Reviews, inquiries and reviewing inquiries

While the UK COVID-19 Inquiry marches on, a much smaller investigation into the handling of the pandemic by a government of the British Isles has been completed. The Independent Isle of Man COVID Review, of which the authors of this article were the chair and lead researcher, was a wide-ranging investigation which was completed within 15 months, and cost just over £1.5 million.

Terminology is often used loosely in this arena. Reviews and inquiries are both independent processes to investigate an event or situation. A statutory inquiry is a specific type of investigation set up by a government minister under the Inquiries Act 2005. The term ‘independent review’ is used for any other independent investigation, whether instigated by a government, a company or organisation. The term ‘non-statutory inquiry’ is sometimes used to describe a large independent review which has been set up by a government.

The principal differences between an independent review (like the Independent Isle of Man COVID Review) and a statutory inquiry (like the UK COVID-19 Inquiry) are set out below:

• Process of gathering evidence: In general, a statutory inquiry sits like a courtroom. Witnesses give evidence, one-by-one. The procedures in a review are not as formal, and the chair of a review can use any procedures which are likely to generate useful and accurate information such as focus groups and public drop-in meetings, confidential meetings as well as formal interviews.
• Public access: In general, a statutory inquiry is held in public, whereas a review is not, although some non-statutory inquiries have stages where evidence is given in the public gaze.
• Legal representation: In statutory inquiries, various core participants have lawyers, who make representations to the inquiry. A review process is less formal, and lawyers are generally not involved.
• Legal powers: In statutory inquiries there is a power to compel people to give evidence. A review chair does not have the power to compel people to cooperate but, where appropriate, can publicise names of those who do not accept requests to participate.
• Size: This is not necessarily a differentiating feature. Some very large investigations have been non-statutory including the Butler Review which investigated the intelligence on weapons of mass destruction in the context of the Iraq War. The non-statutory Independent Isle of Man COVID Review, for example, obtained evidence from around 300 current and former civil servants and politicians, and around 200 groups and individuals outside government and received almost 380,000 documents.

Scrutiny of the inquiries regime

Although the number of statutory inquiries is increasing, there has been unease about the regime under the Inquiries Act 2005 for years. Scrutiny of the Act by the House of Lords led to a report published in 2014 with 33 recommendations, of which 19 were accepted by government – although some have still not been implemented.

Concerns raised then are being aired again, a decade later, in a current review of the inquiries regime. The House of Lords Statutory Inquiries Committee was set up in January 2024 to ‘consider the efficacy of the law and practice’ relating to inquiries under the Inquiries Act 2005. Issues which are likely to be at the forefront of that committee’s considerations include:

• Length of time inquiries can take: Many take around two years – although many take much longer: the Edinburgh Tram Inquiry took nine years, and the Child Sexual Abuse Inquiry ran for seven years.
• Cost: The UK and devolved nations have spent at least £420m on completed statutory inquiries and the current 17 statutory inquiries are racking up hundreds of millions more. A 2018 National Audit Office (NAO) investigation found legal costs were the largest component.

The Lords Committee will no doubt evaluate the advantages of non-statutory inquiries or reviews. Reviews are generally faster because the procedure is flexible, does not require sequential witness evidence, and is not slowed down by legal interventions. Perhaps as a direct result, there is no government presumption that a statutory inquiry should be the preferred model: as an example when setting up the Sarah Everard non-statutory inquiry the Home Secretary made explicit reference to ‘the need to provide assurance as swiftly as possible’. Reviews are also cheaper: partly because they are faster, partly because there are no core participants who can bring associated costs to the public purse, and partly because they can operate with less space and smaller teams.

Plainly there are some instances where the public and formal nature of a statutory inquiry trumps all other methods. A review can seek to be as transparent as possible, as we did in the Isle of Man (see box), through public engagement and publishing a large volume of material including transcripts of interviews, but ultimately it was not an exercise carried out in the public sphere.

Holding to account

UK government investigations, whether statutory or not, share a limitation which is out of the control of any chair. There is no formal and transparent system for following up recommendations and holding governments to account. The NAO reported in 2018, having analysed both statutory and non-statutory inquiries, that an estimated 55% of inquiry recommendations in UK and devolved administrations had not been accepted by government. Many recommendations had been rejected without explanation or acknowledged with Delphic phrasing such as ‘accepted in principle’ but not implemented. The Lords Committee will no doubt tackle that issue. It remains to be seen whether its recommendations gain more traction than previous attempts to regularise and streamline the inquiries process.