Neutral Citation No:  EWHC 371 (Admin) Case No: CO/4530/2001
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION Royal Courts of Justice
(ADMINISTRATIVE COURT) Strand, London, WC2A 2LL
Date: 15th March 2002
LORD JUSTICE SIMON BROWN
MR JUSTICE SCOTT BAKER
ROBERT PERSEY & OTHERS
PETER JACKSON & OTHERS
STEPHEN HINDMARSH & OTHERS
- and -
THE SECRETARY OF STATE FOR ENVIRONMENT, FOOD & RURAL AFFAIRS
- and -
ASSOCIATED NEWSPAPERS LTD
TELEGRAPH GROUP LTD
BRITISH BROADCASTING CORPORATION
GUARDIAN NEWSPAPERS LTD
- and -
DR IAIN ANDERSON
Hearing dates: 18th - 21st February 2002
JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN
(SUBJECT TO EDITORIAL CORRECTIONS)
Richard Lissack Esq, QC, Andrew Spink Esq & Robert Temmink Esq
(instructed by Messrs Clarke Willmott & Clarke) for the Applicant Persey
Stephen Smith Esq, QC & David Warner Esq
(instructed by Messrs Burges Salmon) for the Applicant Jackson
Richard Gordon Esq, QC, Nicholas Bowen Esq & Ms Galina Ward
(instructed by Messrs Gabb & Co) for the Applicant Hindmarsh
Desmond Browne Esq, QC & Mark Warby Esq
(instructed by Messrs Reynold Porter Chamberlain) for the Interveners
Lord Goldsmith QC, HM Attorney-General,
Philip Sales Esq, Paul Harris Esq & Ms Kassie Smith
(instructed by DEFRA) for the Respondent
The Interested Party did not appear and made only written submissions
Lord Justice Simon Brown:
- 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.
- 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.
- 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."
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]
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  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):
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  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  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 3< 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  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 Vsterreichs -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 Vsterreichs -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  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  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 naove 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.