Public demand on the government to convene a public inquiry under the Inquiries Act 2005 following an incident of public concern is on the increase.
At the time of writing, there are currently 13 live statutory inquiries, some of the more well-known of those include the Independent Inquiry into Child Sexual Abuse, the Undercover Policing Inquiry, the Grenfell Tower Inquiry and more recently and following much media speculation, the Coronavirus Inquiry.
In this, the first of a series of articles on the topic, we explain exactly what a Public Inquiry is, how they differ from a civil or criminal trial and why the features of the inquiry system are so crucial to achieving its objectives.
When might a statutory public inquiry be convened?
The all-encompassing term for an event that might trigger a public inquiry is ‘matters of public concern’, however there is no official criteria to indicate what this might constitute. Guidance suggests that the most common characteristics of events triggering previous inquiries are; large-scale loss of life, serious health and safety issues, failure in regulation and other events of serious concern.
Adversarial v. Inquisitorial
Most of us, even those of us who haven’t had any direct exposure to criminal or civil proceedings have an understanding of the key features of the adversarial legal system in so far as it aims to apportion liability and either establish guilt or innocence or, in the case of a civil trial, award a victory or deliver defeat.
The inquisitorial process however is largely antithetical to this; in fact one of the hallmark features of a public inquiry is that it cannot determine civil or criminal liability. At this point in reading, one could be forgiven for wondering, if an inquiry panel is precluded from establishing liability, what is its point? The UK’s leading authority on the topic, Jason Beer QC succinctly defines the point of a public inquiry as being to establish;
- what happened?
- why did it happen and who is to blame?
- what can be done to prevent this happening again?
The relevant Minister responsible for convening the inquiry will have significant regard to whether there are other viable alternatives in the legal system that might better serve the agenda and whether the potential benefits of convening an inquiry outweigh the projected costs to the public purse, which are often eye-wateringly significant.
The main aims of the inquiry are focussed on the following areas:
- establishing a fair and full account of what happened
- learning from events and helping to prevent their recurrence
- catharsis or therapeutic exposure
- reassurance and rebuilding public confidence
- political considerations, often providing leverage for change.
It is easier to appreciate in the context of the ambitious objectives above, the preclusion from determining liability in order to aid a culture of openness and transparency. Arguably, and as we will examine in greater detail in coming weeks, an individual giving evidence to the inquiry would be less inclined to be candid were they giving that evidence in the shadow of a potential finding of liability.
Terms of reference
The aims above provide the foundation for establishing what is known as the terms of reference of the inquiry. These terms will set out:
- the matters to which the inquiry relates
- facts which the inquiry is to determine
- whether the panel is intended to make recommendations
- any other matters relating to the scope of the inquiry.
The terms of reference must be drafted with absolute intention and precision since they will direct the focus of the inquiry. Terms which are too short, too broad or lack focus will no doubt cause problems later down the line. There is no better example of this than the infamous Bloody Sunday Inquiry which took a staggering 12 and a half years to reach completion, cost £191.5m and for which the entire terms of reference consisted of no more than 52 words.
Thankfully, the average duration of a Public Inquiry is much less than this at two and a half years. That being said, for anyone that has received a Rule 9 request from an Inquiry and who is involved in the process of supplying evidence, being available and potentially having one’s actions under scrutiny for even that length of time can understandably be a great source of stress and can demand a great deal of time.
The next in our series of Public Inquiry focussed articles will examine what a Rule 9 request is, who might receive one and when it might be prudent to appoint a Recognised Legal Representative.
If you or your company has been contacted by a Public Inquiry by way of the Rule 9 mechanism or otherwise and would like to speak to someone in our team about how best to respond, please contact Daniel Irving or Francesca Reason.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at November 2021.