As part of her campaigning work and in relation to the forthcoming Public Inquiry, Diana Johnson MP requested information from the House of Commons Library. This briefing compares Public Inquiries under the 2005 Inquiries Act to the Hillsborough Independent Panel.
We reproduce it below with permission.
“This information is provided to Members of Parliament in support of their parliamentary duties and is not intended to address the specific circumstances of any particular individual. It should not be relied upon as legal or professional advice, or as a substitute for it. A suitably qualified professional should be consulted if specific advice or information is required.
Inquiries Act 2005 inquiries have been described as a “gold standard” for public inquiries. There is no area in which a non-statutory public inquiry has more powers to seek evidence. A non-statutory public inquiry has no set procedure and few legal requirements—and no legal powers.
There have been non-statutory public inquiries into health matters previously. One such example was the Morecambe Bay Investigation, the chair of which was Dr Bill Kirkup, a doctor rather than a judge. While this type of inquiry does not have to follow the restrictions of the Inquiries Act 2005, it cannot have powers to compel the attendance of witnesses or the production of documents. This briefing includes references to such non-statutory public inquiries for comparison.
The Hillsborough Independent Panel was not a public inquiry, statutory or otherwise. It was appointed primarily to oversee the disclosure process, and to produce a report on how the disclosed information added to public understanding of the tragedy. The setup of the Hillsborough Independent Panel is not suitable for an inquiry that aims to be truly investigative and, importantly, that seeks to take witness statements and oral evidence. It is also not possible to have the powers of compulsion—of witnesses or documents—without taking on the additional requirements of the 2005 Act. It is not possible to choose to have the powers of compulsion and to disregard certain parts of the 2005 Act that aren’t wanted. This would require ad hoc legislation. Part 2 of this briefing describes the remit of the Hillsborough Independent Panel, and how that differs from a public inquiry.
You asked whether a “hybrid” of the Hillsborough Independent Panel and an Inquiries Act 2005 inquiry could be set up. This is not possible, as it is not possible to pick and choose which parts of the Act to take effect. However, the aspects of the HIP which you seek to reproduce can, in some cases, be reproduced in an Inquiries Act inquiry. The “families first” disclosure policy used in the Hillsborough Independent Inquiry could potentially be emulated in the disclosure protocol of a statutory inquiry, as an inquiry is free to decide its own procedures, but it would likely not be able to be exactly the same as the HIP disclosure protocol. An inquiry would need to put the integrity of the inquiry, and fairness to its participants, first and foremost in its concerns. Part 3 of this briefing looks at the aspects that you seek to reproduce, and how these might be reproduced in a public inquiry.
You asked whether there were jurisdiction implications for a UK-wide inquiry. In short, as long as the Government consulted with the devolved administrations and gave permission to the inquiry chairman to use the powers to compel UK-wide, a “United Kingdom inquiry” could be set up with full powers to compel the production of evidence and witnesses across the UK, despite NHS provision being a devolved matter. Part 4 of this briefing provides information on how the Inquiries Act 2005 operates in inquiries across jurisdictions in the UK.
You asked how investigations into contaminated blood were carried out in other countries. Part 5 of this briefing provides information on these investigations. This section will follow later this morning.
There are a number of other differences between statutory and non-statutory inquiries, and the Hillsborough Independent Panel. Four of these differences that may be relevant to you are expanded on in Part 6 of this briefing.
The Inquiries Act 2005 introduces the concept of “core participants” to an inquiry, who are given special status and rights. An appendix to this briefing includes some of the specific rights given to “core participants” of inquiries under the Inquiries Act 2005.
An Inquiries Act 2005 inquiry is bound by the rules of the Act and the rules contained in the Inquiry Rules 2006. A non-statutory public inquiry is set up ad hoc and is not bound by the Act, but does not receive any of the attendant powers. The Hillsborough Independent Panel was a sui generis entity which was not, strictly speaking, an inquiry.
