Public inquiries - the what, why, when, where and who

00:00:05 David Lee, Host

Hello and welcome to Podcasts by Brodies. My name is David Lee, and today we're talking about public inquiries. Just now, public inquiries seem to be constantly in the headlines. High profile examples have included the Manchester Arena bombing and the Grenfell Tower fire inquiries, the infected blood inquiry and of course the COVID-19 inquiry, which is likely to remain in the news for many years to come.

What's the purpose of a public inquiry? What does it aim to achieve, and who can take part? To answer these questions and more I'm joined today by two experts from Brodies Government, Regulation and Competition team, Christine O'Neill KC and Kirstyn Burke. Welcome to you both.

Christine, if I can start with you, very simple question, maybe not so simple, what is a public inquiry?

00:01:00 Christine O'Neill KC, Chair

At the highest level, a public inquiry is a process that involves investigating past events of concern, usually major events that have caused concern to the public to try to build a clear picture of what happened in the past.

But also, to make recommendations for action that if they're put in place, should help to make sure that those things don't happen again.

00:01:30 David Lee, Host

So if we're talking about what a public inquiry seeks to achieve, I suppose that is broadly the answer, it is to avoid those mistakes of the past and look forward?

00:01:42 Christine O'Neill KC, Chair

That's right, and it's often seen as one tool for achieving changes to the law, but also changes to practice in particular sectors or areas of government or commercial activity. To that extent they are forward looking, but also there is an emphasis on looking at establishing the truth - as far as you can ever establish the truth - about what has happened in the past, and in some cases to create a permanent public historical record of events of importance or controversy.

00:02:24 David Lee, Host

OK, thanks very much and Kirstyn - in the introduction I was talking about some of those high-profile examples. Why are we seeing and hearing so much about public inquiries at the moment? Is that just because we're consuming more media or are there more public inquiries happening now than in the past?

00:02:45 Kirstyn Burke, Associate

There are more public inquiries happening now. The House of Commons library published a report last year and it looked at how many inquiries there had been since the Inquiries Act 2005 came into force and how many there were currently running. There had been 19 that had been established and finished from 2005, but there were as of 2022, 15 inquiries that were ongoing. So, we can see there's been a real increase, there were four public inquiries announced alone in 2021.

We do tend to see a lot about public inquiries in the media, by the nature of the fact that they are about high-profile issues that the public have a strong interest in, but there has been a real trend to setting up more.

00:03:34 David Lee, Host

And can you give us a few examples Kirstyn, what are some of those high-profile public inquiries that are taking place at the moment in Scotland and in the UK?

00:03:46 Kirstyn Burke, Associate

Well, you mentioned a couple in the introduction, the Grenfell inquiry is obviously incredibly high profile with the fire and the disaster that happened there. And that was looking both at the night of the fire and what led up to those events - what had been the issues with the building prior to that?

And there's obviously the COVID inquiries are headline news at the moment. There's an inquiry running in the UK for the whole of the UK that was set up by the UK Government and there is an inquiry in Scotland looking at the handling of the pandemic in Scotland alone.

There is also the Post Office inquiry that is looking into Horizon IT, where post office owners ended up going to prison because of an error in accounting software, and looking into the huge impact that had on their lives.

There's also a topical issue at the moment following the tragic events during the pandemic when Sarah Everard was killed by an active police officer. There is a non-statutory inquiry - and we can explain slightly different powers that those inquiries have - looking into her death and how issues with police officers identified in the UK.

00:05:04 David Lee, Host

Thanks Kirstyn, you talked there about the COVID inquiries being established, one at UK level and also a separate one in Scotland.

Why would we have separate inquiries like that into what is, broadly the same issue and are there any differences in the way that public inquiries are conducted in Scotland and in the UK?

00:05:28 Kirstyn Burke, Associate

So it's very unusual that two public inquiries would be established looking into essentially the same issues at the same time.

The UK inquiry for COVID-19 is tasked with looking at the handling of the pandemic in all four nations of the UK, which will include Scotland.

The Scottish Inquiry is only looking at events that happened in Scotland and it only has the powers to look at events that happened in Scotland.

Really, it was a political issue - the fact that the two inquiries have been established running concurrently. The Scottish inquiry was announced first, Nicola Sturgeon announced that there would be an inquiry into the handling of the pandemic at quite an early stage and there was a lot of pressure on the UK Government to follow suit.

Due to those agreements that had been made, the inquiries are both running concurrently.

00:06:19 David Lee, Host

And are there any differences in the way that inquiries are established in Scotland and the rest of the UK, Kirstyn?

