On 15 December 2021 the Prime Minister announced the COVID-19 public inquiry and appointed the Right Honourable Baroness Heather Hallett DBE as chair. The inquiry is likely to take evidence from a wide range of businesses. With the inquiry due to start in Spring 2022, in this article we explain what you should expect, and do, if your organisation is asked to participate.
Public inquiries are major investigations initiated by the government into significant events that affect the public. Given the public interest in them, they are typically followed closely by the press. The size and nature of public inquiries can vary widely, but they often pose similar considerations for those involved. This article sets out 10 things your organisation should consider if it becomes involved in one.
Public inquiries can be convened by a Minister under the Inquiries Act 2005 or set up on a non-statutory basis. The latter type have more flexibility but do not have the same powers to compel parties to provide evidence. We focus on statutory inquiries below, but many of the points are applicable to both types.
1. What the inquiry will focus on
As the inquiry is being established, the key areas it will focus on will be issued, known as the inquiry's terms of reference. The exact, specific questions that your organisation will face will not, unfortunately, be known until much later in the process. The inquiry is also likely to share a provisional timetable, but this is often subject to change.
2. Core Participants
Organisations or companies which are involved with the subject matter of the inquiry can apply to become "Core Participants". If you are designated a Core Participant, the inquiry will keep you updated on issues such as the proposed timetable and will also give you (and the other Core Participants) access to each other's evidence in advance of it being made public.
3. Disclosure obligations
Inquiries, like many investigations, are often reliant on documents going back many years. The inquiry's document requests can be wide-ranging and it is vital that the responses to those requests are complied with in an organised and timely fashion. This can be difficult where the request runs to thousands (if not tens of thousands) of documents.
Document requests may well be made at various points throughout the life of the inquiry so it is important that you have the right document retention policies in place as early as possible. It may be necessary to invest in instructing an e-disclosure provider, which is often best done via solicitors.
4. Witness evidence
At an early stage, key personnel involved in the issues question should be identified and their contact details retained in case they leave the organisation in the coming years and need to be contacted. If you have a legal team instructed, there is sometimes merit in interviewing any potential witness who is about to leave, in order to obtain their recollection of the events in question. Nevertheless, further interviews are likely to be needed once the exact scope of the inquiry's questions are known.
Any witnesses called to speak on your organisation's behalf will be seen as the faces of your organisation by the public, the media and, most importantly, the inquiry. It is therefore important that they are kept up to date with developments in the inquiry and supported by your organisation.
Their evidence will be in the form of a witness statement prepared in response to a number of questions the inquiry will raise. What questions are asked and to which witness will be for the inquiry to decide. If a person does not respond to the questions, the inquiry legal team is likely to apply to the chair of the inquiry for an order to compel that person to give evidence.
The process that each inquiry adopts will vary to some degree.
The inquiry will take time to review the documents and witness statements it has obtained. Not all witnesses who produce statements will be asked to attend an oral hearing to be questioned by counsel to the inquiry. Those who are will require support, as this experience can be stressful
If your organisation is a Core Participant, it is likely to be permitted to deliver an opening and closing statement, setting out your position in relation to the issues at hand. This is by far best delivered by an experienced advocate, who should be retained early, via your solicitors, so they can advise your organisation on the content of those statements.
A written version will have been submitted beforehand and the inquiry will often make it publicly available.
Counsel to the inquiry will then question your witnesses. This is a stressful process and, in certain inquiries, such as the Grenfell Tower inquiry, it will be broadcast live.
6. The report
At the conclusion of the inquiry, the chair of the inquiry will set out its understanding of the factual background and what lessons should be learned. This is an opportunity for all involved (and the public) to understand what mistakes were made and what should be done in the future.
The length of an inquiry varies and there is no set timeframe within which it must issue its report. Inquiries can often last several years.
Public inquiries are often high profile and garner significant public interest and media attention. This can have an impact on your organisation, which should be considered not only at an early stage, but throughout the course of the inquiry.
Your legal team can play a key role in working with those who are monitoring, from a public relations perspective, how your organisation is perceived during the inquiry.
The purpose of an inquiry is to find out the cause of certain events and to make recommendations to ensure the event(s) do not happen again. As a result, it is possible that your organisation and witnesses will be criticised. The chair to the inquiry is likely to provide confidential, advance warning of that criticism prior to issuing the inquiry's report.
Inquiries deal with serious matters and events, including those that led to serious injury and death. This may mean that concurrently with the inquiry process your organisation will need to respond to civil or, in some instances, criminal proceedings.
The inquiry itself does not have the power to rule on, or to determine, a party's civil or criminal liability. However, an inquiry is permitted to make findings of fact or recommendations, from which liability can be inferred.
10. Legal advice
We recommend instructing a firm of solicitors as early as possible. This will ensure that they have time to consider the key documents, produce initial advice on your organisation's position and ensure sufficient resource is ready in advance of the inquiry's start date.