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Preparing for a public inquiry – Practical steps that you can take now

  • United Kingdom
  • Litigation and dispute management
  • Governments and Infrastructure

20-07-2021

 

On 12th May this year, Boris Johnson made the much anticipated announcement that a statutory public inquiry into the Government’s handling of the Covid-19 crisis will be established. The terms of reference identifying the exact issues for the inquiry have not yet been set, but there seems no doubt this inquiry will bring important independent scrutiny to the decisions of government and other organisations through detailed investigations and a public hearing process.

Given the breadth and scale of the issues the inquiry is likely to encounter, and the sheer number of individuals and organisations who could be core participants and witnesses, this is likely to be one of the most complex inquiries in recent times. Whilst the inquiry isn’t due to start until Spring 2022, there are important steps that those likely to be engaged, voluntarily or otherwise, in this public inquiry can take now to ensure that they are best prepared for independent and public scrutiny.

This article is designed to assist in that process and consider what action can be taken now to help prepare for any involvement with the public inquiry.  

The Inquiry’s Terms of Reference

The announcement did not give any indication as to the scope of the inquiry. However, the Prime Minister made a commitment to involve the bereaved, families, and other groups, on the inquiry’s terms of reference. There will therefore likely be a period of public consultation where representations can be made concerning the inquiry’s scope and terms of reference.

The terms of reference are an inquiry’s mandate. They define the breadth and complexity of the inquiry's work. Those likely to be involved in this public inquiry should give careful consideration to whether they wish to participate in the public consultation. If there are any particular issues that you feel should be scrutinised by this inquiry, or if there are any objectives that you would want this inquiry to address, consider taking advantage of this opportunity to influence the scope of the inquiry’s work. Whilst participation in a consultation process can be extremely valuable, this should be balanced against the potential for increased profile for those who do engage in the mind of the inquiry and the public.

Documents

One of the inquiry’s first steps in its investigations is likely to be the gathering of relevant documents. One of the crucial distinguishing features between a statutory and non-statutory inquiry is that a statutory inquiry has the power to compel witnesses to produce evidence to the inquiry under section 21 of the 2005 Act. Inquiry solicitors will be sending a written request to any person or organisation that the inquiry wishes to produce documents. Often, early requests for documents ask “for all documents that may be relevant to an inquiry’s terms of reference”, with requests becoming more focussed as the work of the inquiry progresses.

The response to these initial requests can be extremely time consuming and labour intensive. Now is the time to prepare for such a request for documents, which will involve conducting a series of electronic searches of IT systems to identify documents that are, or may be, relevant, as well as identifying where any potentially relevant hard copy material is stored. The inquiry will set a strict deadline for complying with the request for documents. Collating all potentially relevant documents now will enable you to disclose documents quickly and efficiently. Consider recording and mapping the process of material retention, collation and organisation, as the inquiry is likely to ask how this was achieved. The inquiry may also request copies of any document retention polices for the relevant period.

An instruction to preserve all potentially relevant documents should be circulated to employees, who should also be alert to the dangers of creating damaging or unhelpful material which could be disclosed to the inquiry.

Legal professional privilege will attach to some documents and consideration should be given to  ensuring that certain documents attract and maintain confidential and privilege status where appropriate. Early advice from legal advisors can be helpful in this regard.   

The use of a document management platform can be invaluable in this process. For further information on the role of technology in public inquiries, please visit the article on our hub here.

Identify the key issues

Having collated the potentially relevant documents, it’s never too soon to start reviewing and analysing those documents to gain a better understanding of your strengths, weaknesses, and objectives. Preparing an overarching chronology of events to identify patterns, key issues and any gaps in evidence can help you better prepare for requests for information or witness evidence from the inquiry. Being in a position to respond quickly and effectively to requests from the inquiry will demonstrate to the inquiry, and the public, that you are taking the work of the inquiry seriously.

The usefulness of prompt and effective internal investigations, with the benefit of legal advice, cannot be overstated in preparing for any involvement in a public inquiry.

Core Participants

A key decision for those likely to be involved in the work of the inquiry is whether or not to apply for core participant status. Rule 5 of the Inquiry Rules 2006 sets out the criteria for designation of core participant status. In deciding whether to designate a person core participant status, the chair must consider whether that person:

 (a) played or may play a direct and significant role: and/or

 (b) has a significant interest in an important aspect of the inquiry; and/or

 (c) may be subject to explicit or significant criticism during the inquiry proceedings or in any report.

