Hardly a week goes by without somebody calling for a public inquiry or the government announcing that it intends to launch one. From past inquiries looking at the "lessons to be learnt from the Iraq Conflict" to Lord Leveson's inquiry "into the culture, practices and ethics of the press," to current inquiries looking to establish the facts of what happened at Grenfell Tower or examining the circumstances in which men, women and children were given infected blood and infected blood products by the National Health Service, a public inquiry is an investigation, convened by a government minister, which deals with issues of "public concern."
There have been, and remain, many calls for a public inquiry or inquiries into issues related to the COVID-19 pandemic: have contracts been procured fairly and do they represent value for money for tax payers; were decisions made around preventing the spread of the coronavirus and protection of the UK population balanced with the level of health care services available and effects on the economy; was the government’s testing strategy appropriate; and so on. In addition to the COVID-19 related calls for inquiries, there remains calls for public inquiries into a range of other issues including deaths at mental health facilities, the use of restraint in prisons, the impact of particular construction projects on the environment, and even the role in politics of the girlfriend of the British Prime Minister, Boris Johnson. It is thought that the number of calls in the UK to open public inquiries is at its highest, and the numbers continue to rise: according to the Institute for Government Analysis, 69 public inquiries were launched between 1990 and 2017, compared with 19 in the previous 30 years.
In this advisory, we look at what a public inquiry is, whether an entity/individual should agree to participate in a public inquiry (and whether they can in any event refuse), the risks of participating in a public inquiry and, finally, how an entity/individual can best protect its/his/her interests.
What is a Public Inquiry?
As noted above, a public inquiry is an investigation – typically a major investigation – which is convened by a government minister. They are common in circumstances where a major public concern has arisen such as systemic sexual abuse, large scale serious accidents or loss of life, failures of regulation, decision making leading to war (and decisions taken during combat, including alleged human rights abuses, the use of torture tactics, etc.), large environmental disasters or outbreaks of disease or illness.
Public inquiries are initiated and funded by the government (and, in theory at least, can be terminated by the government), but they are run independently of the government. The minister who initiates the public inquiry chooses the Chairperson for the inquiry, who is typically, but not always, a former Judge.
The public inquiry will typically scope and agree (with the government minister who has initiated the inquiry) its terms of reference. Generally, the main function of a public inquiry is to answer three questions:
- What happened? Namely, to establish the facts.
- Why did it happen and is somebody to blame? Namely, to establish the causation of events.
- What can be done to prevent the particular issue from happening again? Namely, to evaluate the answers to the first two questions and to learn lessons to change future practices.
Inquiries can take years to complete, from an average of two years to, the longest to date, 13 years and 3 months for the inquiry into hyponatraemia-related deaths. They may include the review of many thousands of documents and the taking of testimony from hundreds of witnesses. They are also often criticised for being expensive. For example, the inquiry into "Bloody Sunday," the killing of 14 people by soldiers of the Parachute Regiment in Derry, Northern Ireland on January 30, 1972, reportedly cost over £210 million.
The conclusions of a public inquiry are typically set out in a written report, given first to the government, and subsequently made available to the public.
The Legal Basis for a Public Inquiry
Public inquiries in the UK can be statutory or non-statutory.
Since 2005, the majority of public inquiries have been convened using the Inquiries Act 2005 (IA 2005), which provides a uniform set of rules for how an inquiry operates including the taking of evidence and production of a report. There is also other legislation – such as the Health and Safety at Work Act providing for public inquiries to be initiated in respect of accidents or incidents at work – which contain provisions to initiate public inquiries.
Inquiries can also be convened on a non-statutory basis, including "ad hoc" inquiries or those made under the royal prerogative to establish a Royal Commission.
A non-statutory inquiry is generally regarded as less adversarial and the relevant process can be more flexible (for example, there are typically more opportunities for a witness to advance his/her opinion or respond to a particular criticism made of him/her). Their main advantage is thought to be that they can take evidence in private, which is of significant advantage in cases involving, for example, issues of intelligence or national security. A non-statutory inquiry cannot, however, compel the attendance of witnesses to give oral evidence or provide information or take evidence on oath, nor do they have to provide legal representation for witnesses or fund the payment of legal fees for those witnesses who wish to have legal representation.
