Public Inquiry Staff - roles and models

The classic public inquiry model as used on the Bloody Sunday Inquiry and the Stephen Lawrence Inquiry entails the employment of a staff of civil servants, involving a Secretary and a Solicitor at the top of the organisation. An alternative model is discussed below, but this part deals with how the classic model works.

Secretary to the Inquiry

The function of the Secretary is analogous to those of both the chairman and the chief executive officer of a company. On the one hand he is responsible for arranging accommodation and other staff, setting up the IT contracts and ensuring the smooth running off all internal processes, the provision of office supplies and assisting the Panel in writing and delivering the report. On the other hand he is the face of the public inquiry in that he will be responsible for getting in the documents, dealing with the press and overseeing the relations between the public inquiry and witnesses. In the light of those diverse and important responsibilities the task tends to be allocated to experienced senior civil servants. Depending on the complexity of the public inquiry, the Secretary will usually have one or more assistants and will also be responsible for the administration of other staff contracts.

Solicitor to the Inquiry

The solicitor to a public inquiry will deal with witnesses, public funding of legal representation, instructing Counsel to the Inquiry, issues relating to the adequacy of document collection and guiding the Panel on legal issues. It is evident that those tasks overlap considerably with the role of the Secretary. That overlap can be dealt with by a very close working relationship between the Solicitor and Secretary or by combining the roles. The model of a close working relationship is a successful one, as shown for example in the Secretary and Solicitor to the Shipman Inquiry being engaged subsequently on the Billy Wright Inquiry.

Equally, appointing one person to a combined post worked conspicuously well on the Robert Hamill Inquiry. In setting up a public inquiry where the roles are intended to be performed by two people it is advisable to take particular care to ensure that they will work in a complementary manner.

Whether or not the role is combined with that of the Secretary, the Solicitor will usually have one or more assistants. Those may be devoted to specific tasks, for example statement taking and witness handling. Where the public inquiry is particularly complex, perhaps involving discrete parts to the terms of reference, it may be desirable to have an Assistant Solicitor responsible for each of the parts, reporting to the Solicitor to the Inquiry.

Counsel to the Inquiry

Counsel to a public inquiry tend to be appointed as a result of consultation between the prospective Chairman and the Treasury Solicitor. Where the Chairman is legally qualified he is likely to have a view about counsel who have impressed him in practice and whom he trusts to get out the evidence and to assist him in resolving issues. The Treasury Solicitor, through his dealings of the Attorney General’s panel of counsel, has an understanding of the qualities of some of the best counsel at the Bar. Normally only experienced Queen’s Counsel will be appointed. Depending on the complexity of the public inquiry one or more junior counsel may be appointed, generally in consultation with leading Counsel to the Inquiry.

The role of Counsel to the Inquiry is protean. He or she may be appointed at an early stage, in which case the function will involve a good deal of planning and troubleshooting, for example on questions such as what organisations may hold relevant documents and which witnesses should be approached. At a later stage the role will involve assessing materials and statements as they come in and advising on further investigations. It is now common for judicial review challenges to be brought against a public inquiry, for example in relation to anonymity, and it may be highly desirable to have at least one counsel on the public inquiry team who is very familiar with human rights and public law so as to help ensure that the behaviour of the public inquiry is beyond reproach. Furthermore, it may be necessary for the public inquiry itself to bring or to support judicial review challenges which concern it, for example in relation to public interest immunity claimed by those who possess documents that the public inquiry wishes to see. Again the presence of experienced public law practitioners on the team would be valuable so as to ensure that such challenges are brought only where necessary. There is debate about whether Counsel to the Inquiry should conduct such litigation themselves and a recognition that the desirability of doing so depends on its effect on the smooth running of the public inquiry. If the litigation brings the public inquiry to a halt in any event, then Inquiry Counsel may be able to conduct the litigation without being diverted from the public inquiry itself. If the litigation and the public inquiry hearings are contemporaneous then it may be better to brief outside counsel. A public inquiry is of course inquisitorial rather than adversarial in nature and the function of Counsel to the Inquiry is to elicit and test the evidence.

