The National Audit Office reports on government-funded inquiries

The National Audit Office ("NAO") recently published the findings of its investigation into government funded inquiries (the "Report") , prompted by the increasing prevalence of inquiries and the considerable public funds spent on them. The NAO explored the establishment and management of inquiries, their cost and duration, and how they are managed in practice.

Key points

• Inquiries take various forms: there is no obligation to establish them under the Inquiries Act 2005 (the "Act"), nor is there any obligation to consult or give reasons in respect of whether to hold an inquiry, the form it should take, or its terms of reference.
• The Government has spent over £239 million on the 26 inquiries started and concluded since 2005, with an average running time of 40 months.
• An average of only 45% of recommendations made in inquiries are accepted by Government. Of those accepted recommendations, there is limited oversight to track and monitor their implementation, making it difficult to determine the impact of inquiries.
• There is no centralised office or department responsible for establishing and managing inquiries and the Government has rejected previous suggestions to create a centralised inquiries unit.

Background

Government inquiries are often used to investigate complex and multi-faceted events which give rise to public concern. They can fulfil a variety of purposes, including establishing facts, determining accountability, learning lessons and making recommendations. The NAO sought to investigate the framework for inquiries in large part due to the "go to" mechanism they have increasingly become in relation to high-profile failures, as well as their cost and their importance in relation to the public's trust of authorities.

The investigation focused only on government-funded inquiries announced by a minister or the Prime Minister; it did not extend to other types of inquiries, or assess the value for money of inquiries. A sample of 10 inquiries was used in the investigation, including both statutory and non-statutory inquiries sponsored by various government departments. This sample included the Iraq Inquiry (non-statutory, looking at the UK's involvement in Iraq), the Litvinvenko Inquiry (under the Act, investigating the death of Alexander Litvinvenko) and the Leveson Inquiry (under the Act, into the culture, practices and ethics of the press).

NAO Findings

The NAO first considered the legal framework for inquiries (ie under the Act, other subject-specific legislation or non-statutory ad hoc inquiries), the responsibilities of different government departments and the different responsibilities of the minister, chair and sponsoring department in an inquiry. This descriptive aspect of the Report highlights how there is no centralised responsibility for running inquiries across Government, however the Cabinet Office has the widest role of any department and provides advice and guidance to chairs, teams and departments sponsoring inquiries.

Ministers have full discretion to decide whether to establish an inquiry as statutory or non-statutory. Statutory inquiries have defined procedural rules, strong evidential powers and public access requirements, all which can influence the minister in exercising their discretion to decide on the type of inquiry. Ministers are not required to give reasons for the type of inquiry launched, and of the inquiries reviewed by the NAO, reasons were only given 40% of the time.

The NAO found a protracted delay between the incident and the announcement of the inquiry. Across the sample chosen, the minimum time elapsed was four years and the maximum time was nine years (in the case of the Leveson Inquiry). Nonetheless, of the five inquiries examined in detail, wide consultation on terms of reference was only undertaken on one inquiry. Two inquiries involved no public consultation and faced criticism from stakeholders for this.

As regards the NAO's analysis of the costs and time associated with inquiries, it detailed how the 26 inquiries established and concluded since 2005 cost in excess of £239 million. However, the cost of each inquiry varied significantly, ranging from £200,000 to £24.9 million. The largest single cost, on average, is legal staff, at 36% of costs. Inquiries ran for an average of 40 months, 40% of which was holding hearings and 45% of the time spent producing the report. Those involved in preparing reports identified procedural rules as a cause of delay in finalising reports. One inquiry chair stated how the process under rule 13 of the Inquiry Rules 2006 (a statutory version of what is known as "Maxwellisation" in the common law) around warning letters to be sent to anyone who is proposed to be significantly criticised in a report and giving them an opportunity to respond added six months to the inquiry.

The length of time taken to complete inquiries can in part be explained by their large scale. The NAO undertook a review of a sample of select committee inquiries and found that government inquiries held on average 24 times more evidence sessions, involved 12 times as many witnesses and 700 times more written documents than select committee inquiries (based on available data).

The NAO reviewed departmental sponsorship of inquiries and highlighted some deficits in the way inquiries were managed. In response to a Select Committee report in 2014, the Government committed to implement improved processes and support around inquiries, however the NAO found no evidence of such improvements. Although the Cabinet Office Draft Guidance on inquiries recommended producing a "lessons learned" report at the conclusion of an inquiry, only three inquiries had produced such a report.

There was no practical advice available to departments on how to separate the dual role they play as inquiry sponsor and core participant, notwithstanding that the majority of inquiries involve staff seconded from the sponsor department to work in the inquiry team. It was recognised how the Home Office uses memoranda of understanding to set out the separate roles of the department, which the NAO thought went some way towards safeguarding the independence of inquiries.

All ten of the inquiries the NAO reviewed in detail had deficiencies in oversight of costs and progress. One inquiry had costs more than twice the initial budget and overran by two years. In the majority of inquiries the NAO found little evidence of regular reporting and scrutiny of spending and progress. The quality and detail of public information available on inquiries was also highly variable.

Finally, the NAO reviewed the adoption by Government of recommendations made in inquiries. The NAO found 45% of recommendations were accepted by Government, 33% were 'accepted in principle', 'partially accepted' and 'subject to wider reform'. 7% were explicitly rejected and no clear response was given to the remaining 15%. The Report noted the absence of a centralised repository or responsibility across Government for tracking whether recommendations had been implemented and ensuring they have an impact. Of the eight inquiries concluded since 2014, the Government had published detailed responses to recommendations on two of them within six months, highlighting a potential deficiency in the efficacy of inquiries.

Comment

The Report demonstrates the considerable time and expense spent on public inquiries and how there can be weaknesses in the way inquiries are managed. There are challenges in maintaining the independence of inquiries when departments are both sponsors and core participants, ensuring sufficient monitoring of costs and progress, and ensuring an adequate amount of publicly available information on inquiries is available. Hopefully, the issues highlighted by the NAO around the effectiveness and efficiency of inquiries from the perspective of taxpayers will lead to improvements and greater rigour, in the overall public good.

Andrew Lidbetter Partner +44 20 7466 2066 Email	Nusrat Zar Partner +44 20 7466 2465 Email	Jasveer Randhawa Of Counsel +44 20 7466 2998 Email