Understanding Public Inquiries: Investigations That Shape Policy

What is a Public Inquiry?

Public Inquires are investigations set up by Government ministers to respond to events of major public concern, or to consider controversial public policy issues.  As such they have a very important role to play in our legal and political processes yet they are not a particularly well understood part of our legal system.  In this blog, Gilson Gray Associate Catherine McGarrell discusses the purpose and legal framework of Public Inquiries.

Public Inquiries do not have the power to investigate individual cases, determine civil or criminal liability, nor award compensation. They are inquisitorial not adversarial, set up to establish facts, identify lessons to be learned, and make recommendations for the future. It is for the government to decide whether to accept an Inquiry’s recommendations and how to implement them.

Statutory Inquiries are governed by the Inquiries Act 2005.

The 2005 Act is supplemented by Rules which in Scotland are the Inquiries (Scotland) Rules 2007.

A “Terms of Reference” is required before an Inquiry begins to consider any evidence.

Section 5(6) of the 2005 Act states that this means:

(a)    the matters to which the Inquiry relates;

(b)    any particular matters as to which the Inquiry panel is to determine the facts;

(c)    whether the Inquiry panel is to make recommendations;

(d)    any other matters relating to the scope of the Inquiry that the Minister may specify

An Inquiry can only investigate matters within its Terms of Reference.

A Scottish Inquiry can consider only “Scottish matters” as defined by s.28(5) of the Inquiries Act 2005. It is not entitled to investigate matters reserved in the Scotland Act 1998 as those would be for UK Inquiries. For example, health and public health are devolved matters whereas health & safety law and enforcement is a reserved matter.

Section 17 of the 2005 Act gives the Inquiry Chair the power to determine the procedure and conduct of an Inquiry. This allows an Inquiry to tailor its approach to the specific circumstances before it.

An Inquiry will conduct formal and informal planning meetings with representatives of Core Participants and other interested parties. Core Participants are individuals or organisations with a specific and material interest in the work of the Inquiry that have applied and been granted Core Participant status. Being granted Core Participant status affords you a central role in the Inquiry; allowing you to propose questions to witnesses, make statements, and be provided with evidence in advance of wider publication.

As part of its fact-finding the Inquiry will investigate, and hold public hearings. They will gather information and documents from CPs and witnesses, take witness statements, select witnesses for oral hearings, and instruct independent experts. There will also be documentary and other forms of evidence examined, such as reports, surveys, communications and so on. The Inquiry will proactively request evidence and information from relevant parties, including Core Participants and witnesses, and they in turn can put evidence forward they want considered by the Inquiry.

Any document or other piece of evidence submitted to an Inquiry is treated as evidence in its own right. It is not necessary for a witness to talk to a piece of evidence before it can be considered, although in practice witnesses will speak to specific pieces of evidence where it supports their position or to add emphasis. If a Core Participant wishes to seek evidence from another party, the request will be made to the Inquiry who will take the necessary steps to recover it (where request granted).

It is open to an Inquiry to issue interim reports, including interim recommendations, or issue all at the end of its investigation. If an Inquiry’s report includes significant criticism of a person or organisation, that person or organisation must be given an opportunity to respond in advance of publication.

In conclusion Public Inquiries play an important role in the democratic process by providing a mechanism to investigate and make informed recommendations on matters of public concern.  They can help provide accountability for the actions of public bodies, allow learning from institutional mistakes and offer victims and interested bodies a voice which can influence future decision making.

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