Select an area of expertise to find out more about our experience.
Find out more about our barristers and business support teams here.
Disclosure – by which we generally mean disclosure and inspection – is arguably the most important stage of any public inquiry. It is the process by which organisations and individuals reveal to the inquiry the documents and information it or they hold which may be relevant to the inquiry’s terms of reference. The importance of disclosure is perhaps obvious: without it, how can the inquiry investigate properly those matters which it has been established to investigate? Without evidence how can the truth be established?
In most inquiries, the chair – or inquiry legal team on the chair’s behalf – will write to organisations and individuals requesting disclosure under rule 9 of the Inquiry Rules 2006. Rule 9 provides:
9. – (1) The inquiry panel must send a written request for a written statement to any person from whom the inquiry panel proposes to take evidence.
(2) The inquiry panel must send a written request to any person that it wishes to produce any document or any other thing.
(3) The inquiry panel may make a written request for further evidence, being either a written statement or oral evidence.
(4) Any request for a written statement must include a description of the matters or issues to be covered in the statement.
A request under rule 9 of the Rules is often considered to be a less formal step for the production of material as it does not have the power to compel the provision of documents. In practice rule 9 requests (as they are known) are adhered to and the question of compulsion is a moot one.
By contrast, section 21 of the Inquiries Act 2005 does provide a power to compel the production of material. By section 21 of the Act the chair of an inquiry may by notice require a person to provide inter alia any documents in his custody or under his control that relate to a matter in question at the inquiry. The chair has the power to require this “within such period as appears to the inquiry panel to be reasonable”. By section 35(1) of the Act, a person is guilty of an offence if he fails without reasonable excuse to do anything that he is required to do by a section 21notice.
The breadth of an inquiry’s powers is illustrated by the judgment in R (Cabinet Office) v Chair of the UK Covid-19 Inquiry [2023] EWHC 1702 (Admin) in which the Cabinet Office challenged a section 21 notice issued by Baroness Hallett, the Chair of UK Covid-19 Inquiry. The issue in the claim for judicial review was whether the Chair was entitled to require the production of firstly, various non-redacted WhatsApp messages between Boris Johnson, the former Prime Minister, and his advisors; and secondly, Mr Johnson’s non-redacted diaries and notebooks. In a case laced with irony it was Mr Johnson who had himself established the UK Covid-19 Inquiry and, presumably, approved its terms of reference.
The Cabinet Office challenged the Chair’s decision to issue the section 21 notice and the Chair’s refusal to revoke it. The Administrative Court (Dingemans LJ and Garnham J) held that the requested documents “relate[d] to a matter in question at the inquiry” and should be produced. The section 21 notice was not invalid merely because some WhatsApp messages would be irrelevant, which was inevitable, nor because it omitted wording specifying documents “relating to a matter in question at the inquiry” (or similar). Unlike in civil proceedings, inquiries could “fish” for documents and make “informed but speculative requests for documents relevant to lines of inquiry” [65]. The Act anticipated irrelevant documents being obtained under section 21(1)(b) by allowing challenges to requests under section 21(4)(b).
The Court concluded that the Chair had not acted irrationally and was entitled to consider that the requested documents related to a matter in question at the inquiry. Although an inquiry’s powers are not without limits, the courts are likely to act with restraint:
“55. The powers of an inquiry are not without limits. This is because Chairs of public inquiries are subject to the supervisory role of the courts, although courts should be “loath to do anything which could in any way interfere with or complicate the extraordinarily [difficult] task of the tribunal … courts have to bear in mind at all times that the members of the tribunal have a much greater understanding of their task than the courts”. It is, however, essential for courts to exercise their supervisory jurisdiction where necessary to uphold the rule of law, see R v Lord Saville ex parte A [1999] 1 WLR 1855 at 1865H.”
Whilst ‘document providers’ will ordinarily only provide material if they are requested or required to do so, it is of course open to them to do so voluntarily. In practice, this tends not to happen as the provision of documents and information may expose the document provider to challenge under data protection legislation or to other claims, such as for misuse of private information.
Ideally, steps will have been taken long before a rule 9 request or section 21 notice arrives on the electronic doorstep. As soon as a public inquiry is announced – and perhaps even before – and it appears likely that an organisation or individual may hold relevant material, steps should be taken to ensure that potentially relevant material is not deleted or destroyed. This may require a change to ‘auto-delete’ settings for emails. Instructions should be sent to individuals telling them not to manually delete emails or electronic documents. They should be told to retain hardcopy materials like diaries or notebooks which may otherwise be disposed of. These instructions should be documented and retained as the inquiry may in due course request evidence of the steps taken to preserve material.
