Public Inquiries – their purpose, the practicalities and horizon scanning

On 15 July 2020, the Prime Minister committed to an Independent Inquiry into the handling of the coronavirus pandemic. In this e-briefing, Tim Coolican and Lorna Kenyon outline the purpose of Public Inquiries and how an Inquiry into the handling of the coronavirus pandemic may affect the different sectors concerned.

What is a Public Inquiry?

Public Inquiries are usually established in response to a serious incident or event that has caused significant public concern. Key factors are often said to include; large scale loss of life, serious health and safety issues or failures in regulation, all of which can be seen to feature in the case of the COVID-19 pandemic.

The purpose of an Inquiry is to establish the facts and the cause of any failings, as well as to make recommendations to prevent a repetition of similar events. While an Inquiry cannot establish civil or criminal liability, the findings may be critical of the individuals or organisations involved.

Most Public Inquiries are statutory Inquiries held under the Inquiries Act 2005 (‘the Act’). There are some non-statutory Inquiries, which are subject to less restrictive rules and lack some of the key powers to compel the production of documents and the attendance of a witness to give evidence in public under oath.

Public Inquiries are commissioned by a minister, but once established a statutory Inquiry will be independent from Government. Given the potential for an Inquiry to criticise those responsible for commissioning it, such decisions are frequently avoided or delayed until public pressure for an Inquiry is too great to resist.

A Public Inquiry will be led by a chairperson, either alone or supported by a panel who can often bring additional relevant experience. The scope and remit of the Inquiry will be controlled by its terms of reference, which are directed by the minister following consultation with the Inquiry chair.

Each Inquiry will have Core Participants, who will have special rights during the Inquiry. For example, they will be able to review relevant documents and will have the right to make representations during the Inquiry. Core participants will typically be those people or organisations who had a role in the incident/matter to which the Inquiry relates, have a significant interest in an important aspect of the Inquiry or who may be criticised during the proceedings.

An Inquiry will establish the facts by requesting documents, interviewing witnesses and holding hearings at which relevant organisations and individuals can be called as witnesses. Generally, any hearings will be held in public.

The Inquiry must produce a report of its findings and if required in its terms of reference, it must make one or more recommendations. These recommendations are often key to ensuring that lessons are learnt, and action taken to prevent the issues tackled by the Inquiry arising again in the future.

The practicalities of Public Inquiries

Public Inquiries typically take place over many months, and sometimes years. This can lead to a delay in the Inquiry’s report being released and its recommendations being actioned. For example, the Chilcot Inquiry, which examined the UK’s involvement in the Iraq War, was announced in 2009 and its report was published in July 2016.

Where a rapid response is required, an Inquiry can be split into phases or modules, with interim reports being published as quickly as possible. For example, the Grenfell Tower Inquiry is split into phases and separate reports will be released for each phase. This has meant that the recommendations deriving from the first phase could be considered far earlier, with the government’s response including the introduction of the Fire Safety Bill and the establishment of the Building Safety Regulator.

The Independent Inquiry into Child Sexual Abuse comprises 15 investigations in relation to child sexual abuse. While some of the investigations have focused on historic allegations of abuse within specific organisations others have a thematic focus.  For example, the Investigation into Religious Organisations and Settings has considered current safeguarding practices and whether additional regulation in this area is required.   

The impact of the potential Public Inquiry into the coronavirus pandemic

At present, it is unclear exactly what form the Inquiry will take. If the Inquiry is held under the Act, we anticipate that its terms of reference will be wide-ranging and will focus on learning lessons from the handling of the pandemic by the government, key institutions and organisations in different sectors.

In the social care sector, some of the key issues that may be addressed by the Inquiry are the availability of Personal Protective Equipment, the delays and frequent changes in Government guidance, the discharging of hospital patients with COVID-19 into care homes from hospital and the collation of data related to the provision of social care. As with the impact of the Grenfell Tower Inquiry and Hackitt Review on the housing sector, the care sector may find that a Public Inquiry prompts wide-ranging systemic and regulatory reform.

The Inquiry is also likely to consider the respective roles of central and local government in responding to the crisis. Questions will have to be answered about the effectiveness of their actions and who is best placed to manage critical components of the response to similar events in future. Doubt has already begun to emerge about the future of Public Health England and a Public Inquiry could have an influence on the existence and role of many other public bodies.

The social housing sector has found itself in a difficult position as providers try to balance their obligations to protect their employees and tenants from the risks of COVID-19 with their wider safety obligations (in relation to gas servicing, for example). All businesses have had to balance their often-competing safety obligations as they consider how they can reopen their premises in a COVID-19 secure manner. These difficulties appear to have been largely caused by the inappropriateness of our current health and safety legislation for dealing with diseases/viruses in widespread transmission and the lack of governmental planning on how a serious health crisis may affect the wider economy and businesses.

It is likely that public opinion will play a critical role in determining whether an Inquiry is held and the issues that will be considered. While a Public Inquiry may appear a long way off, organisations and their representative bodies should begin to consider now the influence they could have in shaping the likely focus of an Inquiry and be ready to articulate the messages they want to be heard.  

For more information

If you have any questions in relation to this e-briefing, please contact Tim Coolican or another member of our Regulatory team.

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