00:06:26 Kirstyn Burke, Associate

Well, the key thing is that Scottish enquiries can only look at what's referred to as Scottish issues and that's powers that are devolved to the Scottish Government and Scottish Parliament.

So things like health and social care would fall within the jurisdiction of the Scottish COVID inquiry, but it wouldn't be able to look at issues like immigration and certain transport aspects of events that were happening in the pandemic. So that's an important distinction, but in terms of how they're set up or how they're established, there's generally not a significant difference.

A minister will announce that there's going to be an inquiry, an independent chair will be appointed. The inquiries will be funded by government, but otherwise independent from government. We have seen different procedural approaches, UK inquiries and Scottish inquiries in the way that they conduct their hearings or in the way that they distribute documents around those that are involved, but they're very minor issues and would be most evident to those closely involved.

00:07:32 David Lee, Host

Thanks very much, and Christine, let's go into some of those nuts and bolts in a little bit more detail. Quite a fundamental question who pays for public inquiries? How are they funded and when it comes to selecting a chair, how does that happen and where do all the support staff come from to carry out what can be a very long and complex process of investigation?

00:07:57 Christine O'Neill KC, Chair

So the short answer David is that we pay for public inquiries. They're paid for out of taxpayer funds and exactly how they are set up depends on whether they're established, as Kirstyn has said, by UK government or by one of the devolved governments in Scotland, Wales or Northern Ireland, or exceptionally jointly, it is possible to have joint inquiries too.

The chair is selected by the government that establishes the inquiry, and I should say that although we tend to see inquiries, having a single person as chair, and there will always be a chair of the inquiry, they can be joined by other panel members so governments can appoint people to assist the chair, as part of the panel because they have particular experience or expertise in the area that is being looked at.

The staff for the inquiry can come from a range of sources. In Scotland. we have seen, for example, the legal staff, they tend to come from the Scottish Government's Legal Directorate, so they're already lawyers employed by Scottish Government, but equally they could be recruited from the private sector. And we've seen with some of the bigger inquiries at UK level that they may call on law firms and others in the private sector, particularly barristers, to help them with the inquiry.

00:09:25 David Lee, Host

And just to pick up on one point there, before we go on, Christine. The chair of the public inquiry, it's a huge task to take the chair of the public inquiry as we hear these are things that can run on for many years in some cases. Is it a challenge to get the right person, with the right skills, who can commit for such a long time? Because we have seen some inquiries where the chairs have stepped down and been changed or whatever. Is the choice of the chair quite a tough thing to get right?

00:09:58 Christine O'Neill KC, Chair

Well, it seems to be, as a matter of experience. As you say, we've had some inquiries where the chair has chosen to step down or where there has been some dispute or controversy about whether the right person has been selected. We know that as a matter of generality, the public often want to see a judge appointed as chair. That's not necessary. that's not an absolute requirement, but the public appears to have greater faith in judges being appointed to conduct public inquiries. A very interesting development in the Scottish COVID inquiry is that the Scottish COVID inquiry is also recruiting to appoint a chief executive, and I think has chosen a chief executive, and that makes a huge amount of sense to us. It gives somebody responsibility for the administrative and logistical parts of organising the inquiry, while the chair can concentrate on actually conducting the investigation.

00:10:58 David Lee, Host

And that's unusual, Christine that's not something that we've seen?

00:11:02 Christine O'Neill KC, Chair

It's unusual in our experience to see a chief executive appointed in that way.

00:11:08 David Lee, Host

But you see that as a positive thing.

00:11:10 Christine O'Neill KC, Chair

I think on the face of it, it's a really positive thing and you would expect, for example, for something as big as the Scottish COVID inquiry with a huge amount of documentation and the very large number of staff that are going to be involved in that. Having someone whose full-time job is to manage that process feels like a good addition to the team.

00:11:32 David Lee, Host

And let's just look briefly at the law around public inquiries. I think we heard earlier on about the Inquiries Act of 2005. Why was that enacted Christine? And what did it intend to do? What wasn't there before the Inquiries Act was put in place.

00:11:51 Christine O'Neill KC, Chair

Before the 2005 Act governments did establish inquiries of various different kinds, and indeed they continue to do that.

You don't have to have an inquiry under the 2005 Act, but there was quite a lot of inconsistency about the approach taken by inquiries and the format that would adopted. The 2005 Act, was intended to bring that disparate approach together and create a common structure for what we now call statutory inquiries.

