The Lucy Letby Inquiry is set to be a matter of extremely high public interest, given the nature of the crimes committed. This has led to questions being raised about the nature of the inquiry. Nathan Critch takes a closer look at the decisions taken by the government and their implications.

On 18 August 2023, Health Secretary Steve Barclay MP announced that a non-statutory public inquiry was to be held “into the circumstances behind murders and attempted murders of babies at Countess of Chester Hospital”. This decision came in the wake of a high-profile scandal and criminal trial, which ended in former nurse Lucy Letby being “found guilty of murdering seven babies and attempting to murder six other infants while working on [the] hospital’s neonatal unit between July 2015 and June 2016”.

Public inquiries are a key mechanism through which British governments investigate and respond to high-profile matters of public concern. They sit independently of government, are typically chaired by members of the judiciary, and proceed through the examination and cross-examination of witnesses and the analysis of documentary evidence. In doing this, inquiries produce reports that shed light on why negative events happened and make recommendations designed to prevent reoccurrence.

Statutory vs. Non-statutory

The government’s announcement of an inquiry into the Lucy Letby scandal, then, is in some ways a typical response to a highly salient negative event. The government’s decision to hold a non-statutory inquiry, however, was controversial. Non-statutory inquiries are inquiries not held under the auspices of the Inquiries Act 2005. The Act gives inquiries the power to compel witness to give testimony and produce other forms of evidence. It also locks the inquiry into a certain set of procedures (Inquiry Rules 2006).

In being held outside the Act, non-statutory inquiries can arguably operate with “greater flexibility”. Government argued that this would allow the Inquiry to move more quickly. Statutory inquiries, so goes the argument, “usually take years to complete and can be delayed by criminal investigations and staff turnover. Concurrent criminal investigations and trials will often demand a similar list of witnesses and experts”.

A question of efficiency?

But does this justification for initially calling the Inquiry on a non-statutory basis actually hold water? Certainly there have been statutory inquiries that have been marred by delays. The Inquiry into the government’s response to the COVID-19 pandemic, for example, has been marred by legal wrangling around the Inquiry’s ability – as a statutory inquiry – to compel government to release certain documents and communications.

Does the justification for initially calling the Inquiry on a non-statutory basis actually hold water?

At the same time, perhaps the longest inquiry in recent memory was the Chilcott Inquiry, which examined the British government’s decision-making and conduct around the Iraq War. This inquiry was non-statutory. Furthermore, Institute for Government analysis which identified ways to “run more efficient inquiries” did not foreground the issue of whether the inquiry was statutory or non-statutory as key to inquiry efficiency.

Several recent inquiries have attempted to find ways to deliver lessons learnt more quickly. The Independent Inquiry into Child Sexual Abuse, for example, was described as the “largest and most ambitious Inquiry ever established”. In order to work efficiently, the Inquiry was split into modules, so that issues could be examined in parallel, and reports could be released as and when different parts of the investigation had concluded. The Baha Mousa Inquiry – which concerned the death of an Iraqi civilian detained by the British Army and accusations that the Battalion in question had mistreated detainees – also adopted a modular approach. Tellingly, the Baha Mousa Inquiry was statutory, and the IICSA, though initially non-statutory, was converted into a statutory inquiry early on in its running. Again, this suggests that the question of being statutory or non-statutory is not necessarily the key to ensuring inquiry efficiency.

Indeed, government’s oft-made assertion that non-statutory inquiries are more efficient has been challenged. Adam Wagner, a barrister who has been involved in statutory and non-statutory inquiries, noted that, whilst not being bound by the Inquiry Rules 2006 may allow for greater flexibility, having to develop “bespoke procedure rules (rather than having an ‘off-the-shelf’ solution) is itself resource intensive and can slow [a non-statutory] inquiry’s progress”.

Public perceptions matter

If the justification that non-statutory inquiries are more efficient does not stack up, then, we might wonder what factors ought to lie behind decisions regarding the statutory basis of inquiries. House of Commons Library research has suggested that, in not being bound by Inquiry Rules, non-statutory inquiries can benefit from being less formal or adversarial. It is also true that statutory inquiries carry the expectation that they will be as public as possible. When inquiries deal with highly sensitive issues, such as matters related to national security, this may prove difficult to achieve or inappropriate. A non-statutory inquiry is arguably less bound by this expectation and can be more flexible on the question of openness and publicness.

For inquiry findings to be authoritative, and for inquiries themselves to reassure the public, they must be seen as legitimate.

It is worth noting that the government have since decided that the Lucy Letby Inquiry will be “upgraded” to have a statutory basis. This points towards another key consideration when setting up inquiries: legitimacy. Ultimately, for inquiry findings to be authoritative, and for inquiries themselves to reassure the public, they must be seen as legitimate. Academic experts on inquiries have suggested that because of the greater powers that statutory inquiries enjoy “statutory inquiries are generally more effective than non-statutory inquiries, particularly where there may be a reluctance on the part of some witnesses to come forward and give evidence”. Indeed, in the case of the Lucy Letby Inquiry, lawyers representing the families of Letby’s victims lobbied for the inquiry to be made statutory, on the basis that only then would the inquiry have “real teeth”.

When taking decisions about inquiry format then, governments often frame and justify their choices in relation to the question of efficacy: which form of inquiry can provide answers and produce recommendations most efficiently. However, inquiries also have an important “symbolic” function to play post-crises, related to reassuring the public and, in so doing, re-legitimating the state. The legitimacy inquiries are considered to have is key to their ability to play this role. However, as the story of the Lucy Letby Inquiry so far has demonstrated, inquiry legitimacy is affected by decisions taken regarding inquiry format. This symbolic role of reassurance and the concept of inquiry legitimacy is therefore crucial to understanding inquiry usage and the governmental decisions regarding inquiry format.

All articles posted on this blog give the views of the author(s), and not the position of LSE British Politics and Policy, nor of the London School of Economics and Political Science.

Image credit: UK Government, Creative Commons — Attribution 2.0 Generic — CC BY 2.0