What is a core participant?
Central to the process and outcome of a Public Inquiry are its core participants. They are a primary consideration at every stage of the Inquiry and are frequently referred to in submissions to, and rulings by, the chair. But, what are they?
A core participant is an individual or organisation who, by the nature of their involvement in the subject matter of the Inquiry, merit an increased level of participation. They may have been instrumental in campaigning for the establishment of an Inquiry; they may have played a significant role in the issues being investigated by the Inquiry; or, perhaps they are likely to face significant criticism during the course of proceedings or in the final report.
The enhanced status of a core participant is recognised with a number of significant practical benefits. Those designated as core participants will:
- be provided with electronic disclosure of evidence relevant to the particular subject matter of the Inquiry in respect of which they are so designated, subject to any restrictions made under section 19 of the Inquiries Act 2005;
- have the right to make opening and closing statements at any hearing;
- have the right to suggest lines of questioning to be pursued by Counsel; and
- have the right to apply to the Inquiry to ask questions of witnesses during a hearing.
Neutrality
Perhaps to emphasise the collaborative and explorative nature of public inquiries and to further distance it from the adversarial model, the neutral term 'core participants' rather than complainant or defendant is used to describe those individuals who have a particularly close connection with the work of the Inquiry.
The list of categories of individuals/organisations who may be granted core participant status is non-exhaustive, but it is often extended to: affected victims and their families; campaigners; protagonists; those whose professional competence is in question; and public servants and politicians responsible for the policies subject to scrutiny.
Essentially, it is the privileged status that core participants receive that makes an application worth consideration. Whilst some advising lawyers may have concerns that making an application might be akin to sticking their client's head above the parapet, the beauty of the neutral status, coupled with the privileges it attracts, helps to allay this concern.
If asking a witness to a criminal act whether they would like to apply formally to make themselves a defendant, the answer would of course be 'no'. However, the core participant is bestowed a number of benefits including; a designated, recognised legal representative, the right to receive disclosure, suggest questions for counsel to the inquiry to ask during oral hearings, the right to make their own submissions and to receive advance copy of the report.
The title is one that may feel unpalatable to affected victims, suggesting that they have been classified together with the potential perpetrators. However, the system is integral to an Inquiry's aims of finding out exactly what happened and preventing recurrence over any desire to apportion blame.
Advantages/disadvantages
Core participants generally receive advance notice of evidence before it is published. So this means witness statements and documents disclosed by other parties will be provided to core participants ahead of witnesses giving oral evidence to the Inquiry and ahead of the material being published on the Inquiry's website. This can be a critical consideration in circumstances where you are preparing to give evidence and particularly where decisions taken are likely to be the subject of scrutiny.
As an ordinary witness, without designation as a core participant, you won't know what others have said in their witness statements about matters with which you were involved (unlike in a criminal or even civil trial where as a defendant you would have had sight of the other witness statements). It means you won't know what is likely to be suggested to you by counsel to the Inquiry; you won't have had sight of all the historic emails and contemporaneous documentary evidence on the issue; and you won't, therefore, have had an opportunity to think about, recall in detail, and consider what your response would be to such questioning, or even implied criticism.
As a core participant, you have advance sight of the other witness statements and all the contemporaneous documentary evidence. It means you're able to refresh your memory about events that may have occurred some time ago, and will be better able to anticipate what you are likely to be asked about and consider the evidence you can give on the subject.
Core participants are also afforded the opportunity to question witnesses. Sometimes through their counsel, but more commonly by suggesting lines of questioning, and indeed specific questions, that should be put to other witnesses by counsel to the Inquiry. It means that where evidence is given by other witnesses that you know should be challenged, you have the opportunity to ensure it is challenged perhaps to correct a false impression that might otherwise have been left in the minds of the chair and the Inquiry panel, who ultimately draw conclusions for the final report.
Core participants also have the right to make opening and closing speeches, often in relation to each module for which they are a core participant. It allows for individuals and organisations so designated to set out their position clearly and publicly and to seek to influence the direction of the Inquiry. The closing statement in particular allows a core participant to reflect and comment on the evidence heard by the Inquiry and provides an opportunity to propose recommendations that the Inquiry might consider making. Just as with submissions to a Judge, where the aim is for sections to be transposed into the final judgement, closing speeches to the Inquiry panel can serve as a useful source of analysis when they come to write the report.
Rule 13 of the Inquiry Rules outlines:
"the Inquiry panel must not include any explicit or significant criticism of a person in the report, or in any interim report, unless-
- the chairman has sent that person a warning letter; and
- the person has been given a reasonable opportunity to respond to the warning letter."
