The politics of public inquiries

Statutory public inquiries have strong legal powers to compel witnesses to participate. How these are exercised depends on the circumstances and reflects the reality that public inquiries are part of the political process rather than the legal process, or a hybrid of the two.

The FT recently declared public inquiries to be a growth industry, a trend which continues in 2024. As more inquiries are established to address events of widespread public concern like the response to the Covid-19 pandemic, more high-profile situations arise where their powers are put to the test. That is especially so when witnesses refuse to give evidence.

A conspicuous recent example of this situation is the former Minister of State for Veterans’ Affairs (and now former MP) Johnny Mercer. On 24 November 2023, he gave a witness statement to the Independent Inquiry relating to Afghanistan, in which he referred to information he had received in confidence, including a first-hand account by a UK Special Forces individual which Mercer ‘understood to mean that he had been asked to carry an extra weapon (one that could not be linked to NATO forces) to be dropped on the body of a person to make it appear as though they had been a legitimate target as a combatant’. When asked during his oral evidence to supply the names of his sources, Mercer has repeatedly refused and could face jail.

Compulsory powers & criminal sanctions

Public inquiries established under the Inquiries Act 2005 have strong legal powers to compel witnesses to participate. Section 21 empowers each inquiry chair to issue a notice directing a person to attend and give evidence or produce documents within a reasonable period. The recipient may apply to the chair to set aside the section 21 notice on grounds that: (a) they are unable to comply; or (b) it is not reasonable to require them to do so. This is what Mercer applied for at the beginning of April 2024.

If a section 21 notice is maintained, the chair may apply to the High Court under s 36 to enforce compliance, unless the recipient brings a judicial review alleging that maintenance of the notice is unlawful on public law grounds. Such judicial reviews are tricky, as illustrated by the robust dismissal in 2023 of one brought by the Cabinet Office, in R (Cabinet Office) v Chair of the UK Covid-19 Inquiry [2023] EWHC 1702 (Admin). That case was an unsuccessful attempt to overturn a section 21 notice issued by the UK Covid-19 Inquiry to obtain disclosure of unredacted WhatsApp communications and other records tied to former prime minister Boris Johnson.

If the High Court is invited to enforce a section 21 notice under s36, it will give due and proper consideration to whether it is appropriate in all the circumstances to make a witness summons or bench warrant, but the chair’s decisions relating to the running of the inquiry will carry considerable weight in the minds of judges. If a witness has obviously relevant evidence to give, that witness is likely to struggle to resist being compelled to give it.

While s36 is about obtaining information, penalties are also available. A person who fails ‘without reasonable excuse to do anything that he is required to do by a notice under section 21’ commits a criminal offence, which, if prosecuted, is punishable on conviction by a fine of up to £1,000 or imprisonment for up to 51 weeks.

Politics as much as law

In light of the above, the difficulty that inquiry chairs face is not so much a lack of legal powers as a political dilemma in deciding when these should be used. Public inquiries depend on compromise and collaboration to secure the necessary and proportionate evidence they reasonably require to fulfil their terms of reference. The potential costs, delays and reputational risks involved in an inquiry litigating to secure documents and testimony will often outweigh the anticipated benefits. If a witness digs in their heels and is of limited interest to the inquiry, therefore, the chair will probably look for another way to cover the matter in question. Inquiries always need to think creatively about the deftest and least onerous ways of circumventing sticking points to get what they need.

Where specific evidence is being withheld that they cannot do without, however, inquiry chairs will seek it vociferously. Sometimes this is pretty straightforward, as in 2021 when the chair of the Manchester Arena Inquiry sought to compel a friend of the arena bomber to give evidence. The friend clearly had relevant information, there was little substance to his resistance and the politics were obvious.

Our 2024 example shows, however, that things can be less clear-cut. Johnny Mercer may know the names of people who can shed light on possible extrajudicial killings, but his case touches on tricky questions around public interest whistleblowing and the multifaceted roles of MPs. To manage the political sensitivities, his case was parked until the recent general election.

As public inquiries continue to proliferate, we can expect those conducting them to face more dilemmas over when to compel and when to look for another way to achieve what is required.

The original version of this article was published by New Law Journal in July 2022 and can be viewed here: www.newlawjournal.co.uk

further information

If you have any questions regarding this blog, please contact our Public Law team.