Anticipating challenges and difficulties in a public inquiry

The establishment and the running of a public inquiry combine an extraordinary range of functions. The process is inquisitorial in that documents must be collected; witnesses identified, located and interviewed and evidence elicited. However, there is also much in common with a court in that a venue must be located and set up and witnesses and lawyers must be provided for. Most Secretaries or Solicitors to a public inquiry will wish to start by making an overall plan of what steps to take, in what sequence and by what timescale to enable them to fulfil their terms of reference. However, the sheer variety of the challenges faced makes it difficult to see all potential pitfalls on the way.

There are many difficulties that may be encountered by a public inquiry. Witnesses may be unwilling to engage with the process and enforcement action may be necessary. Anonymity applications may be made and if successful may affect the way in which documents can be shown to other prospective witnesses. Human rights considerations may arise about the use of private documents. One witness may say something about another, which makes it necessary to give that other witness an opportunity to respond. There may be tension between core participants about the true meaning of the terms of reference. The degree of participation of witnesses and core participants may be controversial. It may be impossible to apply useful metadata to stored information unless and until the issues have been identified during the process of interviewing witnesses.

However daunting those challenges may be, there is a clear need to identify them at an early stage and to address them speedily. Once witnesses and interested parties have retained lawyers and once the hearing venue is operational the running costs of a public inquiry are likely to be at their highest. In the stages prior to that, where there principal costs are likely to relate to office expenditure and inquiry staff, the running costs are likely to be significantly lower. If there is likely to be any disruptive or prolonged event, such as clarification with the Minister of the terms of reference; enforcement action against reluctant witnesses or litigation about anonymity, it is obviously better if it can be managed during a time of lower running costs. In short, it is wise to front-load those issues if they are likely to arise. Of course, some issues are unforeseeable and in any event those that can be foreseen will not necessarily be capable of resolution in advance. Nonetheless, any plan for a public inquiry should seek to identify potential pitfalls and to make provision for dealing with them at an early stage.