Publication of reports

Publication generally

Under section 25(1) of the Inquiries Act 2005 it is the duty of the Minister, or the Chairman if subsection (2) applies, to arrange for reports of a public inquiry operating under that Act to be published.

Section 25(2) of the Act applies if—

(a) the Minister notifies the Chairman before the setting-up date that the Chairman is to have responsibility for arranging publication, or

(b) at any time after that date the Chairman, on being invited to do so by the Minister, accepts responsibility for arranging publication.

By section 25(3) of the Act a report of an inquiry must be published in full, but by section 25(4) there is the exception that the person whose duty it is to arrange for a report to be published may withhold material in the report from publication to such extent—

(a) as is required by any statutory provision, enforceable Community obligation or rule of law, or

(b) as the person considers to be necessary in the public interest, having regard in particular to the matters mentioned in section 25(5). Those matters are—

(a) the extent to which withholding material might inhibit the allaying of public concern;

(b) any risk of harm or damage that could be avoided or reduced by withholding any material;

(c) any conditions as to confidentiality subject to which a person acquired information that he has given to the inquiry.

By section 25(6), in subsection (5)(b) “harm or damage” includes in particular—

(a) death or injury;

(b) damage to national security or international relations;

(c) damage to the economic interests of the United Kingdom or of any part of the United Kingdom;

(d) damage caused by disclosure of commercially sensitive information.

Translation

The public inquiry may wish to have the report translated before dissemination. This is particularly pertinent where the terms of reference are of interest to a section of the community whose first language is not English.

Defamation

By section 37(3) of the Inquiries Act 2005 the inquiry report and any interim report, statements to the inquiry and reports of proceedings enjoy the same privilege in defamation as applies to court proceedings. As to that see: Lillie v Newcastle CC [2002] EWHC 1600 and 1600(2) (QB).

Publication to core participants

By rule 17(1) of the Inquiry Rules 2006 which apply to a public inquiry which is set up under the Inquiries Act 2005, following delivery of the report (or any interim report) to the Minister, but prior to publication, the Chairman must give a copy of the version of the report which is to be published, to—

(a) each core participant; and
(b) to their recognised legal representative, if any.

Paragraph 2 of that rule treats the contents of the report, and any interim report, as subject to an obligation of confidence owed by each person, who pursuant to paragraph (1) has received a copy of the report to the Chairman until the report, or interim report, has been published by the Chairman.

(3) By paragraph 3 of that rule a breach of the obligation referred to in paragraph (2) is actionable at the suit of the Chairman, subject to the defences applying to actions for breach of confidence.

It may also be advisable to give a copy to any NGOs who have expressed, or who have, an interest in the outcome of the public inquiry.

Restriction notices

Section 19 of the Inquiries Act 2005 allows for restriction to be imposed on disclosure or publication of any document given, produced or provided to an inquiry.

The Minister may exercise this power by notice at any time before the end of the inquiry under section 19(2)(a); or the Chairman may exercise this power by order during the course of the inquiry under section 19(2)(b). The power of the Minister and the Chairman ceases when the inquiry comes to an end. However, a Minister can exercise this power before the inquiry begins.

Section 19 has been the subject of considerable controversy. [link to introduction – controversy about the inquiries act]

Challenging a restriction notice

Any restriction notice may be challenged by way of judicial review, either by the public inquiry itself or by anyone sufficiently interested in the matter. The difficulty is that the Inquiries Act 2005 provides no mechanism by which fully informed argument could be had about the notice in the Administrative Court. A witness or core participant who wishes to make such a challenge will not be as well informed as the public inquiry or the Minister about what is in issue. This is a familiar problem. Prior to the decision of the European Court of Human Rights in Chahal v United Kingdom decisions about removal of immigrants which involved national security issues were decided outside the court system but without disclosure of the underlying materials. The court concluded that the process could not continue and in response the government introduced the Special Immigration Appeals Commission. In essence that system gives the party interested in seeing the materials a special advocate. He, like the tribunal itself, is able to see everything relevant to the argument. That system is itself controversial but it may be desirable to introduce the elements of that system into the Inquiries Act 2005, so that on any challenge to a restriction notice made in the Administrative Court an advocate on behalf of the party challenging the notice could at least see the materials, even if he could not take instructions or refer to them in public.

Judicial review of content of the report

The jurisdiction to grant judicial review of the report of a public inquiry is expressly recognised by the Inquiries Act 2005. The time-limit for a challenge is abridged to 14 days.

Section 38(2) excludes from the two-week time limit for judicial review a decision as to the contents of the report of the inquiry.

Laying of reports before Parliament or Assembly

By section 26 of the 2005 Act, whatever is required to be published under section 25 must be laid by the Minister before the relevant Parliament or Assembly either at the time of publication or as soon afterwards as is reasonably practicable.

The Parliamentary Clerk in the sponsoring department may liaise with parliamentary authorities to arrange for the report to be laid before both Houses.

Media and the report

The public inquiry team may wish to draft a press statement and consider whether to give copies of the report to the press in advance of the publication date, subject to an embargo.