have muddied the waters and would not necessarily have assisted in the overall analysis of the problem. I must admit I found it much easier working with one chairman rather than, as it were, having to balance the views of assessors as I know some people in other inquiries have had to do and found it quite a strain for the secretary if you have got conflicting views which you need to balance. Apart from the workload point of view (and if it is something like 9/11 I can see the workload) and the expertise point of view, I cannot see the case for having assessors. In terms of expertise we identified fairly early on the areas we thought our inquiry was lacking which was, one, on high-level economic analysis and, two, on statistical analysis. There was a lot of argument about the statistics of culling. Very early on we brought in two leading academic experts on these two disciplines to advise on those areas, and that worked admirably well for us, so that is my perspective.
Dr Baxter: For the Ashworth Inquiry I do not think it could have run effectively without wing members and I do not think Peter Fallon would have wanted to be in sole charge. The other three members of the panel brought immense experience of NHS management, forensic psychiatry and psychiatric nursing. In terms of the debate when you come to a conclusion, I suppose there is an argument if you want clarity of view, as it were, you might go for a single person. You might appoint somebody you think is going to be extremely independent and capable with great analytical expertise and going to cut through issues and present a clear view. Maybe other panel members can muddy the waters but you might also say they are bringing particular perspectives and certainly I do not think the Ashworth Inquiry could have functioned properly without them because it would not have had credibility with the key audiences. We had one of the most distinguished forensic psychiatrists in the country, someone else who was a very eminent NHS manager and an extremely good psychiatric nurse and they brought their particular perspectives and also credibility to the job. Also in drafting the report there is a particular chapter on forensic psychiatry, which clearly Peter Fallon nor I could have done, and Dr Bluglass, the psychiatrist, wrote that. I suppose I come back to the fact that inquiries are different and the genesis of each inquiry is different and what you want from the final product. Whereas in foot and mouth I think the Government did want, whatever it came up with, a clear statement of lessons learned.
Q385 Chairman: Maybe the conclusion is that judges should not sit alone but other people perhaps could?
Dr Baxter: Is that not a bit unfair on judges?
Q386 Chairman: It seems to be the conclusion of what you were both saying.
Mr Evans: I think the conclusion that I would draw is you have to have confidence that whoever is chairing the inquiry a) has the time, capacity and energy to do it because if they are only going to devote two or three days a week to it they are not going to manage it by themselves and b) the level of expertise is available to the person in the chair either via panel members or via other assessors, which I think is a crucial point. Because we were a more general lessons learned inquiry rather than an inquiry into a very specific clinical aspect, that was easier in our case than it would have been in Tim's.
Dr Baxter: Besides taking a lot of evidence from experts on personality disorders, we also ran several seminars, which were not like Alun's open events but they were closed seminars of experts to try and get more access to differing views, and at those events people were presented with the emerging findings and thoughts of the inquiry panel and were able to input their views. It cannot be completely closed. If you are going to go for a single person, he or she needs a lot of help, but if you are going to have panels it also needs to be very clear what their role is. There is a difference between assessors who are experts who say, "This is the current state of thinking on X," and panel members who are full members of the inquiry. In a sense, I do not think it matters too much so long as you are clear about which model you are going for.
Q387 Annette Brooke: Can I just ask a question from ignorance really. Is it the chairman that defines the role of an assessor and in reality could your expert adviser and assessor in a different inquiry actually perform the same role or are there minimum requirements or requests of what assessors would do?
Dr Baxter: The trouble in this whole area is coming back to each inquiry is so different. Just using the Ashworth Inquiry example, the members of the panel were selected by the department and the judge after consultation with the Lord Chancellor's Department, as it then was. They then made a decision about where they wanted more advice. They took the decision that they wanted seminars on different aspects—legal aspects, clinical aspects and so on—so they took the decision where and what kind of advice they needed and where they felt they were lacking, pretty much the same as yours.
Mr Evans: I do not really have much to add there. It seems to me that the only difference is the formality of whether you have panel members because then it becomes the report of the judge plus panel members whereas in our case it was the report of the chairman. Okay we used some expert advisers but that is all they were, they provided expert advice.
Dr Baxter: It was not their report.
Q388 Mr Hopkins: Just following the Chairman's point about judges should not be sitting alone, it is the case that in law when you go to the Court of Appeal you have got three judges, and if you go to the House of Lords, the final Court of Appeal, you have five judges. The higher you go the more you have and if you really want to nail a decision you have a lot of judges.
Dr Baxter: You would get seven sometimes in the House of Lords.
Q389 Mr Hopkins: If Lord Hutton had sat with three judges or five judges and they had come to a collective conclusion, would it not have been easier? Would they not have had an easier time? Lord Hutton had a very hard time when he made his judgment. He stuck to narrow factual conclusions and did not make any interpretive judgments where people could have said, "Okay, hands up."
Mr Evans: It is a hypothetical question as to whether we would have got a different report if we had had got three judges rather than one, but I think it must come down a bit to the view of the chair or the judge. For what it is worth, Iain Anderson told me in taking on this job if he had been required to have panel assessors he would probably have said he did not want it.
Q390 Chairman: What have we not asked you that you would like to tell us? What do we need to know beyond what you have already told us, bearing in mind you are going to let us see some papers which you have written as well?
