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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Persey & Ors v Secretary of State for Environment, Food & Rural Affairs & Ors  EWHC 371 (Admin) (15th March, 2002)
Cite as:  EWHC 371 (Admin),  3 WLR 704,  QB 794
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QUEEN’S BENCH DIVISION
Royal Courts of Justice
London, WC2A 2LL
B e f o r e :
MR JUSTICE SCOTT BAKER
| ROBERT PERSEY & OTHERS|
PETER JACKSON & OTHERS
STEPHEN HINDMARSH & OTHERS
|- and -|
|THE SECRETARY OF STATE FOR ENVIRONMENT, FOOD & RURAL AFFAIRS||Respondent|
|- and -|
|ASSOCIATED NEWSPAPERS LTD|
TELEGRAPH GROUP LTD
BRITISH BROADCASTING CORPORATION
GUARDIAN NEWSPAPERS LTD
|- and -|
|DR IAIN ANDERSON||Interested Party|
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
(instructed by Messrs Clarke Willmott & Clarke) for the Applicant Persey
Stephen Smith Esq, QC & David Warner Esq
(instructed by Messrs Burges Salmon) for the Applicant Jackson
Richard Gordon Esq, QC, Nicholas Bowen Esq & Ms Galina Ward
(instructed by Messrs Gabb & Co) for the Applicant Hindmarsh
Desmond Browne Esq, QC & Mark Warby Esq
(instructed by Messrs Reynold Porter Chamberlain) for the Interveners
Lord Goldsmith QC, HM Attorney-General,
Philip Sales Esq, Paul Harris Esq & Ms Kassie Smith
(instructed by DEFRA) for the Respondent
The Interested Party did not appear and made only written submissions
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Simon Brown:
“To advise the Government on how we can create a sustainable, competitive and diverse farming and food sector which contributes to a thriving and sustainable rural economy, advances environmental, economic, health and animal welfare goals, and is consistent with the Government’s aims for Common Agricultural Policy reform, enlargement of the EU and increased trade liberalisation.”
This Commission was chaired by Sir Donald Curry, CBE who sat with ten members. It has already reported.
“To review scientific questions relating to the transmission, prevention and control of epidemic outbreaks of infectious disease in livestock in Great Britain and to make recommendations by Summer 2002.”
The Inquiry was instructed to “take close account of related inquiries, notably the administrative inquiry into the handling of the 2001 foot and mouth outbreak [the Lessons Learned Inquiry] and the policy commission on the future of agriculture”. At an early stage the Inquiry established three working groups respectively on i) vaccination; ii) surveillance and diagnostics; and iii) prediction, prevention and epidemiology. Initial views were sought by 12th October and detailed evidence by 30th November. Since then various open public meetings have been held.
Lessons Learned Inquiry
“To make recommendations for the way in which the Government should handle any future major animal disease outbreak, in the light of the lessons identified from the handling of the 2001 foot and mouth disease outbreak in Great Britain.”
It is being conducted by Dr Iain Anderson, CBE, working with a secretariat drawn from various Government departments. The Inquiry was to begin once it became clear that it would not distract from the eradication of FMD, and then aim to report within a further six months.
“Question and Answer document
Q6 Why hasn’t a public inquiry been established?
A6 We have always said that we wanted to see an inquiry that is carried out fully and effectively and uncovers the answers as expeditiously as possible and at as low a cost as possible. It is important that we get the right answers.
Q10 What is the role of the ‘Lessons Learned’ inquiry?
A10 It is an independent inquiry to make recommendations for the way in which the Government should handle any future major animal disease outbreak drawing on the lessons identified from the handling of the current foot and mouth disease outbreak in Great Britain.
Q11 Who will conduct the inquiry?
A11 It will be led by Dr Iain Anderson, who has extensive experience of contingency planning, supported by an independent Secretariat drawn from the Civil Contingencies Committee.
Q12 Too big a job for one person?
A12 Don’t believe so. Dr Anderson will be supported by an independent Secretariat.
Q13 Will he have access to all Government papers? Including in 10 Downing Street?
A13 Dr Anderson will have our full co-operation, will have any papers and may speak to all Ministers including the PM.
Q14 Will Dr Anderson have the right to publish internal Government papers?
A14 No, but a report of his findings will be published.
Q15 Will the Inquiry apportion blame?
A15 The Inquiry is concerned with learning lessons and producing recommendations for the future handling of animal diseases. It is not intended that it should be judge and jury on the performance of individuals, it is not concerned with recriminations about the past.”
