Despite the widely discussed 'pros and cons' of statutory versus non-statutory inquiries over recent years, statutory inquiries are still prevailing over their non-statutory counterparts, mainly as a result of their ability to compel the production of evidence and participation of witnesses.
Steve Barclay, the Health and Social Care Secretary, announced at the end of August 2023 that the Inquiry into the circumstances surrounding the crimes of Lucy Letby, the neonatal nurse found guilty of murdering seven babies and attempting to murder six others at the Countess of Chester Hospital between June 2015 and June 2016, would be given statutory footing and chaired by Lady Justice Thirlwall, one of the country's most senior judges. This came following pressure from the victim's families who were concerned that NHS managers would refuse to give evidence under a more flexible, and generally quicker, non-statutory process.
Earlier in the summer, it was also announced that the Essex Mental Health Independent Inquiry, the inquiry which was launched in 2021 to investigate the deaths of 2000 mental health inpatients in Essex between 2000 and 2020, would be upgraded to a statutory inquiry and, more recently, that this will be chaired by Baroness Kate Lampard, who led the Department of Health's inquiry into the crimes of Jimmy Savile. This appears to have come about after the previous Chair, Dr Geraldine Strathdee, said that only a third of the key witnesses she had wanted to call had agreed.
Yet the above comes at a time when the UK Covid-19 Inquiry (the Covid Inquiry), another statutory inquiry which has recently faced criticism, like many before it, for soaring costs and slow progress, only last month began hearing evidence for its second investigation, despite having been formally established in June 2022. Module 2, which is examining core UK decision-making and political governance, is currently one of six investigations to have been announced by the Covid Inquiry (only five of which have opened), with further investigations expected to be announced next year. The Covid Inquiry is not due to finish its public hearings until the summer of 2026.
So why do statutory inquiries remain so prominent?
The briefing paper "Statutory public inquiries: the Inquiries Act 2005" published on 19 September 2023 which, amongst other things, examines issues arising from the holding of statutory public inquiries held under the Inquiries Act 2005 (the Act), holds the answer to this. While it notes that public inquiries are, by their nature, controversial, since, from the outset, questions are often raised over the identity of the Chair, the breadth and precision of the terms of reference, the size of the budget, the proposed timetable and the inquiry's working methods, their principal advantages – namely the fact that they provide legal powers to compel witnesses to give evidence, provide legal safeguards and can set limits on the Government's discretionary control of an inquiry – are why they continue to play such a prominent role in establishing facts, determining accountability and learning lessons for the future.
The Post Office Horizon IT Inquiry (the Post Office Inquiry) provides further insight. This inquiry was also initially established on a non-statutory basis to enable the Chair, retired High Court judge Sir Wyn Williams, to work quickly to establish a clear account of the implementation and failings of the Horizon IT computer system over its lifetime. However, it was converted into a statutory inquiry in 2021 after the landmark Court of Appeal judgment saw 39 postmasters have their convictions overturned, and it was held that a more in-depth analysis of what happened was needed.
Nevertheless, the smooth running of the Post Office Inquiry, which was due to report in autumn 2022, has been heavily disrupted by what Sir Wyn has termed "grossly unsatisfactory" disclosure failings by the Post Office, which were also at the heart of the underlying criminal prosecutions and group litigation. It appears that the disclosure failures in the inquiry result from undisputed process failures, including a failure to set appropriate search terms for electronic searches of documents and a failure to deal appropriately with the “de-duplication” of documents, which have been laid at the door of the Post Office's advisers though the Post Office itself takes ultimate responsibility.
Disclosure will now be very closely monitored for the remainder of the Post Office Inquiry and all future requests for evidence to the Post Office will now carry a notice under Section 21 of the Act, which requires a person to give evidence or produce documents and carries with it a threat of criminal sanction – a tool not available in non-statutory inquiries.
The announcement on 7 September 2023 of a further statutory inquiry into the actions of disgraced brain surgeon, Sam Eljamel, at NHS Tayside demonstrates the strength of political and public support for statutory inquiries, especially where openness and transparency have been put in doubt. They are often seen as the only route to get to the bottom of who knew what and when and what contributed to the relevant failings.
Unfortunately, however, as shown by both the Covid Inquiry and the Scottish Covid-19 Inquiry, which are currently in the spotlight following the potential deletion of WhatsApp data and use of 'disappearing messages' by government ministers, as well as the Post Office Inquiry, even with the tools available to compel the production of evidence in statutory inquiries, issues can and do arise and disclosure of documents and evidence still remains a subject at the heart of these inquiries.
