WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
July 13 2024
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
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An Inquiry into Public Inquiries

An Inquiry into Public Inquiries

There are currently fourteen inquiries being undertaken under the Inquiries Act 2005. The most recent of these is the Covid-19 Inquiry, which has generated a great deal of press attention. In the wake of this, the House of Lords has just set up a new select committee to examine the law and practice of public inquiries. But where have public inquiries stemmed from, and how can they be reformed?

Public inquiries are a vital fixture of our constitution and play an important role in the government’s response to major crises. They are triggered by matters of public concern with common characteristics being large scale loss of life, serious health and safety issues, or failure in regulation. While they provide an important rebuilding of public confidence, and a level of accountability, they are primarily factfinders and aim to offer a full and fair account of what happened. They can bring catharsis and have the advantage of being flexible in contrast to litigation, offering inquisitorial rather than adversarial procedures. This flexibility provides for a more compassionate, human-focused procedure, such as when victims of the mid-Staffordshire NHS Trust were able to have free counselling during the inquiry. Similarly, the Post Office Inquiry ran a human impact phase to hear direct testimonies of those affected.

Historically, inquiries had been conducted by parliamentary committees; however, their lack of independence caused difficulties, and in 1921 this power was moved to public tribunals. The Inquiries Act 2005 introduced measures to make inquiries faster, procedurally more effective, and less costly, but at the cost of giving more power to the ministers.

The Act moved responsibility for establishing an inquiry from Parliament to ministers, equipped with an additional degree of control over their operation. Section 14 gives the minister the power to end an inquiry, after consulting with the chairperson. Section 19 provides the minister as well as the chairperson with the ability to restrict the attendance and evidence disclosure in an inquiry, and section 25 the authority to arrange for the publication of the report, which he or she can defer to the chairperson. The minister therefore has a substantial degree of control, which appears unnecessary given the high levels of seniority and experience the chairs have.

Reform of the Inquiries Act should therefore address this ministerial control, as recognised by the 32 reforms recommended by the Select Committee. These included a recommendation that the minister’s power to issue a restriction notice under section 19 should be abrogated, and that the chairperson should be the sole decision-maker in the withholding of the Inquiry’s material from publication. It recommended that the requirement to send warning letters to all those facing criticism in the report should be left to the sole discretion of the chair. It suggested the setup of a central inquiries unit to deal with inquires and their implementation. These reforms could make inquiries more streamlined and create an enhanced level of trust in the chairperson.

The transparency of inquiries is also essential to their success. Inquiries have strong powers of compulsion under Section 21, which forced the disclosure of Boris Johnson’s WhatsApp messages for the Covid Inquiry. But this power is challenged when the inquiry is exposing past political behaviour. Section 35 makes it an offence to fail to comply with a formal notice requiring the production of evidence. However, this applies for the duration of an Inquiry rather than retrospectively. Messages that have been long-ago deleted aren’t caught by this legislative framework, and politicians have been able to delete messages without censure, a deficiency that should be tightened. The increase in public inquiries and the greater transparency that they provide to the public could conceivably lead to a change in behaviour from people in positions of power.

Another difficulty with inquiries is their inability to mandate their recommendations. The government is ultimately responsible for enforcing them, but there are no consequences for failure to do so, or outright rejection. Nonetheless, past inquiries have provoked significant change in regulation. After the Francis Inquiry report recommended NICE publish guidance on the safe staffing of nurses, it did so. Similarly, the Leveson Inquiry recommendations led to a Royal Charter on press regulation to be granted with the oversight of a Press Recognition Panel, incorporating key recommendations from its report.

Public inquiries should be celebrated as core constitutional instruments that bring truth, catharsis and apportion blame for those who have suffered major miscarriages of justice. The Inquiries Act has made progress by defining the role of the chair, but the level of ministerial involvement remains controversial. A greater focus and trust in the chair would instil public confidence and absolute independence.

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