Factors in Deciding Whether to Participate in a Public Inquiry (or Not)
As noted above, there are differences between a statutory and a non-statutory public inquiry which, most importantly, will determine whether you can refuse to participate in an inquiry (be that by providing written information or oral testimony).
A statutory inquiry may compel the provision of documents (section 21 of IA 2005), with a sanction of a fine or imprisonment for intentionally concealing or destroying documents (section 35 of IA 2005). Note, however, that an inquiry cannot undertake a raid and seize documents.
A statutory inquiry can also compel a witness to provide oral evidence in relation to issues that fall within the scope of the inquiry’s terms of reference (section 21 of IA 2005).
In relation to both the provision of written information and oral testimony to a statutory inquiry, the following factors are relevant:
- The Chair of the inquiry has a duty to act "proportionately" in his/her requests.
- A request can include both documents in the possession of the recipient of the request, and documents in its/his/her control. This means that the request can cover documents which the recipient may not have immediate possession of but can obtain possession of them.
- Section 21(4) of the IA 2005 provides the grounds for a lawful refusal to comply with a request. These are where the recipient of the request is unable to comply (for example, the information is not available) or it is "unreasonable" to expect the recipient to comply with the request (for example, due to cost, time, difficulty in obtaining the information, etc.). A recipient of a request is also not compelled to provide information over which a valid claim to legal professional privilege can be asserted, or where the material is subject to public interest immunity (including relating to national security, diplomatic relations, criminal intelligence, and the administration of justice).
Further, no one is expected to answer questions which may expose him or herself to criminal charges (i.e., the law against self-incrimination). In certain circumstances where a person is exposed to self-incrimination, it may be possible to seek an undertaking from the Attorney General that information provided to an inquiry that may lead to criminal charges cannot be used outside of the inquiry.
A non-statutory inquiry cannot compel witnesses or the production of documents. The attendance of witnesses to give evidence to a public inquiry is therefore voluntary, although there can be significant political, reputational, professional and personal pressure to participate. Against this background, the factors that may be relevant in considering whether (or not) to participate are likely to include:
- The terms of reference of the inquiry. Does the request for information/testimony fall within the scope of the inquiry and, if so, do these terms of reference suggest that the inquiry may reach negative conclusions about your actions or inactions? Do the terms look to be fair and aimed at uncovering the truth (or do they appear motivated by an agenda which may result in pre-determined, negative conclusions)?
- The stage at which the inquiry has reached. For example, a request to provide evidence at the fact-finding stage of the inquiry may be viewed more favourably than a request to appear before the inquiry when conclusions (and criticisms) have been reached. Similarly, are you able to determine what other information/evidence has already been provided to the inquiry and, if so, do you have something positive to say about that?
- The process followed by the inquiry. Does the process appear to be procedurally fair? Will the inquiry provide, in advance of any oral testimony, information about the scope of its inquiry and the questions that it intends to pose? Will it allow witnesses to be legally represented and meet the costs of that representation?
- Political, reputational, personal, professional, moral, commercial and other reasons to participate. As noted above, even absent a legal compulsion, there can be many other reasons to participate in an enquiry. What will be the impact if you do not? Is it better to put "your side of the story" in order to achieve a more balanced narrative?
The Risks of Participating in a Public Inquiry
Public inquiries are not courts of law: they cannot determine criminal or civil guilt. That said, however, the findings of a public inquiry could lead to criminal or civil liability. Careful consideration should be given to whether to participate (if non-participation is an option) and, if relevant, the correct timing of that participation. As described above, no one is expected to answer questions asked by an inquiry that could incriminate him/herself, although this can be a difficult line to draw when, for example, inquiries are at an early stage or the inquiry's terms of reference are particularly vague or broad and encompass a range of issues. Legal advice should be sought.
