Resources
What is a public inquiry?
Public inquiries are an important mechanism established by government to address public concerns arising from an event or series of events.
Accordingly they have three main purposes:
- to establish facts;
- understand what went wrong; and
- to make recommendations to prevent such events from happening again.
How we can help
As one of the leading Scottish Public Inquiries practices in Scotland, we regularly work across high profile and highly sensitive public inquiries and investigations. Our team works closely with subject matter specialists across a wide range of sectors, including health and safety, fatal accident inquiries and in healthcare matters generally.
We have extensive experience acting for all parties to an inquiry, including witnesses, core participants, or legal support to the inquiry itself. Our clients range from public bodies and central government to many high profile Scottish, UK and international businesses. We are experienced in providing representation and interface with the inquiry teams, throughout the process of an inquiry.
We know first hand the nature of the demands and the sensitivities surrounding inquiry involvement. With experience guiding clients through the full term of an inquiry, we have particular expertise in supporting clients in managing the media and reputational implications of an inquiry. This allows us to provide a package of services, from witness support to document management to representations, to support any formal input to an inquiry.
We offer our clients unparalleled practical experience and insight when dealing with the high risk issues arising from an inquiry, and work closely with subject matter specialists to meet the needs of all our clients.
Members our team bring together experience from several high-profile public inquiries, including advising Core Participants and other parties in relation to the Scottish Child Abuse, Edinburgh Tram, Holyrood, Grenfell, Manchester Arena, Magnox Inquiry which is only recently completed, and Stockline inquiries, as well as significant FAIs such as the Clutha and Sumburgh FAIs, so we are very well placed to guide you through the process.
Key Contacts
Hazel Moffat
Partner
Public Law
Hazel is head of our Public Law and Regulatory division, and has represented clients including the Scottish, UK and EU Governments.
Lynne Gray
Partner
Health & Safety
Lynne handles contentious and non-contentious regulatory compliance issues, helping clients every step of the way.
Joanna Fulton
Partner
Product Liability
Joanna has a particular focus on product liability and product safety matters, leading our Chambers UK band 1 ranked product liability team.
Nick Warrillow
Director
Dispute Resolution
Nick has experience of advising individuals, corporates and financial institutions in connection with a range of complex and high-value disputes.
Lynne Moss
Director
Health & Safety
Lynne's work includes assisting clients with their investigations into health and safety or environmental breaches.
Rebecca Roberts
Senior Associate
Public Law
Rebecca is a senior associate in our Dispute Resolution team.
Louise McErlean
Associate
Public Law
Louise is an associate in our Public Law and Regulatory team.
How does a public inquiry work?
From government’s perspective the primary purpose of a public inquiry is to learn lessons and prevent recurrence, including by acting on recommendations made by the inquiry.
For those affected by the subject matter of the inquiry, identifying the wrongdoer or establishing who was at fault may support a consequential action for a personal remedy, such as damages. For other stakeholders it will be important to understand what facts are established, and be involved in the fact-finding, with a view to establishing that their role or lessons learned should be.
More recent inquiries have also recognised the need to raise awareness, provide an opportunity for public acknowledgement, and act as a forum for public sharing of experiences. Inquiries raise sensitive issues and require in-depth investigation to establish facts and recommendations. Given the subject matter of inquiries, this typically means there are large numbers of victims and persons with interests involved, which raises complex issues of scope and procedure.
An area of growing focus for statutory inquiries is the need to demonstrate an efficient use of public resources and management of the administrative burden. There is often conflict between the public demand for an investigation into the facts, set against what can be seen as excessive costs.
For those involved in various public inquiries there is usually a common denominator: that there were multiple, often systemic failings as opposed to a single, simple human error or deliberate act. This is particularly true in recent years of inquiries investigating failures of major public sector projects, and systemic failures, such as the Holyrood, Child Sexual Abuse, Hospitals, Edinburgh Trams, and Magnox Inquiries as well as numerous Westminster Public Accounts Committee Inquiries.
In all of these cases, failings were identified across a range of areas: procurement process and design, funding model, contract drafting, management and leadership, team experience and capability, governance and assurance. Members of our team have special knowledge of, or involvement in, all of these Inquiries, and are well placed to advise on these.
Each inquiry has its own remit and terms of reference, arising from the specific factual matrix and circumstances, however each typically follows a similar pattern and involves similar considerations to recent high profile inquiries.
The inquiry team will consider what happened, why, and how improvements and changes can be made to avoid the relevant circumstances from recurring. The involvement of all actors will be considered; all “layers” in the process will be dissected to see whether these can be improved.
Recognition will be given to existing reports and information gathered and the inquiry will use these as a basis to help information themselves at the outset. Equally inquiry teams naturally wish to add value and ensure they consider other relevant issues and evidence. The inquiry will be driven by a need to, and be seen to, leave no stone unturned, to probe into uncomfortable areas and ultimately to discharge their remit by making incisive and wide-ranging recommendations.
From government’s perspective the primary purpose of a public inquiry is to learn lessons and prevent recurrence, including by acting on recommendations made by the inquiry.
For those affected by the subject matter of the inquiry, identifying the wrongdoer or establishing who was at fault may support a consequential action for a personal remedy, such as damages. For other stakeholders it will be important to understand what facts are established, and be involved in the fact-finding, with a view to establishing that their role or lessons learned should be.
