As the Post Office Horizon IT Inquiry and the Covid-19 inquiry continue their work, Philip Norton explains how public inquiries can operate very differently, depending on how they are established. He discusses the numerous ways inquiries can operate, analyses post-legislative scrutiny of the relevant legislation, and outlines the aims of a new parliamentary inquiry on the subject, which he chairs.

Recent years have seen some notable disasters and scandals, including the Manchester Arena bombings, the Grenfell Tower fire, the miscarriage of justice in the Post Office Horizon IT scandal, the use of infected blood, and child sexual abuse. Whenever they occur, there is a natural desire to identify what went wrong and what can be done to prevent a reoccurrence. These tasks are typically vested in a public inquiry. Such inquiries have become a significant feature of public life. 

Setting up public inquiries is not a new activity. However, as a study by the Institute for Government has shown, public inquiries have become more numerous. Prior to the enactment of the Inquiries Act 2005, there were different statutory bases for inquiries. The principal one was the Tribunals and Inquiries (Evidence) Act 1921. It was regarded as cumbersome, requiring both Houses of Parliament to approve a Secretary of State establishing an inquiry with the same powers as the High Court. When inquiries were established, they tended to be lengthy and expensive.   

As the government’s figures show, not all public inquiries are established by statute. Ministers have the option of setting up an inquiry on a non-statutory basis. These tend to be favoured for reasons of time and cost. A non-statutory inquiry can be conducted relatively quickly. However, public pressure often leads to the creation of a statutory inquiry or a non-statutory inquiry being converted into a statutory one. Statutory inquiries have the advantage of being empowered to summon witnesses and take evidence under oath. Despite the Act imposing a duty on chairs to consider financial cost, they can still be expensive as well as lengthy, sometimes costing millions of pounds and sitting for years. Although ministers may be critical of this, the public tend to favour the statutory over the non-statutory. A survey carried out by Crest Advisory found that 75% of those questioned felt that an inquiry should investigate the event or events as thoroughly as possible even if this means the inquiry taking longer or costing more than was originally anticipated. 

Statutory inquiries follow rules of procedure (the Inquiry Rules 2006), established under the terms of the 2005 Act, but they differ considerably not only in the time they take, but also in how they go about their tasks. Typically, the inquiry has a panel of one, often a judge or retired judge, but this does not apply in all cases. The Independent Inquiry Into Child Sexual Abuse was established in 2016 with a panel of three under Alexis Jay, who had 30 years’ experience working in social care. How chairs structure proceedings differs and may prove controversial. The Covid-19 inquiry under Baroness (Heather) Hallett has attracted criticism for focusing, certainly initially, on fault-finding rather than lesson drawing.   

Almost a decade after the Act was passed, the House of Lords appointed a select committee to undertake post-legislative scrutiny. The committee concluded that the Act had ‘by and large… worked well’, but it observed that there was no consistency in ministerial decisions in setting up inquiries, that the secretariat of an inquiry had largely to start from scratch in setting it up, and that the Act gave considerable powers to ministers that they had not had before. It made 33 recommendations. These included that interested parties should be able to make representations to the minister about the final terms of reference, that a minister’s powers to restrict public access to an inquiry should be removed and that a minister’s decision to terminate the appointment of a chair should be explained to parliament. It addressed the challenge of committee secretariats having to start from scratch by recommending that there should be an inquiries unit with responsibility, among other things, for updating Cabinet Office inquiries guidance and collating protocols of inquiry guidance. 

The government accepted 19 of the recommendations. It rejected the proposal for an inquiries unit to be created in HM Courts and Tribunals Service, but it did concede that Cabinet Office processes to support the establishment of inquiries should be improved and a practitioners’ forum for inquiries should be established to share best practice.   

In practice little has happened since the publication of the report and the government’s response. Where changes were accepted that required the 2005 Act being amended, the government has said that there are no plans to introduce primary legislation, nor to change the Inquiry Rules. However, one change has been the establishment of a small inquiries unit in the Cabinet Office, which convenes quarterly meetings with inquiry secretaries, and separately with sponsor teams, to share learning and best practice. 

Ten years on from the 2014 report, the House of Lords decided to appoint a select committee ‘to consider the efficacy of the law and practice relating to statutory inquiries under the Inquiries Act 2005’. Given that the present parliament has only a short time to run, the committee is conducting a short inquiry – it has already held evidence sessions, hearing from those involved in inquiries from different perspectives (chairs, counsel, secretaries, victims and survivors) as well as academics who have analysed inquiries in terms of how the public interact with inquiries and how inquiries are seen by, and the impact they have on, the executive.   

It is clear from the evidence taken that there are two areas of particular concern. One is to do with process and the other is with output. On process, it is clearly inefficient if each inquiry has to start from scratch in deciding how to proceed. Having a body to amass best practice and advise on the setting up of a new inquiry has obvious benefits. At the same time, it is important that it is not too prescriptive. Inquiries vary in their purpose and need to determine a format most appropriate to the task at hand. For some inquiries, an inquisitorial approach, seeking to establish facts, may be most appropriate, whereas for another it may be an adversarial approach, seeking as in a law court to test the evidence and establish guilt. As the 2014 committee noted, there are also some burdens imposed by the 2016 rules. It recommended various changes, some of which the government accepted, but others – as on reducing the complexity of warning letters, informing people when they are the intended subject of criticism and giving them an opportunity to respond – were rejected. 

In terms of output, a core area of concern is with what happens when an inquiry has reported. Once an inquiry has published its report, it ceases to exist. Ministers are not obliged to act on its recommendations. As the Institute for Government observed: 

Beyond [the initial government response], there is little firm procedure for holding government to account for any promises made in the aftermath of inquiries. The Inquiries Act 2005 does not make any provision for the implementation of inquiry recommendations and recommendations are non-binding. As one law firm has put it: ‘[O]ther than facing potential public criticism, there is no recourse if Government fail to implement recommendations or fail to explain their reasons for non-implementation.’

There is a problem in that the setting up on an inquiry may generate differing expectations that may not necessarily be wholly resolvable by this process. However, there is a natural presumption that there will be some action in the light of a committee’s report. Public outrage does not necessarily lead to action. It may, but it may not. There is no consistency. There are various, not necessarily mutually exclusive, options. Should there be, as there is in some other jurisdictions, a body to monitor implementation? Should parliament have a more focused role in examining the government’s response to a report and, as appropriate, pursue its recommendations? Is this a task that should be assigned to a dedicated committee? The IfG report found that of 68 inquiries held since 1990, only six had been fully followed-up by a select committee to see what government had done in response. The 2014 Committee was largely silent on this issue, confining itself to recommending that when government responses were laid before both Houses of Parliament, they should be accompanied by a statement. It is a key area at the heart of the current committee’s deliberations.  

Public inquiries have become major tools of lesson-learning when there are disasters and scandals deriving from human error. It is crucial that they are effective as they can be in ensuring that lessons are learned and, most importantly of all, acted upon. The committee is keen to ensure that it produces realistic recommendations that address both process and outputs and make a difference. The committee benefits, as is the case with committees in the Lords, from the quality of its membership. It has a membership that can engage with witnesses on the basis of shared knowledge. We have members who are lawyers and have been involved, in different capacities, in public inquiries. The exercise itself also shows the importance of post-legislative scrutiny. The House has variously appointed committees to engage in such scrutiny. The more it is undertaken, the better it can ensure that law in the UK is appropriate and achieves what it is intended to achieve. 

About the author

Lord Norton of Louth is Chair of the House of Lords Select Committee on Statutory Inquiries.