|Inquiries Act 2005 inquiry||Non-statutory public inquiry||The Hillsborough Independent Panel|
|A minister sets the terms of reference||A minister sets the terms of reference||The Home Secretary set the terms of reference|
|Cannot determine civil or criminal liability||Cannot determine civil or criminal liability||Could not determine civil or criminal liability|
|The inquiry can be undertaken by a panel or a single person||The inquiry can be undertaken by a panel or a single person||Operated as a panel|
|Ability to adopt own procedure is limited by the Act and the Rules||Can adopt its own procedures||The Home Secretary set the disclosure protocol|
|Presumption that the inquiry will sit in public||Could potentially sit in private||Not applicable – did not take oral evidence|
|May compel witnesses to attend or documents to be produced, with criminal sanctions for non-compliance||May not compel the production of documents or the attendance of witnesses||Could not compel the production of documents|
|May take evidence on oath||May not take evidence on oath||Not applicable – did not take oral evidence|
|Maxwellisation must take place by sending “warning letters”.||Maxwellisation is generally expected to take place||No Maxwellisation process|
|Statutory duty to take steps to secure public access to documents||No inherent duty of public access to documents.||Terms of reference entirely based around disclosure of documents|
|May not be “converted” into a non-statutory inquiry||May be converted into a Inquiries Act inquiry||Remained non-statutory throughout its lifetime|
You asked for the Hillsborough Independent Panel to be used as a point of comparison.
The Hillsborough Independent Panel was not a public inquiry as it is commonly thought of. It did not take evidence and did not examine or cross-examine bodies which submitted documents. The panel followed a disclosure process. Disclosed documents were submitted to the independent panel, and the panel was asked to produce a report of how the documents added to the understanding of the Hillsborough Disaster.
The HIP followed a protocol on Disclosure of Information set by the Home Secretary.
The Panel had four tasks, which it delegated to sub-groups:
The most recent investigation into the Hillsborough Disaster was a number of inquests sitting together. Inquests are generally used where the cause of death needs to be determined, and tend to have a far narrower remit than inquiries. The differences between an inquest and a public inquiry are set out in the library briefing paper Inquests and public inquiries.
There were multiple investigations into the Hillsborough disaster. These were:
The Hillsborough Independent Panel has six items in its remit which illustrate that it was intended to reach a fundamentally different outcome to a public inquiry.
Item 1, focusing on the disclosure of information, is very different to a typical public inquiry term of reference. It does not provide any remit to make an examination of events beyond the disclosed documents, or to make recommendations for change. Both of these are typical of public inquiries.
Items 2 and 3 are not typical of a public inquiry under the 2005 Act, although inquiries would usually take evidence from affected individuals or their families, if deceased. The Mid Staffordshire NHS trust inquiry also took steps to support patients or their families giving evidence, an act that it was free to do as a statutory inquiry can decide its own process.
The disclosure protocol in item 3 could potentially be reproduced in a public inquiry, provided it did not inhibit the inquiry’s ability to inquire effectively. Inquiries have developed ad hoc “disclosure protocols” under an inquiry’s ability to decide its own processes. How this might be emulated is explored further in Part 3.
The duty under item 4 could easily be replicated in a public inquiry under the 2005 Act. The chairman of an inquiry has a duty under rule 18(3) to transfer custody of the inquiry record in accordance with the minister’s direction.
This is fundamentally different from a typical public inquiry report, which will analyse the evidence, weigh up judgements, and make recommendations. The report of the panel answered only two things – what was previously known, and what has been added to the understanding. It made no comment on what should happen next, which a public inquiry can do.
In the emergency debate, you mentioned the protocol of “families first” used by the Hillsborough Independent Panel, and said that this should be reproduced in any contaminated blood inquiry.
The principle of “families first” in the work of the Hillsborough Independent Panel specifically referred to the disclosure of documents to families and other involved parties before they were disclosed to the public:
The terms of reference oblige the Panel to disclose documents and other material ‘initially to the Hillsborough families and other involved parties … before information is made more widely available’. This is the principle of ‘families first’.
This principle was described by the Home Secretary as ensuring that the families had access to the papers “not filtered through politicians and the media”.
Because the Hillsborough Independent Panel was not an inquiry, it did not have to consider whether any future evidence statements would be prejudiced by early disclosure. It collected existing information and documents, and did not take witness statements. There was no concern about early disclosure of certain documents prejudicing or altering later witness statements. In an inquiry, the purpose of the inquiry to fulfil its terms of reference (usually to investigate and inquire) will always need to take priority.
Inquiries set their own procedure, and inquiries under the 2005 Act have previously set up “disclosure protocols” indicating how information will be disclosed. However, a problem could arise if attempting to emulate the HIP entirely, because the very nature of a public inquiry is not entirely compatible with immediate disclosure.
An inquiry will, typically, take written and oral evidence, and question witnesses over several weeks at least. The inquiry will then take time to generate a report. There are good arguments for restricting disclosure of all relevant inquiry material until after the completion of the process of taking witness statements. For example, if all material is disclosed before that time, difficulties can be caused by witnesses seeing documents that affect the contents of their own statements. The chairman of the inquiry is under a legal duty to ensure that there is no unfairness to participants in the inquiry.
