Based on our combined experiences with eight commissions and panels of inquiry during the past five years, we believe there are some basic questions that any commission should consider during its first days. Answering these questions should help the commission develop a strategic plan, a vital first step toward establishing timelines and implementing the mandate.

This article poses some of these questions and briefly discuss their significance. In all cases, we are referring to commissions that are at arms length from government, and are described as independent. Throughout, we refer to persons appointed to head commissions of inquiry in the plural; we mean this to include sole commissioners as well. As each commission is unique, the discussion is framed in general terms.

1) What are the commission's Terms of Reference?
Should they be amended?

A commission's Terms of Reference describe the parameters within which the commission's mandate must be fulfilled. Commissioners must thoroughly understand all that is implied in the Terms of Reference if they are to draft an implementable strategic plan.

Developing an initial list of specific questions derived from a careful analysis of the Terms of Reference will help the commissioners establish a clearly defined set of objectives for the inquiry. Questions they should ask include: What issues does the commission want to address or report on (and what things does it not want to address)?

Developing the list of questions will also help the commission decide if the Terms need to be amended to ensure the mandate can be fully realized. If it is necessary to change the Terms, amendments should take place as soon as possible. This usually involves negotiations with government; commissioners should recognize that they can exert considerable influence on the scope and nature of their mandate due to their independence.

Some commissioners may be consulted before the Terms of Reference are finalized. In fact, it may be best if government does not finalize Terms until after consulting the commissioners it proposes to appoint. This not only helps ensure that the commission operates in a timely and cost- effective fashion, it should also affirm for government that they have selected persons able to complete their tasks, meet the Terms and produce an implementable final report. It will also help avoid a number of "conflict points" in the commission's relationship with staff, government bureaucrats and other affected parties.

Agreeing to the Terms in advance does not mean that the subsequent process of research and discovery will not lead the commission in unanticipated and important directions: some degree of vagueness in the Terms can be of benefit. It is important, however, that the original mandate be achievable if the inquiry is to avoid the expense and confusion of redefining its objectives at a later date.

If government feels a commission's interpretation of its Terms of Reference is incorrect or excessive, it can amend the mandate and thereby redirect or limit the scope of the inquiry. It can also impose budgetary restrictions or time limits on the commission that can have a similar effect. While rare, these actions represent significant challenges for commissioners.

An inquiry is an iterative process driven by research, analysis and consultation. Because of this, reviewing and refining the strategic plan should continue throughout the commission's mandate.

If the Terms of Reference have been properly developed, it should be fairly easy to identify the primary issues. But that may not necessarily be the case in the early stages of every inquiry. Further, a number of secondary issues can also arise that can either muddy the waters or increase the complexity of the original task.

Obtaining the best and most relevant information is critical to fully addressing a mandate, therefore early consideration should be given to where the information is and how to get it.

What information is needed to address the selected issues?

How will the commission collect the required information?

What sort of analysis of the collected information will
be required?

Will government have most or all of the necessary information?

Will individual citizens or corporations have some?

How accessible will that information be?

Will it be necessary to hire research staff to search for
and summarize that information?

Will it be necessary to issue subpoenas to obtain certain
information?

How will government respond to the commission's requests for
information?

Will it take a one-window approach to providing information
or will the commission have to approach a number of ministries?

How will the commission coordinate its requests for information?

3)How will the commission structure itself?

A commission mandated to advise government or develop policy recommendations will develop a different strategic plan than one mandated to investigate and determine fault or one asked to help negotiate a settlement. As noted in an earlier article in this journal:

Generally speaking, a commission of inquiry will be one of two different types.

1. An investigative inquiry that has been mandated to investigate an alleged wrong-doing. It sometimes must conduct formal, court-like hearings that run the risk of becoming adversarial. It will prepare a report that will make findings of fact and may ascribe responsibility for various acts or omissions.

2. An advisory inquiry that has been asked to advise the government on matters of public policy. It is more likely to hold informal public hearings or discussions in non-adversarial settings. Its report will recommend changes to government policies, procedures or legislation.

Some commissions will perform both functions. For example, an inquiry's first phase could investigate a specific instance of alleged wrong-doing and the second phase would consider the broader or systemic problems that contributed to the specific predicament addressed in the first.

