The COVID Inquiry: what we should expect

On 11 May 2021, the Prime Minister announced that the long-awaited public inquiry (‘Inquiry’) into the government’s handling of the coronavirus pandemic will begin in Spring 2022. He has committed to a ‘full and independent inquiry’ with full powers under the Inquiries Act of 2005 (‘the 2005 Act’), including the ability to compel the production of all relevant materials, and take oral evidence in public, under oath. For now, we know little more than this. In this article, we consider the purpose, scope, and form that the Inquiry into the events surrounding the Coronavirus pandemic could take.

The purpose of a public inquiry

In broad terms, we consider that there are three principal purposes for which the Inquiry should be held:

1. Establishing the facts: Providing a full and fair account of what happened, especially in circumstances where the facts are disputed, or the course and causation of events is not clear.
2. Learning from events: Distilling key lessons so that practice can be changed and mistakes are not repeated. In September 2020, we called for an inquiry to be started urgently, in large part because we considered there was an urgent need to learn lessons quickly from the ‘first wave’ of the pandemic, so that the later stages of the pandemic could be managed more effectively. The devastating ‘second wave’ amply demonstrates the importance of holding an inquiry as soon as is feasible, so that necessary changes are made before more lives are lost, a point made by many including Dominic Cummings, the Prime Minister’s former chief adviser, during his evidence to the Science and Technology House of Commons Select Committee on 26 May 2021. As a general point in relation to allegations of systematic government failure to respond effectively to the pandemic as it arrived in and took hold in the UK, it will be interesting to see how the series of ‘revelations’ offered by Mr Cummings in recent weeks, and perhaps to come, plays into the Inquiry’s consideration of the evidence available and political factors properly or improperly bearing on decisions of HMG from time to time.
3. Accountability: Holding people, organisations, and systems to account for what has happened. The Inquiry will not be able to determine civil or criminal liability (s 2 of the 2005 Act), but it can ensure that those responsible for political, administrative, or managerial failings are criticised where appropriate.

The Inquiry's terms of reference

The scope of a public inquiry – known as the terms of reference (‘ToR’) – is due to be announced closer to the start of the inquiry. The Prime Minister has said he will consult devolved administrations in North Ireland, Wales, and Scotland to ensure that the Inquiry considers ‘all key aspects of the UK response’, though it is worth remembering that at times there has been considerable dissatisfaction in the devolved nations about the level of consultation upon policy to meet the challenge of the pandemic in a way which reflects their particular circumstances. Mr Johnson has not yet provided any further detail about which issues will be covered.

The 2005 Act requires the Minister establishing the inquiry to set out the ToR of the inquiry in writing after consulting the proposed or appointed Chair about the ToR (s 5(4) of the 2005 Act.). There is no statutory obligation to consult more widely on the terms of reference. However, this has been done to good effect in the Grenfell Tower Inquiry, where in July 2017 Sir Martin Moore-Bick held consultation meetings for local residents and survivors and for other interested groups. For the present inquiry, we suggest that, in order to ensure that the ToR cover the important issues, the Chair (or the Minister) should take similar steps to consult with most affected groups, including frontline workers (such as doctors, nurses, health and social care workers, teachers, transport workers), bereaved families (through the Covid-19 Bereaved Families for Justice group), as well as appropriate experts.

It is a given that an inquiry has no power to act outside of its terms of reference (s 5(5) of the 2005 Act). While the inquiry is responsible for interpreting the ToR, its interpretation may be subject to judicial review, as happened in the Robert Hamill and Billy Wright inquiries (Hamill, Re Judicial Review [2008] NIQB 73; Wright, Re Application for Judicial Review [2006] NIQB 90).

It is essential that the ToR are sufficiently broad to serve the principal purposes outlined above. We have written here more fully about the issues which we suggest warrant careful consideration, but examples of the issues which should be addressed include the following:

• Planning and preparation: how well the UK was prepared for a global pandemic. Notwithstanding the scandal, well aired in the media throughout this health crisis, of the failure to respond properly to the warnings in the 2016-17 Cygnus Report and fully implement its recommendations, for years there has, in fact, been some long-term planning for a pandemic, both nationally and locally. This has been the responsibility of the public sector. Inevitably these plans for responding to a pandemic were relatively untested. Some aspects have worked better or been utilised more than others. In many instances, the government has turned to the private sector, awarding significant contracts without competitive tenders, rather than relying on the existing public sector framework for managing a pandemic. We will inevitably have to revisit Cygnus in the light of lessons learnt during the current crisis and plan for future pandemics. We need to identify what should be the key constituent elements of any such future plans.
• International comparisons: how different countries responded to the health crisis and the outcomes of those responses, particularly regarding mass testing, border controls and lockdowns. We need to understand whether and why other countries have outperformed the UK according to most health (and economic) measures regarding the health crisis.
• Control measures: the timing and effectiveness of measures intended to stop virus transmission, including: lockdowns, the test and trace scheme, social distancing, face coverings, restrictions on international travel, and vaccination.
• PPE equipment: provision of personal protective equipment for key and ‘front line’ workers, including those working in health and social care, transport, education, grocery retail, and the justice system. We need to know why this was not always available in hospitals and care homes when it was needed, and whether lives were lost as a result.
• Ethnic/racial health inequalities: the medical, social, and structural reasons why members of minority ethnic communities have fallen seriously ill and died in disproportionate numbers, and why they have disproportionately declined to be vaccinated.
• Treatment of non-COVID-19 patients: the reason for and effect of delayed treatment for patients suffering from other health conditions. There is mounting evidence that non-COVID patients have struggled to access normal healthcare services during the pandemic. There are the ‘new’ patients who have not presented, either out of community spirit so as not to burden the NHS in its time of crisis, or because of fear of contracting COVID-19 and being more at risk than from the presenting condition (often still undiagnosed of course). However, there are also patients who had already presented, for whom diagnostic and treatment services were withdrawn in the early ‘panic-mode’ reallocation of resources to combatting the pandemic. The death rate from cancer is now expected to rise very significantly.
• Procurement: the government’s procurement of goods and services relating to the pandemic. Significant sums of public money were spent, seemingly without advertising, competitive tendering processes, or financial due diligence. The absence of transparency and equal treatment of suppliers was allegedly compounded by the operation of a secret ‘VIP lane’, in which, it is said, suppliers who had been referred by Ministers, MPs and senior officials were afforded more favourable treatment, increasing their prospects of obtaining a contract and breaching established procurement fundamentals. This issue has already been the subject of a number of legal challenges (see, for example: R (Good Law Project & Others) v Secretary of State for Health and Social Care [2021] EWHC 346 (Admin); R (Good Law Project) v Minister for the Cabinet Office [2021] 1569 (TCC)). In order to protect public funds and try to prevent further PPE procurement failures, it is important to understand the outcomes of alterations to the procurement framework.
• Mental health implications: the consequences of the pandemic for the nation’s mental health. Early indications are that they will be significant and it is far from clear that our mental health services are sufficiently resourced or prepared.

Personnel

The choice of Inquiry Chair is extremely important. The 2005 Act provides for a Minister to appoint a Chair alone or a Chair with other panel members. The Ministerial Code states that the Minister must consult the Prime Minister before appointing the Chair (Cabinet Office, Ministerial Code, August 2019, para 4.12). There is no legal requirement for the Inquiry to be chaired by a judge, provided that the appointee has the ‘necessary expertise to undertake the inquiry’ (s 4 of the 2005 Act). In practice, current or retired members of the judiciary are frequently asked to chair public inquiries, because of their perceived forensic skills, integrity and independence. We do consider that the Inquiry would benefit from being chaired by a senior judicial figure, given its breadth and complexity.

Format

We have previously argued that a public inquiry must work swiftly to produce clear findings and relevant recommendations. It is important to give careful thought to procedures and consider what has worked well, and what less well, or badly, in other recent inquiries.

The IICSA model

We consider that the Independent Inquiry into Child Sexual Abuse (IICSA) offers a useful model of best practice to gain public confidence, give a voice to individual victims and a fair hearing to participants.

While IICSA will have its critics, IICSA has found a way to produce meaningful results within a reasonable period of time despite the apparently limitless scope of the inquiry as originally established. The approach which IICSA has adopted is to:

• identify key themes;
• invite expressions of interest from potentially interested parties;
• identify the relevant interested parties; and then
• run a series of parallel investigations culminating in relatively short hearings. Different counsel to the inquiry are responsible for different strands of IICSA’s overall investigation.

The Interested Persons in each strand change. As the hearings take place in one strand, other strands are being prepared. Some strands have been very fact specific, other strands more generic. The same approach could apply to a COVID inquiry.

Expert evidence

The inquiry should make systematic use of suitably independent expert witnesses at an early stage to bring the Inquiry panel rapidly up to speed on key issues. As well as accelerating the evidence-gathering process, finding the right expertise is important for maintaining public confidence in the findings of the Inquiry and its recommendations.

Openness and transparency

There is a presumption in the 2005 Act that members of the public will be able to watch the Inquiry, either in person or via a broadcast (s 18 of the 2005 Act). This is clearly important to build and maintain public understanding of, and confidence in, the Inquiry.

Proper representation of individual interests

This is very important and must not be overlooked. In the current Grenfell Inquiry, only counsel to the inquiry has been permitted to ask any questions of any witnesses. The contrast with the recent Hillsborough Inquests, where every interested person had the right to ask relevant questions, is marked. It is understandable that the victims of the Grenfell fire have become somewhat disillusioned with the Inquiry process when their representatives are not permitted to ask the specific questions which they want asked of key witnesses. However good counsel to the inquiry may be, they are not instructed by and are not there to represent any interested party. They wear many hats and they cannot have a detailed understanding of the perspective of any particular interested party. As the recent Hillsborough Inquests demonstrated, there is a simple answer to the problem, which keeps the proceedings manageable: the time allotted for each individual witness may be limited, but it can and needs to be divided up appropriately between counsel to the inquiry and each of the relevant interested persons.

Conclusions

The Inquiry Team will face a difficult and prolonged task of admitting and analysing the volume of evidence which is expected. Given the size and complexity of this undertaking, it is important that the Inquiry Team are selected and empowered to begin as soon as possible. To lay the foundations for a rigorous investigation, the successes and failures of recent inquiries should inform their decisions about how to maintain public confidence and ensure that clear and instructive conclusions and recommendations emerge from the process.