The Inquiry welcomes views from everyone about the recent outbreak of foot and mouth disease. People and organisations can comment on any issues that they wish to in relation to the crisis, but there are also a number of general questions to which the Inquiry would be interested in receiving responses. These are as follows:
How adequate were the contingency plans at national and local levels for dealing with foot and mouth disease in Great Britain? What were the specific strengths and weaknesses?
How effective and timely was the Government’s response to the emerging crisis nationally and in local communities?
What roles did MAFF/DEFRA, the State Veterinary Service, the devolved administrations in Scotland and Wales, local government, the Armed Forces and others play in the crisis? Were they adequately organised, co-ordinated and resourced to do so?
How ready was the farming industry to handle a major infectious disease like foot and mouth and did the existing national and EU regulatory regimes have any influence? What more could be done to prepare for possible future outbreaks of infectious disease?
Once the scale of the crisis became clear, was the response proportionate to the impact on the wider rural and UK economy?
Would the use of vaccination have made any difference to the scale and/or duration of the outbreak, and its wider impact?
What could have been done differently to alleviate the economic, social and animal welfare impact of the unprecedented level of culling and disposal?
How effective were the communications systems for handling and responding to the outbreak?
[There was then set out the proposed timetable indicating that the Inquiry intended to complete work within six months and to submit a final report by mid-2002 with the possibility of interim findings meanwhile]
The Inquiry will be independent. Its central objective is to draw out the lessons to be learned from the outbreak and to do so as quickly as possible, consistent with ensuring that the process is inclusive, thorough and fair. The Inquiry intends to identify those areas where there were significant shortcomings and failures in processes and will make appropriate recommendations to remedy them. It will also be in regular contact with the other Government-appointed inquiries into foot and mouth disease to ensure a complementary approach.
The Inquiry will not be adversarial. The intention is not to apportion blame on particular individuals. The Inquiry will not be seeking to name particular individuals who may have been at fault, though it reserves the right to do so. Anyone who is subject to potential criticism will be informed and be given the opportunity to respond before the Inquiry report is published.
The Inquiry wishes to provide the widest opportunity for people to contribute to it. It hopes that everyone with an interest in doing so will take the opportunity to submit their views on the handling of the outbreak and what changes should be made in future for tackling animal diseases of this kind.
The Inquiry intends to visit the key regions affected by foot and mouth disease in England, Scotland and Wales to gather information at first hand. The regional events will take the form of private round-table discussions with invited groups of local stakeholders and community representatives, local visits and open public meetings.
The Inquiry has already identified a preliminary list of key individuals and organisations from whom it would like to seek input. These will include those in Government involved in the outbreak and those involved in tackling the disease on the ground. …”
“The decision making process in this case involved considerable consultation and co-ordination between Government departments and with the Prime Minister’s office. The decision itself is the fruit of that process and was a collective one, setting out a Government-wide stance.”
“42 The Government’s principal objectives now that there has not been a new case of FMD since 30th September are to receive recommendations a) to enable it to take rapid steps to minimise the risk of any future outbreak of FMD (or other infectious livestock disease) and to optimise the effectiveness of the handling of any such future outbreak; b) by quickly and efficiently inquiring into the recent FMD outbreak and learning lessons from it.
46 Expedition is a particular requirement of this process of Inquiry because FMD could recur, with potentially devastating effect, at any time. It is a particularly virulent and contagious animal disease.
48 There is therefore an urgent need, with as much despatch as practicable, to address and minimise existing risks from infectious animal diseases and to review and improve contingency plans for handling them.
53 Large inquiries held in public have tended in practice (whatever their intention) i) to take a longer time to report and ii) to concentrate on any perceived culpability on the part of individuals rather than the forward-looking recommendations for the future. A recent example of such an Inquiry in which evidence was taken and scrutinised in public (and in which, of course, DEFRA’s predecessor MAFF was centrally involved) was the Phillips Inquiry into the both BSE and new variant CJD.
64 Given the width of each of the key areas of Inquiry … the Government considered that one set of all-encompassing terms of reference, for one single Inquiry, would carry the risks of becoming unmanageable, too slow, and insufficiently rigorous.
78 … the aim of the … inquiry process is to be forward-looking, and to assist the Government in its policy objective of effectively meeting any future outbreak of a major animal disease. It was the Government’s view that this aim could properly be achieved by taking evidence in private session. While, of course, there is still an obligation to use fair procedures in such a situation, individuals giving evidence in private session do not face the same risk of public criticism.
79 For these reasons, and also because it was considered by ministers that the giving of evidence by individuals (whether officials or private persons) in private can contribute to greater candour, it was considered that the three inquiries announced by the decision should proceed in that fashion.
90 … what is required in relation to FMD is for the body of knowledge about its handling, transmission and control to be brought right up to date and any new lessons be learned in order to inform future Government policy and practice.