For example, an investigative commission may have to organize and structure its public hearings differently than an advisory commission. It may have to develop formal rules of procedure to maintain control of its proceedings. Such rules may be essential if highly contentious issues are likely to be brought before the commission during a hearing, or where adverse findings may be made against individuals or corporations.

A useful strategy for an investigative commission is to hold a procedural hearing before formal public hearings to deal with such matters as who should have standing, how evidence will be presented, what limits, if any, should be placed on media access to and reporting of evidence. A procedural hearing will generally sort out who is who.

In contrast, an advisory commission may decide that it wants to receive written submissions in advance of hearings in order to use the oral presentations to discuss the issues with the public, rather than passively listen to submissions. It may determine that cross-examination of witnesses by third parties will be prohibited; only the commissioners would be entitled to question witnesses.

Each type of commission will require different rules of procedure; each will place different demands on human and financial resources.

Rarely will commissioners be able to act on their own or from their own offices with just their office staff for administrative support. To implement the strategic plan and achieve their objectives, the commissioners will have to hire staff and rent office space and equipment.

Typically, the persons initially appointed to commissions of inquiry rarely have the management or administrative experience necessary to create and sustain a dynamic organization. Thus, newly appointed commissioners should consult with commissioners and staff of other recent commissions, and (perhaps most importantly) experts in the field of strategic planning and organizational management. Taking a few days or weeks to gather advice before plunging into the meat of the inquiry can pay substantial dividends.

Usually the commission will retain independent legal counsel. Depending on the provisions of the empowering statute, such appointments may to have to be approved by the attorney general. While the lawyer who will be appointed may be well known to the commissioners (e.g. they may have practiced law together), we would caution that commission counsel should possess strong administrative abilities. While legal knowledge and advocate skills are useful, strong organizational and inter-personal skills are often more important to the long-term success of an inquiry.

Depending on the complexity and expected duration of the task and the number and nature of staff, the commission may also want to hire an executive director and/or a director of research as well as an office manager or executive secretary. Researchers and a librarian may also be necessary. External consultants may have to be brought in, either for specific projects or on a long-term basis, such as communication consultants, computer experts or a company to help the commissioners analyze and manage information. To help identify and attract competent staff willing to work often frightful hours on a variety of tasks for a short period of time, the commissioners can activate their own networks, advertise through media or government channels or contact staff from recent inquiries.

When hiring researchers, the commissioners in consultation with executive staff should first determine what type of research needs to be done (e.g. legal, social policy, economic, health statistical/survey, etc.), the skill sets it requires and the inquiry's available resources.

Some important questions to ask include:

Many commissions take longer to complete their work than originally expected and delays and cost overruns are common arguments against commissions of inquiry. Developing a realistic strategic plan will go a long way to avoiding such problems. If government has set a reporting date in the commission's Terms of Reference, the commissioners should ascertain as soon as possible whether it is achievable. If it is not, the terms of reference may have to be amended accordingly.

A reasonable deadline can help to keep everyone focused. It can be used to assess whether it is absolutely necessary for the commission to explore certain avenues of inquiry. It can help keep staff focused on the task at hand. It can encourage those the commission will consult with to set aside some of their other important tasks and assist the commission. It can lead government to concentrate on what it may have to do to implement the commission's recommendations. However, it must be recognized by both government and the commission that ultimately the act of inquiring can lead the commission in unanticipated directions and that reporting dates will be the subjects of continuous discussion and revision.

As the strategic plan is fleshed-out, the commissioners will be able to start to develop a budget. If the commission's projected budget does not correspond with the one assigned by government, the commissioner's should negotiate the discrepancy. To a certain extent, the more complete the plan, the more accurate the budget; however, this too is subject to the pressures of unanticipated research. Supplying the government with a draft budget can help to avoid one of the more common complaints leveled at commissions ¥ lack of fiscal accountability.

The means the commission employs to consult the public can become an important test of its credibility and may significantly influence how the public responds to its final report. Therefore, in developing this aspect of the strategic plan, the commission should begin by answering two questions: (i) Which publics are to be consulted? and (ii) How should those publics be consulted?