In addition to potential criminal or civil liability in the courts, investigations by law enforcement agencies or civil/criminal trials can often also be running alongside public inquiries and often involve many of the same witnesses, and (unless the inquiry is put on hold whilst the criminal investigation proceeds and deals with different aspects to the criminal investigation) could be prejudiced by a concurrent public inquiry. If you are a victim of an issue being investigated by the inquiry, you may risk an investigation being compromised or closed as a result of something that you said in a public inquiry.
There are also risks around breaching confidentiality in providing information or testimony to an inquiry. An inquiry will typically (subject to the Chair placing restrictions on the disclosure or publication of evidence), in due course, be required to provide the public with reasonable access to the record of the evidence and information provided and relevant to the inquiry. This does not necessarily include disclosure of information contained in the documents, albeit documents provided to a non-statutory inquiry may be subject to a successful Freedom of Information request (and therefore released). In relation to statutory public inquiries, documents are not subject to such Freedom of Information requests.
Finally, particularly in relation to non-statutory inquiries which cannot compel the provision of information and/or testimony (although the concerns may also be relevant to statutory inquiries if, for example, particularly sensitive information is being sought), there are likely to be data protection or, if relevant, bank secrecy concerns in responding to requests for information, with the sanction for breaching these requirements being significant fines.
How to Best Protect your Interests in a Public Inquiry
Depending on whether the inquiry is a statutory inquiry or a non-statutory inquiry, the following recommendations may assist in ensuring that a person participating in an inquiry best protects its/his/her interests:
- In relation to a non-statutory inquiry, consider whether you wish to participate (or cannot refuse) and, if so, consider the timing of that participation. For example, before you provide testimony, might it first be better: for the inquiry to take evidence from other people; to see the procedure/direction that the inquiry is taking; to understand the level of press interest; etc.?
- In relation to a non-statutory inquiry and assuming that you wish to provide information, consider whether certain irrelevant and/or sensitive information should be redacted from documents before providing them to the inquiry.
- In relation to statutory inquiries, consider whether the requests for information are within the scope of the inquiry's terms of reference, are proportionate and do not purport to compel the production of documents that are exempt from production.
- If you provide oral testimony (in relation to either a statutory or non-statutory inquiry), ask the inquiry in advance for disclosure of any documents that they wish to discuss with you and a list of questions/topics that they intend to cover.
- Relevant to both statutory and non-statutory inquiries, enquire as to whether the inquiry will pay for legal assistance including (at a statutory inquiry) the attendance of that lawyer at any session where you provide oral testimony? If not, you should consider seeking prior legal advice as to issues including self-incrimination, the risks of parallel or follow-on litigation, waiving legal professional privilege and breaching confidentiality obligations. It might be possible, for example, to obtain a relevant waiver from connected parties for any apparent breaches of confidentiality.
- For inquiries of large public interest, consider whether other third-party assistance is required either before or after the giving of oral evidence. For example, is it sensible to engage with a PR firm to handle any press questions or to develop a strategy to handle any criticisms made by the inquiry?
- In relation to statutory inquiries and where there exists a risk of self-incrimination, consider whether it is possible to seek assurances from the Attorney General that your evidence cannot be used against you outside of the inquiry. If there is a risk of self-incrimination, consider whether to refuse to attend the inquiry (at all) and/or to notify the inquiry (in advance) of the issues which you will not address.
- Relevant to both statutory and non-statutory inquiries, seek assurances from the Chairperson that you will be provided with advance notice of any conclusions reached about your participation in the events that are the subject of the inquiry. Will you be given a chance to address any conclusions in advance of the inquiry releasing the report to the government and the public?
Whilst the particular issues to be covered by future public inquiries are still unclear and remain subject to much heated discussion by parliament, the public and press, it is clear that the number of public inquires – and therefore those who will be affected by a public inquiry – is rising significantly. Particularly where the issues which are the subject of a public inquiry can also lead to civil or criminal liability (which, in today's litigious environment, can hardly ever be excluded), it is crucial that proper thought be given to the scope of any participation in an inquiry. The follow-on effects of participating in an inquiry could be significant for years to come.