The legal personality of the public inquiry
Strictly, in private law terms, a public inquiry has no legal persona. The Chairman is invested with a number of powers if the Inquiries Act 2005 applies and he is required to fulfil the terms of reference. However, the public inquiry itself is not a limited company, a partnership or an unincorporated association. It has no ability to contract in its own name. As a matter of public law the position is different. Not only will a public inquiry be a public body, liable to be the subject of judicial review, but it is likely to be a public authority and so must be cautious not to infringe the human rights of those with whom it deals.
The inability of a public inquiry to enter into contracts is often overlooked. In practice the Secretary to the Inquiry will sign contracts, for example for IT, which may be worth millions of pounds. In doing so he accepts personal responsibility, although of course he will be indemnified by the sponsoring department. Equally, the employment of staff will be personal to the Secretary or such other member of the public inquiry team that enters into the engagement. It may be desirable for a company to be incorporated for the purpose of conducting some of the business functions of a public inquiry.
The lack of legal personality may place a public inquiry in a difficult position in relation to its sponsoring department. In practice public inquiries and the Government departments that sponsor them have an armsí length relationship in which both are scrupulous to avoid any prospect that the department is influencing the outcome of the inquiry process. Nonetheless there are to inevitable tensions. The sponsoring department pays the bills for the public inquiry and so must ensure that high budgetary and auditing standards are adopted and maintained. Where valuable contracts must be entered into, for example for leasing and adapting premises, the public inquiry may ask the sponsoring department to contract directly with the supplier. The department is likely to deal directly with other limbs of Government so as to ensure that civil servants are seconded from other departments.