For an investigative inquiry, it is not so much a question of whether the public at large should be consulted; rather, it is a question of determining which persons or organizations should attend and give evidence at the hearing. Once that has been determined, the question then is how can the rest of the public best be informed of what is said during the hearings as opposed to being consulted? (This question is discussed in the next section.) In contrast, an advisory commission is going to be more concerned with involving and consulting a broader public.

With sufficient early publicity about the commission's activities, many people may come forward and demand to be consulted. Indeed, it has been our experience that major interest groups usually let both types of commissions know who they are very soon after the commissioners have been appointed. However, it will be necessary for the commission to ensure that it has identified all of those who should be involved, that it knows what their expectations are, and that it can reasonably accommodate how these persons or organizations would like to be involved. Commissioners should also recognize that "stakeholder" is not synonymous with "interest group" or "the public" and should adjust their response to stakeholders accordingly.

For either type of inquiry, commissioners will need to identify those individuals and agencies with vested interests that could be significantly affected by the outcome. This can be done by various means, such as publishing notices in newspapers, offering interviews to the media and by asking known stakeholders to suggest others the commission should contact. While the participant lists developed in previous inquiries can provide useful guidelines, the fluid nature of "publics" means that the commission cannot ignore this step.

The commission should consider how it will keep the public informed of its work, how often that should happen and by what means (e.g. newsletters, news releases, published notices, media interviews, talk shows, etc.). One especially effective way is through the media. The commission should spend a few hours with a media consultant before embarking on a media event or briefing with an editorial board, especially if the commissioners are not used to glare of the public spotlight and the art of responding to reporter's questions.

The commission might also consider hiring a full- or part-time communications officer. This person would act as the media liaison, ensuring that such things as requests for interviews or information are dealt with in a consistent manner. The commissioners must maintain a good working relationship with this individual, particularly if they are to act as spokesperson for the commission and take on such tasks as promoting interest in commission hearings. A media consultant, either internal or external, can also help coordinate commission press conferences and the release of the final report.

We have found that the advice of a group of independent, knowledgeable people can be invaluable to a commission. In fact, if such a "brain trust" does not evolve, it is likely that the commission's deliberations and recommendations will not be as well developed as they could be. This is particularly true in the case of a sole commissioner, but even commissions with more than one commissioner run the risk of becoming isolated if they do not have access to an external pool of experienced people.

Commissioners will want to consider:

An often ignored yet easily accessible source of creative and intelligent advice is the commission's own staff. Open, regular discussions with researchers and other staff can create the type of synergy that separates a successful inquiry from one which leaves a legacy of incomplete or unimplementable recommendations.

Commissioners normally assume that, within the limits of their Terms of Reference, they control the course of an inquiry. However, there can be subtle (and sometimes not so subtle) pressures placed on the commission by government ministers, senior bureaucrats and special interest groups. In our experience, at some time during their mandate, it will be necessary for the commissioners to assert their independence and demonstrate their ability to act.

The most obvious influence on the direction an inquiry takes is applied through the Terms of Reference. Government may attempt to set reporting deadlines that are designed more to control the political ramifications of a commission's findings than to facilitate a fair and open inquiry or the timely dissemination of information. Or the commission's budget might be strictly limited forcing the commission to avoid lines of inquiry not anticipated in the Terms, or desired by government or the bureaucracy.

While the relatively obvious nature of this kind of influence makes it in many ways self-limiting ¥ it may be interpreted by the press and the public as interference in the operation of the commission ¥ bureaucrats can place almost unlimited pressure on commissions through the passive and silent control of access to information and funds. The proverbial stonewall can be used to redirect researchers or shelter information to the detriment of the final product.

Government's influence may also be unintentional. For example, for fiscal or supply reasons, government may wish to directly appoint commission staff and provide office space and equipment. While seldom a major problem, the commission should carefully consider the long-term implications of such an arrangement.

While it is sometimes helpful for the government to offer the services of its employees, in our experience commissioners are best served if they hire their own staff. This is true for a number of reasons including the obvious conflict that could arise if the commission's inquiries lead to criticisms of the government. Less obvious is the fact that government is unlikely to be able to second guess a commission's needs; staffing needs are to some extent defined through the commission's development of a strategic plan. Similarly, something as apparently innocuous as the location of an office may influence how the commission is viewed by the public, particularly if the commission is mandated to inquire into a government service.