All of those functions are reasonably familiar to many counsel, who are likely to have advised on evidence and conducted interlocutory hearings in many cases. Naturally, the Counsel to the Inquiry will take the lead in questioning witnesses where the inquisitorial nature of his role will be relatively unfamiliar. There is a debate about whether counsel with expertise in the matters under investigation (for example, criminal experience in the case of a public inquiry concerned with a failure in the administration of criminal justice) is valuable. Most respondents suggest that it is the abilities to assimilate information, to deal with witnesses and to express themselves plainly that are most desirable in counsel to an inquiry and that previous experience in the particular subject is unimportant.

However, what is likely to be unfamiliar is the rolling nature of the brief, and the close working relationship with the rest of the inquiry team what is likely to be necessary. Our researches have repeatedly uncovered complaints that counsel to public inquiries have not been a “team player”, and it may be prudent to consider whether that quality and the skills required to manage a team of barristers are possessed by anyone being considered for appointment.

At the hearing Counsel to the Inquiry will call witnesses. The extent to which Counsel to the Inquiry presides over the examination is the subject of some discussion.

Document manager

The Document Manager is likely to perform three functions. The first is to handle the collection of documents, the second is to sort them and the third is to ensure their safekeeping. In many public inquiries the relevant materials are likely to be in a number of different hands. While the Secretary, Solicitor and Counsel may have views about whom to approach, a dedicated Document Manager will probably be the point of contact with those who may have documents and he will ensure that a disclosure schedule is signed off and will deal with continuing disclosure.

Sorting the documents may be as simple as ensuring that composite bundle with no duplicates is compiled. In a paperless public inquiry the Document Manager will ensure that the documents are scanned and uploaded and will manage the numbering and any metadata that is to be attached. Ensuring the safekeeping of documents is likely to be a significant responsibility. All public inquiries are likely to hold sensitive personal data and the Document Manager should be the Data Controller, assuming the duties imposed by the Data Protection Act. Further, it is likely that documents attracting protect, confidential, secret or top secret markings will be seen and stored by a public inquiry. The overall security responsibility will generally be that of the Secretary, but the Document Manager will need to assist. The safekeeping of documents extends to the point where they are archived at the end of the public inquiry and for the purposes of archiving the Document Manager will have group the materials so that the Archivist will know what levels of access the public is to have under the Freedom of Information Act.

The need to respect the human rights of all those involved in a public inquiry permeates everything that it does. One of the results is that most public inquiries adopt a policy involving some redaction of names and addresses. Many individuals find that being involved in a public inquiry is stressful and intrusive. The more pressing the public concern that led to the establishment of the public inquiry, the greater that stress is likely to be. To that end it is common for addresses of witnesses not to be made public unless they are material. Further, documents which are made public may contain the details of individuals who are unconnected with the inquiry, for example the names of children, and it may be desirable to remove those names. The redaction tasks are onerous and they fall to the Document Manager. The redaction policy must of course be coherent and accessible, so will usually be published on the inquiry website.

Document reader

Once a public inquiry is established and it starts trawling for information it is likely to receive large numbers of documents from various sources, many of which will be duplicated. It may receive briefs from pressure groups and it will no doubt conduct its own researches into materials that have previously been published and which may relate to its terms of reference. The results of those exercises will uncover further lines of inquiry which may in turn lead to more documents. The identities of prospective witnesses will become clear and when those witnesses are interviewed they are likely to suggest the need for interviewing others.

The unravelling nature of those exercises mean that it may be beneficial for a public inquiry to employ a person to read all materials which arrive and draw attention to the need to take further action on them. That combines the two functions of HOLMES receiver and statement reader that a serious police investigation would have. The role of the Document Reader would cover documents received from third parties and witness statements generated by the public inquiry itself, and he would report to the Solicitor or Counsel so as to keep them informed of the detail that is emerging and the potential to make further inquiries. Document management is a fundamentally important task in a public inquiry.

