Public inquiries: guidance for Ministers and officials

Introduction

This guidance has been prepared by the Civil Law and Legal System Division (Justice Directorate) which has policy responsibility for public inquiries and is responsible for maintaining this guidance.

It is aimed at officials who are preparing advice for Ministers, on whether a public inquiry should be held. Separate guidance is provided for Scottish Government teams who are sponsoring public inquiries and for the independent teams who are setting up and running public inquiries under the direction of the inquiry’s chair.

Public inquiries

Inquiries may be necessary to:

• investigate the events causing public concern (public concern is the test for 2005 Act inquiries);
• establish the facts;
• determine the explanations for, and causes of, things which have gone wrong;
• establish the lessons to be learned from what has happened;
• make recommendations intended to correct the deficiencies for the future.

The chair of the Fingerprint Inquiry^[1] outlined that a successful public inquiry would have the following features.

• Interested parties would believe that a thorough inquiry into the issue which had caused public concern had been conducted, with obvious fairness, and that the final report was not over-written or under-researched.
• Interested parties would feel that they have been given an opportunity to present their views.
• The inquiry reaches conclusions that are justified by the evidence in a way that is cost effective.
• The inquiry produces a report that people understand.

Advice to Ministers will need to consider the public interest in holding an inquiry and the most appropriate form for any such inquiry. Directorates will need to be able to put forward robust reasoning to support any decision and in doing so consider whether an inquiry is likely to be successful.

Public inquiries can operate on a statutory or non-statutory basis. The majority of statutory inquiries will be established in accordance with the Inquiries Act 2005 (‘the 2005 Act’) and the Inquiries (Scotland) Rules 2007. The 2005 Act covers the setting up of inquiries, appointments to them, their procedures and powers, the submission of evidence, and the publication of reports. Other types of inquiries and reviews are summarised later in this guidance.

Whether to hold an inquiry – and whether it is statutory or otherwise – will be affected by:

• the likely duration and cost;
• whether it will need to compel witnesses and the release of documents;
• whether it will need witnesses to give evidence on oath;
• whether Ministers will need to exclude documents or require evidence gathering sessions to be in private (for example, for national security reasons);
• the level of formality that is needed; and
• whether a particular type of inquiry is likely to satisfy those affected by the issues in question.

There is no duty on Ministers to establish an inquiry on any specific issue, simply because there are requests for an inquiry. However, there may be a duty on the State to conduct an effective investigation or inquiry under one of the articles of the European Convention on Human Rights. In the case of fatalities, a mandatory Fatal Accident Inquiry (FAI) is required in certain circumstances. The circumstances in which an FAI would be convened are covered by the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016.

What to consider before deciding to hold a public inquiry

The following matters should be considered by Ministers, and the officials advising them, before coming to a decision to hold a public inquiry in Scotland.

• Are the events of the case in question giving rise to serious and widespread public concern? Is that concern justified?
• Is it likely that a public inquiry, it’s report and recommendations, will satisfy that public concern?
• Are there any other forms of inquiry or investigation under way, or expected, which are likely to address or satisfy the same public concerns?
• How long is the inquiry likely to last?
• What is the likely cost of the inquiry?
• What powers are required by the inquiry?

It should be borne in mind that it is not the purpose of a public inquiry to determine civil or criminal liability. Rather inquiries can investigate issues and make findings and recommendations. A public inquiry is different to a court or tribunal hearing and is an inquisitorial rather than adversarial process. The inquiry will not ‘hold to account’ any party as is sometimes suggested, though the conclusions of the inquiry may permit certain inferences to be drawn.

Before any decision is made to establish an inquiry, the Executive Team should be involved in discussions given the issues at stake. If time is an issue, then as a minimum DGs and the Permanent Secretary should be consulted.