Out-Law Analysis | 24 Jun 2021 | 3:22 pm | 9 min. read
Public inquiries are investigations which deal with matters of public concern. Whatever the focus of the inquiry, the purpose of all inquiries remains the same – to establish the facts, find out what happened, why it happened, who may be accountable, and to try and learn lessons to prevent a recurrence of the events.
In the UK, public inquiries are conducted by a senior official, often a judge, who will review documents, hear witness evidence and evidence from experts, draw conclusions and make recommendations. Public inquiries are an inquisitorial rather than an adversarial process, and those tasked with leading them cannot make decisions about a person's or organisation’s civil or criminal liability. The inquiry's recommendations are not legally binding – it is up the government or other relevant bodies to implement any recommendations.
A public inquiry needs to be commissioned. This is done by a government minister. One of the first steps when commissioning the public inquiry is to appoint the chair, who is often a judge or senior barrister. This is a very important appointment, and the chair needs to have sufficient expertise and independence to be credible in a role that often comes under a great deal of public scrutiny; and the time and experience to be able to conduct what can often be a lengthy process involving a large amount of oral and written evidence.
Having appointed the chair, the minister will often work with the chair and the inquiry’s legal team to prepare the terms of reference which will explain the scope and purpose of the inquiry. Terms of reference are sometimes subject to public consultation which can provide an opportunity for organisations and other interested partis to have their say on the breadth and scope of the inquiry. This process can build greater public support for the inquiry.
An inquiry can take place on a statutory or non-statutory footing. At the outset, the minister should consider whether the inquiry should be a statutory inquiry commissioned under The Inquiries Act 2005. If that option is selected, the inquiry will have greater powers to compel witnesses to give evidence or produce documents.
Once the inquiry has been commissioned and the terms of reference finalised the chair will need to decide on the appropriate procedures and protocols.
A non-statutory inquiry can decide its own procedures and protocols, but even for statutory inquiries there is very little guidance on what procedures an inquiry should adopt, and the chair has discretion as to what procedure should be produced and followed. Whatever procedure is adopted the objective will always be the same – to ensure the inquiry is conducted fairly, and unnecessary costs are avoided. The procedure will typically involve a number of core steps, such as: obtaining and securing evidence, drafting protocols, witness statements, hearings, opening statements, oral evidence, closing statements, report writing and recommendations. Some of these stages are considered in more detail below.
In terms of protocols, these are produced to provide structure to the inquiry, and to ensure that participants have a clear understanding of how the inquiry will be conducted, and, due to the unique nature of each inquiry, tend to be drafted specifically for each inquiry.
There are number of main participants involved in every inquiry, each with their own distinct role and responsibilities.
The chair is appointed by the minister who commissions the inquiry. The chair runs the inquiry, decides the procedural rules and protocols, and has ultimate responsibility for the conduct of the inquiry, the publication of the final report and recommendations. The chair may act alone, may have the assistance of panel members, or may appoint experts.
Sometimes referred to as "wing members", panel members are also appointed by the minister who commissions the inquiry after consultation with the chair. Panel members are appointed to ensure that the inquiry panel as a whole has the correct level of expertise to undertake the inquiry.
Counsel to the inquiry is invariably a senior barrister who will act as the panel's main adviser. Counsel to the inquiry will usually be assisted by a team of junior counsel. Counsel will ensure the panel complies with the terms of reference, and, to ensure the independence of the chair and any panel, question witnesses who are giving oral evidence.
A solicitor to the inquiry is appointed by the chair and is initially involved in drafting the terms of reference, procedures and protocols, and gathering and reviewing evidence. They will also manage the process of taking statements, liaise with participants and their legal representatives, deal with any legal issues and research, deal with applications for costs and expenses, and assist the chair in drafting the final report.
A secretary to the inquiry is appointed by the chair to carry out the administration and management of the inquiry, such as managing IT systems, and managing accommodation and arranging travel.
Inquiries commissioned under the Act are known as statutory inquiries. The Act sets out a basic procedural framework and is supplemented by the Inquiry Rules 2006. The Act contains provisions relating to various matters, such as the constitution of the inquiry, for example the appointment of the inquiry panel, and the requirement of impartiality, and inquiry proceedings, such as public access to the inquiry and how privileged material is dealt with. Its provisions also deal with the publication of the final report.
The Act also contains important provisions to require a person to give evidence, provide a written statement, and to produce documents. This demonstrates an important distinction between a statutory and non-statutory inquiry, in that a non-statutory inquiry cannot compel witnesses to give evidence or for them to produce documents. Instead, a non-statutory inquiry relies on the co-operation of organisations and individuals, and the potential reputational damage should a person or organisation refuse to co-operate.
The inquiry will set out how evidence should be taken and provided. When an inquiry is convened under the Act the chair of an inquiry may require a person to attend to give evidence before the inquiry, to produce any documents in their custody or under their control and that relate to a matter in question at the inquiry, or to produce any other thing in their custody or control for inspection, examination or testing. The chair may also require a person to provide evidence by way of a written statement.
