Public inquiries: guidance for Ministers and officials

Inquiries Act 2005

Parameters

Scottish Ministers have a power to cause an inquiry to be held under the 2005 Act where it appears to them -

• that particular events have caused or are capable of causing public concern or
• that there is public concern that particular events may have occurred.

Note that there is no requirement for the event to have actually occurred.

Scottish Ministers may only hold an inquiry into Scottish matters, meaning matters which relate to Scotland and are not reserved under the Scotland Act 1998. Inquiries may be held jointly with the UK Government where the issues involved relate to reserved and devolved matters– the ICL Stockline Inquiry is an example.

A 2005 Act inquiry will investigate the event(s) causing public concern which have caused the inquiry to be held, consider the evidence, and determine the facts. It may also make recommendations in connection with that case, but it cannot establish criminal or civil liability of any persons.

Interaction with other investigations

It is possible that any civil action for damages might be brought and concluded, possibly by settlement, before a public inquiry might report. This is particularly the case if personal injuries and/or deaths were involved in the events at issue, because personal injury actions must be raised within three years. A 2005 Act inquiry can be suspended during civil action proceedings. Alternatively, a civil action might be brought and sisted (paused) whilst the inquiry proceeds.

It may be that there are other forms of inquiry or investigation under way, or expected, the reports or findings of which are likely to address the same public concerns. For example, a fatal accident inquiry in the case of a death or deaths, or a criminal investigation and associated criminal proceedings (the system of investigation of sudden, suspicious and unexplained deaths and the system of the investigation of crime both being matters that fall within the functions of the Lord Advocate).

Careful consideration should be given to any other investigations that are under way, or expected, before a 2005 Act inquiry is announced. Whether the eventual decision is to hold an inquiry or not, it is likely that questions will be asked about the interaction with any other investigations.

Inquiry powers and duties

A 2005 Act inquiry is conducted by a chair, who may be assisted by panel members. Although the appointment of panel members is relatively rare, a panel was appointed in the Grenfell Tower Inquiry and initially in the Scottish Child Abuse Inquiry.

The chair, and any panel members, are appointed by Ministers. In most inquiries the chair will be legally qualified, often a retired judge, however this is not always appropriate and very much depends on the circumstances of the particular inquiry.

When appointing the chair, there are a number of questions that Ministers should consider.

• Is there an impartial inquiry chair available (and willing to be appointed) who can command sufficient public confidence in determining the facts and making associated recommendations?
• If it is proposed to appoint a judge or legal officer (e.g., a Scottish Law Commissioner) to a public inquiry, has the Lord Advocate been consulted^[3]?
• If the inquiry chair is to be a serving judge, sheriff principal, sheriff, or summary sheriff, has the Lord President been consulted on their appointment?
• Is the inquiry chair competent and sufficiently skilled to ensure the efficient conduct of the inquiry?

It should be borne in mind that there have been occasions when an inquiry appointment has drawn adverse public, media or political reaction or the initial appointee has been subsequently replaced.

The House of Lords Select Committee recommended that the inquiry panel should consist of a single member (the chair) unless there are strong arguments to the contrary and it has been rare for more than one member to be appointed to the inquiry panel.

The chair will usually be assisted by an advocate or advocates as counsel to the inquiry who are responsible for providing legal advice to the chair (and the inquiry) and, if the inquiry proceeds to a hearing, will cross-examine witnesses on behalf of the inquiry.

In a statutory inquiry there will also be a solicitor to the inquiry. They will work with the Secretary and Counsel to the Inquiry in providing legal advice to the Chair. Some of their duties will include assisting with drafting inquiry protocols and statements of approach, liaising with Core Participants and assisting Counsel in preparing for oral hearings.

There will usually be a secretary to the inquiry, who will administer the inquiry, managing its budget and progress. This is usually a civil servant who is seconded or on loan from the sponsor Directorate but who works independently for the inquiry.

A public inquiry (and the chair) under the 2005 Act is granted powers that may not be available to other forms of public or private inquiry. The chair can require, by notice, the attendance at the inquiry hearing of witnesses and may also require the production of documents and evidence for examination to the same extent as would be the case in the Court of Session. The inquiry may also require evidence to be taken under oath. Persons who do not comply with such a notice are guilty of committing an offence under section 35 of the 2005 Act.

