The Covid-19 Inquiry: rule 9 requests and recognised legal representatives

This article was first published on our website on 12 April 2022 and updated on 6 December 2022.

It is nearly a year and a half since (then) Prime Minister Boris Johnson announced that a statutory Public Inquiry would be launched into government handling of the Covid-19 pandemic. As the Inquiry has now opened with preliminary hearings for Modules 1 and 2, the Public Inquiries Team at Birketts examines what has been done so far, what stage the Inquiry is at, what direction the Inquiry might take and, importantly, what a public sector body could be doing to prepare.

What’s happened thus far?

In the eighteen months since the decision to commit to a full-scale statutory Covid-19 Public Inquiry was announced, significant appointments have been made with Baroness Hallett appointed to chair the Inquiry and a core Inquiry team assembled headed by Hugo Keith KC as lead counsel.

The Terms of Reference (‘ToR’), which set out the scope, issues and extent of the Inquiry were published in June (for a better understanding of the purpose of Terms of Reference, please see the first edition in our series of Public Inquiry articles ‘What is a Public Inquiry’), and the Inquiry opened publicly in October with the first preliminary hearings for Modules 1 and 2.  

The main issue of contention in the preliminary hearings was the conflict between the Bereaved Families for Justice’s understandable desire for a greater involvement, and the Inquiry’s duty to complete the investigation within a meaningful timescale. With the scale of public interest in the Inquiry and the huge loss felt, this conflict was inevitable.

What is clear is that the Inquiry faces a huge challenge when it comes to the task ahead. There will be a necessity to limit submissions on scope and direction to ensure it does not, as the chair, Baroness Hallett, commented in her opening statement, “drag on for decades”, but, ultimately, the Inquiry must ensure that it delivers a comprehensive assessment with the bereaved families at its heart. Anything short of that would be detrimental to the credibility and authority of the Inquiry’s final conclusions and recommendations.

An investigation into the handling of the pandemic is not entirely uncharted territory. In the very early days of Autumn 2020, the Rt Hon Jeremy Hunt MP and the Rt Hon Greg Clark MP commenced a Joint Inquiry into the lessons to be learned to date. This Joint Inquiry set out 22 key areas of findings in its Executive Summary and these will no doubt have been considered as the Inquiry drafted its ToR. A conscious decision has been made not to duplicate investigation or the gathering of evidence; arguably, rightly so since the Inquiry will of course be publicly funded.

Further, The People’s Inquiry, a small-scale operation headed by the ‘Keep our NHS Public’ group heard evidence from more than 40 witnesses, published a final report in December of 2021. The findings largely accord with those established by the Joint Inquiry and, no doubt, the continuity of opinion will assist the statutory inquiry panel to focus its agenda.

Where are we now?

The Inquiry held its first preliminary hearings on 4 October for Module 1 and 31 October for Module 2. Module 3 will hold its first preliminary hearing on 28 February 2023 and there will be a further preliminary hearing for Module 1 in Spring 2023. Oral evidence hearings for Module 1 are set to begin in Summer 2023 and the Inquiry has invited applications for core participant status for Modules 1, 2 and 3.

We will look in greater detail at what it means to be a core participant in a further article but in short, the status is likely to be given to any person or entity who:

• Has had a significant involvement in the events into which the Inquiry is investigating;
• Has a significant interest in an aspect of the Inquiry; or
• Could be the subject of explicit criticism in any subsequent report.

Designation as a core participant to any Public Inquiry confers a particular status and associated rights of participation, but the key considerations can be best explained and advised upon by your legal representative.

The Inquiry’s central focus presently is the gathering of documentary evidence to develop the investigation. This information gathering exercise will direct lines of inquiry and inform decisions about which individuals should provide witness statements and who should give oral evidence. This information gathering exercise is done by means of a ‘Rule 9 request’ which will likely be the first contact you receive from the Inquiry and the first indication that you or your organisation will be involved.

Rule 9 of the Inquiry Rules 2006 entitles the Inquiry to send a written request for evidence which will usually direct the recipient to the issues that need to be covered. The importance of legal representation at this stage cannot be overstated. The Inquiry may request the production of certain documents and/or the provision of a witness statement. Rule 9 witness statements should generally meet a prescribed format and consideration must also be given to which documents should be referenced or included in any disclosure since, although the Inquiry can compel a witness to produce evidence under s.21 of the Act, legally privileged documents and exchanges are exempt from this rule.

The matters which the Inquiry has asked about in the Rule 9 request will also, of course, provide a good indication of the issues it might focus on at a later stage and how best to prepare for giving any subsequent oral evidence.

What issues can we expect to see covered by the Inquiry?

The ToR broadly categorises two main areas for investigation:

1. To examine the COVID-19 response and the impact of the pandemic in England, Wales, Scotland and Northern Ireland and produce a factual narrative account. This will focus on:

– decision making of central and devolved governments and its consequences,

– the response of health and care sectors across the UK, and

– the economic response to the pandemic.

2. To identify the lessons to be learned from the above, thereby to inform the UK’s preparations for future pandemics.

The Executive Summary of the Joint Committee gives a good steer as to the findings that have already been made and underpin the justification for a full-scale statutory inquiry.

A key area of examination will no doubt be the UK’s response in early 2020 compared with other countries, in particular those in East Asia who, despite being closer to the initial outbreak, did significantly better in terms of Covid-19 deaths.

The Joint Inquiry concluded that the UK made a serious early error in adopting a fatalistic approach, when deciding not to try to stop Covid-19 from spreading through the country but instead to accept herd immunity through infection. These issues will be considered in Modules 1 and 2, examining the preparedness and resilience of the country and how intergovernmental decisions were made.

Testing and contact tracing is expected to be a key area of focus, likely with a view to establishing why there was a slow uptake in increasing testing capacity and why low capacity was viewed for so long as a fait accompli.

Non-pharmaceutical interventions such as the national lockdowns, the use of face coverings and the closures and re-openings of hospitality, retail, sport and leisure sectors and cultural institutions will most certainly come under scrutiny, and an assessment made as to their effectiveness in slowing the spread of the virus as against the emotional and economic harm that they may have inflicted.

Another important and unsurprising finding of the Joint Inquiry was that whilst the increase in ventilator and intensive care capacity and the establishment of Nightingale hospitals was a laudable achievement of our NHS, the cost of this was a significant interruption of core, time sensitive services in areas such as oncology. We can expect the Inquiry to delve into these issues in greater detail alongside an examination of the management of the pandemic in care homes with a particular focus on availability of PPE and the handling of staff shortages.

What could you be doing now in readiness for an anticipated rule 9 request?

For public sector bodies who should clearly expect a request for documents and/or evidence, it is never too early to prepare. Rule 9 requests will invariably set a deadline for the response and therefore compiling documents and drafting statements can be time-pressured and labour intensive.

If you haven’t already, consider seeking legal advice. The earlier the better. Whilst the in-depth involvement of your legal team may not be required at this early stage, they will be able to advise on crucial key considerations which may shape the extent and nature of your involvement going forwards.

Consider how any forthcoming request for documents and/or evidence are going to be managed by your team including, but not limited to:

• Who should be the main point of contact for your legal advisers?
• How will you ensure you can identify and locate any relevant material?
• How should the request be communicated to your team? and;
• How might you handle any resulting media attention?

If you’d like to have a conversation about how the Inquiry might affect your department or about any of the issues discussed above, please get in touch with Daniel Irving, Francesca Reason and the Public Inquiries Team at Birketts.

For information on the Public Inquiry process more generally, view our series of articles here.