The witness team

The function and composition witness team on a public inquiry will vary widely according to how many witnesses are involved, whether the witnesses are “lay” or are accustomed to giving evidence and what methodology is adopted for taking statements. Broadly speaking there are two approaches to taking statements. The first is to ask potential witnesses to make and deliver their own statements. The second is for the public inquiry to interview prospective witnesses and to compile statements for witnesses to sign. However, if the public inquiry retains a dedicated team to interview witnesses and compile statements the best of both worlds can be achieved. That team can feed valuable information back to the Solicitor and Counsel by way of witness appraisals, such as the demeanour of the witness, and can suggest further lines of inquiry or issues calling for re-interview. Further, such a witness team may build relationships with witnesses will be valuable if those witnesses are called to give evidence. Many witnesses are nervous about attending and may have significant practical difficulties about juggling child care or work commitments with giving evidence. If they have a point of contact with the public inquiry those difficulties are more easily overcome.

The nature of the public inquiry is likely to dictate the type of persons retained to deal with prospective witnesses. Where it involves pure governmental matters a retired senior civil servant may be ideal. Where policing is involved a retired senior detective is likely to be invaluable. The Rosemary Nelson Inquiry, faced with considering matters that had already been the subject of a massive police investigation, retained nine retired policemen. The armed forces, the police and the civil service all produce experienced and gifted personnel who have retired relatively early and may be retained by a public inquiry on a consultancy basis.

Accounting manager

Most public inquiries will be responsible for the expenditure of substantial public funds, on matters as diverse as office space, IT provision, staff, and legal representation for interested parties. The control of, recording of, and accounting for such expenditure is plainly of prime importance. Although the Secretary to the inquiry is generally made the Accounting Officer who takes overall responsibility for those functions, there is generally a dedicated officer whose day-to-day tasks involve the management of expenditure. 

Support staff

Plainly the size and composition of the team of support staff will vary according to the nature and complexity of a public inquiry. Generally civil servants are seconded from their home departments for the support roles, although there is an increasing tendency to use agency staff for short-term work.

An alternative model

The classic model for staffing a public inquiry is tried and tested and it has obvious advantages. Civil servants are trained administrators. The subject matter of a public inquiry is likely to involve Government departments, where civil servants’ experience will be particularly useful. The ability to obtain civil servants on secondment from their home departments avoids the difficulties inherent in employing staff in what is not a permanent position but whose duration is likely to be unknown. However, the model does have the drawback that, to a greater or lesser extent, every time a public inquiry is set up it has to “reinvent the wheel”. The Secretary and Solicitor have to find other staff. Premises have to be found and IT contracts entered into. In short, a great deal of time and energy is expended on establishing an organisation from scratch. To a degree that is avoidable if staff move directly as a team from one public inquiry to another, but that is not easily achieved.

It may be possible to escape some of those difficulties by privatising the functions. If, for example, a firm of solicitors were given the task normally allocated to the Secretary and Solicitor to the Inquiry, advantage could be taken of the firm’s IT, administrative and office facilities. Counsel for the Inquiry could work from Chambers rather than the inquiry offices. Medium and large firms of solicitors are experienced in document collection and management. They know how to work with counsel. They have the expertise to take witness statements and to handle witnesses. Within firms of solicitors there will normally be a number of teams consisting of partners, assistant solicitors, paralegals and secretarial support. The IT arrangements are able to cater for large sets of documents.

The alternative model of instructing a firm of solicitors to get the materials and arrange for witnesses to give evidence is plainly a radical departure from established practice. It would not be suitable for all public inquiries, particularly where a number of specialists are required to advise on document collection and witness management. If the public inquiry entailed the handling of secret or top secret materials it may be impossible to be satisfied that the firm had adequate security arrangements. However, for a relatively small public inquiry it may be possible to save substantial public monies by this alternative approach.