Basis for establishing a public inquiry
The Inquiries Act 2005 is permissive. By section 1(1), a Minister “may cause an inquiry to be held under this Act”. By section 1(3) references in the Act to a public inquiry are references only to one established or converted under it. It follows that a public inquiry may be set up outside the Act and, if it is, the provisions of the Act shall not apply to it.
The most obvious reason for a public inquiry being established outside the Inquiries Act 2005 is that the person or body seeking to establish it is not a Minister. For example, a local authority may wish to hold a public inquiry into events causing concern in its locality.
Another reason may be that there is such apprehension about the potential use of some of the powers contained in the Act that a Minister regards it as prudent to set up a public inquiry on a non-statutory basis. Those powers include the ability to issue restriction notices under section 19; to control expenditure under section 40 and to bring the public inquiry to an end under section 14. No doubt those who fear the use of such powers will also have in mind the advantages given to a public inquiry under the Inquiries Act 2005. Those include: the power to require the production of evidence under section 21; the enforcement powers contained in sections 25 and 36 and the abridged period in which judicial reviews are to be brought against a public inquiry held under the Act contained in section 38.
Historically, very few public inquiries were held under the Tribunals of Inquiry Act 1921. They were established under a range of statutes with lesser powers or were non-statutory. The Inquiries Act 2005 replaced a number of statutes (see Schedule 3) but it remains to be seen whether it will be the sole, or even the primary, basis for the establishment of public inquiries in the future despite the Cabinet Office guidance on Inquiries stating the default position is to set up a new inquiry under the Inquiries Act.
If a Minister does wish to establish a public inquiry under the Inquiries Act 2005, under section 1(1) he may only do so where it appears to him that particular events have caused or are capable of causing public concern or that there is particular concern that events may have occurred. By section 15(2) he must be satisfied of the same matters if he is proposing to convert a public inquiry by persons appointed otherwise than under the Inquiries Act 2005.