The 2005 Act provides legal powers for the chair of the inquiry to require documents and evidence to be produced, to require witnesses to attend the inquiry and it also provides for the basis for rules and regulations about how the inquiry itself should operate. So, we should be able to look at the 2005 Act and the rules that are made under the Act and have a relatively clear picture of how an inquiry is going to work.

00:12:49 David Lee, Host

OK thank you, and Kirstyn we've talked quite a bit there about the why and the how of the public inquiry.

So, what about the who? Who tends to be involved in a public inquiry and how? If you feel you've got an interest in it, how do people get involved?

00:13:06 Kirstyn Burke, Associate

Well in terms of who, it would depend on what the subject matter of the inquiry is. It will be those who are most closely affected by the events and those who may be responsible for the events will be involved. Quite often you'll see the government being a party in an inquiry as well, given the large-scale events that are generally investigated.

In terms of how you become involved in a public inquiry, there's two main ways that might give you cause to become involved.

The first is a witness, so if you have information that is relevant to the inquiry, the inquiry may ask you to produce documents. They may ask you to provide a witness statement and attend to give evidence at a public hearing.

The other, slightly more unique to inquiries, way of becoming involved is what's known as a core participant, and that is someone who has a particular interest in the inquiry and they would like to be granted a special status in the inquiry to become involved in the proceedings. Unlike litigation, unlike court cases where the proceedings are driven by the parties, you know one party taking another party to court.

In this case, the process is driven by the inquiry itself, and the parties may wish to become involved to be able to make opening and closing submissions at hearings, to be able to see evidence before it's made public, to apply to question witnesses at a hearing.

If they want those powers they can apply to become a core participant, and there's special criteria set out in the legislation and it says that in order to become a core recipient, you must have played a direct and significant role in the matters which the inquiry is investigating, have a significant interest in them or may be at risk of being criticised in the inquiry.

I think if we look at the COVID-19 inquiries, we could probably say all of us in the country would have a significant interest in the inquiry. So not everyone who applies to become a core participant will be granted core participant status, it's up to the chair to apply those criteria and decide if it's desirable for these people to become involved.

And they may reject applications, but equally you can't be compelled to become a core participant and it is something that you have to put yourself forward for. Although the inquiry may issue invitations for you to apply, and if that's the case, it's generally a strong indication that you should be involved in the inquiry itself.

00:16:00 David Lee, Host

And just to be clear, if you don't want to participate for whatever reason, can you be compelled to come and give evidence to a public inquiry if the inquiry determines that your evidence is important, can you be compelled, or can you refuse to take part?

00:16:20 Kirstyn Burke, Associate

So that will depend on whether the inquiry is a statutory inquiry or a non-statutory inquiry.

Statutory inquiries, as Christine mentioned, have special powers and one of those powers is to compel evidence from witnesses, and it's a criminal offence not to comply with an order from the inquiry to provide documents or attend to give evidence. So yes, you can be forced to do so.

We've seen recent examples in the media about the UK COVID inquiry seeking Boris Johnson's WhatsApp messages and diaries from the Cabinet Office and the Cabinet Office are challenging that request and are taking the UK inquiry to court in order to seek to have that request rescinded. But if that's not the case, there will be a legal obligation to provide those documents.

00:17:16 David Lee, Host

OK, thanks very much, and Christine just to give people an idea, what is it like to be part of a public inquiry?

What should you expect if you do find yourself involved? Is it like a court case? Is it a bit different? What should people expect if they get involved?

00:17:35 Christine O'Neill KC, Chair

I think for people who've been involved in court cases, they will find the experience of being involved in a public inquiry really quite different from that ordinary experience.

As Kirstyn has mentioned, if you are involved in a public inquiry, you might be asked by the inquiry to produce documents, you might also be asked to come along to inquiry hearings to give evidence as a witness. Normally, if you're going to be asked to come along to give evidence in a public hearing, you'll be contacted by the inquiry first, and they may ask you to give a statement beforehand so they've got an idea about whether you've got something valuable to say to the inquiry. But you may be called, as I say, to give evidence in the hearing. You may also, if you're a core participant, be able to make opening or closing submissions at different points in the inquiry's work. If you're a witness, then it will be quite different from being in a courtroom. You won't be questioned by your own lawyer, and you won't be cross examined in the usual way by the other party's lawyer. It tends to be the case that all questions are put to you by the lawyers who are acting for the inquiry. They can be more or less rough in their questioning, but their aim always is to try to establish the truth rather than to be advocating for one or other side, as you might see in a court action.

00:18:58 David Lee, Host

And we've talked before about there are a lot of public inquiries going on, but there still aren't that many, they're always quite high profile, they're on very high-profile subjects. So, what are potential reputational impacts of a public inquiry if you're there giving evidence because there is a lot of scrutiny, there is a lot of focus on what people are saying in public inquiries. So, what are the potential impacts, Christine?

