Facade and form: the flexible friends of inquiring minds
Most CPD event organisers are interested in getting people in through the door, not keeping them out, but a recent CPD talk at the Inner Temple entitled 'The conduct of a public inquiry' proved the exception to the rule. A tickets-only event, it sported a policeman at the door. The speakers were Lord Hutton and James Dingemans QC, the chairman and counsel respectively to the inquiry into the death of Dr David Kelly.
Any gatecrashers who were expecting headlinemaking stuff would have been disappointed.
The focus was on the legal and practical problems encountered in conducting an inquiry.
But the insight that was given into the workings behind the facade of this most public of public events was valuable. It also brought to mind a few parallels in more familiar realms.
Lord Hutton explained that it had been for him to decide the form and procedure that would best meet his terms of reference for the inquiry.
Various models have been used in inquiries, depending on the need that has to be met. As the events relating to the death of Kelly apparently gave rise to little dispute on the facts, he chose to adopt a two-stage procedure: the first stage to establish the background facts with questions mainly put by counsel to the inquiry;
the second stage could then focus on particular issues to emerge that bore further investigation.
This contrasts with the need that has been met in other inquiries, such as that into the events of Bloody Sunday, where the extent of disputed facts made a two-stage process impractical.
It was also Hutton's job to decide how to meet the important need that a public inquiry should be public. An application to televise most witnesses giving their evidence, not including Kelly's relatives, was refused. Having carefully considered the human rights requirements of Article 10 (freedom to receive and impart information), Hutton decided that televising witnesses would place unnecessary strain on them.
Also, it was undesirable for some witnesses and not others to be asked to be televised. There might also be witnesses who were asked to be filmed, but refused. Instead, to meet the need for the public to be satisfied that nothing was hidden, full transcripts were published twice daily on the inquiry website.
Similarly, the form of the report of an inquiry is entirely a matter for the chairman. Hutton opted to set out much of the evidence in full, as he anticipated (as he wryly remarked) that his report would be subject to criticism.
As well as these high-level procedural decisions, the audience heard fascinating detail about the frenetic paddling beneath the calm surface that was needed to get the show on the road and keep it there. Witnesses had to be invited to attend and told what they were likely to be asked about. Witness statements had to be prepared. A high degree of cooperation between all parties facilitated efficient time bling of witnesses, whom Hutton wanted called in chronological order. Government documents had to be obtained, numbered, and fed into a database. A clippings service allowed those involved to be up to speed with what was being said in the press.
And all that before anyone so much as drafted a question they were planning to ask. Dingemans acknowledged that he was usually only a few hours ahead of the game, this slipping to 20 minutes between finishing the preparation of his closing comments and having to deliver them in front of the waiting cameras.
The notion of coming up with a oneoff solution to meet a particular need is doubtless familiar to designers. It is also familiar to arbitrators, who use their powers to structure proceedings to achieve timely and cost-effective resolution of disputes. Some of the options are illustrated by Construction Industry Model Arbitration Rules (CIMAR), which are used with JCT forms. They include the inspection of work followed by a short hearing, a documents-only procedure, and a procedure entailing a full hearing. Similarly with mediation, the mediator tries to adopt the procedure most likely to succeed.
Flexible or even tailor-made solutions are perhaps not what immediately spring to mind when thinking about legal processes. But lawyers may have more experience than you think of trying to pick the right horse for a particular course.