92 The Phillips Inquiry was very expensive. It cost in the region of £30 million. There was a wish to avoid such substantial expenditure again, particularly when such sums might more usefully be spent in the rural economy.
99 Even now that the outbreak appears on its way to being finally eradicated, its aftermath is generating a considerable degree of extra work and corresponding pressure within DEFRA and the State Veterinary Service, including from [and there are then listed eight specific activities placing pressure upon the available resources].
100 The Government considered that an Inquiry process in which evidence is taken and scrutinised in public would involve more pressure on officials, compared to an Inquiry process with evidence taken in private. In particular, it would be likely to divert the limited number of professionally qualify experts, such as vets, away from the already existing workload involved in fighting FMD … and from implementing the necessary changes to prevent future outbreaks of the disease.”
“To establish and review the history of the emergence and identification of BSE and variant CJD in the United Kingdom, and of the action taken in response to it up to 20th March 1996; to reach conclusions on the adequacy of that response, taking into account the state of knowledge at the time; and to report on these matters to [the relevant Secretaries of State].”
“51 The pressure on witnesses who gave evidence in oral hearings, particularly those in Phase 2, was immense. This was intensified by the fact that the oral hearings were in public with a constant media presence and in front of an audience that frequently contained members of the families who had lost relatives to nv-CJD.
54 Some witnesses have since commented to me that because the Inquiry was held in public it was not a forum in which those who had been involved in MAFF, and other departments, and who were called as witnesses, felt able to express their opinions about what could have been done differently. This was because they felt that this might be seen as criticising colleagues or exposing them to media attack. There was therefore no real opportunity for those with experience and knowledge to make constructive suggestions about the management of the disease and its handling which could have contributed to the Inquiry’s thinking.
55 I do not wish to suggest that, because of the public nature of the Inquiry, witnesses did not provide full and accurate factual information. That was not the case. However, the public nature of the Inquiry did mean that witnesses did not offer views and express opinions as much as they might have done had there not been such public scrutiny of what they said.
60 There were a number of ways in which the involvement of lawyers (together with the public nature of the hearings) impacted on the procedure before the Inquiry and the duration of the Inquiry process.
61 During the course of the Inquiry I became aware that there was a tension between the role of lawyers, whose concern was to protect the individual interests of their client, and the openness of the process before the Inquiry. Because the witnesses were being advised by lawyers, and, frequently, their written statements had been written with lawyers, witnesses were much more guarded about what they said to the Inquiry than they might otherwise have been. I was aware that certain witnesses were advised by their lawyers not to express certain views or opinions because they might thereby implicate themselves or others. I am convinced that witnesses were, as a result, much more defensive about their actions when giving evidence.”
“Fairness demanded that individuals be given notice of any potential criticisms. Such a course had its costs. Those notified of potential criticisms, and the lawyers advising them, naturally devoted and diverted their efforts to attempting to meet the potential criticisms. This tended to focus attention on the areas to which the potential criticisms related, albeit that these were not necessarily the most important areas of the Inquiry, and thus to unbalance the process.”
“72 It is apparent from Mr Bender’s evidence that the defendant (and the Government) have made the wrong decision because they have asked themselves the wrong question. The question they have asked themselves is, effectively ‘How can we discover most quickly and cheaply what we as a Government need to know for the future arising out of the outbreak of FMD?’
73 But the power to direct that an Inquiry be held in public rather than in private is not solely (or even principally) concerned with the Government’s own desire to learn the appropriate lesson to ensure future better handling of a similar situation. The power to order that an Inquiry be held in public is a power which is concerned with the need of the public to understand what went on, and how and why it went wrong. It is a power designed to restore the confidence of the public in its Government which has been dented (or worse) by the public’s perception of the Government’s handling of a crisis.”
“115 As we have already indicated it is, in our view, of the greatest importance that hearings before a Tribunal of Inquiry should be held in public. It is only when the public is present that the public will have complete confidence that everything possible has been done for the purpose of arriving at the truth.
116 When there is a crisis of public confidence about the alleged misconduct of persons in high places, the public naturally distrusts any investigation carried out behind closed doors. Investigations so conducted will always tend to promote the suspicion, however unjustified, that they are not being conducted sufficiently vigorously and thoroughly or that something is being hushed up. Publicity enables the public to see for itself how the investigation is being carried out and accordingly dispels suspicion. Unless these inquiries are held in public they are unlikely to achieve their main purpose, namely, that of restoring the confidence of the public in the integrity of our public life. And without this confidence no democracy can long survive.”
