Public inquiries and Anglo-Saxon legal procedures

The Covid-19 Inquiry (the Inquiry) chaired by Lady Hallet has just issued its second report – at great length and with very little illumination. It is like the Bible: many will cite it as confirmation of their prior views and few, if any, will be persuaded by its contents. Of more interest is the way in which different commentators react to the report and what aspects they choose to highlight. In this article I want to set aside the merits or demerits of the findings in the report and focus on the process by which the panel went about their task because, in my view, this illustrates the weaknesses of Anglo-Saxon legal procedures.

There is a myth, particularly strong in the UK, that what are called judge-led public inquiries are a way at getting at the “truth” of highly contentious issues or scandals. Quite apart from the increasing expense of carrying out such inquiries, the Inquiry should have knocked that idea permanently out of the field. However, the reasons for political disenchantment with public inquiries are quite different from what any serious analyst would regard as their defects.

Lady Hallet and the Inquiry team seem to have regarded its functions as essentially performative and cathartic. They provided an opportunity for various groups to express their distress at the “slings and arrows of outrageous fortune”, and for commentators to express their disdain for politicians and bureaucracies who clearly had no understanding of what was going on. While giving the pretensions of the Blob a good kicking may be briefly satisfying, it is also profoundly misleading. The Inquiry consciously gives the impression – based, of course, on 20-20 hindsight – that if only things had been managed their way, the outcome would have been very different.

The news headlines focus on the claim that if stringent measures had been implemented a week earlier in March 2020, about 23,000 lives would have been saved. This is utter nonsense, as an article on Unherd by David Paton explains. Why would an Inquiry Report repeat nonsense that any competent statistician or computer modeller would reject out of hand? The reason lies in the combination of the Anglo-Saxon tradition of bright, but ignorant, amateurs and the rules of evidence.

The Inquiry either invited or received evidence from the Imperial College modelling group which contained such a claim, though this was only one number from a range of equally dubious forecasts. People with more statistical and modelling competence than the Imperial College were either not invited to submit evidence or had better things to do. Hence, what the Inquiry had in front of it was highly contentious evidence that was, however, not disputed in any other evidence. Judges, judicial panels and similar bodies are not supposed to do their own research and so the Inquiry team chose to highlight evidence that in the mind of anyone competent in the area labels the whole exercise as a farce.

Let us be clear. The situation facing decision-makers in March 2020 was a clear example of the fog of war. Forecasts of large numbers of “deaths” were being bandied about by media outlets with absolutely zero knowledge of what they were talking about. There were claims, many of which were highly misleading, about what was happening in China and Italy as well as what lessons could be learned from the Diamond Princess episode. Journalists and supposed experts would talk about Case and Infection Fatality Rates – often confusing them – as well as different measures of Covid prevalence based on no clinical evidence and rather unreliable testing. There was the never-ending confusion between deaths with Covid and deaths due to Covid.

In these circumstances, it is not entirely surprising that politicians and bureaucrats panicked. The criticism, of course, is that such eventualities are exactly why governments and organisations draw up contingency plans. That is what emergency planning is about, and it was the decision to throw contingency plans out of the window which exacerbated the panic and chaos.

There is another consideration. Anyone with any real expertise in statistics and modelling knew by mid-April – without a shadow of doubt – that the forecasts publicised in the media were simply wrong. The wave of Covid infections peaked before emergency measures were adopted. Hence, those measures could have been suspended a month earlier, thus causing much less economic and social harm.

None of this is reflected in the Inquiry report, either because the Inquiry did not solicit or receive relevant evidence or because it wasn’t interested in anything beyond gossip, media reports and, in general, the ephemera of elite chit-chat. This inference is reinforced by its failure to consider what was very strong evidence on the costs and benefits of lockdowns that were produced by highly reputable economists – including a current member of the OBR – in May-June 2020. This evidence should have played a crucial role in decisions to re-impose lockdowns after mid-2020 but was simply ignored in favour of more spurious forecasts of Covid deaths.

The adversarial tradition of Anglo-Saxon legal procedures – England, the US, Canada, Australia, etc – is very poorly suited for forensic inquiries. In simple terms, conclusions or decisions are only supposed to be based on evidence that is formally presented and which is tested by advocates who are often aggressive and unpleasant. In the case of inquiries there is very little incentive to offer evidence, especially by those with no direct involvement who are unlikely to be criticised. Compelling witnesses to submit evidence is highly questionable, especially if significant time and effort is required.

