Which public inquiry model?

Plainly the scale of a public inquiry is likely to be proportionate to the importance and complexity of the issue being inquired into. At its simplest it may be unnecessary to have public hearings or to permit legal representation. At the other extreme, and the Bloody Sunday Inquiry perhaps provides the best example, there may be extensive public hearings with many interested parties and witnesses, all legally represented at public expense. In planning the scope of any public inquiry it will be desirable for the sponsoring Minister to agree with the prospective Chairman where on that spectrum the particular public inquiry is perceived to lie.

Experience suggests that a legally qualified Chairman will regard it necessary to hold public hearings with oral examination of witnesses where there are factual disputes to be resolved. In those situations the principle set out in Lord Scott’s speech in Three Rivers (No. 6) is likely to call for legal representation of those involved. Further, sponsoring Ministers will bear in mind that part of the function of a public inquiry is to be seen to dealing with every aspect of the matter under investigation as thoroughly as possible and the public and press are unlikely to be satisfied that such an exercise is being conducted unless it sees witnesses give evidence. Only in the most exceptional case is it likely both to be and be seen to be adequate to hold a public inquiry “on the papers”.

As discussed above, the “increasing legalisation” of public inquiries is itself a matter of public debate and a good deal of criticism has been levelled, in Parliament and in the press, about the apparently unconstrained legal fees generated. Such criticism may be inevitable, as some public inquiries may necessarily entail large legal costs, but the trend is to consider carefully at an advance stage whether representation is necessary, and to manage the expectation of those likely to be involved, through a cogent and transparent policy which is given fair publicity by way of a media strategy.