Inquiries

From government’s perspective the primary purpose of a public inquiry is to learn lessons and prevent recurrence, including by acting on recommendations made by the inquiry.

For those affected by the subject matter of the inquiry, identifying the wrongdoer or establishing who was at fault may support a consequential action for a personal remedy, such as damages. For other stakeholders it will be important to understand what facts are established, and be involved in the fact-finding, with a view to establishing that their role or lessons learned should be.

More recent inquiries have also recognised the need to raise awareness, provide an opportunity for public acknowledgement, and act as a forum for public sharing of experiences. Inquiries raise sensitive issues and require in-depth investigation to establish facts and recommendations. Given the subject matter of inquiries, this typically means there are large numbers of victims and persons with interests involved, which raises complex issues of scope and procedure.

An area of growing focus for statutory inquiries is the need to demonstrate an efficient use of public resources and management of the administrative burden.  There is often conflict between the public demand for an investigation into the facts, set against what can be seen as excessive costs.

For those involved in various public inquiries there is usually a common denominator: that there were multiple, often systemic failings as opposed to a single, simple human error or deliberate act. This is particularly true in recent years of inquiries investigating failures of major public sector projects, and systemic failures, such as the Holyrood, Child Sexual Abuse, Hospitals, Edinburgh  Trams, and Magnox Inquiries as well as numerous Westminster Public Accounts Committee Inquiries.

In all of these cases, failings were identified across a range of areas: procurement process and design, funding model, contract drafting, management and leadership, team experience and capability, governance and assurance.  Members of our team have special knowledge of, or involvement in, all of these Inquiries, and are well placed to advise on these.

Each inquiry has its own remit and terms of reference, arising from the specific factual matrix and circumstances, however each typically follows a similar pattern and involves similar considerations to recent high profile inquiries.

The inquiry team will consider what happened, why, and how improvements and changes can be made to avoid the relevant circumstances from recurring. The involvement of all actors will be considered; all “layers” in the process will be dissected to see whether these can be improved.

Recognition will be given to existing reports and information gathered and the inquiry will use these as a basis to help information themselves at the outset. Equally inquiry teams naturally wish to add value and ensure they consider other relevant issues and evidence. The inquiry will be driven by a need to, and be seen to, leave no stone unturned, to probe into uncomfortable areas and ultimately to discharge their remit by making incisive and wide-ranging recommendations.

The terms of reference for the inquiry set out its remit and scope, and this is the key insight into the likely reasons for the inquiry. The terms of reference can be limited to one specific incident or event, or multiple issues. Terms are often influenced by public consultation, such as the Scottish COVID-19 inquiry, and can be varied over the life of the inquiry, as matters develop.

Public inquiries can either be statutory or non-statutory - typically the larger, more complex inquiries are statutory.  A key feature on inquiries is that these are typically inquisitorial, to establish facts, and sit outside of the criminal or civil justice system. It is not for inquiries to establish or prosecute civil or criminal liability. However there has been a trend towards more typically adversarial approaches being used, and this is particularly impactful on witnesses.

Statutory inquiries are held under the Inquiries Act 2005 which provides public inquiries certain powers in the furtherance of its obligations, and also places certain duties on inquiries and the various office holders. The 2005 Act gives a framework which is then tailored to the needs of the specific inquiry.

A non-statutory inquiry does not have the same powers under the 2005 Act, and for example cannot compel witnesses and participation is voluntary (although there are of course certain risks if a party declines to participate, such as negative press and inability to present own perspective).

There is a perception that a non-statutory inquiry can be more agile, although procedure is often influenced by the procedural rigour of the Inquiries Act and Government guidance. As inquiries develop, the form of inquiry can also change; the Edinburgh Trams Inquiry converted from non-statutory to statutory because of concerns regarding witness evidence.

Ultimately the recommendations of an inquiry are not legally binding, although there is expectation that government will publish a response to the findings. In recent years there has been criticism that follow up on recommendations has been limited and there has been a lack of rigour in ensuring follow-on compliance.

When an inquiry is completed, it has no ongoing powers. There can be a lack of will to implement recommendations, when there is no supervisory authority. To combat this, the ongoing Manchester Arena Inquiry issues interim recommendations with regular reporting to ensure compliance. This is an approach which may become more common with inquiries.

A significant amount of time is usually devoted to establishing the process for an inquiry. The choice of chair is a critical decision for the operation and planning; typically this is a judge, retired or active, or someone with legal qualifications, however this will depend on the subject matter. The inquiry might be led by an individual chair, or a chair supported by a panel.

While the Public Inquiries Act provides for certain features of an inquiry, the Chair has discretion to make procedural decisions to meet the needs of each subject matter. There are often several core stages of evidence gathering, followed by a period of consideration and drafting before recommendations are issued.

In the planning of a new inquiry, lessons should be learned from previous and ongoing inquiries; this can include the use of new technology, methods of reporting, use of experts and other efficiencies.

There is no set time frame for inquiries, as this will vary widely depending on the subject matter and evidential requirements, however the terms of reference can set a time limit (which may later be extended).

It is unusual for an inquiry to be completed in under a year, and typically much longer is needed. It is challenging for inquiries to report in a timely manner; however following recent issues with inquiries running behind schedule (and the associated costs) this is often a key concern and set out in the terms of reference.

By reference to current inquiries, there are several ongoing which are running significantly behind schedule, for example the Edinburgh Trams Inquiry was set up nearly eight years ago, without final findings having been published. There is a perception that non statutory inquiries can be completed more quickly; but this depends on the topic.