The whole process is made worse if competent and well-intentioned witnesses are treated in a dismissive or aggressive manner by the Inquiry personnel or other lawyers. The outrage expressed by Professor Carl Heneghan in Trust the Evidence about the way in which he was treated by the Inquiry illustrates the consequences of such behaviour. Treating any expert who challenged the Inquiry’s preconceived views as a hostile witness, which is standard in adversarial legal processes, undermined any prospect that the Inquiry might produce a competent and independent assessment.

My experience, though in a different context, has been similar. Inquiries by Parliamentary Committees are similar. They are supposed to offer a way of collecting and assessing evidence on important issues of policy. In practice, they are often dominated by lobbyists and questions to witnesses are usually treated as an opportunity for political grandstanding. In my view, there is little point in submitting evidence to such inquiries, even when requested to do so, because the process is largely a charade.

A separate issue in the UK is the tendency to conflate ignorance with lack of bias. This reflects the theory that legal decisions should be based only on the evidence presented and not on the prior knowledge. The principle is understandable in criminal cases where members of a jury may be prejudiced for or against a defendant because of information that would not be permitted as evidence. However, it is nonsensical when dealing with highly technical matters.

Another anecdote. When I was a member of the Infrastructure Planning Commission, I had a discussion with the senior member responsible for assigning Commissioners to cases. The gist of it was that I could not be assigned to cases in any areas that I knew “too much” about. Roads were ok but not energy projects, because of the concern that my experience and knowledge could lead to concerns about bias. This was before I had embarked on my studies of renewable energy. Later, the IPC, which was merged with the Planning Inspectorate, changed tack because of a shortage of qualified people, but it is an illustration of the judicial frame of mind. Expertise is dangerous because it can lead to claims of bias.

Hence, what Judicial Inquiries tend to finish up with is groups of lawyers, who may be fluent in legal matters but lack serious technical expertise, trying to deal with issues that are, bluntly, far beyond their competence and experience. The same pattern occurs in planning inquiries as most Planning Inspectors and Reporters have a background in town planning but are uncomfortable in dealing with technical issues such as noise, water management, and industrial pollution. Consequently, environmental assessments frequently contain significant amounts of nonsense simply because the parties represented at planning inquiries don’t understand the issues. This allows project developers to get away with claims of a type that would not pass muster if presented to an engineer.

This matters because there is a central confusion between what the public and the political system expect of public inquiries and what legal procedures can deliver. In most court proceedings the intention is to establish (with some degree of confidence) matters of fact. Did a specific individual commit theft by stealing certain goods on a particular day from a particular property? Did a company fail to comply with the terms of a contract to deliver goods of a specified quality to the contract’s counterparty? The consequences of establishing those facts are then prescribed either in law or in the contract. Thus, Anglo-Saxon legal processes have developed as a mechanism for establishing facts subject to laws of evidence that are designed to protect parties from reliance on irrelevant and potentially prejudicial material.

Public inquiries concerning planning decisions blur this clarity. They deal with many issues of fact. Will a development cause a “significant” increase in the volume of traffic affecting certain communities? Will a factory lead to a “significant” increase in the amount of water or air pollution in a river or town? Once there is an accepted definition of what is mean by a “significant increase”, these questions are, at least in principle, matters of fact.

However, a planning inquiry is required to go beyond matters of fact by making a judgement as to whether any “significant” increase in traffic or pollution is “acceptable” or “unacceptable”. But, to whom and on what criteria are they acceptable or unacceptable? To dress up matters of judgement as matters of fact, such questions are often converted to matters of language or measurement. Is an increase in traffic or pollution “significant” (acceptable) or “highly significant” (unacceptable).

The public – outsiders – are often outraged at planning inquiries because they see insiders – developers, lawyers, planning officials, and decision makers – engaged in a charade of pretending that matters of judgement are really matters of fact. This leads to the (correct) conclusion that planning inquiries are little more than public theatre designed to allow the pretence of public participation while subverting its substance.