“In every formal investigation it is of great importance that members of the public should feel confident that a searching investigation has been held, that nothing has been swept under the carpet and that no punches have been pulled.”
“12 The over-riding reason why judicial inquiries are held is the gravity of the incidents, and the belief that both the public anxiety they cause and the interests of the victims can only be satisfied by such an inquiry. In some cases public confidence may be undermined if there is not a perception that an inquiry is full, wide-ranging and independent of Government; for example, in cases where the regulatory functions of the investigatory body are called into question. There will therefore be cases in which public confidence requires there to be an independent judicial figure to hold a public Inquiry.
13 It is understandable that pressure for such inquiries has intensified. Public concern about safety has increased. Expectations of compensation have also increased and lawyers acting for the injured and the bereaved believe that their interests are better served by a judicial than a technical inquiry. However, except where the sort of considerations referred to in paragraph 12 apply, the range of options available should first be considered. The disadvantages of holding a judicial inquiry which need to be borne in mind include the following. First, the use of judges for inquiries is not the best use of judicial resources, because it takes them away from their judicial work and it clothes them with policy responsibilities. Secondly, the appointment of individuals drawn from outside may undermine the role of the professional investigatory bodies. Thirdly, judicial inquiries are necessarily adversarial and they may be prolonged and expensive. … Invariably, one or more counsel to the inquiry will need to be appointed; whilst interested parties will be responsible for arranging their own representation (and legal aid will not be available) such inquiries often result in a recommendation that their costs be met out of public funds. Technical inquiries, on the other hand, tend to be shorter and the expertise to run them is almost always available ‘in-house’. They are likely to be much less expensive.”
“5.3 There are … two purposes of a public inquiry, namely ascertaining the facts and learning lessons for the future. In the vast majority of cases the second is a very important ingredient, especially in the sphere of transport, because it is to be hoped and indeed expected that the detailed examination of the causes of a particular casualty will yield valuable information from which lessons can be learned. It does not follow that it is a necessary ingredient, because of the public interest identified above, namely the ascertainment of the truth. The public (and especially the survivors and the relatives and friends of those who lost their lives) has a legitimate interest in learning the truth of what happened, without anything being swept under the carpet. In some cases that will necessitate a public inquiry, whereas in others it will not.
5.8 The purpose of a public inquiry is simply to ascertain the facts and to make recommendations for the future. A public inquiry should only be ordered in exceptional cases. Public inquiries are very expensive in terms of time and money and in very many cases the facts can be established and lessons learned without such an inquiry. There are, however, some cases in which the public properly expects a public inquiry to take place.
6.4 … In my opinion, both the public at large on the one hand, and the survivors of the collision and the relatives of those who lost their lives on the other hand, were entitled to an open public inquiry into what happened.
13.2 … No private person or entity has a right to a public inquiry. The purpose of a public inquiry … is … to ascertain the true facts and to learn lessons for the future. Most inquiries will have both purposes, but there may be cases where the public interest requires the holding of a public inquiry in order to ascertain the true causes of a casualty, even if relevant lessons have already been learned. A public inquiry should thus be ordered where there is a need for full, fair and fearless investigation and for the exposure of relevant facts to public scrutiny.”
“12 When Lord Justice Clarke talks of restoring public confidence, we should add from our experience that a Public Inquiry of itself cannot, and perhaps should not seek to, restore public confidence. The public’s confidence in any particular organisation’s or even government’s role in any particular area has to be won. Indeed, a Public Inquiry may reach the view that confidence is not deserved unless certain actions are taken. It is here, as Lord Justice Clarke observes, that learning the lessons of the past comes in, and, of course, the framing of recommendations to give effect to those lessons.
14 Whatever its particular terms of reference, a Public Inquiry should attempt to promote understanding, not only of what may have gone on, but also what led to the events which are the subject matter of the Inquiry, and what may have been the motives and intentions of those involved. In this way, the complexities that surround all events and actions can be exposed and explored. The black and white uncertainties advanced by some may be shown to be illusory and unhelpful.
15 A Public Inquiry should aim, indeed it may be as much a duty as a purpose, to be a means whereby all those affected by the events under investigation can feel that their concerns have been aired and heard and that life can move on. It is commonly the case that events leave those touched by them in some kind of personal limbo, prevented by the past from creating a future. We found this to be particularly the case in our inquiry: not just parents and doctors, but the hospital trust and even the city were caught up in the Inquiry. …
16 Further, a Public Inquiry, whatever its formal terms of reference, offers the opportunity for a form of communal catharsis. The importance of this purpose should not be undervalued. It offers an opportunity for those in authority to be held to account; it allows for the public venting of anger, distress and frustration; it provides a public stage on which this can take place.”
