What is the purpose of a statutory public inquiry?
Establish the facts – the matter of public concern may have involved loss of life or other harm and in every case, a key purpose will be to establish a factual chronology of events.
Provide catharsis – give a voice to individuals affected by or involved in the events of public concern and enable them to ask questions of others involved or accountable.
Satisfy political considerations – some believe that inquiries may be used to serve a governmental agenda or at least to demonstrate that something is being done.
Determine accountability – although an inquiry cannot determine legal liability, most inquiries will seek to hold to account individuals and organisations with responsibility for relevant matters.
Identify lessons to be learned and restore public confidence – inquiries will generally make recommendations which may include measures that would restore confidence in institutions. However, inquiries have no powers to enforce recommendations.
Public inquiries cannot…
Determine civil or criminal liability – although adverse findings by an inquiry may have reputational consequences
Direct certain actions – for example they cannot legally compel compensation to be paid, or any particular remedial actions to be implemented.
Change the law – although an inquiry might make recommendations, a Government may choose not to follow them.
Who is affected?
Inquiries have increasingly complex scopes and can affect many individuals and organisations simultaneously.
This can include victims or those directly impacted by the events under scrutiny as well as those potentially accountable for them and any individual or organisation that played a role even if relatively incidental. In some cases, an individual or organisation will choose to be involved, but sometimes an individual or organisation will have to be compelled by an inquiry to provide evidence.
It is important to identify early whether you might be involved to allow, amongst other things, for good preparation by your organisation, the managing of the workloads of key individuals, solicitors to be instructed, and the setting up of an in-house team
Preliminary issues for the inquiry
A Chair will be appointed by a Minister.
Terms of reference will be drawn up and may be subject to consultation.
Staff will be engaged.
Governing documents (protocols) will be prepared to determine procedure for disclosure, core participants etc and claiming costs of legal representation.
The structure of the Inquiry will be defined e.g. modules / phases.
Key players
Chair – appointed by the Minister to undertake the inquiry.
Panel members – if any, they are appointed by the Minister to assist the Chair.
Assessors – if any, they are appointed by the Minister or the Chair to provide expertise and assistance to the Chair/Panel.
Counsel to the Inquiry – barrister(s) appointed by the Chair to act as counsel and lead the questioning witnesses.
Solicitor to the Inquiry – solicitor(s) appointed by the Chair to advise on legal matters such as collection and assessment of evidence.
Secretary to the Inquiry – a person appointed by the Chair to carry out the administration and management of the inquiry (along with deputies).
Core Participant – A person or organisation who the Chair considers played (or may have played) a direct and significant role in the matters to which the Inquiry relates, has a significant interest in an important aspect of the matters and / or may be subject to explicit or significant criticism during proceedings or in any report.
Witness – a person to whom the Inquiry sends a request for a written statement, who may subsequently provide oral evidence.
Expert witness – a person whom the Inquiry requests evidence from because of their expertise and skill in, or knowledge of, a particular field.
Early support
If you instruct us, we will:
Help you to understand the Inquiry process including what information will be made public and when.
Advise on the Inquiry’s powers and the obligations you are under if you are involved.
Protect your rights including if necessary advising you on the privilege against self incrimination and applications for anonymity.
Help you to advocate your position / get the truth out.
Help you decide whether to apply for Core Participant status and if so, assist with your application.
If applicable, assist with setting up in-house inquiry teams.
We may:
Apply for funding from the Inquiry
Make representations on the proposed Terms of Reference.
Evidence and disclosure
If you instruct us, we will:
Advise you on the Inquiry’s powers to compel evidence from you.
Advise on preservation and retention of key documents -not to do so is an offence once the Inquiry starts!
Advise you on other means of preserving evidence for an inquiry through corporate memory, preparing a narrative document, lessons learned and understanding duties of disclosure.
Advise which documents might attract legal advice privilege and therefore be exempt from disclosure.
Operate document disclosure platforms and ensure compliance with the Inquiry protocol as regards disclosure and redactions
Preliminary hearings and opening and closing statements
If you are designated a Core Participant, you have the opportunity to attend preliminary hearings and instruct Counsel to make opening (and later closing) statements setting out your position on the matters under consideration.
Making closing statements can be of considerable benefit if there have been difficult questions during the course of the evidence.
We can assist in instructing Counsel and attend hearings on your behalf, working together to prepare submissions.
Witness statements and oral evidence
If you instruct us, we will:
Assist with the preparation of written evidence and provide all appropriate advice prior to the giving of oral evidence
Ensure you are addressing the Terms of Reference
Prepare you for the investment of time and energy that an Inquiry may require
Monitor evidence of other key players and disclosure of relevant materials by the Inquiry
Warning letter and final report
Before a final report is published, the Chair will issue warning letters to witnesses who they believe may be subject to criticism.
As well as supporting on responses to the Inquiry, we can provide advice to assist with reputation management through handling media inquiries and PR.
Costs
Section 40 Inquiries Act 2005 allows the Chair to make awards for costs of legal representation and attendance of witnesses subject to certain conditions and qualifications determined by the relevant Government Minister.
Legal costs might be available whether or not the witness is a Core Participant.
Generally, however, Inquiries will only cover costs of an individual or organisation where they can demonstrate the need for representation but do not have the means to pay for it.
Many organisations will have Directors & Officers insurance which may cover legal representation of senior personnel.