In 2015, CEDR produced one of the key commentaries on the Public Inquiry process and how to best meet the multiple social needs, and cost effectiveness, that inquiries need to cover.
That inquiries remain beset by conflicting needs and visions of the Inquiry process, is nicely captured by this recent exchange between lawyers for core participants in the Grenfell Inquiry and the Chairman and inquiry secretariat. It would be a major error in my view to turn the inquiry process even more into a mock trial supervised by a judge. Elements of this problem are already present in the assumptions most inquiries make about evidence-giving and the type of person suitable as Chairman.
As we pointed out in our report, the complexity of inquiries and the needs inquiries have to meet, added to the inability of inquiries to find individual liability in any case, mean that a broader perspective is needed on what makes for a good process. Also, who should oversee an inquiry and how to ensure that there is an adequate process for making recommendations workable and effective after the inquiry is of paramount importance. Nevertheless, as we stressed, there is a major component of the Inquiry process to ensure that those who feel they are ‘victims’ do have a voice and are not confined to feeling bystanders.
Perhaps, rather than open witnesses up to cross-examination by the ranks of additional lawyers acting for core participants, the Inquiry should recognise the need for voice by giving legal representatives not just the chance to set out written suggestions on what they want covered with a witness, but also the chance to summarise after the evidence where they think there are gaps in evidence or credibility which should be taken into account by the Chairman. These would be time-limited presentations. It would preserve the integrity of the inquisitorial nature of the core process, while still letting the lawyers as surrogates for clients, have a sort of ‘day in court’ as observers of defective testimony if that is what they want to argue.
Dr Karl Mackie CBE is CEDR's Founder President and one of the most experienced mediators globally. To learn more about Karl's mediation practice visit his website and to book him as a mediator contact the CEDR Commercial Team on 0207 536 6060 or email email@example.com.
No place for court-like cross examination in public inquiries, Grenfell team says