KNOWLEDGE

Public Inquiries - FAQs

Morton Fraser Chair Jenny Dickson
Author
Jenny Dickson
Partner
PUBLISHED:
12 October 2023
Audience:
Public Sector
category:
Blog

Public inquiries are a common part of public life in the UK. They investigate matters of public concern. We consider here what they are, and explain some of the terminology used in connection with them.

What is a public inquiry?

  • Public inquiries are set up to investigate issues of serious public concern.  They scrutinise past decisions and events.  They are used to establish facts, to learn lessons so that mistakes are not repeated, and to restore public confidence.  By their nature, they are newsworthy - the public will always have an interest in the matters being considered by the inquiry.

What legislation is relevant to public inquiries?

  • The main piece of legislation is the Inquiries Act 2005 ("the 2005 Act"). 
  • The 2005 Act sets out the framework for public inquiries, and includes provisions about establishing an inquiry, the appointment of the Chair and other personnel, the taking of evidence, the production of the report/recommendations and the payment of expenses.
  • Specific aspects of how inquiries are run are set out in the Rules. There are two sets of rules:

         - The Inquiry Rules 2006

         - The Inquiries (Scotland) Rules 2007

How is a public inquiry established?

  • Only Government Ministers, from either the UK or the devolved administrations, have the power to establish an inquiry.  If an individual, or a group of individuals, wish there to be a public inquiry, they would be required to persuade a Government Minister.
  • The decision to hold, or not to hold, an inquiry is one that can be subject to judicial review.  An example of this was the public inquiry into the death of the British-naturalised Russian defector Alexander Litvinenko.  Ministers had initially refused to hold a public inquiry, which decision was judicially reviewed by Mr Litvinenko's widow. 
  • Even though a public inquiry is established by the relevant Government department, once it is established, it is wholly independent of Government.  The Chair must be impartial, and free to criticise decisions regardless of who may have taken them.  Independence is important to ensure the confidence of the public in the process.

Who's who?

Chair: The Chair runs the inquiry and has ultimate responsibility for it.  They may appoint panel members to assist them.

More often than not, the Chair of an inquiry is a lawyer - usually one who holds judicial office. Some public inquiries have been instances of non-lawyers chairing inquiries. For example, the Welsh E-coli inquiry was chaired by Professor Hugh Pennington. As a microbiologist, he had relevant knowledge for that inquiry. 

Counsel to the inquiry: They are the main advisor to the Chair.  A number of Counsel may be appointed, depending on the scope of the inquiry.  They ensure the inquiry follows its Terms of Reference, and will be responsible for questioning witnesses at evidence sessions.

Solicitor to the inquiry:  They are appointed by the Chair.  Their role is substantial, and normally includes drafting of the Terms of Reference, ingathering and reviewing evidence, taking statements, dealing with applications for costs, and liaising with participants and their legal teams.

Secretary to the inquiry: They are also appointed by the Chair.  They ensure the inquiry runs smoothly, including taking on responsibility for IT systems to manage documents, processes and procedures.

Core participants: The Chair can designate parties as core participants.  They are people or organisations who played a significant role in the subject matter of the inquiry, had a significant interest, or may be criticised in the final report of the inquiry.

What are the Terms of Reference of a public inquiry?

  • The Terms of Reference set out the scope of what the inquiry will consider.
  • Section 5 of the 2005 Act defines "Terms of Reference" as: -

              - the matters to which the inquiry relates;

              - any particular matters as to which the inquiry panel is to determine the facts;

              - whether the inquiry panel is to make recommendations;

               -  any other matters relating to the scope of the inquiry that the Minister may specify.

  • The Terms of Reference are usually published on the inquiry's website.
  • An inquiry has no power to act outside of its Terms of Reference.

How are documents recovered by a public inquiry?

  • The Chair of an inquiry has the power to compel someone to produce documents, under Section 21 of the 2005 Act. Requests for documents are referred to colloquially as a "Section 21 Notice". The Section 21 Notice lists what documents a party requires to produce to the inquiry and a timescale within which they are to be produced.  
  • A person is guilty of an offence under Section 35 of the 2005 Act if they intentionally suppress or conceal a relevant document or prevent it from being given to the inquiry. There are sanctions for non-compliance.

How does a public inquiry hear evidence?

  • Witnesses give their evidence at public hearings. They are questioned by Counsel to the inquiry. 
  • Accessibility is important.  Members of the public should be able to watch the evidence.  Often this now happens online, with hearings at public inquiries being live streamed on the internet. There are some potential exceptions to this, such as where someone acquired information with conditions of confidentiality attached to it and so they cannot give evidence in an open forum about that information.

How long do public inquiries take?

  • Public inquiries take many years.  They have a lot of work to undertake.  The process of ingathering and hearing evidence is complex and time consuming.  Inquiries might hear from hundreds of witnesses and might consider tens of thousands of documents.  To do that properly, and deliver a report of substance, can take many years.

What happens on conclusion of a public inquiry?

  • The inquiry presents its findings, in the form of a report, to the relevant Minister.  The report is then published.
  • If individuals or organisations are criticised in that report, they will receive a warning letter first to make them aware of the criticisms.
  • A public inquiry cannot make findings of civil or criminal liability. 
  • After the findings of the report are published, responsibility passes to the relevant Government department which set up the inquiry in the first place.  That department has responsibility for considering, and potentially implementing, the findings of the inquiry. 
  • The Institute for Government has recommended that an inquiries unit be set up, which could perform a role in tracking implementation of the findings of public inquiries and improve accountability.
Disclaimer

The content of this webpage is for information only and is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Morton Fraser LLP accepts no responsibility for the content of any third party website to which this webpage refers.  Morton Fraser LLP is authorised and regulated by the Financial Conduct Authority.