Mr Evans: One thing we have not talked about is the process of cross-examining witnesses and the different ways and means, whether it is done in public or private. I think that there is a balance on either side. Either you do it publicly and it is very public and everyone knows what is going on or you can do it in private, as we did, and say the balancing argument is maybe you get more out of people talking frankly when there are no cameras around. The other thing which you have not asked about is how do you know you have got all the evidence and all the facts at your disposal, and that is almost an unanswerable question, apart from the fact everything we asked for we got from government. We had to do a bit of digging at some stages to get it and whether or not there were other things that we should have asked for and did not, I do not know.
Q391 Chairman: There is a difference here, is there not, because the Ashworth Inquiry was set up under a statute which gave you powers and the assumption was that you would therefore have access to all that you needed? The question would be did it work like that and, simply to Alun, yours did not have that statutory basis, so did that make a difference to your ability to get all the stuff that you wanted?
Mr Evans: It made it slightly more time-consuming, shall we say, for example in getting hold of Cabinet papers because we wanted to look at all the Cabinet discussions there had been on foot and mouth. Although we had full access to the Cabinet papers we had to go to the Cabinet Office and read them there and take notes there rather than if we had judicial powers for some of the notes of the meetings we wanted. In practice I think it worked quite well. The only interesting thing which we did not see, which of course Hutton saw, was Hutton got a lot of e-mails as well. We never requested a lot of e-mails. I do not think they would necessarily have changed any conclusions but they might have added a little more colour to our report perhaps.
Q392 Chairman: Lord Hutton said, "Give me anything relevant," did he not, and therefore people weighed in with all kinds of things?
Mr Evans: We certainly got plenty of volume of paper. As Tim referred to earlier on, there was no shortage of paper.
Dr Baxter: We had statutory powers which were useful sometimes. In one case there was a particular professional doctor who did not feel she could release papers until she had been formally required to do so, it gave her legal protection to hand over particular documents when we said we are going to use our subpoena powers. In another case we had a patient of Ashworth who had been transferred back to prison and he turned up at the inquiry but refused to give evidence. He was serving life for murder so our powers of six months inside and a fine were not exactly relevant! They do have their place, we certainly would have suffered without those powers, I think, because it clarifies to everyone, the hospital in particular, that there is no choice, you have just got to get on and do this, and for the most part they did comply with all our requests for paper, although I think in some parts of the hospital with more alacrity than others. For something like Alun's inquiry, which was so high profile, people are going to comply anyway. I think they certainly have their place. It just gives you that comfort of knowing that if people are going to be difficult, in most cases you have a real sanction.
Q393 Chairman: Most inquiries once reporting that in fact they were not getting co-operation and access, that is a power that they have, is it not, and they would probably have it and indeed some of them are offered the reserve of having powers put in place that they may not have initially?
Mr Evans: I thought Michael Bichard made it very clear in the way he said he expected to get all the information that he needed and if he did not he would have no hesitation in going to the Home Secretary to ask for powers to ensure that happened. In our case everybody who we asked to come to see us came and saw us, from the Prime Minister downwards, and we got everything we asked for in terms of the documents.
Q394 Chairman: And not being able to take it on oath was not a difficulty?
Mr Evans: We did not find it a difficulty. I cannot say we did not find that people lied to us but we have no evidence that people were not telling us things that they should have done, and indeed part of the process that we went through was, as it were, a triangulation of different pieces of evidence, so if one person said one thing it was quite easy to check against what another person said or something you had had written to see whether or not it matched up. It was quite a good process of interrogation of saying, "We have been told by X that the following happened . . ." and we provided notes of all the meetings so in going into the public domain every single piece was recorded in the CD-rom document so anybody who had been wanting to keep stuff from us would be playing a very high-risk game, I would suggest.
Dr Baxter: We had a debate about requiring people to take an oath or affirmation or not. As I recall, the decision was that there is no guarantee that people are not lying to you on oath but you can compare evidence and you might as well have everyone being asked to give an oath or affirmation so that everyone is treated the same, so that was the procedure the inquiry ended up adopting.
Q395 Chairman: Let me just ask you if there are any areas which you thought we had not covered, although I think we touched on one of them tangentially, unless you have got other things that you think we ought to hear—
Mr Evans: Not that I can think of. If I do I will let you know when I send the other documents.
Q396 Chairman: In that case let me ask you one last question which is apart from having splendid secretaries what, in a nutshell, makes for a successful inquiry?
Dr Baxter: I think it should demonstrably have got to the bottom of things. We talked earlier about the criteria for an inquiry and the sense of—there has been a real failure, people have been hurt, the reputation of that particular service, that particular industry or whatever has been damaged. I think that an inquiry has to be a healing process sounds a bit feeble, but it has to contribute to the sense of—we see the problem, we have set out a way forward, we are mending the reputation. If you can do that and be seen to contribute to that I think that would be a successful inquiry.
Mr Evans: I agree with that. I think contributing to the healing process is precisely what one was trying to do, certainly in foot and mouth. Certainly in a lot of these things, coming back to the criteria, harm has happened and the public has suffered in a way where you do want to contribute to that. Secondly, as Tim said, you have got to the bottom of the problem, in other words the inquiry's recommendations stack up, it makes sense, it is readable and seems to tackle the problems it set out to do. Thirdly, it comes back very much to the problem the Committee has raised about knowing what happened so that something happened as a result of the inquiry. That is something where the track record of inquiries has not been good, that something has come about and changes have happened, and anything you can do to help that process would be welcome, I think.
Chairman: Thank you very much indeed. That is extremely interesting and a perspective that has been very valuable to us. If we could additionally see the papers that you have written in some form that would be, I think, a great gain as well. Thank you very much indeed for your evidence this morning.