Public inquiries are major investigations established by a government minister (or ministers in the case of joint inquiries) to investigate an event or events of significant public concern.
Public inquiries are important for several reasons. Crucially, the outcomes and recommendations of a public inquiry can lead to changes in the law, policy or training.
Before an inquiry is held
Ministers should consider the public interest in holding an inquiry and take into account:
- whether the events in questions give rise to a serious and widespread, justified public concern;
- whether a public inquiry will satisfy that concern;
- how long the inquiry is likely to last;
- what will be the likely cost; and
- what powers are required by the inquiry.
Factors influencing the establishment of an inquiry
Whether an inquiry is established on a statutory or non-statutory basis will depend on a number of factors, including the likely duration and costs, whether witnesses will be required to provide evidence, if there will be a need to recover documents and whether the particular type of inquiry chosen is likely to satisfy those affected. The purpose of an inquiry is not to establish criminal or civil liability, and the chair of an inquiry cannot impose civil or criminal sanctions. Rather, the purpose is to investigate and make findings and recommendations, which can be used as a basis for future legal or policy reform.
Statutory v non-statutory inquiries
An inquiry may operate on a statutory or non-statutory basis. Most inquiries are now established under the Inquiries Act 2005 (“the 2005 Act”), which is a UK wide piece of legislation, and are therefore known as statutory inquiries. Examples include the UK and Scottish Covid-19 Inquiries. Non-statutory inquiries have fewer legal powers but can operate more flexibly; one example was the Angiolini Inquiry into the death of Sarah Everard.
Your organisation may be invited to make representations on which type of inquiry would be most appropriate and we can advise on the merits of each approach.
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The advantage of a statutory inquiry is that it operates within a defined legal framework, governed by the 2005 Act and the applicable inquiry rules, such as the Inquiries (Scotland) Rules 2007 if it was established by Scottish Ministers, or the Inquiry Rules 2006 if a UK Minister is responsible for the Inquiry. Under this framework, the relevant minister appoints the chair, and the 2005 Act confers powers to compel witnesses to give evidence and to require the disclosure of documents.
An inquiry may be undertaken by the chair alone or by the chair and one or more other members. These individuals are the inquiry panel. Each member of an inquiry panel is appointed by the minister in writing. The 2005 Act also obliges inquiries to make appropriate arrangements for public access to proceedings and to information related to the inquiry. For example, the UK Covid 19 Inquiry publishes its terms of reference, documents and live streamed hearings online. A statutory inquiry is often preferable where there are concerns that those with relevant evidence may not cooperate fully or may be reluctant to disclose information.
Non‑statutory inquiries share many similarities with statutory ones, but they can offer greater flexibility. They may be more suitable where the subject matter is particularly sensitive, as they do not have the same duties to hold proceedings in public. An example of a non-statutory inquiry is the Morecambe Bay Investigation, which was established to review the management, delivery and outcomes of care provided by the maternity and neonatal services of the University Hospitals of Morecambe Bay NHS Foundation Trust. When investigating matters which include highly sensitive material such as health data, a non-statutory inquiry may be viewed as preferable.
A non-statutory public inquiry can be converted into a
statutory one, if a non-statutory inquiry is not sufficient. This may occur
where a key witness is not willing to provide evidence or the inquiry requires
powers to recover documents. In these circumstances, the chair can reconvene
the inquiry under the 2005 Act. An example of a conversion is the Post Office
Horizon IT Inquiry, which began as a non-statutory inquiry and was subsequently
converted under section 15 of the 2005 Act, as the powers available to a
statutory public inquiry were considered necessary to ensure the inquiry could
establish the truth around the implementation and failings of the Horizon IT system.
Terms of reference
Under the 2005 Act, every inquiry must be established with formal terms of reference. These must specify the matters to which the inquiry relates, any particular issues to be determined, whether the inquiry is expected to make recommendations and any other elements defining its scope. An inquiry under the 2005 Act cannot begin considering evidence until its terms of reference have been formally established. While terms of reference are individual to each inquiry, they should all generally follow these key principles:
- They should not be wider than necessary or open ended;
- The chair must be given the opportunity to discuss the proposed terms of reference with the minister before they are finalised and published;
- Legal advice should be sought before they are announced;
- The minister may at any time change the terms of reference but must consult the chair before doing so. For example, the Scottish Child Abuse Inquiry had its terms of reference amended.
Terms of reference may be developed in consultation with those affected by the issues under examination, ensuring they accurately reflect the inquiry’s purpose. Terms of reference can be shared in draft for a period of consultation, such as happened with the Independent Inquiry into Grooming Gangs.
Where your organisation is expected to be the subject of an inquiry, it should consider and (if appropriate) engage in any such consultation on the proposed terms of reference, as they are the basis for the subsequent investigation – although Inquiries will often be afforded a degree of flexibility to fully and effectively investigate relevant issues. Brodies can assist with drafting and advising on terms of reference and would be happy to discuss possible implications with you.
Ministerial powers
Statutory inquiries under the 2005 Act operate independently of government, although ministers retain certain powers of oversight. These include determining when an inquiry may commence, appointing the chair, setting the terms of reference and imposing restrictions on public access to hearings and evidence.
