Public inquiries and public law

Answer

Introduction to inquiries

Unless you’ve been avoiding the news, chances are you will have come across public inquiries or at least calls for public inquiries. When something goes wrong, people want answers. Increasingly, the vehicle used to obtain those answers is a public inquiry.

Inquiries are investigations into matters of public concern. These matters take many forms, ranging from the circumstances in which people received infected blood for medical conditions, to the prosecution of postmasters by the Post Office for fraudulent activity, to the deaths of 1,500 mental health inpatients in Essex.

Most recently, an inquiry has been announced into the government’s handling of covid-19, expected to be one of the largest inquiries ever. It will undertake a detailed and wide-ranging examination of the response of the health and social care sectors to the pandemic, as well as its economic impact. 

Many inquiries are established under the Inquiries Act 2005, which provides certain powers to the inquiry and regulates how an inquiry will function. Statutory inquiries are commissioned by a minister and funded by a government department. However, they are considered to be independent bodies. They are led by a chair or panel who are supported by a team comprising barristers, solicitors and a secretariat. The aim of the inquiry is to establish the following:

• What went wrong and what are the facts of what happened?
• Why did it happen?
• What can be done to prevent the particular issue happening again?

Implications of public inquiries for clients

Once an inquiry is announced, clients close to the subject of the inquiry will want to know what the inquiry means for them and how they can prepare for their potential involvement. Depending on the nature of the inquiry, these clients may be individuals, businesses and/or government departments.

Inquiries cannot determine criminal or civil guilt – they are investigatory rather than accusatory processes. However, in contrast to traditional court proceedings, evidence from inquiries is commonly published and the oral testimony of witnesses is live-streamed. Inquiries are staffed with experts and dedicated to getting to the bottom of the subject of their investigation. Given the public nature of an inquiry, clients should always assume that the truth will come out and should be prepared for their documents and actions to be examined in detail.

In responding to an inquiry, it is sensible to ensure that any potentially relevant documents are preserved. An inquiry takes a very wide view of documents and these will include emails, notes, text messages, video footage and audio files, among others. No documents should be deleted or destroyed, either deliberately or through automatic deletion policies. Depending on the extent of a client’s involvement, the volume of relevant documents, the complexity of the issues being investigated and the number of people involved, a client may consider appointing a team or a member of staff to lead its preparation for and engagement with an inquiry. This ensures the inquiry is dealt with alongside the everyday functions of the client, including document management, and that it keeps accurate records. 

However, there is no substitute for a client obtaining early legal advice. This will assist in understanding the range and scope of the inquiry’s terms of reference and the possible extent of its involvement in the inquiry. Legal representatives may also be on hand to help a client navigate disclosure requests and identify potentially relevant material. Where individual witnesses may be called on to give oral evidence, legal representatives can also support their clients through this process. 

Zaqia Rashid is a partner, Catherine Turtle is a legal director and Michaela Bolton is an associate at TLT LLP.