Inquiries and investigations come in many guises, including statutory inquiries (under the Inquiries Act 2005 or other discrete legislation), non-statutory inquiries, independent reviews, and regulatory investigations.
For ease, we use ‘investigation’ here, but how an investigation has been constituted is crucial. Its legal form dictates the powers available to those conducting the investigation and how the organisation will be expected to participate. However, there are commonalities between the various kinds of investigation.
Even where an investigation focuses on a single organisation, a single individual’s actions or a single event, the investigation’s findings and recommendations often generate national learning.
Investigations can draw significant resource and energy from an organisation's business-as-usual activities.
The high-profile nature of investigations elicits increased media, public and political scrutiny of an organisation and can be a heavy responsibility for staff on the ground.
Risk practitioners’ experience can be critical in ensuring an organisation takes a proactive, considered and strategic approach to engaging with an investigation.
Five key questions for risk practitioners to consider to help guide their organisation.
Who are your internal and external investigation teams?
The day-to-day response to an investigation can be highly administrative, which can be difficult for organisations to resource as the intensity often ebbs and flows without warning.
Establishing an internal project team with responsibility for managing the organisation’s response to the investigation is advisable. The team is likely to need support from well-briefed communications’ officers, legal officers, and information governance colleagues.
The breadth of an investigation can be far-reaching, so any investigation team should include individuals who are highly organised and capable of co-ordinating colleagues from across different directorates or departments in the organisation.
Organisations should consider engaging external support early in the process.
From the outset, assistance may be needed with document analysis and proactive reviews of evidence. This can be useful to enable areas of risk to be identified and help organisations develop their strategic response.
Once the investigation is in full flow, legal support is likely to be needed, with preparation for giving oral evidence, as well as to advise on the content and publication of investigation reports.
Complex and challenging legal issues can also arise at any stage. These may include; spin-off judicial reviews, associated regulatory investigations and legal claims.
What is your initial action plan and how will you implement it?
The varying intensity of investigations requires flexibility (and resilience!), but it is advisable to underpin the organisation’s approach with a clear strategy and action plan.
A strategy and plan should be developed based on:
- An understanding of the scope of the terms of reference
- What is known about the investigators’ methodology
- What the legal nature of the investigation is
- Importantly, what the parameters of the investigation team’s powers are in law.
Drawing on experience of previous investigations and understanding, and the events and political circumstances which gave rise to the investigation, will also help with developing the organisation’s strategic approach. This understanding can also assist with budgeting and resource allocation.
What information does the organisation hold?
Deadlines for disclosure often require prompt action from the organisation. It is vital to understand where the organisation stores, and has historically stored, documents that may be relevant to the investigation.
Preparing a chronology of events can support an understanding of what material may be relevant to the investigators in fulfilling their terms of reference. It may also identify patterns and key issues, helping properly inform the organisation’s corporate evidence. This is likely to involve reviewing voluminous material, so it should be a proactive task.
How will you engage senior teams?
It is essential that senior individuals are apprised of the relevant issues being considered by the investigators, and understand what this means for the organisation in practical terms during the investigation process. As far as possible, the potential risks to the organisation arising from both the resultant findings of the investigation and the investigation process itself should be considered.
Legal officers and risk practitioners’ briefings to senior teams and relevant committees can be valuable to demystify the investigations process. Initial briefing sessions to ensure senior leaders understand the format and scope of the investigation are important, but so is ongoing senior level engagement. Evolving issues and salient risks must be monitored and discussed candidly.
How will you manage documents and disclosure?
The importance of proper document management shouldn’t be overlooked. This is often where good relations between participants in investigations and investigations teams are forged, or falter.
Use of large-scale e-disclosure platforms is common in public inquiries but, in our experience, most investigations benefit from use of a data platform.
Invariably, organisations need a repository to hold and organise documents and a means of securely transferring the documents other than by email.
Investigations’ teams will often have very particular requirements for how they wish documents to be prepared and disclosed. Organisations should ensure they fully understand the investigators’ requirements at the outset. Where an investigation team has not issued a protocol to deal with such matters, the organisation could consider approaching the investigations team to agree the detail of disclosure arrangements.
Information governance is a key risk area.
Major investigations almost inevitably involve significant disclosure of personal information, which is very often sensitive and confidential. Usually this will include a review of the organisation’s privacy notices considering appropriate safeguards and means of demonstrating accountability for lawful information sharing.
We recommend formal information sharing arrangements are considered at the earliest opportunity so the organisation has a robust documented framework to ensure compliance with its information law obligations.
The operational management of an inquiry or major investigation takes a specific skill set, which Browne Jacobson’s lawyers have developed over many years’ practical experience. Nationally significant inquiries we have worked on recently include the UK COVID-19 Inquiry, the Grenfell Tower Inquiry, the Manchester Arena Inquiry and the Essex Mental Health Independent Inquiry.