It is possible for a non-statutory inquiry to be converted to a statutory inquiry under the 2005 Act, so that the chair can use powers to require that witnesses or evidence are brought forward at the inquiry. This was done at the Edinburgh Tram Inquiry owing to lack of co-operation by certain core participants.

Subject only to certain specified restrictions, a public inquiry under the 2005 Act must ensure that members of the public (including reporters) are either able to attend the inquiry in person or to hear a simultaneous transmission of the proceedings and are also able to obtain or view a record of the evidence presented^[4] . The circumstances in which restrictions could be applied are covered in section 19 of the 2005 Act. This sets out that regard must be had to the following matters when considering applying a restriction:

“(a) the extent to which any restriction on attendance, disclosure or publication might inhibit the allaying of public concern;

(b) any risk of harm or damage that could be avoided or reduced by any such restriction;

(c) any conditions as to confidentiality subject to which a person acquired information that he is to give, or has given, to the inquiry;

(d) the extent to which not imposing any particular restriction would be likely—

(i) to cause delay or to impair the efficiency or effectiveness of the inquiry, or

(ii) otherwise to result in additional cost (whether to public funds or to witnesses or others).”

Minister’s Powers

2005 Act inquiries are independent of Government; however, Ministers establish them and can put in place certain controls. This includes:

• Setting the date on which the inquiry will begin.
• Setting the inquiry's terms of reference.
• Appointing the chair to the inquiry, and any additional panel members.
• Determining the fees and expenses to be paid to the inquiry team.
• Determining conditions or limits on the expenses to be paid to core participants and witnesses.
• Making notices restricting public access to hearings or evidence.

The terms of reference should always make clear:

• to whom the inquiry should report;
• the purpose of the inquiry; and
• whether the inquiry is being invited to review policy in a given area, consider the facts of a particular case, and/or make recommendations.

Terms of reference are specific to every inquiry, however there are some fundamental principles that are common to all inquiries.

• Ministers should consider whether the terms of reference restrict the scope of the inquiry to the issues which have caused concern. They should not be wider than necessary, or open ended, as that can have profound consequences for both the time taken to report and the cost of conducting the inquiry.
• The chair of the inquiry must be given an opportunity to discuss the proposed terms of reference of the inquiry with Ministers before they are finalised and published.
• Terms of reference must be finalised before the start of the inquiry.
• Legal advice should always be sought before the terms of reference are announced.
• Ministers may at any time change the terms of reference of the inquiry but must consult the chair of the inquiry before so doing and inform Parliament.

Beyond setting the terms of reference, the controls imposed by Ministers on the operation of an inquiry are limited. This is essential if the inquiry is to operate in an independent manner. However, the 2005 Act does provide for some involvement:

• Ministers may determine the fees and expenses to be paid to the inquiry team, including its chair. This is good practice, as the Government bears the cost of an inquiry.
• Ministers can also determine conditions or limits on the expenses to be paid to core participants and witnesses, which will otherwise be paid at the discretion of the chair. (Expenses paid to witnesses may include expenses actually incurred, compensation for loss of time and legal representation.) This is also good practice.
• Ministers may impose restriction notices in relation to the disclosure or publication of any evidence or documents given, produced or provided to an inquiry. This should only be considered in exceptional circumstances but can be one means by which Ministers can disclose particularly sensitive information to the inquiry to aid its work, in the knowledge the information will not be made public. Ministers must consider the harm or damage that could be avoided or reduced by such restriction, including:
  • death or injury;
  • damage to national security or international relations;
  • damage to the economic interests of the UK or any part of the UK; and
  • damage caused by disclosure of commercially sensitive information.

Once established, inquires may be suspended or ended by Ministers. However, this is subject to some limitations.

• Ministers may suspend an inquiry to allow for the completion of any other investigation or the determination of civil or criminal proceedings but must consult the chair of the inquiry before so doing and provide a notice or statement to Parliament.
• Ministers may also, for any reason, end the inquiry entirely, but must first consult the chair and provide a notice or statement to Parliament.