In recent years, the number of public inquiries being established by the UK and Scottish Governments has increased. As a result, more organisations and individuals are impacted by inquiries and may expose themselves to reputational risk – sometimes by failing to participate in order to represent their interests.
What is a public inquiry?
A public inquiry is a major investigation into events which have caused significant public concern. The purpose is to establish what happened and why; who was responsible and what can be done to avoid similar events reoccurring.
Inquiries may be ‘statutory’ or ‘non-statutory’. Statutory inquiries set up under the Inquiries Act 2005 give the Inquiry Chair powers to compel individuals and organisations to provide information and to require witnesses to give oral evidence at hearings.
Recent examples include the Grenfell Tower Inquiry and the Scottish Hospitals Inquiry.
Why would an organisation or individual become involved in a public inquiry?
An organisation or an individual may be required to provide evidence about their role in the events being investigated or the impact of the events on them.
Some individuals and organisations may wish to be more involved in the inquiry’s process and may apply to be a ‘core participant’ in the inquiry. Core participants have a special status, they will generally have access to documents and witness statements provided to the inquiry, before those documents are made public. They will also be able to make written and/or oral submissions to the inquiry, to comment on the inquiry’s processes and suggest questions that they would like witnesses to be asked at hearings. Importantly they will also see a copy of the inquiry’s report (shortly) before it is made public.
To become a core participant you should normally have had a direct and significant role in the matters being investigated, have a significant interest in an important aspect of these matters, or be a person who is likely to be subject to criticism during the proceedings or in any report published by the inquiry.
What happens at the end of a public inquiry?
The Chair presents a report to the government minster or ministers responsible for setting up the inquiry which sets out the facts established by the inquiry and usually includes recommendations as to how similar events can be avoided in the future. It is generally for the government to take forward these recommendations by amending the law, publishing guidance or establishing a new public body such as a regulator.
An inquiry does not result in anyone being found liable in a civil sense – for example an inquiry cannot order that compensation is paid – and an inquiry cannot find anyone guilty of a criminal offence. However, separate criminal prosecutions or civil claims can arise out of the same events and can run at the same time as an inquiry.
What are the potential reputational impacts?
There is a presumption contained within the Inquiries Act 2005 that an inquiry’s hearings will be held in public and that documents provided to the inquiry will be made public – this is an important part of the inquiry process.
An inquiry can request (and publicly disclose) all forms of documents and communication related to the matters it is investigating including personal diaries and WhatsApp messages. The disclosure of these may cause embarrassment but it is a criminal office not to comply with a formal notice served by an inquiry (known as a “section 21 notice”),
The Cabinet Office has recently challenged a section 21 notice from the UK Covid-19 Inquiry requiring it to provide Boris Johnston’s WhatsApp messages during the pandemic. Challenging such a notice in of itself could be reputationally damaging as there may aspersions cast (rightly or wrongly) on why there is a reluctance to provide the material.
If an organisation or individual is criticised in an inquiry – either by the inquiry itself or by witnesses who give evidence – such criticism will be in the public domain and may attract negative media attention.
If you consider that you or your organisation are likely to be criticised during an inquiry, you may wish to obtain legal representation and proactively engage with the inquiry. Generally, the most effective way of doing so is by becoming a core participant so that you can make representations to the inquiry. As a core participant, you will also have the opportunity to see criticism made in witness statements or documents obtained by the inquiry before they are made public. Therefore, you can ensure that you have appropriate responses ready when they are disclosed publicly.
For more information contact:
Christine O’Neill KC
Chair, Brodies LLP
0131 656 0286
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Kirstyn Burke
Associate, Brodies LLP
0131 526 4070