So, while an inquiry could implement a system that is similar to “families first”, this can only ever take place when it does not inhibit the inquiry’s investigative process and did not breach the duty of fairness to participants. It’s unlikely that an inquiry would be able to make a blanket commitment to disclose documents to families at the earliest opportunity.
Section 18 of the 2005 Act imposes specific duties on an inquiry as to the disclosure of documents and evidence to members of the public. The chairman must take reasonable steps to secure that members of the public are able to obtain or to view a record of evidence and documents given to the inquiry.
The duty under Section 18 doesn’t specify when the public need to be given access to evidence and documents given to the inquiry. Therefore, emulating the “families first” policy put in place by the Hillsborough Independent Panel does not necessarily contravene the duty under Section 18, as long as the chairman takes reasonable steps to subsequently ensure that the public as a whole have access to the documents.
In the emergency debate, you said that you any contaminated blood inquiry should consult with affected families and communities, and that such affected groups should be consulted regarding the appointment of the chair and panel.
The Hillsborough Independent Panel’s remit required it to “consult with the Hillsborough families to ensure that the views of those most affected by the tragedy are taken into account”. The Panel met with the families of the people killed at Hillsborough stadium like so:
While similar actions are rare in public inquiries set up under the 2005 Act, it is not unheard of for an inquiry to perform some actions to engage with families affected by the matter being inquired into.
For example, in the ICL inquiry the bereaved families and injured survivors of the explosion were afforded some assistance to pay for legal representation. If they were on a low income, in receipt of benefits, or could demonstrate a lack of disposable income, the chairman agreed to consider making an award of costs of financial representation. The chairman also made a statement that he was willing to take these on a case-by-case basis even in cases where the participant’s income exceeded the threshold. The chairman also allowed any bereaved family members or injured survivors to approach the inquiry secretariat with suggested questions. This is similar to the rights given to “core participants” (see Appendix) but was done so under the direction of the chairman, rather than as a requirement under the Act.
By way of further example, the inquiry into Mid Staffordshire NHS Trust arranged a free counselling service to patients, their families and witnesses during the course of the inquiry. The inquiry took evidence from numerous patients or their families, and a statement by the chairman indicated that “The Inquiry Chairman is committed to ensuring the interests of families and patients are fully represented”.
An inquiry has no vires to act outside of its terms of reference. If the inquiry is to be given a consultative duty, it must be set out in the terms of reference.
The terms of reference of an inquiry under the 2005 Act must contain prescribed matters set out in Section 5(6). These are:
Neither the ICL inquiry nor the Mid Staffordshire NHS Foundation Trust inquiry had any mention of consulting with or considering families in their terms of reference. This did not preclude both inquiries from taking the actions described above. It is therefore reasonable to conclude that some amount of inclusion of affected families and communities is permitted under the inquiry chairman’s directions, despite not being suitable for inclusion in the inquiry’s terms of reference.
In the emergency debate, you specifically mentioned the selection of the chair and panel, and that the people affected by the contaminated blood scandal should be after to have advance sight of, and input into, the people being selected for the inquiry panel.
There is no legal obligation for the chair of the panel to be a judge. However, the minister, in appointing the chairman, is under an obligation to ensure that the appointee has the “necessary expertise to undertake the inquiry”. In practice, current or retired members of the judiciary are very often asked to chair public inquiries, because of their perceived skill and independence, as well as their ready availability.
In the non-statutory Morecambe Bay Investigation, the chair was a doctor, not a judge.
It is conceivable that the Government could consult with members of the affected community before appointing the chair. However, to do so could lead into an argument about the independence of the inquiry, i.e. if a prospective chair were to be rejected by even some consultees, the entire inquiry could be tainted by association.
A minister must consult with the chairman or the power they propose to appoint as chairman before appointing any other members of the panel. Again, it is conceivable that the government could consult with members of the affected community, but with the same attendant problems.
The minister is legally obliged to have regard to the need to ensure that the panel, taken as a whole, has the necessary expertise to undertake the inquiry. This legal duty would always, in a statutory inquiry, need to come before any undertaking to consult before the appointment of the panel.
The minister is also legally obliged not to appoint a person as member of the inquiry panel if it appears that the person has a direct interest in the matter to which the inquiry relates, or a close association with an interested party.
The Inquiries Act 2005 covers the entirety of the UK. The particular rules of procedure, however, are governed by two separate instruments: the Inquiry Rules 2006 in England and Wales, and the Inquiries (Scotland) Rules 2007 in Scotland. There are differences between these instruments which would mean that the procedure in an inquiry in the different jurisdictions would differ.