“22 An inquisitorial approach: the approach we adopted was … wholly inquisitorial. By this we mean that the Inquiry identified the witnesses it wished to hear from and that the witness’s evidence was explored and tested by counsel to the Inquiry on the Inquiry’s behalf. That is not to say that by adopting this approach we ignored the ordinary principles of fairness and due process. Rather, we designed our procedures to meet the needs of the Inquiry, respectful of the duty at all times to show fairness to all those affected by the Inquiry. For this reason, for example, everyone who could be said to be criticised in a material way by any other witness’s evidence was given an opportunity to comment in advance of that evidence being made public. In this way, evidence was always placed in a wider context. Equally, we greatly needed the assistance of the lawyers who represented the many participants and pay tribute here to the help they gave us. What was different was the role which we asked them to play. Rather than proceed in the oral hearings by way of examination and then cross-examination (sometimes by a number of parties) we formulated a procedure whereby the questioning of witnesses was carried out by counsel to the Inquiry. All other counsel, representing the range of participants affected by or interested in the Inquiry, liaised with the Inquiry’s counsel to ensure that all lines of examination were pursued and questions put. The opportunity to cross-examine existed, but the procedure worked with such success (not least due to the co-operation of all concerned) that, in the event, no application to cross-examine was made throughout the 96 days of the hearings. Not only did this save time (and expense) but also ensured that the Inquiry was conducted calmly and without rancour.”
“… in many cases where it is sought to allay public concern it will be thought preferable to conduct the proceedings under the public eye, but the facts of different cases vary infinitely and had the Secretary of State established an Inquiry under section 84 [the major complaint being that he had failed to do so] it would have been very hard, if possible at all, for the parties to challenge a decision made then or thereafter that the Inquiry should not be held in public.”
“To my mind the Secretary of State might well have been at fault had she treated cost as the only consideration but she cannot be said to have erred in considering cost to be a material consideration. It is an undoubted truth that a statutory Inquiry conducted in public would last longer and cost more and the money so spent would of course otherwise be available for the care of patients. This was pre-eminently a matter for the judgment of the Secretary of State.”
“The Commission notes that the Inquiry which was held into the Allitt affair was presided over by Sir Cecil Clothier, an ex-Ombudsman, and it is satisfied that the Inquiry was effectively independent of the parties involved in the case. Further, while the Inquiry did not have powers to compel discovery or witnesses, it does not appear that the Inquiry was refused access to any document or that any witness refused to attend. … While the Inquiry did not conduct itself in public, its findings and recommendations were made public. The report identified a number of shortcomings which could have contributed to the ease with which and the length of time over which Allitt had conducted her attacks, and it made recommendations to avoid the same mistakes being repeated in future. … The Commission acknowledges that neither the criminal proceedings nor the Inquiry addressed the wider issues relating to the organisation and funding of the National Health Service as a whole or the pressures which might have led to a ward being run subject to the shortcomings apparent on Ward Four. The procedural element contained in Article 2 of the Convention, however, imposes the minimum requirement that where a State or its agents potentially bear responsibility for loss of life the events in question should be subject to an effective investigation or scrutiny which enables the facts to become known to the public, and in particular to the relatives of any victims. The Commission finds no indication that the facts of this case have not been sufficiently investigated and disclosed … The wider questions raised by the case are … matters for public and political debate which fall outside the scope of Article 2 and the other provisions of the Convention.”
What then were the considerations to which the Secretary of State should have had regard when deciding as he did, … on 12th April 2000? … There were a number of factors which might be regarded as persuasively in favour of opening up the Inquiry, namely -
(1) The fact that when a major disaster occurs, involving the loss of many lives, it has often been considered appropriate to hold a full public Inquiry, and the case for such an Inquiry would seem to be enhanced where -
(a) there is doubt as to how many and which deaths are properly attributable to the known cause of many other deaths;
(b) the fact that deaths occurred over a long period without detection is suggestive of a breakdown in those checks and controls which should operate to prevent such a tragedy;
(c) as a result there is likely to be a widespread loss of confidence in a critical part of the National Health Service which needs to be addressed.
(2) There are positive known advantages to be gained from taking evidence in public, namely -
(a) witnesses are less likely to exaggerate or attempt to pass on responsibility;
(b) information becomes available as a result of others reading or hearing what witnesses have said;
(c) there is a perception of open dealing which helps to restore confidence;
(d) there is no significant risk of leaks leading to distorted reporting.
All of this is clear from the 1991 Lord Chancellor’s Advice, cases such as R -v- Legal Aid Board, ex p Kaim Todner  QB 966, 977; the Clarke Report; and the experience of Sir Louis Blom-Cooper to which I have referred.
