Is an Inquiry a “Court or Tribunal”? (and why does it matter?)

On 3 November 2025, Steyn J handed down her judgment following a case management conference in a judicial review of a decision by the Chair of the Independent Inquiry Relating to Afghanistan (IIA), the Rt Hon Sir Charles Haddon-Cave: R (on the application of Witness IIA126) v Chair of the Independent Inquiry Relating to Afghanistan [2025] EWHC 2842 (Admin).

In the usual way with public inquiries under the Inquiries Act 2005 (“the 2005 Act”), the IIA involves a number of Core Participants (“CPs”). This judicial review was brought by Witness IIA126, an anonymised Special Forces witness, in response to two linked decisions made by the IIA Chair relating to the holding of CLOSED hearings that exclude virtually all CPs.

The substantive issue for Steyn J’s determination, which is beyond the scope of this article, was to determine the jurisdictional basis for any closed material procedure (“CMP”) in the JR proceedings, given the novel issue of the interplay between the statutory power to order a CMP pursuant to the Justice and Security Act 2013 on national security grounds, and the separate jurisdiction to do so under the common law identified by the Supreme Court in R (Haralambous) v Crown Court at St Albans [2018] UKSC 1; [2018] AC 236. But as part of the issues in the CMC, she also had to consider whether a public inquiry under the Inquiries Act 2005 is a “court or tribunal” within the meaning of paragraph 4.6(2) of Practice Direction 54A of the Civil Procedure Rules (“PD 54A”), which says

4.6 (1) Any person who is an interested party (see rule 54.1(2)(f)) must be named in the Claim Form as such (see rule 54.6(1)(a))and served with the Claim Form (see rule 54.7(b)).

(2) Where the claim for judicial review relates to proceedings in a court or tribunal, any other party to those proceedings will be an interested party in the judicial review proceedings. For example, if the defendant in a criminal case in the Magistrates’ or Crown Court applies for judicial review of a decision in that case, the prosecution must always be named as an interested party in the judicial review claim.

One of the arguments advanced at the hearing was that the Inquiry was a tribunal, and that PD54A para 4.6 operates as a deeming provision which means that any participant in legal proceedings which are challenged by way of judicial review is to be treated as directly affected by that judicial review claim, and therefore falling within the definition of “interested party” in CPR 54.1(2)(f).

Ultimately, Steyn J determined that an inquiry was not a “court or tribunal”, setting out (at §40):

I note that there is no definition of the term “court or tribunal” for the purposes of s.31(5A). In my judgment on the Royal Military Police’s (‘RMP’) application to be joined as an interested party, addressing the RMP’s reliance on para 4.6(2) of Practice Direction 54A, I ruled that the term “court or tribunal” in the Practice Direction should be interpreted consistently with that same term where it appears in s.31 of the SCA 1981. I held that the Inquiry does not fall within that term. It is obviously not a “court”. Ordinarily, a tribunal would be understood to be a judicial body which determines certain types of dispute. The Inquiry has not been set up to determine a dispute. There is no lis between the Core Participants before the inquiry. There are no parties as such before the Inquiry. It follows that s.31(5)(b) and (5A) are inapplicable. Nevertheless, the point remains that s.31(2A), (3C) and s.31(5)(a) “postulate that the High Court will be considering the outcome on the same basis” (Haralambous, [58]) as the public body whose decision is subject to challenge.

To put it simply, since there is no dispute and no disagreement between parties in an inquiry but rather it is a fact-finding forum made up of Core Participants, it therefore is not a tribunal for the purposes of section 31 SCA. Consequently, it is also not a tribunal for the purposes of PD54A. Instead, an Inquiry is a public authority.

It is notable that this would almost certainly not have been the case prior to the 2005 Act: public inquiries were then unquestionably tribunals under the Tribunals of Inquiry (Evidence) Act 1921. As a result, many of the pre-2005 (and some post-2005) cases refer to public inquiries as ‘tribunals’. But the language of ‘tribunal’ was not repeated in the 2005 Act, which seems to indicate a deliberate turn away from that approach.

The consequence of this decision is therefore that Core Participants to an inquiry do not have the automatic right to become Interested Parties in any related judicial review proceedings. Instead, any Core Participant seeking Interested Party status will have to satisfy the court on the facts that they are directly affected by the claim. That is in stark distinction to the position when an inquest is judicially reviewed – there can be no doubt that a coroner presides over an inferior court of record (R v HM Coroner for West Yorkshire ex parte Smith (No 2) [1985] QB 1096), and so all Interested Persons to an inquest must be named as Interested Parties to a judicial review claim.