Early scoping of potential disclosure is unlikely to offer any immediate attractions. This is particularly so where the organisation may be recovering from the event in issue at the inquiry. For example, in the wake of the Covid-19 pandemic the priority of many organisations will not have been on securing and considering potential disclosure to an as yet unannounced public inquiry. For most, the task of returning to ‘business as usual’ was challenging enough let alone worrying about their future disclosure obligations.
And yet, such early work does have advantages and will save work and headaches in the future. This is because the closer in time the scoping of material occurs, the more likely it is that systems will not have changed, material which might otherwise slip through the net will be caught and key individuals with knowledge of the relevant events will still be employed by the organisation and therefore able to assist with the process. The dangers in leaving it until a rule 9 request is made is that retrieving data becomes harder and institutional knowledge degraded.
IT systems and those who operate them will be essential. It may be necessary to procure e-disclosure software, of which there are now many on offer. Each will have advantages and disadvantages in terms of functionality, usability and cost. It may be possible to ‘make do’ with off-the-shelf products or searches within Microsoft, however this is unlikely to offer a reliable or robust method of identifying and reviewing anything more than a modest amount of data. A key advantage in using an e-disclosure platform is the ability to ‘de-duplicate’, i.e. the system’s ability to identify relevant or ‘near relevant’ documents. Without this, reviewers are likely to spend much time considering the same document or fragments of the same email chain.
In addition to the IT system, reviewers will be required: their number will be dictated by the amount of data and the time available to provide disclosure to the inquiry. In all but the smallest of reviews, it is likely that multiple individuals will be involved: if so, it will be vital to ensure that they are approaching the task in a consistent way. Clear instructions will be required along with agreed categories of relevance. Any system should have the ability to record decisions on relevance so this can be audited in the future.
As the Post Office Horizon IT Inquiry has illustrated, disclosure failures can result in very public opprobrium. Hearings specifically directed to the Post Office’s disclosure have been held. In a statement following one such hearing, the Chair of the Inquiry observed:
“22. The process failures identified in the evidence as being those responsible for the disclosure failures are not in dispute. They are (i) a failure to set appropriate search terms for electronic searches of documents; (ii) a failure to deal appropriately with the “de-duplication” of documents (there remains an unappealing wrangle between KPMG and Herbert Smith Freehills as to who bears responsibility for the serious failures in disclosure); and (iii) a failure to properly consider and assess the relevance of “families” of documents. Having heard evidence about each of those issues in detail I see no reason to alter the view I have expressed on more than one occasion that the failures of disclosure which have come to light are properly described as grossly unsatisfactory.”
The Post Office’s experience in this Inquiry should serve as a salutary lesson to all who may be called upon to give disclosure in the future.
As the saga of Boris Johnson’s WhatsApp messages illustrates, the question of redaction looms large when making disclosure to a public inquiry. Most inquiries publish redaction policies; for example: the UK Covid-19 Inquiry’s can be found here; the Dawn Sturgess Inquiry’s can be found here; and the Thirlwall Inquiry’s can be found here.
The protocols typically will set out what information will or may be redacted along with the process for doing so. For example, the UK Covid-19 Inquiry’s ‘Inquiry Protocol on the Redaction of Documents’ explains:
“Documents or parts of documents provided to the Inquiry may need to be withheld from wider dissemination and/or redacted prior to disclosure to Core Participants. This may include content within documents which:
a. is considered to be both irrelevant to the Inquiry’s Terms of Reference and sensitive;
b. constitutes personal data within the meaning of UK data protection legislation, further disclosure of which is prohibited by that legislation;
c. is subject to a Restriction Order made under section 19(2)(b) of the Inquiries Act 2005; or
d. is subject to the determination of an application for a Restriction Order made under section 19(2)(b) of the Inquiries Act 2005.”
Inquiries will typically redact dates of birth, personal addresses and signatures. More difficult questions arise over redaction of the names of junior members of staff (see, for example, R (IAB) v Secretary of State for the Home Department [2024] EWCA Civ 66) or information which may be of peripheral relevance but is nonetheless embarrassing for other reasons.
The reader of this article may conclude that disclosure to a public inquiry is the sort of event which should provoke the same response as the requirement to complete a tax return, take a car for an MOT or write a ‘thought-leadership’ article. However, there are very real advantages to operating a proper disclosure regime which permits the identification of key material. It should not only allow a document provider to discharge their obligations, but it should also enable that person or organisation to understand properly their role and exposure within the public inquiry.
16 April 2024
Chambers is delighted to announce that Head of Chambers, Jason Beer KC is one of only…
Discover more14 February 2022
The first hearings of the Post Office Horizon IT Inquiry commenced today. Previously a non-statutory…
Discover more19 December 2023
A message from Head of Chambers, Jason Beer KC, looking back at the past 12…
Discover more