Covid-19 and the Inquiries Act 2005

By: Kate Dewsnip

On 13 June 2023 the highly anticipated Covid-19 public inquiry was opened. The inquiry is chaired by Baroness Hallett, a former Court of Appeal judge and current cross-party Peer. It has been established to assess ‘the UK’s response to and impact of the Covid-19 pandemic.’ As with any public inquiry, it is hoped that an investigation of this nature will not only provide recommendations for the future handling of similar events, to prevent similar mistakes being repeated, but that it will also provide closure for those most affected. 

The Covid-19 inquiry is a ‘statutory inquiry’ meaning that its operation is governed by the provisions of the Inquiries Act 2005 (IA). Statutory inquiries of this kind have increasingly been relied upon to provide governmental accountability and to ensure lessons are learned from the past. Indeed, inquiries such as these have become a key feature of the modern administrative system. 

But what exactly is a ‘statutory inquiry’ and how exactly did the legislative regime that we rely upon today develop? Perhaps the opening of the Covid-19 inquiry provides an opportune moment to consider questions such as these and at which to examine the operation of modern ‘statutory inquiries’. 

Before the Inquiries Act 2005

Prior to 1921 there was no one piece of legislation that governed the operation of inquiries in the UK. Instead, specific parliamentary select committees were formed and charged with the task of reporting on occasions of alleged maladministration or ministerial misconduct. Often cross-party committees produced productive results,[1] but their ability to effectively hold government ministers to account was ultimately hampered by their composition, as membership of an inquiry committee was generally reflective of party composition in the Commons. Thus, if a committee divided along party lines, the majority of committee members historically favoured the government. Not only did this frustrate the primary purpose of an inquiry (namely to hold ministers to account), it jeopardised the general credibility of all committee reports. 

Eventually it was decided that the best way forward was to establish independent committees chaired by judges and that these committees should have statutory powers to compel individuals to provide evidence. As such, the Tribunals of Inquiry (Evidence) Act 1921 Bill was introduced to Parliament and subsequently received Royal Assent on 24 March 1921.

The Tribunals of Inquiry (Evidence) Act 1921

S.1 of the Act provided that where an inquiry was established by a Secretary of State to report on a matter ‘of urgent public importance’, ‘the tribunal shall have all such powers, rights, and privileges as are vested in the High Court’ in relation to ‘enforcing the attendance of witnesses; compelling the production of documents and examining them on oath’. 

In order for a statutory inquiry under the 1921 Act to be created, a resolution of both houses was required to be passed. Although Parliamentary endorsement was prima facie required, a ministerial request for a resolution to establish an inquiry was never refused and between 1921 and 2005 twenty-four public inquiries were held using the powers of the 1921 Act.

In addition to the Tribunals of Inquiry (Evidence) Act 1921, specific statutory powers were often enacted to allow ministers to establish inquiries relating to particular topics. For example, a provision stating “the Minister may cause an inquiry to be held in any case where he thinks it advisable to do so in connection with any matter arising under this Act” was inserted into s.143 of the Mental Health Act 1959; s.84 of the National Health Service Act 1977 and s.49 of the Police Act 1996. All these statutes contained powers regarding the ability to compel witnesses as well as provisions relating to the payment of costs of witnesses. These provisions provided the specific statutory basis to a number of high profile inquiries, including the Victoria Climbié Inquiry and the Stephen Lawrence Inquiry. 

This piecemeal statutory regime was used relatively successfully throughout the twentieth century, but at the turn of the century pressure began to build for legislative change. In 2000, Lord Justice Clarke wrote in his Final Report of the Marchioness Inquiry: “Finally, it does seem to me that the time has come when it would be desirable to set up a statutory framework for Inquiries generally… There is at present no generally applicable statute which covers public inquiries.” Consistency across all areas was understandably desired. Concern for cost was also rising as the 1921 Act contained no provision to control the costs of inquiries. The Bloody Sunday Inquiry became a high profile example of an extremely costly inquiry – the report took twelve years to produce and ultimately cost £192m. Crucially there was no provision in the 1921 Act for procedural rules. This led to additional time and expense being spent on additional legal submissions. 

For these reasons work began on formulating the policy of a new bill which would become the Inquiries Act 2005. Irony being dead, in early 2004 the Commons Public Administration Select Committee (PASC) opened an inquiry into the effectiveness of inquiries. PASC began by requesting evidence from the government and other interested parties, and the government’s response to the questions posed confirmed their intention to legislate and create a new statutory framework. The government’s response to PASC also gave rise to a Governmental Green Paper on the topic.

The Inquiries Bill was introduced into the House of Lords and received its First Reading on the 25 November 2004 and entered the House of Commons on 1 March 2005. PASC published their investigation and report on 3 February 2005, making a number of recommendations relating to the substance of the Inquiries Bill. The Bill received Royal Assent on 7 April 2005 and came into force on 7 June 2005.