Factors which will be taken into account when considering whether the evidence should be given by way of witness statement or orally will include the subject matter, and the importance of the evidence to the inquiry. Where witness statements are used, they may be produced by an investigator commissioned by the inquiry to take a statement from the witness, or a formal request to produce a witness statement within a set timescale. Witnesses may also be asked to give evidence orally. Where an inquiry is being held on a statutory basis, it is a criminal offence, without reasonable excuse, to fail to give evidence at the inquiry, provide a witness statement, or to produce documents.
There are no similar powers for a non-statutory inquiry, which will rely on the co-operation of those involved, and which can severely limit the ability of the inquiry to produce its report, if witnesses are not prepared to co-operate. For this reason, many inquiries are commissioned under the Act to provide the chair with these additional powers.
One of the issues which can arise is that of self-incrimination, and a witness being concerned that anything they say to an inquiry will later be used against them in civil or criminal proceedings. This reluctance to give candid evidence can limit the effectiveness of the inquiry. A solution is for the chair to seek undertakings from the attorney general or the director of public prosecutions in England and Wales to ensure that any evidence they give will not be used in subsequent proceedings against them. This does not mean no civil or criminal proceedings can be subsequently be brought against them, just that their own evidence cannot be used.
A chair may designate a person or organisation as a “core participant” – either on their own initiative, or by application by a person or organisation – at any time during the course of the inquiry. Someone can be designated a core participant where, for example, the person played, or may have played a direct and significant role in relation to the matters to which the inquiry relates; where they have a significant interest in the subject matter of some aspect of the inquiry; or where the person may be subject to explicit or significant criticism during the inquiry proceedings or in the report, or in any interim report.
A person can either apply to the chair to be designated a core participant or agree to being designated a core participant by the chair. If a person or organisation is designated a core participant they are granted certain rights. For example, a core participant can appoint a legal representative, can obtain advance notice of evidence before publication, can request that questions are put to a witness giving oral evidence, has a right to make an opening and closing submission, and has a right to see the inquiry report before publication.
Although there are certain benefits to being a core participant there are also disadvantages, such as the cost of instructing a legal representative, and the higher profile and greater publicity and public scrutiny that a core participant can expect. As a result, some people or organisations may not wish to be appointed a core participant, particularly if they wish to avoid the potential adverse publicity that could be involved.
When statements are being taken from witnesses it is essential that those witnesses are treated fairly and sensitively. Witnesses should be informed in advance which areas they will be questioned on and be provided with a copy of any protocols and the terms of reference. After the interview they should be provided with a copy of the transcript of their evidence.
Witnesses may be asked to re-live challenging and upsetting memories, and in these circumstances it is essential that they should be approached carefully and treated sensitively, using techniques such as cognitive interviewing. This is to ensure that evidence can be obtained to assist the inquiry, while at the same time seeking to ensure that any impact on the witness is kept to an absolute minimum.
Where witnesses make comments either in written statements or in oral evidence the issue of defamation can arise. In a statutory inquiry the Act specifies that absolute privilege will apply, meaning that an action for defamation cannot be brought against them. In a non-statutory inquiry, qualified privilege will protect the maker of the statement if the statement is made in good faith, but will not apply where there is malice. The application of these rules should ensure that a witness feels able to give their candid and honest evidence without fear of subsequently being sued for defamation.
In terms of publicity of the evidence, the chair of the tribunal must take such steps as are considered reasonable to secure that members of the public are able to attend the inquiry or to see and hear a simultaneous transmission – such as a livestream – of the inquiry.
There is a further requirement that members of the public can obtain or view a record of evidence and documents given, produced or provided to the inquiry or inquiry panel. This is normally achieved by way of a website where a livestream, recordings of witness evidence, and relevant documents are located. There are limited exceptions to this public access, for example where it might damage national security or international relations.
The final stage of the process is the preparation of the report setting out the findings and recommendations. The report should be clear and as concise as possible and will usually be drafted with the assistance of the solicitor to the inquiry. The report will contain an introduction, executive summary, the terms of reference and methodology, such as the approach and structure of the investigation. It will also contain background information and a chronology of events, as well as findings, conclusions, and recommendations. High profile inquiries will often use a press conference to highlight its main findings, and a copy of the report is made available on the inquiry's website to allow members of the public and other interested parties to access it.
While the inquiry can make certain findings, it cannot make a finding of individual civil or criminal liability. However, in certain circumstances the findings of the inquiry could subsequently lead to criminal or civil liability being established through separate legal proceedings.
For statutory inquiries, the obligation to publish the report is on the minister who commissioned it, although this is often delegated to the chair. The duty is to publish the report in full, although in certain circumstances information can be withheld. For example, the Litvinenko Inquiry did not contain evidence from closed hearings on the grounds of public interest immunity.
The report is also laid before parliament, and the inquiry is then at an end. The recommendations have no legal effect and are non-binding, and there is no formal process under which the findings of an inquiry can become law. It is common for no recommendations to be implemented and there are no sanctions or recourse should the government decide not to implement any or all of the recommendations.
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