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
(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
(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.
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.
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