A Martian looking down and taking an interest in British politics would assume that the government was accountable to judges and lawyers at public inquiries, rather than to elected politicians in Westminster.
For it is only a public inquiry that seems to be able to get to the bottom of what goes wrong with policy and administration, and why. In this way, the Inquiries Act 2005 is now a fundamental constitutional instrument.
Take three high-profile public inquiries currently taking place in the United Kingdom.
One is about public health, and it is looking at the response to the Covid pandemic. Another is about public administration and miscarriages of justice, and it is looking at how a government-owned entity—the Post Office—was able to wrongly prosecute hundreds of people and to then cover up its wrongdoing. And the third is about alleged war crimes in Afghanistan, and it is looking at how senior officers knew about concerns over executions of prisoners but appear to have done nothing to address those concerns.
Public health, miscarriages of justice, alleged war crimes—between the three inquiries, a wide field of public policy is covered. The three topics are very different in many ways and each has its particular facts.
Chains of command in Afghanistan on the face of it have little to do with the Post Office Horizon IT system, and both in turn seem to have little in common with managing a public health emergency. They are almost random selections of public policy failures over the last 10 to 20 years.
But in each, the same problems recur. There is a lack of useful communication within the public bodies concerned. There is little or no meaningful accountability for those who have made bad decisions. There is reluctance or outright opposition to the inquiry being given relevant materials by officials.
And perhaps most strikingly of all, there is the realisation that what parliament, the media and the public—and indeed ministers—were told at the time was very different to what was actually happening. It almost feels as if, like in a pulp detective novel, we are being told in a final chapter about what was really occurring while we were being misled and misdirected.
The implication of this delayed accountability is that the “real-time” forms of accountability are useless. It is not simply that Westminster and Whitehall fail to be efficient; they fail even to be efficacious. Ministerial question times are theatre, if not pantomime. Select committee hearings are just for show. Ministers are often as uninformed as those who are questioning them.
It does not have to be this way. Almost none of the information that is now coming to light in these three inquiries needed to be held back for these subsequent formal proceedings. The flaws in the response to Covid—on care homes, test and trace, botched PPE procurement and so on—could and should have been aired at the time in parliament. The issues with the Horizon IT system could and should have been made known to ministers, and through them to members of parliament. The alleged horrors in Afghanistan likewise did not need to be shielded from ministers and parliamentarians.
If the UK had a properly functioning system of accountability and ministerial responsibility, then there would be no great need for public inquiries. The questions and demands for information could be made by our elected representatives, and answers and responses would be forced out by powerful democratic pressure.
But we do not have a properly functioning system of accountability and ministerial responsibility. Ministry of Defence officials easily withheld information from their own minister, Johnny Mercer, who was pressing for explanations as to why so many prisoners were being killed by special forces in implausible circumstances. Post Office executives and civil servants ensured that ministers had no idea that the greatest miscarriage of justice of modern times had taken place.
Supposed parliamentary accountability held no threats for those who knew of concerns and problems. Ministers could just be fed lines-to-take. Friendly journalists could be briefed. Freedom of Information (FoI) requests could be ignored or, if pressed, met with blanket exemptions justified on insincere grounds.
And given the three disparate subjects of these public inquires, the obvious implication is that this is a general—if not universal—problem with the British state. It is just that, for a variety of reasons, these three topics ended up the subject of public inquiries, while many other aspects of government and administration have not.
What would wide-ranging public inquiries into, say, Brexit, or defence procurement, or heath service management, or prison conditions reveal? We would have to suspect that there would also be the same lack of useful communication within the public bodies concerned, little or no meaningful accountability for those who made bad decisions and reluctance or outright opposition to anything useful even coming to light.
Why are public inquiries so effective when parliament is not? One reason is that inquiries have coercive powers—so-called “Section 21 notices” especially—to obtain witness evidence and internal materials. Inquiries have teeth. It is not unusual for an inquiry to receive extensive disclosures that would never have been made to elected representatives nor to those submitting FoI requests, however persistent. There is no good constitutional reason why this should be so. The sanctions for contempt of parliament or for not complying with an FoI request are not even weak: they make no practical difference.
Another reason is that witnesses to an inquiry are required to tell the truth in their evidence, under pain of perjury. They can also be cross-examined on that evidence by experienced and well-resourced counsel. Mercer, for example, set out in his evidence to the Afghanistan inquiry the serious concerns he had about alleged war crimes which he, as a minister, never told parliament about.
And a third reason is that ministers and officials prefer accountability after the event. It is a useful rhetorical trick, when under political pressure, to say that matters should be left for an inquiry at some later date. This was especially the case with the governmental response to Covid. A trace of it was also present in how Boris Johnson used to say that we had to await an internal civil service report by Sue Gray rather than expect him to answer questions about Downing Street parties posed by members of parliament. Inquiries and investigations are a handy way of avoiding responding to hard questions.
There is, of course, a role for public inquiries, looking retrospectively and impartially at key events. That is why they exist. But increasingly they are also doing work that could and should have been done by parliament.
As such, almost every revelation that has come out of these statutory inquiries is also an implicit admission that the traditional forms of political accountability have failed. Judges and lawyers are uncovering things that should have informed members of parliament and government ministers. Section 21 notices are doing the job of parliamentary scrutiny.
Little has now been revealed in these inquiries that could not have been revealed earlier, if the UK had effective forms of accountability. As it is, parliament has been shown to be an empty constitutional device, and ministerial responsibility seems to be an empty constitutional doctrine. We have emptiness in our constitution. And as, in a democracy, accountability abhors a vacuum, it is now being left to public inquiries to fill that space.
The original version of this piece referred to the “Public Inquiries Act 2005.” The legislation’s proper name is the “Inquiries Act 2005” and the text has been amended to reflect this
