Legal obligation to hold a public inquiry

Absent a promise by a Minister which has given rise to a legitimate expectation, or a statute with a “trigger” provision, it is hard to imagine cases in which there might be an enforceable domestic law obligation to hold an inquiry. The Inquiries Act 2005 is permissive: the Minister, by section 1 may cause an inquiry to be held. In Gentle, R (on the application of) & Anor v The Prime Minister & Anor [2008] UKHL 20 (9 April 2008) Lord Bingham stated that he found “it impossible to conceive that the proud sovereign states of Europe could ever have contemplated binding themselves legally to establish an independent public enquiry into the process by which a decision might have been made to commit the state's armed forces to war.”

Nigel Giffin explores in his paper, “Modern Public Inquiries”, the idea that the courts might sometimes, in circumstances where an inquiry was to be held, compel that inquiry to be held in public. He considers that this “was briefly encouraged by R (Wagstaff) v Secretary of State for Health [2001] 1 WLR 292, a case which concerned an inquiry established under the National Health Service Act 1977 in relation to Dr Shipman, but which was at that point going to sit in private…The High Court expressed some support for the proposition that inquiries should generally be held in public, to the extent of holding that there was a presumption in law that inquiries which were truly public rather than domestic should proceed in public unless there were persuasive reasons for taking some other course, and that the decision to hold this inquiry in private was irrational.” He goes on to note that “the suggestion that this might occur in anything other than a very exceptional case did not survive Persey v Secretary of State for Environment, Food and Rural Affairs [2002] EWHC 371 Admin and Howard v Secretary of State for Health [2002] EWHC 396 Admin. Without going so far as to hold that Wagstaff was wrongly decided on its unusual facts, the Divisional Court in Persey firmly rejected the presumption suggested there, and pointed out that there were arguments both for and against full-scale inquiries sitting in public, bearing in mind considerations such as cost, speed and the desirability of candour on the part of witnesses.”

There is an investigative obligation under Article 2. R v Secretary of State for the Home Department, ex parte Amin [2003] UKHL 51 establishes that where a person has, or appears to have, been killed as a result of the use of force an effective official inquiry is an essential ingredient in securing the right to life under Article 2.

Jurisdiction of a public inquiry

In general, the events that cause public concern which lead to the setting up of a public inquiry will take place within the UK and so the Minister will have interest in that way, and will have usual territorial jurisdiction over the events. The vast majority of public inquiries that have taken place in the last 50 years have taken place on UK soil.

However, section 1 of the Inquiries Act 2005 requires a determination by a Minister of “public concern”. The Act makes no stipulation that the events happen within the UK. While a reasonable reading of “public concern” would be the public of the United Kingdom, there is no requirement in the act that a UK Minister has a territorial interest in the proceedings. However, there is likely to be a nexus between the concern and the ability to satisfy those concerns by investigation. Jurisdiction may properly extend past a county’s borders to, for example, events that occurred to UK nationals abroad about which there is notable public concern. Mr Al-Fayed, in Al-Fayed, Re Judicial Review [2004] ScotCS 66 which was rejected on a factual basis, argued that, although the death of his son occurred in France, there was an incumbent obligation on the Scottish authorities to hold a public inquiry as despite no Scottish Minister being alleged to have held responsibility for the death, he had a residence in Scotland. An inquiry has been called for into the alleged torture of Binyam Mohammed and has received considerable well-informed support. Mr Mohammed was a British national and while the proposed inquiry would relate to events that took place in Guantanamo Bay, the allegations that the securities services colluded in the torture that took place make the subject matter at least a potential subject for a public inquiry.

Public concern may of course arise in relation to the actions of actors of UK government in respect of events that occurred abroad. The Baha Mousa Inquiry is such an example.