00:19:26 Christine O'Neill KC, Chair

And it's quite challenging David, because the press will often be attending inquiry hearings and sometimes those inquiry hearings are televised and you can see your evidence on YouTube or indeed on the evening news after you've given it, so that can be quite intimidating. I think in terms of protecting your reputation and the reputation of your organisation preparation is absolutely key. Doing some work in advance to understand the key areas of risk and potential criticism is very important.

I would recommend in many cases that if you do know that you have made a mistake or you are expecting to be criticised for something that's been done in the past, then it may be better to acknowledge that early in the process rather than resisting the criticism or resisting so that you are found by the inquiry to have been, for example, an unhelpful witness. That kind of finding can obviously be very, very damaging to your reputation.

And I think careful review of the evidence, a careful assessment of what other witnesses have said, so that you can make submissions aimed at getting the inquiry to look carefully at the evidence and come to a view that is more favourable to your version of the truth than might otherwise be the case is also going to be important.

00:20:51 David Lee, Host

Thanks very much and Kirstyn when all this has happened, when all the evidence has been taken, what happens next? When we come to the end of a public inquiry, where do we go from there?

00:21:07 Kirstyn Burke, Associate

So the Chair of the inquiry will publish a final report and that will set out their findings of fact, and it will make recommendations for change where they think it's appropriate to do so.

I should also say that interim reports may be published during the life of the inquiry, which do similar things to particular phases of the inquiry.

We have seen that in the Manchester Arena inquiry, the Chair has split the inquiry into 3 phases and has issued a report at the end of each phase which contained recommendations. Now generally, once a final report is issued, that's the end of the inquiry. It disbands and the report is presented to the Minister that initially established the inquiry and it's for government to take forward the recommendations that are made within the report. But interestingly, in the Manchester Arena inquiry, we have seen the Chair make recommendations that they have to monitor during the life of the inquiry and witnesses are being asked to provide evidence as what they are doing to comply with those recommendations during the inquiry itself. But mostly the inquiry doesn't have any powers to take these forward and it's for government to do so.

00:22:25 David Lee, Host

And obviously the recommendations of public enquiries tend to be very high profile and maybe three or four tend to get picked out or even one or two get picked out by the media and become a real focus of potential change. Can you give some examples of changes that have been made to the law, Kirstyn as a result of recommendations made by public inquiries in recent years?

00:22:50 Kirstyn Burke, Associate

Yes, we see as a result of recommendations made in public inquiries, the government making change in legislation, issuing guidance or perhaps even establishing a new statutory body to take forward recommendations.

Looking at some historical examples of changes that have arisen from high profile inquiries.

The Bristol Royal Infirmary Inquiry and the Shipman inquiry -the Shipman inquiry was the inquiry into Harold Shipman, the serial killer who was responsible for the deaths of a number of elderly people. They resulted in significant changes to the regulation of healthcare, and they've been described as watershed moments by the General Medical Council. There was a change from self-regulation of doctors to professional regulation and General Medical Council became responsible for the education of doctors from beginning to end of their career.

The Ladbroke Grove Rail inquiry led to the establishment of the Rail Accident Investigation Branch following the train crash in 1999 and the Bichard inquiry into the deaths of Holly Wells and Jessica Chapman led to changes in child protection measures and that introduced what was initially known as the "CRB checks" - which was Criminal Records Bureau check - which are now known as disclosure checks, to ensure that those working with children don't have any criminal offences that should prevent them from doing so.

00:24:27 David Lee, Host

Some really great examples there and just to bring us to a close, Christine I think probably Kirstyn's answered this question to some extent as to why we need public inquiries, because some of those changes that she's explained there have really been fundamental in all sorts of areas you know, in healthcare, in transport and in child protection, to take those examples. So just bringing everything together, what would you say is the central role and the value of public inquiries in a democratic modern society?

00:25:01 Christine O'Neill KC, Chair

I think that for areas of significant public concern, it's not always practical, and it's also not always desirable to leave scrutiny of government to individuals bringing individual legal cases. That's not regarded as being fair, and it's not regarded as being a way of looking at an issue in a very broad scope and coming up with recommendations for reform. So, this is a way of having an independent body, but with legal powers and the authority and the legitimacy to look at these issues and to hold government to account.

00:25:41 David Lee, Host

Thank you very much Christine.

So, thank you to Christine O'Neill and to Kirstyn Burke for their excellent insights on public inquiries today.

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