In February 2025, the Government published its response to the House of Lords Statutory Inquiries Committee report “Public inquiries: Enhancing public trust” (Reference 1). Also in February 2025, the Home Office published the Terms of Reference for the non-statutory Manston Inquiry into the actions and circumstances that led to the conditions encountered by immigration detainees at Manston Short-Term Holding Facility in Kent in 2022, and which has some features of a statutory inquiry. In a public inquiry landscape that includes 20 current or recently announced inquiries (Reference 2), how might these developments change that landscape?
Problems with evidence gathering
Non-statutory inquiries are a useful tool if speed is of the essence or if flexibility is needed, because the set-up and running of the inquiry is not bound by the provisions of the Inquiries Act 2005 (“the Act”) or the Inquiry Rules 2006 (“the Rules”). However, non-statutory inquiries can convert to a statutory footing under section 15 of the Act, and a common catalyst for this is problems with gathering evidence. The Chair of a non-statutory inquiry does not have the power to compel the production of documentary or witness evidence to the inquiry. This poses a significant obstacle to an inquiry's work, and the Chair has limited options to overcome it: for example, they may rely on existing, limited statutory or professional duties of candour, or the threat of reputational risk for uncooperative organisations and individuals may be of assistance. The Chair of a statutory inquiry can rely on section 21 of the Act (powers to require production of evidence) backed up by the offences set out in section 35.
The Bill that will become the “Hillsborough Law” is expected to be published imminently. It is anticipated that it will introduce a legal duty of candour on public servants and authorities and criminal sanctions for failure to comply, with the aim of addressing “...the unacceptable defensive culture prevalent across too much of the public sector...” (Reference 4). It is unclear if it will also extend to the private sector providing public sector services. The “teeth” that it is hoped this proposed statutory duty of candour will give to non-statutory inquiries should reduce the need for conversion in the face of difficulties with evidence and potentially make non-statutory inquiries a more attractive option. It will also be interesting to see if a duty of candour imposed only on the public sector will bring pressure to bear on those private sector organisations operating in the public sector to level up and be similarly candid.
The Government has confirmed that the non-statutory Manston Inquiry, which formally started on 17 March 2025 and will be chaired by Sophie Cartwright KC, will seek to investigate matters through analysis of documentary evidence, interviews, witness statements and evidence and findings from any previous reports regarding Manston that relate to the relevant period. The door has also been left open for the Chair to hold public hearings if it is deemed necessary to comply with Article 3 ECHR, and funded legal representation will be available to participants. The arrangements for the Manston Inquiry have arisen from the settlement of judicial review proceedings. If non-statutory inquiries can be established with an agreement having been reached between the sponsoring Minister, the Inquiry and its participants on important elements of the process that might otherwise be subject to public law challenge, or result in the need to convert to a statutory footing, delays both early on and later in the inquiry process, and additional costs, could be avoided. It is notable that a proactive and collaborative approach is championed in Recommendations 1 and 2 of the Statutory Inquiries Committee report, both of which have been accepted by the Government.
The Statutory Inquiries Committee report
In January 2024, the Statutory Inquiries Committee was appointed “to consider the efficacy of the law and practice relating to statutory inquiries under the Inquiries Act 2005” amid growing concerns about the cost, duration and overall effectiveness of statutory public inquiries (Reference 3). The Committee published its report in September 2024, making recommendations across 4 topics. The first sentence of Recommendation 1, on the topic of the establishment and conduct of inquiries, states that “Ministers should select the legal basis and chair of an inquiry on a case-by-case basis and not feel tied to a particular model”. In its response, the Government confirmed that it “agrees that there should not be a "one-size-fits-all" approach to establishing public inquiries”. This makes it clear that there is an appetite for a more flexible approach to establishing public inquiries, but how practical is it?Problems with evidence gathering
Non-statutory inquiries are a useful tool if speed is of the essence or if flexibility is needed, because the set-up and running of the inquiry is not bound by the provisions of the Inquiries Act 2005 (“the Act”) or the Inquiry Rules 2006 (“the Rules”). However, non-statutory inquiries can convert to a statutory footing under section 15 of the Act, and a common catalyst for this is problems with gathering evidence. The Chair of a non-statutory inquiry does not have the power to compel the production of documentary or witness evidence to the inquiry. This poses a significant obstacle to an inquiry's work, and the Chair has limited options to overcome it: for example, they may rely on existing, limited statutory or professional duties of candour, or the threat of reputational risk for uncooperative organisations and individuals may be of assistance. The Chair of a statutory inquiry can rely on section 21 of the Act (powers to require production of evidence) backed up by the offences set out in section 35. The Bill that will become the “Hillsborough Law” is expected to be published imminently. It is anticipated that it will introduce a legal duty of candour on public servants and authorities and criminal sanctions for failure to comply, with the aim of addressing “...the unacceptable defensive culture prevalent across too much of the public sector...” (Reference 4). It is unclear if it will also extend to the private sector providing public sector services. The “teeth” that it is hoped this proposed statutory duty of candour will give to non-statutory inquiries should reduce the need for conversion in the face of difficulties with evidence and potentially make non-statutory inquiries a more attractive option. It will also be interesting to see if a duty of candour imposed only on the public sector will bring pressure to bear on those private sector organisations operating in the public sector to level up and be similarly candid.
Participation
Another reason for conversion to a statutory footing is the ability of victims or the bereaved to properly participate in an inquiry in the absence of public hearings and funded legal representation to participate. This can be a particular issue if the subject matter of the inquiry involves breaches of the European Convention on Human Rights (“ECHR”) and gives rise to a duty to investigate. The Chair of a statutory inquiry has the provisions of section 18 (public access to inquiry proceedings and information) and section 40 (expenses) of the Act, plus the Rules, as part of their toolkit.The Government has confirmed that the non-statutory Manston Inquiry, which formally started on 17 March 2025 and will be chaired by Sophie Cartwright KC, will seek to investigate matters through analysis of documentary evidence, interviews, witness statements and evidence and findings from any previous reports regarding Manston that relate to the relevant period. The door has also been left open for the Chair to hold public hearings if it is deemed necessary to comply with Article 3 ECHR, and funded legal representation will be available to participants. The arrangements for the Manston Inquiry have arisen from the settlement of judicial review proceedings. If non-statutory inquiries can be established with an agreement having been reached between the sponsoring Minister, the Inquiry and its participants on important elements of the process that might otherwise be subject to public law challenge, or result in the need to convert to a statutory footing, delays both early on and later in the inquiry process, and additional costs, could be avoided. It is notable that a proactive and collaborative approach is championed in Recommendations 1 and 2 of the Statutory Inquiries Committee report, both of which have been accepted by the Government.
Conclusion
If the Manston Inquiry non-statutory model is successful, and if the greatly anticipated duty of candour legislation aka Hillsborough law does what it is hoped it will do (or more), coupled with the Government's commitment to improving governance and flexibility in the public inquiry landscape, it could be possible for more public inquiries to be set up, and proceed on, a non-statutory basis, expeditiously, with both participant and public confidence in the evidence gathering process and imposing less of a burden on the public purse.
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References
3 Public inquiries: Enhancing public trust
4 FINAL - 17/07/24 King's Speech 2024 background briefing final GOV.uk.docx