A duty is imposed on the minister by section 31(1) of the Act to specify what “the relevant part of the United Kingdom” is for the purpose of the Act. This specification will determine what law applies. This will affect, for example, what procedures are used, what law of privilege applies, and which court should have the power to enforce the orders of the inquiry.
The 2005 Act also makes provision for holding inquiries for which the responsibility is shared between two or more administrations. These joint inquiries need to make a decision as to which set of rules apply to the inquiry, or which combination of rules. The Inquiry Rules 2006 may apply to an inquiry which has been set up by a UK minister even when the inquiry is based in one of the devolved administrations.
In the kind of UK-wide inquiry that you are proposing, it would seem likely that the Inquiry Rules 2006 would be adopted.
The Penrose inquiry was set up under the 2005 Act in Scotland. It could not compel witnesses outside of Scotland to attend. Section 28 prevents a Scottish Inquiry from using its powers to “require any evidence, document or other thing to be given, produced or provided by or on behalf of Her Majesty’s Government in the United Kingdom”.
The provisions of Section 27, however, allow for a “United Kingdom inquiry” to both look into matters which are devolved and to use the powers to compel evidence and witnesses under Section 21 provided certain conditions are met.
In order for a UK inquiry to include in its terms of reference a matter that was devolved at the time of the event being inquired into, the relevant devolved administration must be consulted. In order for a UK inquiry to use the powers of compulsion under Section 21, a Minister must give the chair of the inquiry permission. Permission can only be granted after consultation with the devolved administrations.
In short, an inquiry can be given UK-wide powers and jurisdiction by the UK Government, provided the devolved administrations are consulted.
[This section has been posted seperately in the news section and can be found here: sibf.org.uk/appg-international-public-inquiries-and-legal-cases/ ]
There are many differences between statutory inquiries, non-statutory inquiries and the Hillsborough Independent Panel. Many of these are minor technical differences. I have included four areas where which are particularly relevant to you, including the powers of compulsion held by an Inquiries Act inquiry.
This is not an exhaustive list. If there are other areas of difference that would benefit from further details, please do get in touch.
Section 17(2) allows for evidence to be taken on oath, and for the chairman to administer oaths for that purpose.
Rule 10 of the 2006 Rules set out the oral evidence procedure, and gives certain rights to “core participants”. Core participants are explained later in this document.
As long as the provisions of the Inquiries Act and the Inquiry Rules are followed, including the rules related to core participants, then the procedure and conduct of the inquiry are as the chairman directs. The chairman is, however, under a duty to act with fairness and to avoid unnecessary cost.  Beer says that the requirement to avoid unnecessary cost precludes a statutory inquiry from following the traditional model of oral evidence.
Numerous statutory inquiries have used a number of different protocols for taking oral evidence. It would by lengthy and of limited use to discuss the range of protocols used here.
Box 1: The traditional model of oral evidence
There is no requirement in non-statutory inquiries for the oral evidence procedure used to mimic that of a court or tribunal. Numerous non-statutory inquiries, or inquiries set up under different legislation to the 2005 Act, have used the traditional court model to take oral evidence. Jason Beer QC gives the features of the ‘traditional model’ as follows:
· It is essentially adversarial in nature;
· Counsel to the inquiry conducts the examination and re-examination of all witnesses;
· Counsel for participants cross-examine as they see fit;
· Counsel cross-examines without notice to the inquiry or permission from the inquiry;
· The examination and re-examination of witnesses by counsel to the inquiry is strictly neutral in tone and content. It elicits evidence and leaves others to put their cases.
One advantage of this model is that it provides assurances that the evidence is being tested to a similar degree of rigour as it would be in a court. It also afford to every participant the opportunity to fully put their case.
While this procedure has been used for some inquiries, it leads to a lengthening of the inquiry, and therefore adds very considerably to its cost. The inquiry also develops a “courtroom” atmosphere, in which positions become polarized and the inquiry is potentially distracted from its task.
There is no requirement for a non-statutory public inquiry to adopt any specific rules of procedure, as they are by definition not bound by statute. However, such inquiries may be subject to challenge by judicial review if they are seen as unfair.
The HIP did not take oral evidence.
There is a presumption in section 18 of the 2005 Act that members of the public are able to watch the inquiry, either or person or in a simultaneous broadcast. There are provisions in section 19 of the Act for, in certain limited circumstances, attendance to part of an inquiry to be restricted.
In an inquiry not bound by the provisions of the 2005 Act, it is possible that a hearing might be entirely in private. This could have the advantages of encouraging candour from participants.
The HIP did not perform hearings.