But, Rule 17 also gives core participants only the right to be given a copy of the final report ahead of publication. This gives the core participants some time to consider the conclusions of the Inquiry, discuss the report with their legal advisers and prepare any eventual media response when the report is released to the public.
The test in the Inquiry Rules 2006
Rule 5 of the Inquiry Rules 2006 provides that the chair may designate a person as a core participant at any time during the course of the inquiry, provided that person consents to being so designated. This can occur on the chair's own initiative or following an application by the person to be so designated.
The test for a core participant application is found in subsection (2) of Rule 5:
"(2) In deciding whether to designate a person as a core participant, the chairman must in particular consider whether-
- the person played, or may have played, a direct and significant role in relation to the matters to which the inquiry relates;
- the person has a significant interest in an important aspect of the matters to which the inquiry relates; or
- the person may be subject to explicit or significant criticism during the inquiry proceedings or in the report, or in any interim report."
In a number of Public Inquiries it has been reiterated by the chair that the list of factors to be considered as set out in Rule 5 is not exhaustive; whilst "the chairman must in particular consider" these factors, they are entitled to take other relevant matters into account also.
Baroness Hallet, chair of the Covid-19 Inquiry, has further explained in several Core Participant determinations that: "the Core Participant Protocol provides that while I am bound to consider the factors set out in Rule 5(2), it also open to me to take into account other relevant matters. I am not obliged to designate a person or organisation that meets the criteria set out in Rule 5 of the Inquiry Rules as a Core Participant."
It would, for a great many Public Inquiries, be unworkable to designate every individual or organisation that meets the criteria as a core participant. It is therefore often necessary to adopt an appropriate threshold for designation and select between otherwise qualifying applicants in order to ensure efficiency and cost-effective management of the Inquiry.
The Covid-19 Inquiry and comparative approaches to the application of Rule 5
In practice, the test in Rule 5(2) is applied with an additional limb: fairness. Fairness having regard to balancing the competing considerations of the ability of the individual or organisation to effectively participate in the process without designation, and costs remaining proportionate.
The chair will often need to consider several other factors including, but not limited to: whether those the Inquiry intends to designate adequately and proportionately represent the range of different interests relevant to the terms of reference; adopting a consistent approach to applications; whether the applicant may be subject to explicit or significant criticism that couldn't be adequately addressed by the warning letter process in Rule 13; and, the impact on Inquiry resources such as hearing room space etc.
Whilst the Inquiry Rules 2006 do not prescribe when an application must be made, nor what form it should take, many protocols set out by Inquiries to manage the application process, do. A core participant protocol is often devised by the Inquiry to set a timetable for core participant applications for reasons of efficiency. However, this does not preclude applications coming outside the window being assigned, particularly where matters qualifying the applicant for core participant status only came to light after the window had shut. Normally the chair will ask that an 'out of time' application is accompanied by an explanation for its timing.
Different Inquiries have adopted different approaches. The Grenfell Tower Inquiry invited core participant applications before a particular date but did not specify that applications made after that date should include an explanation for their being made 'out of time'. Core participant designations were in fact made, considered, and in many cases granted, throughout the course of the Inquiry as matters came to light.
By contrast, and perhaps reflecting the dauntingly broad scope of the terms of reference, the Covid-19 Inquiry has adopted a much stricter approach to timetabling the core participant application process. One-month windows have been set for each module and the Covid-19 Inquiry core participant protocol sets out the following: "Applicants are asked not to submit applications outside the timelines given by the Inquiry. The Inquiry will not consider applications that are outside the timescales provided by the Inquiry, unless the applicant provides an acceptable explanation as to why they did not submit their application within the relevant timeframe."
Round-up - A unique status
Core participants occupy a relatively unique position. In the inquisitorial arena of a Public Inquiry, the advance disclosure of evidence, ability to pose questions to witnesses, and the right to make opening and closing submissions is an unrivalled privilege.
Designation is linked to the level of direct interest or involvement in the subject matter of the Inquiry (the status being afforded to those who have been affected as well as those whose actions may be scrutinised) and consequently benefits from a perception of neutrality rather than being akin to that of a defendant.
Public Inquiries rely on the participation of those who were most central to events in order to obtain the best evidence and arrive at well-informed conclusions. As an individual or organisation affected by the work of a Public Inquiry, designation as a core participant serves as the best mechanism by which you will ensure you are fully informed and your voice is heard.
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.