4th December 2017
Managing a Major Incident
Inquiries – whether in open session or behind closed doors – are established to address significant public concerns about major events in order to learn the facts of what happened as well as lessons for the future.
They can be high profile, emotionally charged and the focus of intense media scrutiny. But with so many competing interests, inquiries rarely satisfy everyone because of differences of expectation about what they are intended to do.
In a large number of hearings – as with Grenfell, the Independent Inquiry into Child Sexual Abuse (‘IICSA’), and the upcoming inquiry into contaminated blood transfusions – the roles and responsibilities of public sector authorities can be fundamental, and consequently will be scrutinised carefully.
With most inquiries demanding ‘truth’ or ‘reconciliation’ among the terms of reference and objectives, there is consequently a responsibility for authorities to demonstrate openness and transparency in their submissions – together with governance and processes that are robust and lawful.
For participants and stakeholders,there are potential bear traps around legal liability, corporate and professional reputations, and commercial or financial interests.
Therefore, the right balance needs to be struck to help ensure that hearings are conducted efficiently to allow them to probe deeply enough to get to the facts, while also allowing proceedings to stay within sensible boundaries – and prevent large costs for the organisation(s) being investigated, diverting resources from operations.
The initial response
When a serious event occurs, it must be assumed that a process of investigation and scrutiny will follow that can vary from a full-scale public inquiry down to a low-key internal report or audit.
The first response team in an authority should consider the following immediate actions:
Good governance and record keeping – ensuring that relevant records and paperwork are easily available, that evidence is gathered around governance and compliance
issues, and that audit trails are followed to find any missing information.
Communications strategy – experience has shown that lines of communications need to be established quickly to keep all stakeholders informed and connected with events as they unfold, and than an individual needs to be tasked with this responsibility from the outset.
Terms of reference – authorities that are designated as ‘core participants’ and may have played a direct and significant role in the events under investigation have the advantage of being able to access evidence, and may also be able to engage fully with the inquiry or influence its terms of reference, especially if a period of consultation is opened after the announcement of an inquiry.
Reputation and credibility – while providing full co-operation and transparency, there is also a need to protect the rights of those involved. This could involve careful preparation of evidence, and to offer full support to those who may be asked to appear at a hearing or could face potential criticism when the inquiry publishes its final report.
Triage– authorities may need to respond to a number of simultaneous investigations, including regulators and health/safety bodies. There is a need for consistency of submissions and evidence, and potentially a need to review contracts, undertakings, and decisions made previously.
Throughout, authorities need to be mindful that their submissions and reports are consistent with their overall story and key messages, and aligned with the overall terms of reference of the inquiry.
The terms of reference may not satisfy any legal obligations to investigate the full circumstances of an event or tragedy, and so other proceedings or legal actions may need to be anticipated. However, if very public mistakes have been made, then lessons are sometimes learned immediately and errors are corrected before an inquiry is set up, or,
at least, before it reports.
The legal team needs to ensure that any witnesses are identified and located, and that they are offered appropriate support, and that the overall communications strategy is being maintained – including the need to keep elected members informed and updated.
There is also a likely need to conduct a thorough review of existing documents, to interview witnesses and to prepare further evidence and statements for an inquiry or any other court hearings.
Some documents may require redaction to protect confidential information or the identities and personal details of key individuals.
Evolving legal role
Historically, lawyers have tended instinctively to reach for the law as a solution. But their traditional adversarial role in inquiries is changing rapidly, to that of a facilitator working with participants in the interests of truth, transparency, and integrity.
There is a growing awareness that lawyers have a key role in working closely with public inquiries and their participants when a serious event occurs – and to help understanding of what has gone wrong and how future mistakes can be avoided.
This means that lawyers involved in inquiries need be more attuned to what outcomes can be politically deliverable, and can work with other stakeholders in the interests of progressive societal changes that make a difference to people’s everyday lives.
By Frances Woodhead, Partner, Bevan Brittan