Public Inquiries: An Introduction

Public inquiries have become the default method of dealing with a wide range of politically sensitive and disturbing events. Such is the frequency with which they are now established that many public bodies and private contractors will find their interests affected by one or more public inquiry. Their primary purpose is to uncover the truth, to ensure accountability and to prevent the recurrence of harm.

A public inquiry may take statutory or non-statutory form. The former is governed by the provisions of the Inquiries Act 2005 and the Inquiry Rules 2006. By contrast, the latter is characterised by less structure and formality. However, non-statutory inquiries are bound by the principles of natural justice and procedural fairness and are likely to be amenable to judicial review (see R (on the application of Clarke) v Holliday Chairman of the Magnox Public Inquiry [2019] EWHC 3596 (Admin)).

Establishing a Statutory Inquiry

The power to establish a public inquiry under the Inquiries Act 2005 rests with a government minister. The minister has discretion (not a duty) to establish a statutory inquiry where it appears to him or her that (a) particular events have caused, or are capable of causing, public concern, or (b) there is public concern that particular events may have occurred (see s. 1(1) Inquiries Act 2005).

The decision of a minister not to hold a public inquiry may be challenged on conventional public law grounds (e.g. Wednesbury unreasonableness / irrationality). Bringing a successful application for judicial review on substantive grounds is difficult but not unheard of (see e.g. R (on the application of Litvinenko v Secretary of State for the Home Department [2014] EWHC 194 (Admin)).

Sometimes the mere threat of judicial review or the initiation of proceedings is sufficient to persuade a minister to establish or to convert an inquiry. A non-statutory inquiry can be converted into a statutory inquiry pursuant to s. 15 Inquiries Act 2005. This may be necessary (for example) to permit the inquiry panel to exercise its powers to compel the production of documents and evidence.

In certain cases, it is necessary for a statutory inquiry to be held in place of an inquest where there exists relevant evidence in relation to which a claim to public interest immunity is upheld. The absence of any mechanism for holding closed hearings in an inquest may necessitate the establishment of a statutory public inquiry to enable the evidence to be heard and tested in closed session (see e.g. The Dawn Sturgess Inquiry).

Composition

A public inquiry established under the Inquiries Act 2005 may be undertaken by a chair alone or by a chair with one or more other members (see s.3(1) Inquiries Act 2005). The minister responsible for setting up the inquiry has discretion as to the composition of the inquiry panel. Before appointing a member to the inquiry panel, the minister must consult the person who will act as chair (see 4(3) Inquiries Act 2005).

When appointing a member of the inquiry panel, the minister must have regard (a) to the need to ensure that the inquiry panel (considered as a whole) has the necessary expertise to undertake the inquiry and (b) in the case of an inquiry panel consisting of a chairman and one or more other members, to the need for balance (considered against the background of the terms of reference) in the composition of the panel (see s.8(1) Inquiries Act 2005).

Due to their legal expertise, serving or retired judges are frequently appointed to act as the chair of public inquires established under the Inquiries Act 2005. Moreover, it is very common for them to undertake the inquiry alone without the support or assistance of additional panel members. Given the lack of diversity within the judiciary, this practice is not without its critics and several attempts have been made to challenge a minister’s refusal to appoint additional panel members (see e.g. R (on the application of Da Silva) v Secretary of State for the Home Department [2018] EWHC 3001 (Admin)).

However, the Inquiries Act 2005 makes provision for assistance to be provided to the inquiry panel by individuals with specialist knowledge and expertise known as assessors (see s.11 Inquiries Act 2005). By way of example, in the Post Horizon IT Inquiry, Sir Wyn Williams, the Chair, appointed assessors with expertise in IT and governance to assist him. The principal difference in the roles of assessors and panel members is that the latter participate in the decision-making of the Inquiry.

The Terms of Reference

The terms of reference are prescribed by the government minister responsible for setting up the inquiry. Before setting the terms of reference, the minister has a duty to consult the person who will act as chair of the inquiry (see s. 5(4) Inquiries Act 2005). In some cases, a public consultation is undertaken before the terms of reference are finalised (see for example the UK Covid Inquiry). Once they have been set, the terms of reference may be amended by the minister if he or she considers it is in the public interest to do so (see s.5(3) Inquiries Act 2005).

The terms of reference define the proper scope of the inquiry and, in principle, delimit the powers which may be exercised under the Act (see s.5(5) Inquiries Act 2005). However, the inquiry panel is afforded considerable latitude in its interpretation of the terms of reference and may compel the production of evidence which is not relevant (see e.g. R (on the application of Cabinet Office) v Chair of the UK Covid-19 Inquiry [2023] EWHC 1702 (Admin)).

Defining the Issues

Given that an inquiry’s terms of reference tend to be defined at a very high level, it is common for the inquiry panel to publish a list of issues identifying the lines of enquiry it intends to pursue to give effect to its terms of reference. Moreover, there is often some form of consultation either with core participants alone or additionally with interested members of the public before the inquiry’s list of issues is finalised.

A list of issues provides useful guidance to those who are likely to receive requests for documents and evidence enabling them to begin the (lengthy) process of searching for and reviewing potentially relevant material. It is usually advisable for any public body or private company whose interests are affected by the subject matter of an inquiry to start the process of gathering and reviewing relevant material before the inquiry issues a formal request.

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Authors

Catriona Hodge

Call 2012

Related areas

Public Inquiries

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