From healthcare scandals to building safety failures and pandemic responses, public inquiries are now a frequent feature of public life, dominating headlines and shaping public debate. Calls for public inquiries are increasing, both in Parliament and in the media, with many considering that they offer a reliable mechanism for the government to demonstrate transparency, restore trust and provide a structured process for learning lessons. However, they can pose significant commercial and reputational risks to businesses and individuals, serving as a very open and high-profile forum for criticism.
What is a public inquiry?
A public inquiry is an independent investigation designed to uncover the facts behind events that have caused widespread public concern. Public inquiries are not courts: they do not determine civil or criminal liability or award compensation. Instead, they are inquisitorial, focusing on fact-finding and making recommendations for future improvements. Ultimately, they aim to answer three fundamental questions:
- What happened?
- Why did it happen and who is responsible?
- What can be done to prevent it from happening again?
There are two main types of public inquiry:
- Statutory inquiries, which are governed by the Inquiries Act 2005 and have legal powers to compel witnesses and documents. They follow strict procedural rules and must publish their findings.
- Non-statutory inquiries, which are not governed by legislation, making them more flexible and less formal. However, they rely on voluntary cooperation and are often used when speed or sensitivity is required, but lack the power to compel evidence.
Recent examples of public inquiries include the Infected Blood Inquiry, which examined how thousands of people were given contaminated blood products by the NHS in the 1970s and 1980s, leading to recommendations on compensation and systemic healthcare reforms; the Post Office Horizon IT Inquiry, which investigated the development and rollout of the Horizon IT system and resulted in recommendations for full and fair compensation for affected sub-postmasters; and the Grenfell Tower Inquiry, which investigated the 2017 fire that killed 72 people and led to recommendations, and ultimately reforms, in building and fire safety.
Public inquiries differ from Parliamentary Select Committee hearings, which are led by permanent committees in Parliament focusing on specific areas such as health and social care, defence, and business and trade. Their main role is oversight, ensuring that government departments and public bodies are held accountable. Committees invite witnesses – including ministers, civil servants, experts, industry representatives and, in some cases, members of the public – to give oral evidence.
Framework
As mentioned above, most statutory inquiries operate under the Inquiries Act 2005. This legislation gives government ministers the power to establish an inquiry, set its terms of reference (i.e. its scope) and appoint the chair, usually a judge or senior legal figure, or a panel, to preside over the inquiry. The Inquiries Act also gives inquiries the power to compel witnesses and documents, hold hearings and gather evidence under oath.
A breach of an inquiry order is a serious matter and can lead to referral to the High Court, where the breach is treated as contempt of court. Sanctions can include a fine and/or imprisonment. The chair sets the rules for how evidence is gathered and presented, and a counsel team is appointed to review the documents and cross-examine the witnesses called to give evidence.
Witness evidence plays a central role in most public inquiries, often forming the backbone of the factual record. Individuals may be asked to provide written statements, and some will be required to give oral evidence at public hearings. This can be an intensive and sometimes uncomfortable process. Although inquiries are not adversarial, witnesses can still face robust questioning from counsel to the inquiry, and their evidence will be scrutinised in detail alongside large volumes of documentary material.
For businesses, it is crucial to ensure that witnesses are thoroughly prepared, both so they understand the process of giving evidence and so their witness statements contain a clear record of their recollection of events. Early engagement with legal advisors can help to achieve those aims.
The Inquiries Act provides that at the end of the evidence, the chair submits a report to the minister who called for the inquiry, who in turn publishes it to Parliament. Reports include the inquiry’s findings and recommendations, which are advisory and not legally binding. Nor, as mentioned above, are they determinative of civil liability.
Public inquiries are significant undertakings. The complexity involved with their implementation and conduct often translates into substantial cost and time commitments. Many inquiries run for several years, with budgets reaching tens of millions of pounds, sometimes more, due to the scale of document review, expert analysis and hearings.
Takeaways
Public inquiries are a powerful tool for learning lessons from tragedy and failure. They can provide a forum for transparency, accountability and systemic change. However, they can also pose significant risks to businesses, both reputationally, if an inquiry makes adverse findings, and commercially, as their length can place a significant burden on management’s time and resources, particularly where directors are called to give evidence.
Companies are therefore well advised to seek legal advice at the earliest possible stage if they are involved, or likely to be involved, in a public inquiry, in order to help minimise those risks.
Cooley has a proven track record in helping businesses navigate the high-stakes landscape of public inquiries, having advised and supported clients in some of the most high-profile inquiries in recent years.
For more information, please contact Sascha Grimm, Tom Epps, Oliver McGlashan or any member of the Cooley global hearings practice group.
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