The Inquiries Act 2005 

Unsurprisingly, the Inquiries Act is a significantly longer statute than its predecessor as it consolidates all previous legislation as well as introducing new legal provisions. According to paragraph three of the IA’s Explanatory Notes, the purpose of the Act is ‘to provide a comprehensive statutory framework for inquiries set up by Ministers to look into matters of public concern’. S.1 does not provide a definitive definition for ‘matters of public concern’ but makes it clear that it is for a minister, and a minister alone, to establish an inquiry. Although Parliament is no longer required to pass a resolution to establish a new inquiry, s.6 of the IA requires the relevant minister to ‘as soon as reasonably practicable’ provide Parliament with the name of the chairman of the inquiry; whether any additional inquiry panel members will be appointed; and what the inquiry’s terms of reference are. 

Sections 1-14 of the Act deal with the constitution of an inquiry. As noted above, ministers are empowered to establish an inquiry and appoint an inquiry chair. An inquiry can be either a chairman alone or a chairman with one or more members (s.3(1)) and s.11 makes provision for ‘assessors’ to be appointed to assist the inquiry panel. 

Crucially, s.2 states that an inquiry ‘has no power to determine, any person’s civil or criminal liability’ as inquiries are inquisitorial in nature, rather than adversarial.

Section 5 compels the minister to ‘set out the terms of reference of the inquiry’ as defined in s.5(6). The terms of reference, as determined by the relevant minister, are key as an inquiry does not have the legal power to act outside these terms. By way of example, the terms of reference for the current Covid-19 inquiry can be found here. The terms are intentionally broad covering ‘preparedness; the public health response; the response in the health and care sector; and our economic response’. Three distinct aims for the inquiry have been identified and outlined by the government following a ‘full and extensive public consultation’. 

Sections 17-23 relate to the conduct of inquiries. Section 17 provides the chairman of the inquiry with exclusive power over the ‘procedure and conduct’ of the inquiry. Section 17(2) allows for evidence to be taken on oath whilst s.21provides the power to compel a person to give evidence or provide documents. Section 35 provides criminal sanctions for those that fail to comply. In order to reflect concerns regarding the cost of inquiries identified prior to the passage of the IA, s.17(3) places a duty on the chairman to act with ‘with fairness and with regard also to the need to avoid any unnecessary cost’. Section 24 of the Act deals with the delivery of the inquiries’ report to the minister and what it must contain, whilst s.25 places a duty on the Minister to publish the report in full and lay it before Parliament. 

The Inquiry Rules 2006

The Inquiry Rules 2006 were passed under s.41 of the IA in order to provide additional support for an inquiry chair regarding evidence and procedure, and to make inquiries more efficient and consequently cost effective.  

The rules cover the following areas:

  • the designation of core participants to the inquiry;
  • the appointment of legal representatives;
  • the taking of evidence and procedure for oral proceedings;
  • the disclosure of potentially restricted evidence in certain limited circumstances;
  • the issuing of warning letters (to witnesses where the chairman believes that they will be subjected to criticism during inquiry proceedings);
  • arrangements for publishing reports and records management;
  • the determination, assessment and payment of awards.

The inquiry rules are not only beneficial to the chair, but they provide additional guidance for witnesses about what to expect when providing evidence to an inquiry. The rules are particularly useful when an inquiry is legally complex, there are multiple parties involved and a large volume of evidence is expected to be submitted. It is fair to assume that the Covid-19 Inquiry will meet all three of these criteria. 

Post-legislative scrutiny of the IA

Since its enactment in 2005, 31 separate public inquiries have been established under the Inquiries Act, some of which were extremely high-profile. In particular, the Act governed the Grenfell Tower Inquiry, the Manchester Arena Inquiry and the Leveson Inquiry. 

In 2013-4 the House of Lords Select Committee on the Inquiries Act 2005 was established to conduct post-legislative review and report on ‘the law and practice relating to inquiries into matters of public concern, in particular the Inquiries Act 2005’. 

The report was published on 11 March 2014 and concluded that the Inquiries Act was generally effective and had been successful in meeting its objectives. Although 33 amendments were recommended by the Committee, no suggestion was made that the Act required ‘radical surgery’. In fact, the Committee found that criticisms made pre-legislatively about the Inquiries Bill had proved untrue. Although the government, in their response, rejected a number of the Committee’s proposals, they also accepted a significant number too.

Concluding remarks

The introduction of Inquiries Act in 2005 was clearly a significant step forward in relation to the operation of statutory inquiries in the UK. Over the last 18 years the statute has successfully governed the operation of a number of high profile public inquiries, but the Covid-19 inquiry may challenge the statutory framework in a novel way. Already the government has (rather controversially) announced its intention to seek a judicial review of Baroness Hallett’s request for disclosure of Boris Johnson’s WhatsApp messages, diaries and notebooks. In light of the scope of this inquiry, and the volume of evidence involved, the breadth of power and discretion afforded to the chair under the IA may attract criticism. Similarly, the formal sidelining of Parliament under the IA will inevitably attract academic attention and could lead to calls for legislative reform. As such, the next few years could be crucial for the development of the law relating to inquiries in the UK. 

Kate Dewsnip. 

Kate is a Graduate Teaching Fellow and PhD candidate at the University of Liverpool School of Law and Social Justice. She is a contributing writer for the Constitution Society. 

The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.

[1] See Sebastopol Inquiry.