(3) The particular circumstances of this case militated in favour of opening up the Inquiry because -
(a) by April 2000 it was clear that was what the families wanted, and that the Secretary of State had been mistaken to think otherwise. As he chose to rely on what he had believed to be their state of mind he should have consulted them before reaching his decision of 27th January 2000, and he should therefore have given them a proper opportunity to deal with his new reasons for maintaining his position if he was not to accede to the written submissions of their solicitor;
(b) the wide and unamended terms of reference gave those relatives and friends of persons not named in the indictment good reason to believe that the Inquiry would investigate how and why their relatives died;
(c) even if Parliament was not misled, what had been said and what had not been said in the House of Commons on 1 February 2000 had for obvious reasons given rise to misunderstanding;
(d) there was no obvious body of opinion in favour of evidence being received behind closed doors;
(e) given an inquisitorial procedure and firm chairmanship, there was no reason why the Inquiry should take longer if evidence were taken in public, nor was there any tangible reason to conclude that any significant evidence would be lost.
(4) Where, as here, an inquiry purports to be a public Inquiry, as opposed to an internal domestic Inquiry, there is now in law what really amounts to a presumption that it will proceed in public unless there are persuasive reasons for taking some other course. Although article 10 of the Convention is not yet incorporated into English law it does no more than give expression to existing law as to the right to receive and impart information.
(5) If the inquiry has been conducted in public, then the report which it produces and the recommendations which it makes will command greater public confidence. Since all members of the community, especially the elderly and vulnerable, have been accustomed to place great trust in their GPs, such restoration of confidence is a matter of high public importance.
The decision of 12th April 2000
So we come to look again at the decision of 12 April 2000. The Secretary of State said that in making it he had three considerations in mind.
(1) Speed. Obviously it is desirable for information to be gathered while memories are still relatively fresh, even though some relevant deaths took place several years ago, and it might well be desirable not to have a full adversarial Inquiry, but the comparators which the Secretary of State chose were plainly inapposite because of the amount of material with which they had to deal, and no reason was advanced as to why a non-adversarial inquiry or one that severely restricted adversarial methods should not fully eliminate the risks of delay.
(2) Candour. The belief that an Inquiry shorn of its adversarial features and the distractions of media interest can yield a far greater depth of information is a tenable point of view. It derives some support from what was said by Sir Cecil Clothier in his report on the Allitt Inquiry, but it is plainly now what might be described as a diminishing minority point of view, incapable in the circumstances of this case, where no vulnerable witnesses are apparently involved, of standing up to the weight of the arguments in favour of an open inquiry, as the Secretary of State might have appreciated if he had given the families a proper opportunity to comment on this proposed reason for deciding as he did.
(3) The assertion that a private hearing “will not be any the less exacting or vigorous” is, Mr Ullstein submits with some force, self-evidently fallacious. If witnesses do not know what others say they will not, unless invited to do so, be able to comment on what has been said, and the inquiry may not even know that they can assist. Thus the totality of the information available will be reduced, and the ability to test one piece of evidence against another will be inhibited.
Conclusion on Main Issue
Mr Elvin invited us to regard this decision as to whether the inquiry should sit in private or in public as policy-laden. We disagree, and for the reasons we have set out we are driven to conclude that it was irrational.”
“It is clear from the evidence before us that over the last decade there has been no uniform practice, and no doubt in each case much has turned on facts peculiar to that case such as the complexity of the information, the need for confidentiality of material, the perceived demand for public accountability, the aims of the inquiry, the need to obtain a speedy result, the desirability of obtaining access to material which might not be available if one form of inquiry were chosen as opposed to another, the costs involved and so forth.”
“The full glare of a public hearing … is necessary … [because] [it] … maintains the public’s confidence in the administration of justice.”
A good example of such an inquiry (in fact non-statutory) was Sir Richard Scott’s inquiry into the sale of arms to Iraq (which, incidentally, took 3¼ years to report). A paragraph of his report under the heading “Public Hearings” included this:
“The Inquiry was set up in order to investigate allegations regarding the manner in which certain Government officials and Ministers had discharged their official duties. The public, on whose behalf and for whose benefit government is conducted, is entitled, in my opinion, to expect that an inquiry into the propriety of acts of government will be open to the public save to the extent that some overriding public interest requires the contrary.” (emphasis added)
“… as we have already indicated, the objects of that inquiry [in Crampton] as set out in its terms of reference were markedly narrower than the terms of reference with which we are concerned.”
“…no reason was advanced as to why a non-adversarial inquiry or one that severely restricted adversarial methods should not fully eliminate the risks of delay.”
