Public Inquiries – Freedom of Information Act 2000 and Defamation

Statutory Inquiry

A statutory inquiry is afforded more powers than a non-statutory inquiry. For example, while non-statutory inquiries tend to conclude much quicker, as they don’t have to follow the Inquiries Act 2005 and Inquiry Rules 2006, a statutory inquiry has additional powers, including the power to compel witnesses to attend the hearing and/or give evidence to the inquiry under oath.

Examples of recent statutory inquiries include:

• Grenfell Tower inquiry;
• UK Covid-19 inquiry;
• Manchester Arena bombing inquiry.

Where witnesses make comments either in written statements or in oral evidence, the issue of defamation can arise.

In a statutory inquiry, the Inquiries Act 2005 specifies that absolute privilege will apply, meaning that an action for defamation cannot be brought against a witness.

Further and during a public inquiry, there is no right to disclosure of information contained in inquiry documents, and public inquiries are not the subject of a freedom of information requests if they are statutory.

Non-Statutory Inquiry

Non-statutory inquiries are commissioned by a Government Minister but do not take place under the authority of an Act of Parliament, for example the Inquiries Act 2005. There are three forms of non-statutory public inquiries – non-statutory ad-hoc inquiries, inquiries by a committee of the Privy Council and Royal Commissions.

The main benefit of non-statutory inquiries is the fact that witnesses and documents in the inquiry are entirely voluntary. The procedure is therefore arguably more flexible and less formal and adversarial when compared to a statutory inquiry. They can also hear evidence in private, which is necessary when the issues being considered are of a sensitive nature.

Examples of non-statutory inquiries include the Profumo Inquiry and the Maze Prison Escape Inquiry.

As with a statutory inquiry, where witnesses make comments either in written statements or in oral evidence, the issue of defamation can arise.

In a non-statutory inquiry, qualified privilege will protect the maker of the statement if the statement is made in good faith, but will not apply where there is malice. The application of these rules should ensure that a witness feels able to give their candid and honest evidence without fear of subsequently being sued for defamation.

Lastly, if a public inquiry is non-statutory, documents not otherwise disclosed by the inquiry may form basis of a successful freedom of information request.

We hope that this recent series of articles on public inquiries has been informative and of assistance. We have a team of specialist public inquiry lawyers, currently working on some of the most high profile public inquiries (both statutory and non-statutory) in England and Wales. Should you have any queries, please do not hesitate to get in touch.

Public inquiries series

In our series of blogs on public inquiries, we have also looked at:

• An overview of public inquiries
• How public inquiries are structured
• Involvement in public inquires, including core participants
• Public Inquiry Disclosure: Rule 9 Requests and Section 21 Notices
• Expert evidence in inquiries
• Warning letters in public inquiries
• Hearings and oral evidence
• Final report and findings