Lawyers involved in public inquiries often refer, half in jest and half out of fear, to a hypothetical future ‘inquiry into the inquiry’ in which their decisions will be scrutinised. Happily for lawyers, but perhaps to the detriment of future inquiries, there is usually relatively little analysis and certainly no formal mechanism to review the effectiveness of an inquiry following its completion. That is the position notwithstanding the growing reliance on public inquiries to investigate matters of acute public concern, and that chief amongst the many purposes of inquiries – establishing facts, providing accountability, making recommendations – is learning lessons.
In this post, we consider what lessons for future inquiries can be learned from the inquiry into the Manchester Arena bombing (‘the MAI’), which published the third and final public volume of its report on 2 March 2023.
The approach of the MAI to national security evidence represented a departure from the approach taken in previous investigations into terrorist attacks. In the 7/7, London Bridge and Westminster inquests, the coroners heard exclusively or mostly from a single corporate witness from each of MI5 and counter-terrorism policing. Those witnesses were not operationally or otherwise personally involved with the attacks. As the MAI Chair, Sir John Saunders, reflected in his report, that is a recipe for inadvertently concealing mistakes and impeding learning: preface, §24.23, 24.26-30.
Instead, the MAI received evidence from a corporate witness in open session and 15 witnesses in closed hearings, including decision-makers who were responsible for assessing intelligence related to the bomber, and an independent expert witness. This approach enabled the investigation to get to the bottom of what had happened. It revealed critical differences between the corporate position and the individual decision-makers (for example, in relation to how one of the two critical pieces of intelligence was assessed by MI5 at the time) which would otherwise have remained unidentified: see §24.53-57.
The contrast between the corporate position and the evidence of individual witnesses showed the real importance of an official inquiry concerned with the actions of MI5 and counter-terrorism police (whether an inquest, public inquiry, select committee or other independent review) receiving evidence from primary sources.
In other respects, the MAI’s approach to national security was not as progressive. Sir John rejected the bereaved families’ submissions that their Article 2 ECHR right to participate effectively required the use of a confidentiality ring to permit them to receive disclosure that would otherwise be subject to Public Interest Immunity and to be present and participate directly in the closed hearings. That said, the families were given an opportunity to identify topics of interest to them to be put to the closed witnesses. Gists of the closed evidence were subsequently provided. Both features offered a greater degree of family participation than in previous inquiries with no appreciable corresponding risk to national security.
The approach to the appointment of special advocates may be of interest to future inquiries. Some, but not all, of the bereaved families invited Sir John to appoint a special advocate for the closed hearings. The principal battleground was whether a special advocate would make a meaningful contribution to a process in which Counsel to the Inquiry (‘CTI’) were appointed. The families argued that there was discernible difference in the function of neutral CTI and a partial Special Advocate whose principal focus would be to advance the families’ interests in relation to the disclosure of material and the questioning of closed witnesses.
Sir John ruled – as did Sir Robert Owen in the Litvinenko Inquiry – that he had the power to appoint a special advocate. He declined to exercise his discretion to do so on the basis that it was neither necessary nor desirable in the context of the MAI. He emphasised the confidence that he and other CPs had expressed in CTI and that the families did not have any special knowledge to bring to bear on that part of the proceedings.
Position statements have become increasingly popular in recent inquiries. It is generally taken to mean a document, usually from a Core Participant (‘CP’), setting out a narrative of its position in relation to an inquiry’s Terms of Reference.
The bereaved families argued that Sir John should at least request, if not order, the public and corporate CPs to provide position statements. The early identification of the issues, it was said, would assist the MAI in establishing the facts and further the twin aims of transparency and accountability. To a greater or lesser extent, all affected CPs argued against them. Certain CPs objected to the form and substance of the provision of the information, as opposed to its disclosure in principle; some were concerned that it was a step more appropriate in adversarial rather than inquisitorial proceedings; many expressed the well-known concern that a CP should not have to commit itself to an account before the evidence was heard.
The Chair ruled that he had the power to request position statements in accordance with s.17(1) Inquires Act 2005 (‘IA 2005’). That provision provides the Chair with a broad power to direct the procedure and conduct of an inquiry subject to the requirements of fairness and avoiding unnecessary costs. As no Core Participant suggested they would not comply with such a request, he did not go on to determine whether he had the power to order them; that point remains undecided.
Sir John also held that he would be assisted in his task by position statements or something that would achieve the same end. As a compromise between the competing positions, he ordered that he would be assisted by and expected to receive much of the information sought by the families in the form of (a) an opening note from each CP, to include a narrative of the CP’s performance with respect to the MAI’s Terms of Reference; (b) also before the evidence, a brief statement setting out the changes each CP had made post-attack; and (c) closing submissions from any CP intent on criticising another CP with the criticism foreshadowed in questions during the oral hearing.
Ultimately, the trend in favour of position statements, in name or in substance, appears set to continue.
Attendance of witnesses
The MAI exposed a lacuna in the powers of inquiries to secure evidence, including the co-operation of witnesses.
Ismail Abedi, the older brother of the bombers, was made the subject of an order pursuant to s.21(1)(a) IA 2005 requiring him to give evidence at the MAI on a specified date. He had valuable evidence to give on relevant topics, including the radicalisation of his brothers.
An inquiry has no powers to enforce such an order (or indeed any of the other orders it may make under s.21 relating to the production of evidence or s.19 relating to orders restricting onward disclosure of material produced to an inquiry). Instead, where a person fails to comply with an inquiry order, or “threatens to do so”, the inquiry must seek an order from the High Court pursuant to s.36 IA 2005. The High Court has a discretionary power, on receiving evidence and submissions, to make any order it could make if the matter had arisen in litigation before it.