An inquiry will ordinarily formally invite applications for core participant status, but the timing of this invitation can differ depending on the size of the inquiry and how it decides to conduct its investigations. For example, in the Independent Inquiry into Child Sexual Abuse, invitations for core participant status were made prior to the start of each bespoke investigation. It remains to be seen whether the Covid-19 Inquiry will take a similar approach given its likely scope and the range of issues that require investigation, but it is now quite common for an inquiry to conduct its business in modules, or phases.

There are a number of factors to consider and balance before deciding whether to apply for core participant status. The advantages of being designated core participant status can include having the right to appoint a legal representative, having access to documents collated by the inquiry and to the inquiry report before they are made public, and having greater involvement in the hearing process including making formal submissions. The disadvantages of being designated core participant status can include an increased risk of inquiry and public scrutiny and increased costs.

Those with a significant connection to the work of the inquiry should seriously consider applying for core participant status. Whether an application is made individually, or collectively if your interests align with others is also an important consideration. The application can be a sensitive one, as it may involve accepting the potential for significant criticism at an early stage. Experienced legal practitioners can assist with this process.  

Can lessons be learned?

Public inquiries have an important role to play in identifying procedural weaknesses and prompting reform so that the public are protected from the same failures being repeated. They offer valuable opportunities for individuals and organisations to reflect on action taken and, where appropriate, to make changes. If there are lessons to be learned, don’t delay and wait for the inquiry to tell you that mistakes were made. The inquiry could be an opportunity to shine light on the positive reforms taken in response to the Covid-19 pandemic.   

For those who have been impacted directly by the subject matter of the inquiry, an open and honest apology for mistakes made can be extremely powerful and meaningful. Careful consideration should be given to the appropriateness and timing of an apology. Whilst a public inquiry cannot make findings of civil or criminal liability, liability may be inferred from what is said during an inquiry and reputations can be damaged or destroyed.  As a result, many participants are keen to have legal representation to protect their interests.

Allocate responsibilities

Consider forming a strategic management group dedicated to preparation for the inquiry, ensuring it includes managers from all relevant parts of the organisation. A strong strategy will assist an organisation in proving clear, precise and detailed responses to requests for evidence.

Consideration should be given to appointing a single point of contact (SPOC) who can guide this process and share information with other parts of the organisation. This SPOC can also be the communication bridge with any legal team and begin to gather relevant material when requests for evidence are made.

An experienced legal team will have an important role in supporting those involved in a public inquiry. The benefit from legal representation includes: advice on inquiry procedure and legal complexities; management of the huge quantity of documents and evidence when preparing for the inquiry; support for preparing witness statements and the disclosure of relevant documents  to the inquiry; advice on the protection of confidential information; support in preparing suggested lines of questioning for counsel to the inquiry; and advice on protecting interests and reputation.

The importance of having a communications team involved from the outset should not be overlooked. A clear communications strategy that is advised and informed by the strategic management group will ensure public messaging is clear and consistent. A well briefed communications team will also have the skill and knowledge to assist in understanding those areas of important public focus. In the age of social media, the benefit of this understanding will be absolutely invaluable.

Funding

For those participating in a public inquiry, the cost of legal representation, loss of time, or other expenses incurred in attending, or otherwise being involved in an inquiry, can be substantial. However, there is generally no automatic entitlement to public funding. Participants are usually self-funded if they are able to afford it, although options for alternative sources of funding should be explored at this early stage. An existing insurance policy might cover the cost of legal representation.  An individual might be able to seek funding from an employer or the company engaging their services. We have recently seen crowd funding for legal representation being used in high profile cases of public interest. This is a novel and interesting development that we may see being used more and more. Those with shared interests may also wish to consider forming strategic alliances in order to improve their chances of obtaining funding. 

Funding awards are made to some inquiry participants and the chair will set out clear procedures for dealing with the funding of core participants, interested parties and witnesses and the criteria that will be applied to determine who may receive funding. When determining whether or not a funding award should be granted, the chair is required under Rule 21 (2) of the Inquiry Rules 2006 to take into account the financial resources of the applicant and whether making an award is in the public interest.

If you would like to discuss any element of this article please do not hesitate to contact the Eversheds Sutherland Inquiries and Investigations team.