In practical terms, it is easy to understand why insiders are inclined to pretend that they are dealing with matters of fact. This is what the legal system is comfortable with, especially because it allows technical issues to be considered using simple yes-no questions, which minimises the need for technical understanding and assessments. Nonetheless, it is all pretence, which has serious long-term consequences.

The public see through the charade and lose any confidence that they might have in the unbiased or objective nature of the process. They see it as an illegitimate way of making decisions that are either ideological or favour particular interest groups. That, in turn, leads to a reliance on legal warfare to delay or block decisions being made. This is often presented as NIMBY-ism by lobbyists and commentators. In fact, it is something more complex which reflects a reliance on legal processes that fail to achieve any kind of – possibly reluctant - public consent to important decisions affecting communities.

To return to the Covid-19 Inquiry. Its Report presents a finding that 23,000 deaths would have been saved if stringent controls affecting transmission of the virus had been introduced a week earlier. That is not a matter of fact emerging from a reasonable legal process but simply an opinion expressed in evidence by witnesses whose views were not – and could not be – challenged adequately. Any proper examination of that claim would have to had to start from assessments of excess mortality – i.e. the number of deaths that occurred over, say, a month minus the number of deaths expected in the same period in a “normal” or average year.

And what if mortality from mid-March to mid-April 2020 was indeed 23,000 higher than expected but it was 23,000 lower in the period from mid-April to mid-July 2020? Understanding apparently simple facts of this kind relies heavily on context and interpretation. The Inquiry was entirely unequipped – and uninterested – in collecting and analysing such information. This is not to say that judges and lawyers cannot ever do this, but a process that relies upon evidence submitted by witnesses with strong personal or other interests is entirely unsuited to examining complex technical issues.

There is an alternative model for managing such inquiries, which is the Royal Commission. These are usually not chaired by judges and do not follow standard Anglo-Saxon legal procedures involving lawyers and the rest of the judicial mumbo-jumbo. They are forensic in nature and rely heavily on commissioned papers in addition to submissions from outside parties. Their role is to weigh evidence and make recommendations but not to assign blame or make findings of fact.

Royal Commissions have fallen out of favour because they are believed to be cumbersome and slow. That has been in the case in the past because governments wanted to postpone decisions. We know from other cases – e.g. the NASA inquiry following the Challenger space shuttle accident – that a forensic inquiry can easily collect and analyse information in an expeditious manner. Further, judicial inquiries in the UK have become much slower since it was accepted that people who might be criticised had the right to submit evidence and defend themselves.

In summary, the Covid-19 Inquiry is an entirely wasted opportunity. Yet another long document that will be consigned to the wastebin of history. The main practical lesson is to ensure that your text and WhatsApp messages are deleted before anyone can demand them as evidence. Some believe that was the intention from the outset. For others the outcome was determined by a combination of the nature of the Inquiry team and the assumptions built into Anglo-Saxon legal procedures.

Whatever the reasons, the Inquiry’s findings will be discarded when future pandemics must be managed. No matter what the Inquiry claims should have been done, the UK and other countries are in no financial position to be able to waste the massive amounts of public money that were thrown away in 2020-21. Sacrificing roughly 20% of pre-pandemic GDP and incurring long-term debts of 15% to 20% of GDP is not a sustainable option for any European government in current and likely future economic conditions.

By focusing on political and media ephemera, the Inquiry has simply confirmed that the UK’s politicians and bureaucracy are incapable of mustering any degree of practical and technical competence in thinking about how the country should deal with future crises of this kind.

Addendum: I wrote and posted this article before I watched the brilliant piece by Freddie Sayers on Unherd commenting on the Report of the Covid-19 Inquiry. Having watched it, I urge readers to watch as much of the piece as they can bear. There is a central question implied by his presentation: Is a large part of the British Establishment clinically insane? How can any intelligent group of lawyers and bureaucrats produce an 800-page document arguing that lockdowns should have been imposed earlier and harder not examine the question of what the costs of lockdowns were and what might the costs of even more draconian lockdowns have been? Many might think of Einstein’s supposed definition of insanity - i.e. to repeat the same experiment or policy in the expectation that the result will be different. My reference point is the group who attempted to mount a coup against Mikhail Gorbachev in 1991 on the grounds that what was need to combat the USSR’s economic crisis was “more communism”.