Challenging the findings of a Public Inquiry

30th October 2023

Continuing our series of articles focusing on public inquiries, we look at the grounds and process for challenging the final decision made at an inquiry.

Whilst a public inquiry can make certain findings, the inquiry cannot make findings of civil or criminal liability. Upon the conclusion of a public inquiry, an obligation to publish the final report is placed on the minister who commissioned the same.

The final report will also be put before parliament, at which point the inquiry is at a formal end. The recommendations have no legal effect and are non-binding, and there is no formal process under which the findings of an inquiry can become law.

Following publication of the final report, there are limited grounds on which a challenge can be brought against the inquiry’s decision.

Inquiries Act 2005

Whilst there are no express power of appeal against the findings of a public inquiry, section 38(1) of the Inquiries Act (“the Act”) provides for an application of judicial review to be made of a decision made by either:

  • the Minister in relation to an inquiry, or;
  • a member of an inquiry panel.

Any application for judicial review must be brought within 14 days after the day on which the applicant became aware of the decision, unless the time limit is extended by the Court.

However, pursuant to section 38(5) of the Act the right to apply for judicial review does not apply to:

  • a decision as to the contents of the report of the inquiry; or
  • a decision of which the applicant could not have become aware of until the publication of the report.

This means that the final report of a public inquiry cannot be directly challenged under the Act. Instead, the applicant should only bring an application for judicial review of any decisions made during the course of the inquiry.

Judicial reviews

A recent example of a judicial review being brought in the context of a public inquiry was seen in July 2023 when the Cabinet Office challenged the powers of the Chair of the Covid-19 Inquiry (“the Inquiry”) who had sought disclosure of various WhatsApp messages between the former Prime Minister, Boris Johnson, and others, along with the former Prime Minister’s notebooks and diaries.

Section 21 of the Act provides the power for the chairperson of an inquiry to require the production of evidence and throughout the course of the ongoing Inquiry, the Chair had sought a wide range of materials she considered to be “potentially relevant to the lines of investigation” which included WhatsApp messages. The Cabinet Office argued that the Prime Minister’s WhatsApp messages, notebooks and diaries contained “unambiguously irrelevant material” and as such, brought an application for a judicial review of the Chair’s decision.

The Court held that the notice to produce the documents, served by the Inquiry, was served in order to require the production of documents that relate to a matter in question in the Inquiry as some of the information would undoubtedly relate to the government’s response to the Covid-19 pandemic.

The Court also held that under the Act, inquiries have the opportunity to “fish” for documents which would in turn require the Chair “to make informed but speculative requests for documents relevant to lines of inquiry, or documents which lead to new lines of inquiry. Such an exercise is bound to lead to the inclusion of some irrelevant material. The government accepted the Court’s decision and did not appeal.

Our colleagues have taken a closer look at the Judicial Review process in the article, What is a Judicial Review?

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