As Steyn J identified, it also has an impact on the relief that can be granted in judicial review claims: by s.31(5)-(5B) of the Senior Courts Act 1981, it is only where the decision challenged was made by a court or tribunal that the High Court can, subject to other conditions being met, substitute its own decision. That may not make much practical difference: it can always remit the matter with a direction to take a decision in a particular way, but the technical distinction is important when considering the form of relief sought in any judicial review proceedings relating to inquiries.

There are other implications as well. First, this decision seems to close the door on any possibility that 2005 Act inquiries have any powers related to contempt of court that do not appear on the face of the Act itself. Those powers are primarily in s.36 relating to enforcement by the High Court or Court of Session. Since the power to refer a matter under s.36 depends on a failure to comply with a notice under s.21 of the 2005 Act, that is likely to give inquiry chairs narrower powers for dealing, for example, with contempt in the face of the court, such as a refusal to answer questions once sworn (though no doubt a brief s.21 notice could be produced in short order if it became clear one was required – albeit that that may in turn raise issues over the right of a recipient to apply to have it set aside).

Second, s.37(1) of the 2005 Act confers immunity from suit on the members of the inquiry panel (including assessors), and on counsel or solicitor to an inquiry as well as on a person engaged to provide assistance to an inquiry. But the immunity that s.37(3) applies to witnesses and to lawyers not acting for the inquiry is expressly stated to be ‘for the purposes of the law of defamation’ (s.37(3)), which is narrower than would be the case for proceedings in a court or tribunal: see Chief Constable of Sussex Police v XGY [2025] EWCA Civ 1230.

Third, though inquiries are already treated separately from proceedings in court under s.32(2) of the Freedom of Information Act 2000, this ruling may cause some difficulties in data protection terms. One of the conditions permitting the processing of special category and criminal offence data under the UK GDPR, for example, is that it is done ‘when a court or tribunal is acting in its judicial capacity’ (para 34 of Schedule 1 of the DPA for criminal offence data; Art 9(2)(f) UK GDPR for special category data), which would not seem to apply to a 2005 Act inquiry. It might still fall within ‘legal proceedings’ (para 33 of Sch 1 for criminal offence data), but does not obviously fall within ‘the establishment, exercise or defence of legal claims’ under the other limb of Art 9(2)(f). That does not mean that there is no solution: those processing personal data in a 2005 Act inquiry are still carrying out ‘the exercise of a function conferred on a person by an enactment’ (para 6 of Sch 1 DPA) and by definition a statutory inquiry is into matters of substantial public interest (Art 9(2)(g)).

Fourth, as an inquiry is not a court or tribunal, then conducting advocacy or litigating in relation to it are not ‘reserved legal activities’ under the Legal Services Act 2007, because the definitions in paras 3 and 4 of Schedule 2 to that Act both refer specifically to ‘court’, which is in turn defined in s.207(1) as including tribunals, courts martials, ecclesiastical courts and – interestingly – ‘a statutory inquiry within the meaning of section 16(1) of the Tribunals and Inquiries Act 1992’. That section includes ‘an inquiry or hearing held or to be held in pursuance of a duty imposed by any statutory provision’ – which probably excludes inquiries under the 2005 Act, since that does not impose a ‘duty’ to hold an inquiry or hearing, but confers a discretion (Re Brown’s Application for JR [2025] NICA 16 at §95).

Though these points might seem merely technical, they in fact stem from the fundamental question of what the nature of a public inquiry actually is. Because Steyn J’s ruling is clear that they are not courts or tribunals, statutory inquiries therefore do not have the same trappings, and in some cases leeway, that courts or tribunals do, and which the legal professionals involved will typically be familiar with. As a result, it may sometimes be helpful when working on an inquiry to pause and reflect on whether a particular power or procedural step is in fact available or appropriate – or whether the apparent similarity to proceedings in court has caused everyone to overlook that these are not court or tribunal proceedings. As we have suggested above in respect of data protection and contempt of court, it will almost always be possible to find an inquiry-specific route to the same outcome. The judgment in this case helps us to start from the right point on the map.