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Contacted by a public inquiry — what should you consider

This article considers the mechanism by which individuals or organisations might be asked to engage with a public inquiry by way of a Rule 9 request.

Public inquiries have dominated recent headlines from calls for an Inquiry into the Post Office Horizon scandal to the UK COVID-19 Inquiry. Accordingly, a growing number of individuals and organisations are being asked to contribute. This article considers the mechanism by which individuals or organisations might be asked to engage with a public inquiry by way of a Rule 9 request.

How is a public inquiry established?

A public inquiry is commissioned by a government minister to look into a controversial public policy issue or a matter of public concern. It will be established as either a statutory or non-statutory inquiry, the former being more formal as they are set up by and governed by the Inquiries Act 2005 and supplemented by the Inquiry Rules 2006.

An inquiry is a purely inquisitorial process. It is not able to make findings of criminal or civil liability and instead serves to examine facts and find answers to what happened, why it happened and how it can be stopped from happening again. An inquiry must produce a report detailing these findings and setting out recommendations.

Once commissioned, a Chair, who is often a judge or member of the judiciary, will be appointed to lead the inquiry. The Chair will work with the government minister and the inquiry’s legal team to prepare terms of reference, which outline the scope of the inquiry and set out the issues to be considered. They can be as broad or specific as required.

The Chair will also decide on the procedures and protocols of the inquiry. The key steps of an inquiry will often include obtaining and securing evidence, witness statements, hearings, opening statements, oral evidence, closing statements, report writing and recommendations.

What is a core participant?

A core participant is an individual or organisation who played, or may have played, a significant role in the matter to which the public inquiry relates. It is someone who warrants an increased level of participation in the inquiry. A person or organisation can apply voluntarily to become a core participant or agree to an invitation by the Chair to become one.

What is a Rule 9 request?

Rule 9 is the shorthand used to describe and label the formal request made for disclosure from an individual or an organisation. It refers to Rule 9 of the Inquiries Rules 2006 which, in short, enables the Chair to:

  1. Request a statement from an individual, corporate or organisation; and/or
  2. Request an individual, corporate or organisation the production of potentially relevant materials and documents.

It is usual for the Rule 9 request to be a combination of both a statement and the production of documents.

Can I choose not to respond to a Rule 9 request?

A Rule 9 request should not be ignored. The Chair of an inquiry has a statutory power to require the production of evidence. Whilst the Chair might start with a formal request under Rule 9, things can escalate quickly if not handled properly by the recipient.

A failure to comply with a Rule 9 request might necessitate the Chair issuing a Section 21 Notice under Section 21 of the Inquiries Act 2005. Such a notice is sent to the person who has failed to respond or failed to adequately respond to a Rule 9 request. An unreasonable failure to comply with a Section 21 Notice is a criminal offence, punishable by imprisonment, under Section 35 of the Inquiries Act 2005.

Practical considerations

Below are some important practical considerations and tips when preparing for and responding to a Rule 9 request.

  1. Consider whether your role and involvement come within the terms of reference of the Inquiry, which can be very wide. It is much harder to respond to a Rule 9 request which arrives as a surprise.
  2. Think about what work is needed, or likely to be needed, to respond and what materials and documents contain the answer to the request. Requests are usually wide ranging and involve numerous broad requests for disclosure.
  3. Think carefully about how you will evidence the proper and comprehensive search for the materials. The Chair will expect a thorough, effective discovery exercise to be undertaken. Individuals or organisations will be vulnerable to high-level criticism if the response to the Rule 9 request is in some way defective.
  4. Consider the specific procedural requirements that you will need to comply with. An inquiry often has protocols published on the inquiry website relating to disclosure of documents and exhibiting of materials.
  5. Finally, consider how each section of the statement will be prepared and by who, as the recipient of the request is unlikely to have all of the answers required on behalf of the organisation.

Rule 9 requests are challenging and often complex legal processes that require time, attention, and energy to get right. Weightmans have a team of dedicated inquiry lawyers and an award-winning legal innovation team, who are always happy to discuss your needs and particular challenges further.

If you'd like further guidance on what to do when contacted by a public inquiry, please get in touch with our public inquiries solicitors.

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