The Inquiries Act 2005
Section 21 of the 2005 Act allows for the chair of an inquiry to require a person to give evidence, or to produce any documents. The powers are exercisable by the chair alone. In an inquiry with an inquiry panel, the chair will exercise the powers on behalf of the panel.
A person is also guilty of an offence under section 35 if they intentionally suppress or conceal a relevant document, or prevents it from being given to the inquiry panel.
Section 35 of the 2005 Act provides sanctions for non-compliance with an inquiry under the Act. They are summary offences (dealt with in a Magistrate’s Court) and the offender may be imprisoned, fined or both. The maximum term of imprisonment is 51 weeks in England and Wales and 6 months in Northern Ireland and Scotland. The current maximum fine is £1,000.
Non-statutory ad hoc inquiries, which may be held in public or in private, are not bound by procedural rules but neither do they have the power to compel the attendance of witnesses or the production of documents. They are therefore essentially reliant on the cooperation of those involved.
The HIP did not have any power to compel the disclosure of documents. It was set up with the intention of receiving and analysing documents given voluntarily by relevant organisations. It was, in line with non-statutory public inquiries, dependent on this cooperation to operate.
This meant that some documents were not submitted to the panel, against its wishes. The Royal Sun Alliance Insurance Company (which was the insurer for Sheffield Wednesday Football Club in 1989) refused to waive its entitlement to privilege, thus denying the Panel access to its material. The inquiry had no powers of compulsion, so the material remained undisclosed.
Maxwellisation is a legal practice that allows persons criticised in an official report to respond prior to its publication.
Rules 13, 14 and 15 require an inquiry chairman to send a warning letter to any person who may be, or has been, subject to criticism in the inquiry’s report. The inquiry panel must not include any explicit or significant criticism of a person in the report, or any interim report, unless that person has been sent a warning letter and been given a reasonable chance to respond.
The practice of Maxwellisation is generally used in non-statutory inquiries despite there not being a statutory requirement. This is often viewed as a necessity, to ensure the fairness of the inquiry’s proceedings. For example, the Iraq (Chilcott) Inquiry underwent Maxwellisation, despite not being conducted under the 2005 Act.
There was explicitly no right of reply in disclosure process used by the panel. The panel made this statement in its final report:
This appendix is included to explain the position of “core participants” in an Inquiries Act inquiry.
The Inquiry Rules 2006 set out the procedure that must be followed in inquiries established under the Inquiries Act 2005. These rules limit the ability of an inquiry to set its own procedure.
Rule 5 allows “core participants” of the inquiry to be designated. The chair may designate a person as a “core participant” at any time during the inquiry, provided that the person consents to being designated and is a significant party to the proceedings of the inquiry.
A core participant gains special rights in the inquiry process. These include receiving disclosure of information, being represented and making legal submissions, suggesting questions and receiving advance notice of the inquiry’s report.
While Rules do not require that awards for costs and expenses are only made to core participants, this appears to be the intention, and has been how the Rules have been interpreted in, for example, the Undercover Policing Inquiry:
Core participants may not be questioned by anyone other than counsel to the inquiry, the inquiry panel, or (with the permission of the chairman) the participant’s own lawyer or the lawyer for another core participant.
Witnesses who are not core participants may not question core participants, even if the core participant’s evidence directly relates to them.
Where a core participant appoints a qualified lawyer to act on their behalf, the chairman must designate the lawyer as the core participant’s recognised legal representative. Multiple core participants may have the same legal representative.
Rule 10 provides the legal representatives of core participants with the right to apply to the chairman to question any witness giving oral evidence.
This differs from the rights given to witnesses other than core participants, whose legal representation may only apply for permission to question witness where the witness’s evidence directly relates to their own.
Rule 11 allows core participants, or their legal representatives if present, to make opening and closing statements to the inquiry panel.
Witnesses who are not core participants have no such ability.
Rule 17 obliges the chairman to provide core participants with copies of the inquiry’s report prior to publication. No other witness is provided with advance copies.
 Inquiries Act 2005, s.2
 Inquiry Rules 2006, SI 2006/1838
 ss.25 and 31
 Rules 13, 14 and 15
 Inquiries Act 2005, s.17(3)
 The National Archives, The Mid Staffordshire NHS Foundation Trust Inquiry: List of witnesses, 7 April 2015
 The National Archives, The Mid Staffordshire NHS Foundation Trust Inquiry: Frequently Asked Questions, 7 April 2015
 Inquiries Act 2005, s.4
 Inquiries Act 2005, s.17
 Beer, Jason QC et al, Public Inquires, Oxford University Press: 2011, para 5.178