Public inquiries: guidance for Ministers and officials

Considerations

2005 Act powers and duties

One of the principal differences between statutory and non-statutory inquiries are, that for those convened under the 2005 Act, there is a clear statutory framework for the conduct of the statutory inquiry. They are subject to the powers and duties under that Act.

In these statutory inquiries, the Chair or inquiry panel is appointed by Ministers in terms of section 4 of the 2005 Act. The 2005 Act provides powers to require witnesses to appear at hearings, or for documents or evidence to be provided. In addition, an inquiry can take statements under oath. This has obvious advantages where cooperation could be an issue, but it can also appear heavy handed or formal and therefore the need for the powers should be carefully considered before any decision is made.

The 2005 Act also requires the chair to make arrangements for the public to have access to inquiry proceedings and information. This can be limited by way of notices made by Ministers or orders made by the chair themselves, but these should only be used in exceptional circumstances, as set out in section 19 of the 2005 Act. The presumption is for the inquiry to operate with transparency. This can be critical in building trust in the inquiry, which in turn is necessary for the inquiry to be successful in addressing public concern. However, the subject matter of the inquiry should be carefully considered in light of this presumption, as some areas of policy do not lend themselves well to the publication of evidence (for example, issues of national security).

Independence

2005 Act inquiries are, once established with agreed terms of reference in which Minster have final say, completely independent of Ministers. Terms of reference are defined in section 5(6) of the 2005 Act, which states that:

“In this Act “terms of reference”, in relation to an inquiry under this Act, 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.”

The government bears the costs of an inquiry, and therefore has a ‘sponsor’ role, but the inquiry is run by the independent chair who is appointed at the outset.

That can, of course, also be true of a non-statutory inquiry but establishing a 2005 Act inquiry can put it beyond doubt. This can be an especially important consideration where the actions of government are the subject of public concern.

Timing

For some events, it might be necessary to let some time pass before an objective, dispassionate public assessment of the events in question can be made, such as the calling of the Covid-19 inquiry. Policy teams should consider whether the holding of a public inquiry is likely to allow a suitable amount of time to pass.

In other circumstances, there may be a need for more urgent consideration of the issues. A public inquiry is unlikely to report in under a year and very possibly will take a lot longer than that. If rapid reporting is critical, it may that a different option is more appropriate.

Cost

When considering any inquiry, Ministers will need to judge whether the circumstances of the matter in question justify the considerable expense of an inquiry. The Directorate which deals with the subject matter of an inquiry (known as the sponsoring directorate) will be liable for the costs of the inquiry.

Although there is a duty on the chair of a 2005 Act inquiry to act with regard to the need to avoid any unnecessary cost, there are many unavoidable costs incurred at any public inquiry:

• the salary of the chair (unless the chair is a serving judge who remains on their judicial salary) and other members of the panel (if any);
• the salaries of the solicitor and secretary (and, if appointed, counsel) to the inquiry;
• the salaries of other inquiry support staff, either employed by the inquiry or services bought in (including lawyers);
• fees for subject experts;
• the expenses of core participants and witnesses, etc. attending the inquiry;
• the cost of office accommodation for the inquiry team and accommodation for the public hearings;
• IT equipment (including document management and reporting on hearings) and other support services;
• website, communications and public relations; and, above all,
• the legal costs of the core participants^[2] at the inquiry which are always met by the Government unless the core participant is a corporate body.

All of these costs fall on the sponsoring directorate and who will provide advice to Ministers on the holding of a public inquiry. In the event that two or more Directorates have a sponsoring interest – or there is a joint inquiry co-sponsored by the UK Government – an apportionment of costs will have to be agreed.

Ministers may determine qualifications and conditions to be applied in respect of awards for the legal representation of core participants and witnesses at the inquiry, known as a Section 40 determination. These costs are often a significant proportion of the costs of running an inquiry. A Section 40 determination can therefore be an important check on the contribution that these costs make to the overall costs of an inquiry. It does not however control the overall costs, which will be influenced by a number of factors, not least the length of time the inquiry runs.

Length

The length of time that an inquiry runs is one of the most significant factors in how much an inquiry has cost by the time it reports – the longer the inquiry, the more it is going to cost. The length itself is influenced by a number of factors, including how much documentary evidence is gathered, how many hearings are held, and how complex the report drafting process is (including the process of warning those who are criticised in it, which can take a great deal of time).

However, the length of time an inquiry takes to report can have other impacts, for example lessening the impact of any conclusions drawn by an inquiry. Given that most public inquiries take some years to report, it may be that another type of investigation, which will report more quickly, is more appropriate.

The lessons learned report from the Fingerprint Inquiry noted that

“It is neither realistic nor fair to expect any particular inquiry to replicate the kind of timescales achieved by other inquiries. The time taken will reflect many things – including the nature of the subject matter, the methodology adopted by the chair (once appointed), the availability of key players (both among the inquiry team and core participant teams), the demands of the evidence (gathering, collating and assessing) and the practicalities of compiling a report”.

It is difficult to predict how long an inquiry will take, and therefore how much it will cost. For example, it was suggested that the Fingerprint Inquiry would cost around £1.5 million and would be carried out within a year. Ultimately, it cost around three times that figure and took nearly four years. The Vale of Leven Hospital and Penrose (Hepatitis C) Inquiries cost over £10 million and £12 million respectively.