It is almost one year since Prime Minister Boris Johnson announced that a statutory public inquiry would be launched into government handling of the COVID-19 pandemic. As we approach the anniversary of this announcement, our Public Inquiry Team has examined what has been done so far, what stage the inquiry is at now, what we can expect to see in terms of the avenues the inquiry will wish to explore and, importantly, what the recipient of a request for evidence could be doing now to prepare.
What’s happened thus far?
In the 11 months since the decision to commit to the full-scale statutory Covid-19 Public Inquiry was announced, significant appointments have been made to assemble a core inquiry team headed by Baroness Hallett, appointed to the Chair and Hugo Keith QC as Lead Counsel.
The draft Terms of Reference (ToR), which set out the scope, issues and extent of the inquiry were published in March, alongside the commencement of a four-week period of public consultation during which, Baroness Hallett will seek public opinion on how the inquiry should go about its work.
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 informed and directed the draft 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 foremost priority at this stage for the inquiry team will be finalising its ToR (for a better understanding of the purpose of the ToR, please see the first edition in our series of public inquiry articles, “What is a Public Inquiry”). The inquiry will not consider evidence until the ToR have been firmly established; most likely by the summer of this year.
At that point, evidence can begin to be gathered and the inquiry will likely start to invite applications for core participant status. In our next edition, we will look in greater detail at the nature of being a core participant 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.
Possibly the first indication that a person or company will need to consider the core participant issue will be upon receipt of a Rule 9 request.
Rule 9 of the Inquiry Rules 2006 entitles the inquiry to send a written request for evidence which will usually direct the recipient as 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 draft ToR broadly categorises two main areas for investigation. Firstly, 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.
Secondly, 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. The draft ToR hint that these issues will be considered in the first section of their aims, namely to examine 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 presumably 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 individuals or entities who should clearly expect a request for 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.
Consider where your funding will come from. Witnesses and or core participants will need to appoint a recognised legal representative (RLR). These are your lawyers, recognised by the inquiry as representing your interests and with whom the inquiry will correspond. For many involved in a public inquiry, funding for their legal representation will be covered by an insurance policy, an employer or, depending on the involvement of the individual, government funding may be available. Some individuals may be privately funded. This is something that your RLR can advise on.
If you haven’t already, consider appointing your legal representatives. 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 as to crucial key considerations which may shape the extent of your involvement going forwards.
For companies, consider how any forthcoming request for evidence is going to be managed internally including, but not limited to:
- who should be the main point of contact for your legal team?
- 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?
For more information about the work that our public inquiries team does, please see our Public Inquiries page. Or, if you’d like to discuss any of the issues covered above, please get in touch with Daniel Irving or Francesca Reason.
In the next edition in the series, we will consider the nature of the core participant status and its implications.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at April 2022.