The pressures exerted by special interest groups present a more complicated problem for commissions, often because they are mistakenly seen as synonymous with "the public." Typically these groups exert influence through the media or, in the case of inquiries accepting public submissions, through the careful control of community meetings, radio talk shows and written presentations.

All of this means that commissioners must be aware of the general political and social climate in which the inquiry takes place, as well as more the specific situation that led to their appointment. They should have an understanding of both government and the public's expectations for their final report. While it is usually important for the commissioners to have good working relationship with the minister and senior government officials, it is also important to keep government at arms' length to ensure the independence of the inquiry. This can be a very delicate balancing act.

Surprisingly, we have found that some commissioners simply plunged into their mandate without thinking about how they will organize the information they gather, analyze it, make decisions (i.e. frame recommendations) and produce a final report. However, a strategic plan that does not address the actual production of the final report is worthless.

Commissioners should always keep this question of the production of the report before them. When the unexpected arises, they should ask how it will affect the final product; whether it will contribute or detract from its content and production.

There are some related questions that should be asked:

In our experience, the more time the commissioners spend considering what they must do to convince government to implement their recommendations, the better those recommendations are likely to be. Indeed, a commission that does not consider how and when its recommendations can be implemented and the costs associated with their implementation will have done themselves and the public a disservice.

For political and other reasons, governments will often want to control the distribution if not also the printing of the final report. But the commissioners need to be clear about these final steps. Control of printing and distribution of the commission's report can be fundamental to ensuring its independence and credibility.

If the Terms of Reference do not state that the commission must submit its final report to the government in a form suitable for publication, it may be necessary for the commission to publish and distribute its own report. This is not a simple process and the commission should consider hiring persons who have experience in such practices.

It is our view that the commissioners should ensure that the government does not postpone the release of the final report. At a minimum, the commission should report to government as required, but it also should ensure that copies of the report will be sent to those who have participated in the inquiry. This type of limited distribution can be arranged to start a few days after the commission has reported to government. While the commission may oversee the initial distribution, it may be necessary to arrange subsequent distribution by a government agency or department.

It is likely that all persons who filed written briefs or spoke at public hearings will be provided with a copy of the final report, or at least a summary thereof. But others who may not have come forward should also be included, such as the media, major but silent stakeholders, other levels of government, etc.

This part of the strategic plan should also consider questions like:

While the final report is the end product of a commission, it is not its last task. The strategic plan should clearly set out how the commission will wind-down its operation:

Many different problems and challenges will no doubt arise for every commission of inquiry. We will consider certain ones that we have seen develop in many of the commissions we have assisted.

Commissioners should be aware that the pressure to respond to political crisis and public criticism dogs many inquiries. There is no one way to approach every situation and each call for comment must be met in a manner that does not detract from the work of the inquiry. In some cases that can mean ignoring the pressure, in others it can lead to amending the mandate, banning publication of certain material or holding in camera sessions.

Staff problems can also make the commission's work difficult. People who the commissioners first thought were bright stars, can turn out to be duds; people who were good researchers turn out to be poor policy advisors or terrible writers; serious personality conflicts can develop. On the other hand, those the commissioners felt had minimal skills can turn out to be life savers. The bottom line is that the commissioners will have to be flexible and be ready to make some tough decisions about staff to ensure the final product is not compromised.

Commission counsel may have to deal with common legal problems, such as:

Finally, the commission's strategic plan may have to be totally revised if some significant intervening event takes place, such as an election where the appointing government is replaced, or if the government requests that the commission take on a new task.

We trust that the above set of basic questions and discussion will help new commissioners and their advisers meet the challenge of their mandate and enjoy the professional and personal rewards that flow from being appointed to and working on a commission of inquiry. With careful and early planning, commissioners and staff can avoid a host of problems. At the very least, developing even a rudimentary strategic plan can help a commission deal more effectively with problems than they could without a plan. We would suggest the commission's strategic plan and budget be reviewed in a formal way at least once every three months.

For those interested in more detailed guidance, we would recommend the following references, listed in alphabetical order: