What Is The Difference Between Non-Statutory And Statutory Inquiries

Shortly after her conviction, a non-statutory inquiry was announced to investigate how Lucy Letby was able to murder seven babies at the Countess of Chester hospital.

It was given statutory footing following pressure from lawyers representing the families of victims to strengthen the inquiry’s evidence powers.

This blog will take a look at the differences between a statutory and non-statutory inquiry.

What is a public inquiry?

Public inquiries are major investigations into matters or events of major public concern.

It is an inquisitorial rather than adversarial process. This means that, rather than finding ‘winners’ and ‘losers’, an inquiry seeks to establish the facts as to what happened, why it happened and who or what is responsible. These questions are set out in the terms of reference – instructions issued by the Government that set out the specific questions the inquiry should address.

These findings are published in a report by the inquiry Chair. While the Chair cannot impose civil or criminal sanctions, their recommendations are persuasive and can form the basis for policy reform.

What is a non-statutory inquiry?

A non-statutory inquiry can be commissioned by a Government Minister. It is not governed by an Act of Parliament and is therefore subject to fewer procedural rules. For example, participation in inquiries of this type is normally voluntary.

There are advantages to this. When it was first announced that the Lucy Letby inquiry would be non-statutory, Government officials argued this would allow for greater flexibility. The families of her victims could receive answers quickly and reforms to the NHS could be implemented more rapidly.

However, as asserted by lawyers representing these families, non-statutory inquiries cannot compel witnesses to disclose relevant documents or give evidence under oath. This limits their ability to ask difficult questions and uncover the truth.

For this reason, many inquiries that begin as non-statutory (such as the Post Office Horizon IT inquiry, and Essex Mental Health Inquiry) are converted into statutory inquiries in accordance with s.15 Inquiries Act 2005.

What is a statutory inquiry?

A statutory inquiry is governed by the Inquiries Act 2005 and Inquiry Rules 2006. This legislation grants the Chair with additional, wide-ranging powers to uncover evidence for the public record.

Witnesses compelled to give evidence and produce documents

Under s.21 Inquiries Act 2005, the Chair can issue a notice to compel witnesses to disclose relevant documents and give oral evidence or a witness statement. This power is exercised in exceptional circumstances as witnesses are normally invited to give evidence by consent.

As per s.22, this excludes evidence that is legally privileged, self-incriminating or subject to parliamentary privilege. However, the Attorney-General can issue an undertaking to ensure evidence given by a witness in an inquiry will not be used in criminal proceedings.

Under s.35, failure to comply with a s.21 notice without reasonable excuse is a criminal offence punishable by a fine or up to 51 weeks’ imprisonment.

Power to take evidence under oath

Witnesses can also be compelled to give evidence under oath. This means that it would be a criminal offence for a witness to knowingly give false evidence.

Public access to inquiry evidence

While a non-statutory inquiry can be held in private, s.18 requires a chair to take reasonable steps to ensure there is public access to inquiry proceedings and information. This can include allowing members of the public to attend the inquiry, live broadcasting hearings and publishing relevant documents online.

As set out in s.19 (4), there are some circumstances under which a chair can impose restrictions on public access to information. For example, where there is a national security risk or potential for harm to be caused in the absence of a restriction order.

There are a range of restrictions which can be imposed including restricted reporting, closed hearings, anonymity granted to witnesses and the use of screens or voice modulation in oral evidence.

The nature and extent of these restrictions involves a difficult balancing act between public access to information and how the inquiry can most effectively be conducted to meet its terms of reference.

Here at Hodge Jones and Allen, we have different Departments working on various Inquiries.

The authors of this article work in the Criminal Defence Team and are currently working on two public inquiries – Post Office Horizon IT Inquiry and Undercover Policing Inquiry, helping to represent over 100 core participants across both inquiries. They act for those who have suffered grave miscarriages of justice.

If you wish to discuss any of the issues in this article please call 0808 271 9413 to speak to one of our experts in the criminal department’s inquiry team or request a call back online.