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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

31 JAN 2013

Inquiries – an overview

In recent months the news has been filled with inquiries, commissions and investigations of all sorts. The term ‘inquiry' has become common currency with the press, as well as with those who believe themselves to have been let down by the system or the victims of injustice. Indeed calls for inquiries are just as numerous as inquiries themselves.

But what do we mean by ‘inquiry'? The word has come to be an umbrella term, comprising a number of similar, but legally distinct, investigations. This article will focus on those inquiries which find the source of their authority in Government, thus excluding examples such as the BBC-instigated, judge-led inquiry into historic child abuse allegations. Its main concern will be public inquiries under the Inquiries Act 2005, as this tends to provide the statutory underpinning of most high profile inquiries.

In general terms, inquiries have a dual aim: a fact-finding mission, and an examination of lessons to be learned for the future. They tend to take place in contexts where there has been a systemic failure, and are almost always in relation to the actions and omissions of public bodies or areas where state intervention could prevent the incident from reoccurring.[1] In particular, they provide accountability and command public confidence. These goals are reflected in the broad powers of Government to establish an inquiry.

The 2005 Act gives ministers broad discretion as to the circumstances in which an inquiry can be established: it requires that particular events have caused or are capable of causing public concern, or that there is public concern that such events may have occurred.[2] The Minister is to appoint a chairman and any further members of the inquiry, having regard to their appropriateness in terms of expertise, impartiality and balance, looking to the background of the terms of reference.[3] Panels can be highly varied: the Bloody Sunday inquiry panel members were retired judges from other Commonwealth jurisdictions, whereas the Billy Wright Inquiry (into the death of a Maze prisoner) was chaired by a judge accompanied by a professor in prison studies and the former Bishop of Hereford. Some inquiries do not have panels: the Baha Mousa inquiry was undertaken solely by retired Court of Appeal Judge Sir William Gage.

There is no requirement that inquiries be led by a judge, although this is frequently the case, presumably on the grounds of impartiality, public confidence and their ability to digest large volumes of information and come to a conclusion. Where a senior judge (in England, a justice of the Supreme Court or a district judge) is to be appointed, the Minister establishing the inquiry must consult the Lord Chief Justice. Assessors may also be appointed; their role is to provide expert evidence, but they do not contribute to any findings, which are made by the panel alone.

The terms of reference are key to the process, as they set out the parameters within which the inquiry must operate.[4] That said, terms of reference tend to contain broad statements of purpose rather than set down strict limits, and other than the loose framework established by the Act, inquiries are free to establish their own procedure. They are, of course, bound by the public law duty of fairness.[5]

The Chairman of the inquiry enjoys a broad discretion as to the procedure to apply. Section 17 of the 2005 Act simply states that ‘the procedure and conduct of an inquiry are to be such as the Chairman may direct'. The same section goes on to make specific reference to the power to take evidence on oath, and the duty of the Chairman to act fairly, and section 21 sets out further provisions on requiring written and oral evidence. A witness cannot be required to produce evidence if he or she would not be so required in civil proceedings, or if to do so would breach any rule of EU law.[6] The power to compel witnesses is of note because, even though the inquiry is expressly forbidden from making assessment of civil or criminal liability,[7] information disclosed during the inquiry could be used for these purposes. This possibility is only reinforced by the provision that the inquiry is not to be deterred from making findings of fact or recommendations on the basis that these could be used to infer liability.[8] Of course, witnesses are protected from self-incrimination, and the Attorney-General has on occasion made undertakings that evidence given will not be used against the person giving it. Such an undertaking was made during the inquiry into the death in custody of Azelle Rodney.

These provisions were of particular interest during the Leveson Inquiry, which took place at the same time as a police investigation into phone hacking. This tension was resolved in the main by Lord Justice Leveson's application of good sense. In November 2011 he issued a statement in which he noted that he would not air evidence where it was likely to intensify any of the issues touched on by the police investigation, or where it could inhibit the conduct of the investigation. He also exhibited concern for fairness towards those involved and fairness with regards to any future trial or investigation, stating that he would not allow the inquiry to be used simply to attack those who were subject to allegations. He saw the purpose of calling witnesses as to gain a general picture of the current situation with regards to practices within the press, and ways in which regulation might be improved.

The Act also makes clear that inquiries are to be held in public and to be transparent, both in terms of public access to proceedings and to any evidence.[9] That said, it is within the power of the Chairman and the Minister to restrict attendance at an inquiry or disclosure of documents held by the inquiry.[10] This power arises where restriction can be justified by a statutory requirement, an EU obligation or any other rule of law, or where the Chairman considers it to be conducive to the inquiry fulfilling its terms of reference or necessary in the public interest.[11] In deciding whether these criteria have been met, the Chairman is to have regard to a number of factors, including the extent to which any such restriction might limit the extent to which the inquiry is capable of allaying public concern (a foundational reason for holding a public inquiry), whether the restriction could avoid or reduce a risk of harm or damage, whether any of the information transmitted to the inquiry is confidential and the extent to which not making such a restriction would delay the inquiry or give rise to additional cost.[12] Where the Act speaks of harm or damage, this extends to death or injury, impact on international security, international relations and the economic interests of the UK, and any damage which might occur where commercially sensitive information is disclosed.[13]