“It is frequently asserted that witnesses before an inquiry held in private are thereby more inclined to be candid about their testimony. My experience on the whole accords with that view, but there is a distinct downside to that benefit.”
“[Counsel for the applicants] submitted to us that the decision that the inquiry should receive evidence in private interfered with the families’ freedom of expression because without sufficient reason it curtailed their right to receive information from other witnesses, and to impart information to the inquiry as a result.
In Leander -v- Sweden (1987) 9 EHRR 433 the European Court of Human Rights was concerned with an applicant who had been refused a job because of information on file which was said to indicate that he was a security risk. Dealing with Article 10 of the Convention under the heading ‘Freedom to receive information’ the court observed, at p456, para 74:
‘the right to freedom to receive information basically prohibits a government from restricting a person from receiving information that others wish or may be willing to impart to him.’
That was relied upon by [counsel for the defendant], but we find it difficult to understand how it assists his case. On the face of it the Secretary of State is thereby prohibited, in the context of the present case, from restricting a family witness waiting to give evidence from receiving information that others who are currently giving evidence wish or may be willing to impart to him, namely an accurate account of what they are saying, not based simply on their own imperfect recollection after they have finished. Furthermore, in Autronic AG -v- Switzerland (1990) 12 EHRR 485 the applicant company had been refused permission to receive uncoded television programmes. The European Court said that article 10 applied to profit-making corporate bodies, and continued, at p499, para 47:
‘Article 10 applies not only to the content of information but also to the means of transmission or reception since any restriction imposed on the means necessarily interferes with the right to receive and impart information.’
So on the face of it, the present prohibition on reporting would appear to be a breach of article 10 of the Convention.
The same approach was adopted by the European Court of Human Rights in Vereinigung Demokratischer Soldaten Österreichs -v- Austria (1994) 20 EHRR 56, which concerned the refusal to distribute a particular magazine with military periodicals distributed free to soldiers. The court said, at p 80, para 27:
Such a practice was bound to have an influence on the level of information imparted to the members of the armed forces and, accordingly, engaged the responsibility of the respondent state under article 10. Freedom of expression applies to servicemen just as it does to other persons within the jurisdiction of the contracting states.’”
“… the right to freedom to receive information basically prohibits a government from restricting a person from receiving information that others wish or may be willing to impart to him. Article 10 does not in circumstances such as those of the present case, confer on the individual a right of access to a register containing information on his personal position, nor does it embody an obligation on the government to impart such information to the individual.” (That approach, I may note, was subsequently applied by the ECtHR in Gaskin -v- United Kingdom (1990) 12 EHRR 36 to rule out access to a case file prepared on the applicant whilst in care.)
“That freedom cannot be construed as imposing on a State, in circumstances such as those of the present case, positive obligations to collect and disseminate information of its own motion.”
“59. I accept that there is a right to film or photograph an event taking place in public. I am not convinced that it is a right which is guaranteed by Article 10. However, I am prepared to accept for the sake of the present argument that it is. If that right is guaranteed by Article 10, why does Article 10 not guarantee a right to film the Inquiry? If a television crew wishes to film a man who is addressing the crowd from a soap box at Speakers’ Corner, there is nothing the man can do about it if he does not want to be filmed. (All he can do is to stop and go away, thereby losing his right to freedom of expression.) The television company is in the same position as Autronic. It has a right to film him even if he does not consent, because in practice he cannot prevent it. A police officer would not help him to prevent it, unless perhaps he thought that the filming would give rise to a breach of the peace. In the course of argument, I asked [counsel for the Attorney-General] why the proceedings of an Inquiry are different from an event taking place in a public street or park. His answer was that the difference lies in the Inquiry’s inherent right to control its own proceedings. No-one has any right to control the public event. I think he was right. A similar distinction can be drawn between an event taking place on the street and one which takes place inside, say, a football stadium, where an entrance fee is charged. The public has right of access, on payment of a fee, but does not have the right to film the match. Neither do the television companies, who often pay dearly for permission to film and broadcast such an event.
60. My conclusion is that Article 10 does not provide a right to film a public event if the person with lawful control of the event is not willing to allow it. This is a direct application of the principle in Leander. If no person has lawful control, then there is a right to film, because in practice there is nothing to prevent it: see Autronic. …”
“I believe that I have a daunting task but am determined to produce a valuable and comprehensive report on the issues within the remit of the Inquiry. … I firmly believe that an inquiry conducted in the way that is currently proposed is the best means of fulfilling the terms of reference. I do not feel that I am being put under time pressure with the result that I will be unable to follow up potential lines of inquiry. … I have repeatedly made clear that it is my intention to conduct a thorough, independent and rigorous inquiry which produces meaningful recommendations. That remains my intention and the inquiry is conducted in such a manner as to realise those aims.”
