All Things Newz
Law \ Legal

The Purpose Of Public Inquiries: Learning Lessons From The Grenfell Tower Inquiry – Trials & Appeals & Compensation


Introduction

The Grenfell Tower Public Inquiry (“GTI”) is currently
reaching the end stages of its hearings phase. The end of those
hearings will then usher in a period of waiting and anticipation,
as the Inquiry team prepare the final report.

Whilst it is too soon, therefore, to come to any final views on
the GTI – the process: the results – as we reach the later stages,
having not long passed the fifth anniversary of the tragic fire at
Grenfell Tower, one cannot but help reflect of the what the GTI
tells us more generally about the public inquiry process.

To date, the GTI has been the one of largest and most ambitious
inquiries to date, and unlike other more belated investigations, it
was strikingly launched in the immediate aftermath of, and has
become the lead legal mechanism by which, the fire at Grenfell
Tower have been considered.

For those preparing for the COVID-19 Inquiry, which looks set to
eclipse all previous public inquiries in terms of scale and (it
would seem) scope, what does the GTI tell us about what those with
vested interests (of whom there will be thousands) can expect from
the public inquiry process? Further, noting the tremendous weight
of expectation which will fall on the COVID-19 Inquiry team – as
was the case with the GTI (or indeed any other public inquiry
arising out of tragic events) – what might the GTI teach us about
how those expectations should be managed?

A distinct legal process

Public inquiries constituted under the Inquiries Act 2005 – as
the GTI was and COVID-19 Inquiry has been – whilst curtained in
their inability to determine liability, have potentially
inexhaustive powers of investigation. Sections 2 and 4 of the
Inquiries Act 2005 provide accordingly:

2. No determination of
liability


(1)An inquiry panel is not to rule on, and has no power to
determine, any person’s civil or criminal liability.


(2)But an inquiry panel is not to be inhibited in the discharge
of its functions by any likelihood of liability being inferred from
facts that it determines or recommendations that it makes.

4. Setting-up date and terms
of reference


(1)In the instrument under section 4 appointing the chairman,
or by a notice given to him within a reasonable time afterwards,
the Minister must-


(a)specify the date that is to be the setting-up date for the
purposes of this Act; and


(b)before that date-

(i)set out the terms of reference of the inquiry;

(ii)state whether or not the Minister proposes to appoint other
members to the inquiry panel, and if so how many.


.

(3)The Minister may at any time after setting out the terms of
reference under this section amend them if he considers that the
public interest so requires.

In other words, a public inquiry can be as wide as its terms of
reference are set, or – as those who have been involved in public
inquiries would argue – as far as the terms of reference are
interpreted to stretch.

The GTI, for example, has reviewed millions of documents, heard
evidence from hundreds of people and looked in excruciating detail
at processes, procedures and regulations governing the
construction, refurbishment and management of high rise premises.
For such a mammoth task, a public inquiry constituted under the
Inquiries Act 2005 – with such wide terms of references as that
afforded the GTI – allows a degree of scrutiny that no other legal
process provides.

Whilst inquiries’ jurisprudence dictates that public
inquiries will consider responsibility, the fact that a public
inquiry does not consider liability – albeit the two are often
interlinked, if not coterminous – leaves it uninhibited by the
constraints of civil litigation. On a purely practical level, the
fact that it is administratively and structurally constituted sui
generis means that it is not hampered, for example, by an otherwise
overstretched judicial system or rigid procedure rules.

This allowed the GTI to evolve its understanding of its terms of
reference; to tangentially explore matters that – before it started
hearing evidence – no one was aware needed exploring and allowed a
forensic examination of both the events in consideration, alongside
the systems and structures which operated to allow such terrible
events to occur.

The COVID-19 Inquiry looks set to expand even further as one of
the main aims in its terms of reference is to consider:

any disparities evident in the impact of the pandemic
on different categories of people, including, but not limited to,
those relating to protected characteristics under the Equality Act
2010 and equality categories under the Northern Ireland Act
1998
“.

Whilst the GTI was asked to consider a similar line of enquiry,
it did not do so, seemingly on the basis that it would overly
stretch the terms of reference. It is intriguing, therefore, to see
such expansive scope contained now directly in the terms of
reference for the COVID-19 Inquiry.

Stopping here, therefore, in a vacuum of context, one would be
mistaken for believing that the public inquiry process offers the
perfect legal vehicle. Life does not, however, exist in a vacuum,
neither do those who were most impacted by the fire at Grenfell
Tower, nor do those who have lost loved ones to COVID-19. This must
provoke the question: do such benefits survive reality?

An arbiter of fact?

Whilst the courts have incomparable experience in investigations
of fact, even in the higher courts (or perhaps particularly so,
depending on your perspective), the investigation of fact is
increasingly curtailed by the overriding objective. Proportionality
rarely suffers a lengthy investigation, neither in most cases is it
reasonable.

This will, however, be unlikely to be palatable to the hundreds
of thousands who lost loved one to COVID-19 and who have questions
about how the pandemic was managed. In this regard, the GTI offers
hope.