The powers set out above are particularly relevant in the current context, as Lord Justice Leveson chose to allow journalists to give evidence anonymously, on the condition that the identities of anyone they made allegations against were also anonymised. This decision was subject to judicial review on the grounds that it breached rules of natural and open justice, and that Lord Justice Leveson had not given sufficient weight to the relevant public interests at play as concern about the impact on one's career of giving evidence was not capable of justifying a section 19 restriction. In R (on the application of Associated Newspapers Ltd) v Leveson,[14] Lord Justice Toulson held that, although the giving of anonymous evidence could cause prejudice to newspaper companies, the Chairman of the inquiry was entitled to conclude that it was in the public interest. Emphasising the importance of thoroughness and balance to promoting public confidence in the inquiry, which would be undermined if there were gaps in the evidence taken, Toulson LJ held that the applicants were wrong to argue that fear of negative impact on career was insufficient reason for allowing evidence to be given anonymously, and the Chairman had not acted unlawfully in taking this decision. The key issue was one of balance and it was for the Chairman to determine what the public interest required. Finally, it was for the Chairman and not the court to consider how individual applications for anonymity were to be considered, within the parameters set by the general ruling already made by the Chairman.

The High Court referred to the case of Re Officer L,[15] which arose in the context of the Robert Hammill inquiry into possible police collusion in a sectarian murder in Northern Ireland. In this case the House of Lords held that police officers were only entitled to anonymity where it could be shown that the risk of injury or death to them would be materially increased if anonymity were withheld. In Leveson, the applicants relied on this in arguing that a subjective fear of ‘career blight' should not be enough to allow anonymity. Toulson LJ drew a distinction between the two cases, as in Re Officer L the inquiry knew the identity of the witnesses concerned, who were compellable. The journalists seeking anonymity before the Leveson inquiry were not compellable and would not give evidence unless they were able to do so anonymously. Toulson LJ recognised the difficult task before Lord Justice Leveson, and the importance of carrying out an inquiry of considerable breadth and depth. Thus it was for the Chairman to assess what was in the best interests of the inquiry.

The inquiry must publish a report setting out the facts it has found and any recommendations it wishes to make.[16] It is possible to withhold aspects of the report from publication under similar conditions to those relating to the non-disclosure of evidence.[17] It is notable that it is within the Minister's power to end or suspend an inquiry.[18] Alongside the ability of the Minister to restrict access to the inquiry or disclosure of evidence, these powers have been criticised as vesting too much power in the Executive, with the Joint Committee on Human Rights expressing concern that the independence of the inquiry could be called into question.

Finally, it is important to distinguish a public inquiry held under the 2005 Act from other, seemingly similar, forms of investigation. A number of Acts of Parliament make provision for statutory inquiries, most frequently in the area of planning law, charities law and social security. Recent years have also seen a number of ad-hoc, non-statutory inquiries, such as the Hutton Inquiry into the death of Dr David Kelly. Although this inquiry was chaired by a judge, it did not have the power to compel witnesses. The procedure used has been described as one which is useful for fact-finding inquiries, but not necessarily appropriate where recommendations need to be made.[19] Committees of Privy Councillors are also able to conduct non-statutory inquiries, and have done so regarding the war in Iraq (the Chilcot Inquiry) and intelligence on weapons of mass destruction (the Butler Inquiry). Royal Commissions are again non-statutory and lack the power to compel witnesses, but do have a certain gravitas about them, as they are created by the granting of a seal by the Queen, on the advice of the Secretary of State. Finally, Parliament itself conducts a number of investigations via Select Committees, Joint Committees and Parliamentary Committees, many of which are just as high profile as their judge-led relatives. As with non-statutory inquiries, these committees cannot compel witnesses, instead relying on their own authority.

 


[1]              Examples of public inquiries arising in the context of private organisations include that into the ICL factory explosion in Glasgow and the Equitable Life Inquiry.

[2]           Section 1, Inquiries Act 2005.

[3]              Sections 3 - 4, section 9 Inquiries Act 2005.

[4]              Section 8, Inquiries Act 2005.

[5]           See, for example, Re Officer L [2007] UKHL 36 at para 22.

[6]           Section 22 Inquiries Act 2005.

[7]           Section 2(1) Inquiries Act 2005.

[8]           Section 2(2) Inquiries Act 2005.

[9]           Section 18 Inquiries Act 2005.

[10]         Sections 19(1) and (2) Inquiries Act 2005.

[11]         Section 19(3) Inquiries Act 2005.

[12]         Section 19(4) Inquiries Act 2005.

[13]         Section 19(5) Inquiries Act 2005.

[14]         [2012] EWHC 57 (Admin).

[15]         [2007] UKHL 36.

[16]         Section 24 Inquiries Act 2005.

[17]         Section 25 Inquiries Act 2005.

[18]            Sections 13 and 15 Inquiries Act 2005.

[19]            W Twining, ‘Some wider legal aspects', in WG Runciman ed, Hutton and Butler: Lifting the lid on the workings of power, p42.

 

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