Key reasons why investigations and inquiries can go wrong

Ed Marsden Verita Consultancy Ltd

Ed Marsden

Published 23 December 2015 More about Ed

Chilcot’s Iraq inquiry

When Sir John Chilcot’s Iraq inquiry made the headlines earlier this year, about further delays to publication, he and his panel will have squirmed. They have gone from investigating the war in Iraq to becoming rather a distracting side plot. A team considered to provide a careful, clear and comprehensive judgement, for some they have now become too entangled in the complexities of their investigative matter.

The inquiry is on course to have been in session longer than British combat troops were deployed in Iraq. It was announced in June 2009 and held its first public hearing in November that year. In May 2011 Sir John Chilcot concluded the public hearings and announced that the report would be published, at the earliest, in the autumn of 2011. This publication date was initially pushed back to the summer of 2012 and then again to the summer of the following year. The inquiry has since stalled publication further and further with it now set for the summer of 2016.

So what causes inquiries and investigations to go awry and is there anything to be learnt from the slow proceedings of the Iraq inquiry. From our experience, pitfalls stem from the commissioning of an investigation as much as from the process of investigating. Common vulnerabilities include:

The terms of reference

Commissioning involves deciding on a set of pragmatic terms of reference to cover the necessary scope. These terms of reference act as a framework around which all the operational, investigating activity revolves. As such, should the terms of reference be wide of the mark, it is likely that the resources allocated to the investigation (as well as where they are allocated) will also be askew, and that any indicative timeframe will be inaccurate. In the heat of the ‘something must be done’ moment when investigations and inquiries are established, terms of reference can be badly drawn. They can be ambitiously broad, such as the Iraq Inquiry’s whereby Gordon Brown PM told parliament that ‘no British document and no British witness will be beyond [its] scope’, or too narrow, such as the Waterhouse inquiry’s into child abuse in North Wales which has spawned two further inquiries (the Macur Review and the Goddard Inquiry). In short, badly conceived terms of reference can seriously hinder the team doing the investigating.

The team

The team can make or break an inquiry or investigation. It is essential for the core team to bring relevant expertise, leadership and be able to marshal swathes of evidence and fulfil the terms of reference. People from a wide range of professional backgrounds may have a role to play and getting the balance of the team right is crucial.  For instance, is there an assertive, credible leader?  Who will master the written material?  Is someone in command of the writing?  And, crucially, who will ask the questions? This being said, investigations and inquiries come at a cost. Lawyers can provide valuable services to investigating teams but they are expensive. Their incisive questioning and ability to command the written material can be invaluable but they can lead to an inquiry becoming more adversarial than investigative. As we saw with the Hillsborough independent panel, which was lawyer-free and chaired by a Bishop (James Jones), there are cheaper and quicker alternatives. The Hillsborough independent panel took 18 months to complete its work. Interestingly, the Iraq inquiry panel consists of historians and civil servants and lacks anyone with litigation experience.

Having adequate powers

Two of the primary causes of delay to the Iraq Inquiry have been impasses over the release of key documents, such as notes of private conversations between Tony Blair and George W Bush, and the Maxwellisation process. In order to satisfy the vast terms of reference, the Iraq Inquiry team has already submitted tens of thousands of requests to the Cabinet Office for the declassification of complicated and sensitive documents. This declassification has been slow and there are arguments for the inquiry team being given more power to access these documents more readily. Furthermore, the Maxwellisation process led to the identification of government documents that had not originally been submitted to the inquiry and have in some cases opened new lines to pursue. It seems that the Maxwellisation process began without the completion of declassification suggesting that the inquiry’s disclosure/evidence-gathering process could have been better managed.

Whilst it appears that Iraq inquiry has been damaged by recent events, we should judge it, despite the delay, on whether it delivers on its promise to identify lessons to be learned from the Iraq war. 2016 should give us the answer.

If you would like to learn more about Chilcot Iraq Inquiry then please contact our Ed Marsden on 020 7494 5670 or [email protected].

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