This process was in fact followed in relation to another witness for whom the High Court issued a witness summons backed by a bench warrant: see Chairman of the Manchester Arena Inquiry v Taghdi  EWHC 2878 (Admin). When the witness ‘threatened’ not to attend, he was arrested, and the High Court ordered that he should be detained until after he had given his evidence: see Chairman of the Manchester Arena Inquiry v Taghdi  EWHC 2785 (Admin).
Notwithstanding that success, the laborious nature of the process risks a witness escaping the jurisdiction or destroying documents before the High Court can intervene. As the Chair recommended, consideration should be given as to how the IA 2005 can be reformed to give inquiries a more responsive and flexible means by which to secure evidence and the attendance of witnesses: §25.85, 25.96-97.
The threshold for enforcement in s.36(1) that a person has at very least ‘threatened’ not to comply may be too high. It may not cover circumstances, short of an overt act, that give rise to reasonable grounds to anticipate non-compliance. The circumstances in which Ismail Abedi put himself beyond the jurisdiction of the High Court suggest the need for measures which are capable of applying short term restrictions on the movements of a person subject to a s.21 notice, where their evidence is important and there is an objectively determined risk of non-co-operation: §25.85.
The Chair also recommended that the maximum sentence for should be increased to ensure a person can be extradited for the offences in the IA 2005: §25.93-94, 25.99.
On a related point, there was a missed opportunity for the police to inform the MAI that Ismael Abedi was intent on leaving the jurisdiction. When he arrived at the airport he was the subject to a stop by the police (who were CPs in the MAI) which meant he missed his flight. If the police had told the MAI at that point, the MAI may have been able to secure a s.36 order from the High Court for his arrest. Instead, Ismael Abedi returned the following day and left the country. There does not appear to be a mechanism for police forces, and other core participants to inquiries, to notify inquiries where they suspect a witness does not intend to comply with a s.21 notice.
Questioning of witnesses
The MAI began as an inquest with Sir John appointed as a Deputy Coroner. As an inquest cannot include a closed material procedure from which some Interested Persons are excluded, the Home Secretary converted the inquest into a statutory inquiry which, pursuant to s.19 IA 2005, is empowered to hold closed hearings.
One of the peculiar procedural distinctions between inquests and inquiries is that Interested Persons in an inquest have a right to ask questions of witnesses, whereas CPs in public inquiries may only do so with the Chair’s permission after having given reasons (cf. Rule 10 of the Inquiry Rules 2006 (‘IR 2006’) and Rule 19 of Coroner (Inquest) Rules 2013). Another important difference is that CPs in an inquiry are entitled to make opening and closing statements that address the evidence whereas Interested Persons in an inquest have no such right.
Counsel to the Inquiry and Sir John, recognising the potential unfairness to the bereaved families arising from the conversion, indicated at an early stage that Rule 10 would be applied flexibly so the proceedings would be ‘indistinguishable’ from an inquest. While that pragmatic approach resolved the problem in the MAI, it is difficult to see the justification for the differing approaches. It may be that the IR 2006 should be amended so that in circumstances where an inquiry has been converted from, or otherwise would proceed by way of an inquest, CPs have a right to ask questions (subject to the usual case management powers of the Chair).
A recurrent criticism of public inquiries is that their recommendations are ignored: see, for example, the National Audit Office’s ‘Investigation into government-funded inquiries’ (2018) and the Institute for Government’s paper ‘How Public Inquiries can Lead to Change’ (2017). There is no legal mechanism to require the recipients to act on recommendations.
Sir John took matters into his own hands and adopted the position that monitoring recommendations through the provision of written and oral evidence was an intrinsic part of discharging his Terms of Reference. The iterative publication of volumes of an inquiry’s report assisted this process by giving the Inquiry a significant period of time after the making of recommendations in the first two volumes while the substantive work of investigation was still ongoing. The evidence given by CPs about their progress in implementing monitored recommendations appeared to have had a real impact on the priority given to them. If inquiries are to lead to real change then this development is welcome.
Finally, a point about warning letters, that is, the process, codified in Rule 13 of the IR 2006 by which an inquiry is required, before it can criticise a person in its report, to warn that person that he or she may be subject to criticism and to allow them a reasonable opportunity to respond.
This was not an issue specifically raised in the MAI, but in common with other inquiries, there was a substantial delay in the publication of the three volumes of the Chair’s report while the process was undertaken.
A full evaluation of the current process is beyond the scope of this blog post, but a few points are worth making.
First, warning letters were intended to formalise the process known as ‘Maxwellisation’. However, in the Maxwell litigation itself the Court of Appeal expressed the view that fairness did not demand that persons subject to criticism were given an opportunity to comment: see Maxwell v Department of Trade and Industry  QB 523.
Second, a review of ‘Maxwellisation’ conducted by Andrew Green KC on behalf of the Treasury Committee in 2016 addressed whether certain inquiries had adequately balanced the competing needs of fairness, expedition and cost. It concluded that if a person has already been given a fair opportunity (for example, at the evidence gathering stage), there was no need for them to be afforded further chance to comment. The review found that the IR 2006 are too prescriptive, onerous and should be revoked in favour of a system which affords chairs greater flexibility to aim warnings at specific individuals.
If inquiries are to be (more) efficient there is a strong case for the reform proposed by the review. That this review made this recommendation which was generally welcomed as likely to make inquiries cheaper and more effective – but that it is still to be implemented many years later – is an irony that will be noted with weary familiarity by inquiry lawyers.