Understanding public inquiries and investigations
Statutory public inquiries, non-statutory inquiries and internal investigations each have distinct features.
They differ in their legal basis, flexibility of their terms of reference, requirements for public access and overall costs.
Understanding these differences helps clarify the varying degrees of formality, transparency and financial responsibility involved in each approach.
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- Statutory basis - Most statutory inquiries are established under the Inquiries Act 2005.
- Framework - The combination of the 2005 Act and relevant Inquiry Rules provide a clear framework for the inquiry.
- Powers - Statutory powers allow the inquiry to compel witnesses to give evidence or individuals or organisations to produce documents. Non-compliance can be a criminal offence.
- Terms of reference - The terms of reference set out the scope of the inquiry. These are set by ministers, typically in consultation with the chair. Under section 5(6) of the 2005 Act, the terms of reference of a statutory inquiry must define any particular matters that are to be determined and whether the inquiry is to make recommendations.
- Public - The public must have access to inquiry hearings and information. The chair of a public inquiry must take reasonable steps to ensure that members of the public can attend or view the inquiry and to obtain or view a record of the documents and evidence produced. The chair also has powers to restrict attendance to an inquiry or a part of it, or restrict disclosure of evidence as required by statute or to allow the inquiry to fulfil its terms of reference.
- Costs - The sponsoring Directorate which deals with the subject matter of the inquiry is liable for costs. The chair of the inquiry is under a legal duty to avoid unnecessary costs. It has been noted by both the House of Lords' Statutory Inquiries Committee and Holyrood’s Finance and Public Administration Committee that inquiries can be costly, and recommendations have been made to set budgets.
- Non-statutory basis - A non-statutory inquiry is not governed by the 2005 Act.
- Framework - A non-statutory inquiry has greater flexibility in the way in which the inquiry is carried out. For example, evidence may be heard in private.
- Powers - These inquiries do not have statutory powers to compel witnesses or the production of evidence and rely on voluntary co-operation or through other means.
- Terms of reference - The terms of reference set out the scope of the inquiry. These are set by the ministers or the organisation establishing the inquiry. Unlike a statutory inquiry, there is more flexibility as to what should be included in the terms of reference.
- Public - The public does not have to be given access to the hearing or inquiry information. This approach may be preferred for sensitive topics as there is no automatic statutory requirement to allow public access.
- Costs - The sponsoring Directorate or organisation establishing the inquiry is liable for costs.
- Non-statutory basis - Internal investigations, for example an internal investigation by a local authority, will not normally have a statutory basis.
- Framework - Investigations may follow a flexible process and procedure outwith the scope of statutory constraints. An investigation will likely be a faster process and may take place completely internally.
- Powers - Investigations do not have statutory powers so they are reliant on voluntary co-operation or through other means e.g. any contractual obligations to provide information.
- Terms of reference - The terms of reference of an investigation are more flexible as they are not constrained by statutory requirements. The terms of reference of an investigation may be determined by an internal policy document.
- Public - The public does not have to be provided with access to an investigation but information about the investigation held by a public authority may always be requested under Freedom of Information laws.
- Costs - Investigations are often on a smaller scale than an inquiry and therefore the costs will be less. Any cost of the investigation will usually be borne by the organisation conducting it.
Scrutiny of public inquiries
The House of Lords Statutory Inquiries Committee was established to scrutinise how the Inquiries Act 2005 was working in practice and whether inquiries were efficient, effective and had proper oversight. It published a major report in September 2024 entitled the House of Lords Statutory Inquiries Committee’s Report on “Public Inquiries: Enhancing Trust” and its recommendations included that an inquiry’s terms of reference should include an obligation on the chair and secretariat teams to publish, at a minimum, a lessons learned report, and that the legal basis for the inquiry and the identity of the chair should be determined on a case-by-case basis. The UK Government has published its response “Public Inquiries: Enhancing Trust.” In its response it agreed that each inquiry is unique, and that the legal basis for, and chair of, an inquiry should be selected on a case-by-case basis. It also agreed with the recommendation that a lessons learned report should be produced at the end of an inquiry by the inquiry’s secretariat, as well as studies throughout. It also agreed that, where appropriate, victims and survivors should be consulted on an inquiry’s terms of reference. An indicative deadline for completion of the inquiry should be provided in an inquiry’s terms of reference.
Similarly, Holyrood’s Finance and Public Administration Committee’s report has published a report documenting an eight-month investigation into the cost-effectiveness of public inquiries. Its findings include calls for measures such as defined budgets and timelines for inquiries, and focused clear aims. The Committee also agreed with House of Lord’s proposal for the chair and secretaries to publish a lessons learned paper, adding that a robust, transparent system for tracking and reporting implementation of inquiry recommendations is required. The full report can be access here.
How can Brodies help?
Brodies has a wealth of experience in UK and Scottish public inquiries and is frequently instructed in statutory and non‑statutory inquiries as well as internal reviews and investigations by public authorities. Our team provides comprehensive support at every stage.
Brodies can also offer clients their own bespoke “Inquiries Dashboard,” allowing quick access to our advice, document sharing facilities and snapshot client data. This facility allows our clients to monitor costs whilst ensuring maximum efficiency throughout the duration of an inquiry.
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