Mr Justice Scott Baker:
LORD JUSTICE SIMON BROWN: For the reasons given in the judgment that has already been handed down these applications for judicial review are refused. Because there are one or two people in court who may not have access to these judgments, it appears to me that it might just be helpful to read just three paragraphs of the judgment. The first 65 paragraphs of mine deal with all the various grounds, I just read the last
"66. It follows that in my judgment no substance is shown in any of the many grounds of challenge. I think it important, however, that in dismissing these applications the court does not give the impression that it itself regards the decision to hold the Lessons Learned Inquiry in closed session as necessarily the "right" decision. The question for the court is not whether the position is right or wrong, wise or unwise. We are deciding no more than that it is one properly open to government to take and incapable of being impugned as irrational or otherwise unlawful. It is, to my mind, pre-eminently a political decision and one for which the Government will ultimately have to answer at the ballot box.
67. By way of a final footnote I add just this. In the course of argument we explored with the claimants' counsel just what orders they were in fact seeking not least with regard to the continuation of Dr Anderson's inquiry. No-one, as I understood it, in the end suggested that Dr Anderson's inquiry should be halted. That would, indeed, be a remarkable conclusion: just imagine the consequences if, say, next winter there were a further outbreak of FMD with no recommendations in place based upon the lessons learned. Nor did anyone seriously suggest that Dr Anderson's inquiry could now be re-constituted to sit in public - not least because there remains the challenge to his competence and independence. Rather what appears to be suggested is that the government must now be required to reconsider the whole matter, with the Court meanwhile declaring that its only lawful decision would be to set up a full-scale open public inquiry to report after Dr Anderson has reported. That in reality is what the claimants seek. I do not believe that it lies in the court's power to order it."
And my Lord added in his judgment the following conclusion:
"Accordingly, although I have considerable sympathy with the claimants in their desire to have a full investigation in public into the way in which the foot and mouth outbreak was handled, I have reached the clear conclusion that the defendant's decision was a lawful one with which we cannot interfere."
Obviously those are just the concluding passages in our respective judgments. The judgment can only be properly understood by being read in full.
We are grateful to all counsel for their very full and helpful written submissions as to the consequences of these judgments, and may we presume that all counsel have said there what they wish to say.
Taking the respondent's draft order as our, so to speak, starting point, we make the orders in paragraphs 1 and 2. Those of course simply reflect the fact that we have treated these applications as substantive applications and the court has allowed the media to intervene in all three cases. Paragraph 3, we have already made the order dismissing the applications. Paragraph 4 deals with costs. As to costs, we conclude that there is no proper reason not to order costs in the respondent's favour. These are not costs which the long suffering tax payer should have to pay, however rather than the order suggested in paragraph 4, we think it right to make the order suggested by Mr Smith, namely that following detailed assessment the respondent's costs are to be paid in equal shares by the four sets of parties, i.e. each set of claimants and the intervenors. We, of course, recognise that Mr Browne was seeking a lesser order. That we do not regard as favourable. Paragraph 5, we do not grant permission to appeal. Of course we do not doubt the importance of the case, but equally we do not doubt its lack of legal merit. We can see no real prospect of success on any appeal, nor can we see any other compelling reason for granting permission. If it really is thought profitable to seek to carry this matter further then an application will need to be made to the Court of Appeal.
MR BROWNE: My Lord, I do not seek to go behind the percentages that your Lordship has ruled in favour of, but could I just enquire as to whether it is your Lordship's intention that the order should be joint and several against the media intervenors, because, in our respectful submission, it would be wrong in principle to make a joint and several order against the media intervenors --
LORD JUSTICE SIMON BROWN: You pay your quarter. Within your band of brothers what are you contemplating?
MR BROWNE: My Lord, all I wanted to be clear about was whether your Lordships were making a joint and several order.
LORD JUSTICE SIMON BROWN: No, each of the four parties, including you as intervenors, pay one quarter.
MR BROWNE: Thank you.
LORD JUSTICE SIMON BROWN: Of course within each of the four parties there is more than one --
MR BROWNE: Yes, that I understand.
LORD JUSTICE SIMON BROWN: -- individuals in each of the three separate bodies of claimants, and there are a host of media owners --
MR BROWNE: Yes.
LORD JUSTICE SIMON BROWN: It is joint and several as between, for instance, Associated Newspapers and Telegraph Group, but not as between them and Mr Persey --
MR BROWNE: That I understand. It was the latter point I wanted to clarify.
LORD JUSTICE SIMON BROWN: Thank you.