If the GTI offers a blueprint of any kind and one’s primary
hope for the COVID-19 Inquiry is to understand factually what
happened, the public inquiry remains a crucial vehicle to provide
that understanding.

An adjudicator of responsibility?

For those most affected by tragedy, however, whilst not
exclusively the case, for many, the facts are not enough: it is
important to understand who was responsible. This is where matters
become greyer.

As noted above, public inquiries will consider the matter of
responsibility, usually to the extent to which it proceeds from the
determination of fact. In other words, what one can reasonably
expect is that the public inquiry will identify those
‘responsible’ to the extent that they have been determined
as a matter of fact to have made decisions, to have taken actions,
or failed to do so. In many cases, whilst not an actual
determination of legal liability, it is a ‘as good as’ in
terms of being an indicator which one can expect the courts to
follow.

Furthermore, public inquiries can – and increasingly are being
deferred to by coroners to – undertake the inquest function as part
of their remit. This is certainly something the GTI has sought to
do, and one would expect at least a degree of this with the COVID-19 Inquiry.

An ‘as good as’ indicator is not, however, the same as a
determination. It should also be noted that such findings are
invariably reserved to the final stages of reporting. Those who
were most impacted by the Grenfell Tower fire are still waiting,
five years later. With the COVID-19 Inquiry, it is hard to imagine
that this will be quicker. These are not, however, expectations
(see for example the Hillsborough process) and, in this regard,
public inquiries arguably start to look less attractive compared to
the litigation process.

An agent of change?

The other common hope for those most affected by tragedy – is
the innate desire that such tragedy should not happen again.

Whilst in a small number of cases the Supreme Court veers into
the realms of effecting real change (a topic too political to
discuss here), as a general rule, changes made by the courts are by
degrees. What they do not tend to do is engage in the culture
shifting change which tragedy requires be made.

In theory, the public inquiry is in a much better place to
effect such change. Its ability to investigate further, to ask more
questions, increases the chances that it alights on changes that
can be made and effective ways in which to make that change. The
often wide remit of public inquiries also means that it is far more
likely as a process to be able to consider whole systems of
industries and thus recommend impactful change, rather than being
constrained simply to the presenting issue.

This potential benefit of public inquiries is, however, often in
reality hampered by time and actual power to effect change. Taking
the GTI by way of example:

  • The GTI has yet to make its final recommendations, and indeed
    the chair (Sir Martin Moore-Bick) has often resisted calls to make
    recommendations earlier until more evidence is heard and the full
    picture understood. More than five years have passed with much
    needed change being delayed. When dealing with life-critical
    matters, it is hard to then see how the inquiry process actually
    furthers the public interest (which ultimately public inquires
    exist to further); and

  • Whilst some recommendations were made in the phase 1 report,
    and whilst the Government originally committed to enacting these in
    full, recent soundings from relevant departments have been that
    this will not take place on account of cost or practicality (recent
    news on Personal Emergency Evacuation Plans not becoming a wider
    ranging requirement being a good example).

The public inquiry then, whilst an agent (or potential agent) of
change, might be seen as one with “low security
clearance”.

A cost worth bearing?

Finally, one has to consider the cost.

The total expenditure on the GTI to 31 March 2022 was a
staggering £149 million of public funds – the vast majority
of which is legal and expert / consultant costs. This is also only
the cost of those funded through the inquiry process and does not
touch on the millions borne by private companies and insurers.

Of course, the GTI arises out of one specific event, whereas
when it comes to the COVID-19 Inquiry, those events, coupled with
the fact that the number of people who have sadly died is so much
greater (even official figures recording over 165,000 in England
alone), one can only begin to imagine what the cost spend will
be.

Whilst litigation of the scale required would also be equally
expensive, given that the inquiry process does not remove the need
for litigation (albeit it does shorten it / increase the prospects
of effective alternative dispute resolution), one has to grapple
with the question of whether the process is worth the costs?

This is perhaps ultimately a question for judgement to be
reserved until the GTI concludes. It is, however, something worth
considering for those gearing up for the COVID-19 inquiry.

Concluding remarks

For those, then, on the cusp of a new inquiry, what should their
expectations be?

This is of course a personal question and one that depends
somewhat on what is most important. We would not seek to inhibit
expectations, as experience dictates that particularly in the early
stages of the public inquiry process, the ambitions of the
participants go a long way to determining how wide the inquiry team
‘interpret’ their terms of reference.

We would, however, also urge caution and realism as to what the
process can achieve. It has an important place in the judicial
landscape, but it is no nirvana, and can often be a complex and
lengthy process to navigate.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



Source link

Related posts

Precedential No. 26: TTAB Denies “HAPPIEST HOUR” Cancellation Petition For Failure To Prove Priority Via Technical Or Analogous TM Use – Trademark

Federal Privacy Bill Stalls Again – Privacy Protection

340B Hospitals Win In Medicare OPPS Supreme Court Decision – Healthcare