Core participants

A number of terms are used for an inchoate group of those who have a special interest in the processes and outcome of a public inquiry. Historically the most common phrase used has been “interested parties”, but some public inquiries have used the term “full participants”. The phrase used in section 5 of the Inquiries Act 2005 and which is taken to have the same meaning is “core participants”. Given the variety of interests that may be covered by the term, and the variable nature of its effect, the precise terminology may not matter. For the sake of consistency, this part will refer to the group as core participants.

Very broadly, those who are likely to be accorded core participant status fall into two categories. The first is those persons who have an interest in seeing that the public inquiry acts thoroughly and perhaps an interest in persuading it to reach a particular view. This category is reflected in sub-sections 5(1) and 5(2) of the Inquiries Act 2005, which require the Chairman to consider when designating someone a core participant, whether a person played or may have played a significant role in relation to the matters to which the public inquiry relates or has a significant interest in an important aspect of the matters to which the public inquiry relates. Those who call for a public inquiry to be established, e.g. NGOs and trade unions, regularly fall into this category.

The second category is those who may be prejudicially affected by the public inquiry. This is captured by sub-section 5(1) (c) of the Inquiries Act 2005, which requires the Chairman of a public inquiry to consider whether someone may be subject to explicit or significant criticism during the proceedings or in the report or any interim report. Those who are being expressly investigated under the terms of reference, witnesses likely to be incidentally criticised in the report and those witnesses whose evidence directly is in serious conflict with others may all fall into this category.

The treatment of core participants is a matter for the Panel of each public inquiry. The phrase naturally denotes special treatment and under the Inquiry Rules, the regulations made under the Inquiries Act 2005, they may be granted rights to cross examine and to make opening and closing submissions. They may be given an advance copy of the report for comment. The public inquiry may give fuller advance disclosure of its materials to core participants than it does to witnesses. Public funding may be afforded to core participants for legal representation.

When a person is a witness to a public inquiry it may not add anything to give him core participant status. That is because a witness must naturally be treated fairly, and fairness may require him to be legally represented at public expenses, to be given advance notice of all materials in the hands of a public inquiry which may affect him and be permitted to cross-examine and make submissions. To repeat Lord Scott’s dictum from Three Rivers (No. 6) :“the defence of personal reputation and integrity is at least as important to many individuals and companies as the pursuit or defence of legal rights whether under private law or public law.”. It may be convenient for a public inquiry to have a system for grading witnesses according to whether they may need to defend their personal reputation and integrity and, if so, what facilities should be afforded them for that defence.