More recent inquiries have also recognised the need to raise awareness, provide an opportunity for public acknowledgement, and act as a forum for public sharing of experiences. Inquiries raise sensitive issues and require in-depth investigation to establish facts and recommendations. Given the subject matter of inquiries, this typically means there are large numbers of victims and persons with interests involved, which raises complex issues of scope and procedure.
An area of growing focus for statutory inquiries is the need to demonstrate an efficient use of public resources and management of the administrative burden. There is often conflict between the public demand for an investigation into the facts, set against what can be seen as excessive costs.
For those involved in various public inquiries there is usually a common denominator: that there were multiple, often systemic failings as opposed to a single, simple human error or deliberate act. This is particularly true in recent years of inquiries investigating failures of major public sector projects, and systemic failures, such as the Holyrood, Child Sexual Abuse, Hospitals, Edinburgh Trams, and Magnox Inquiries as well as numerous Westminster Public Accounts Committee Inquiries.
In all of these cases, failings were identified across a range of areas: procurement process and design, funding model, contract drafting, management and leadership, team experience and capability, governance and assurance. Members of our team have special knowledge of, or involvement in, all of these Inquiries, and are well placed to advise on these.
Each inquiry has its own remit and terms of reference, arising from the specific factual matrix and circumstances, however each typically follows a similar pattern and involves similar considerations to recent high profile inquiries.
The inquiry team will consider what happened, why, and how improvements and changes can be made to avoid the relevant circumstances from recurring. The involvement of all actors will be considered; all “layers” in the process will be dissected to see whether these can be improved.
Recognition will be given to existing reports and information gathered and the inquiry will use these as a basis to help information themselves at the outset. Equally inquiry teams naturally wish to add value and ensure they consider other relevant issues and evidence. The inquiry will be driven by a need to, and be seen to, leave no stone unturned, to probe into uncomfortable areas and ultimately to discharge their remit by making incisive and wide-ranging recommendations.
Background to reason for inquiry
The terms of reference for the inquiry set out its remit and scope, and this is the key insight into the likely reasons for the inquiry. The terms of reference can be limited to one specific incident or event, or multiple issues. Terms are often influenced by public consultation, such as the Scottish COVID-19 inquiry, and can be varied over the life of the inquiry, as matters develop.
Public Inquiries Act: Powers and reporting
Public inquiries can either be statutory or non-statutory - typically the larger, more complex inquiries are statutory. A key feature on inquiries is that these are typically inquisitorial, to establish facts, and sit outside of the criminal or civil justice system. It is not for inquiries to establish or prosecute civil or criminal liability. However there has been a trend towards more typically adversarial approaches being used, and this is particularly impactful on witnesses.
Statutory inquiries are held under the Inquiries Act 2005 which provides public inquiries certain powers in the furtherance of its obligations, and also places certain duties on inquiries and the various office holders. The 2005 Act gives a framework which is then tailored to the needs of the specific inquiry.
A non-statutory inquiry does not have the same powers under the 2005 Act, and for example cannot compel witnesses and participation is voluntary (although there are of course certain risks if a party declines to participate, such as negative press and inability to present own perspective).
There is a perception that a non-statutory inquiry can be more agile, although procedure is often influenced by the procedural rigour of the Inquiries Act and Government guidance. As inquiries develop, the form of inquiry can also change; the Edinburgh Trams Inquiry converted from non-statutory to statutory because of concerns regarding witness evidence.
Ultimately the recommendations of an inquiry are not legally binding, although there is expectation that government will publish a response to the findings. In recent years there has been criticism that follow up on recommendations has been limited and there has been a lack of rigour in ensuring follow-on compliance.
When an inquiry is completed, it has no ongoing powers. There can be a lack of will to implement recommendations, when there is no supervisory authority. To combat this, the ongoing Manchester Arena Inquiry issues interim recommendations with regular reporting to ensure compliance. This is an approach which may become more common with inquiries.
Public Inquiries planning and process
A significant amount of time is usually devoted to establishing the process for an inquiry. The choice of chair is a critical decision for the operation and planning; typically this is a judge, retired or active, or someone with legal qualifications, however this will depend on the subject matter. The inquiry might be led by an individual chair, or a chair supported by a panel.
While the Public Inquiries Act provides for certain features of an inquiry, the Chair has discretion to make procedural decisions to meet the needs of each subject matter. There are often several core stages of evidence gathering, followed by a period of consideration and drafting before recommendations are issued.
In the planning of a new inquiry, lessons should be learned from previous and ongoing inquiries; this can include the use of new technology, methods of reporting, use of experts and other efficiencies.
Timing
There is no set time frame for inquiries, as this will vary widely depending on the subject matter and evidential requirements, however the terms of reference can set a time limit (which may later be extended).
It is unusual for an inquiry to be completed in under a year, and typically much longer is needed. It is challenging for inquiries to report in a timely manner; however following recent issues with inquiries running behind schedule (and the associated costs) this is often a key concern and set out in the terms of reference.
By reference to current inquiries, there are several ongoing which are running significantly behind schedule, for example the Edinburgh Trams Inquiry was set up nearly eight years ago, without final findings having been published. There is a perception that non statutory inquiries can be completed more quickly; but this depends on the topic.
Covid-19 Inquiry
An independent judge-led inquiry is set to be launched to investigate the handling of Covid-19.
