Blog: A Public Inquiry into the Covid-19 pandemic – three unanswered questions
13 Jan 2022
As the Government announces that the upcoming public inquiry into the Covid-19 pandemic will be chaired by former Court of Appeal judge Baroness Heather Hallett DBE, Hickman & Rose’s Daniel Machover and Toby Wilton pose three urgent – and as yet unanswered – questions of her planned inquiry in a blog on the subject.
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On December 15th last year, eight months after the Prime Minister announced his intention to hold a public inquiry into the Covid-19 pandemic (and nearly two years after the virus first took hold in the UK), the Government finally announced who will head up the statutory inquiry into Britain’s handling of the crisis.[1]Baroness Heather Hallett DBE, a former Court of Appeal judge
Due to start this spring, the Covid-19 Public Inquiry will be undertaken by a panel led by Baroness Heather Hallett DBE, a former Court of Appeal judge and coroner who, among many other important cases, ran the inquests into the 7/7 bombings in London. Baroness Hallett’s appointment (and the imminent appointment of further panel members) is a significant step forward in the effort to learn the lessons of the pandemic and offer bereaved families and others much-needed answers.
But while this progress should be welcomed, there is much about the Inquiry which remains uncertain. Here we outline three key, unresolved questions about the Covid-19 Inquiry which need to be addressed urgently.
What will be the Inquiry’s terms of reference? And how will they be decided?
Any public inquiry can only investigate that which it is charged to do. It cannot stray beyond its remit. This being the case, an inquiry’s terms of reference are of fundamental importance in determining what truths it can ultimately uncover.
The Inquiries Act 2005 provides that the Covid-19 Inquiry’s terms of reference must be determined by government ministers in consultation with the Inquiry’s Chair. The Government announced a decision to consult with the Chair (and the devolved administrations) about these terms of reference and publish a draft in early 2022. It has acknowledged too that bereaved families must be allowed to “play a proper role” in setting these terms of reference. For her part, Baroness Hallett has promised to “[seek] views from those who have lost loved ones and all other affected groups about the Inquiry’s terms of reference”.[2]
The importance of this stage cannot be overstated. Public inquiries are often hamstrung by the limits of their terms of reference, and often to the detriment of questions that victims want asked but that the State may not. Properly run consultation on the terms of reference for the Covid-19 Inquiry will be vital to ensuring that they are sufficiently broad as to allow for a full and fearless investigation into not only what happened, but why.
Who will the core participants be?
As the title implies, the core participants to any public inquiry have enhanced participatory rights, including the ability to see evidence, make submissions, and ask questions of witnesses.
It is for an inquiry’s Chair to decide who may (or may not) be a core participant. In determining this, the Chair is obliged (by The Inquiry Rules 2006) to consider whether the person played a “direct and significant role” in the matters under investigation; whether they have a “significant interest in an important aspect” of what happened; or whether they may be subject to “explicit or significant criticism” as part of the inquiry.
Given how widely the Covid-19 pandemic impacted British society; how many people have lost loved ones or livelihoods; and how many missteps were made in the initial response to the pandemic, it seems likely that a very large number of individuals and organisations may fall into any of the categories above.
The Grenfell Tower Inquiry has 598 core participants. At the time of writing, the virus has claimed the lives of more than 150,000 people in the UK. The number of bereaved alone who may wish to participate in the Covid-19 Inquiry is likely to dwarf the number of core participants in any other public inquiry to date.
Equally, government departments; care home organisations; NHS trusts; local authorities; educational establishments; public services such as the police; religious organisations; transport groups and many, many more may all have good claim to core participant status.
Who becomes a core participant to the Covid-19 Inquiry (and who can thus assist in answering the Terms of Reference) will be central to ensuring that meaningful questions are asked and lessons learned.
How will the Covid-19 Inquiry interact with other investigations?
Last, there is the question of how the Covid-19 inquiry will interact with the devolved administrations and with various inquests into individual deaths.
The Scottish Government has already announced its own Covid-19 Inquiry (and indeed published Terms of Reference).[3] The Inquiries Act 2005 sets out strict limits on the relative functions of inquiries established at a UK and devolved level, with inquiries established by devolved administrations prevented from determining facts that are not “wholly or primarily” in a devolved administration’s competence and UK-wide inquiries unable to consider devolved matters without consulting the relevant administration.[4]
Similarly, inquests into the deaths of individual victims of Covid-19 (for example amongst vulnerable individuals or those in state detention) have largely been discouraged from investigating “high level government or public policy” aspects of the pandemic response relevant to individual deaths.[5]
How the UK Covid-19 Inquiry will interact with that already announced by the Scottish Government, as well as other related investigations, for example future inquests, is a complex and unanswered question.
Baroness Hallett’s appointment means that the process of answering these questions can at last progress, but there is far more work still to be done to answer these questions and many more besides.
[1] ‘Prime Minister announces Covid-19 Inquiry Chair’, 15 December 2021. https://www.gov.uk/government/news/prime-minister-announces-covid-19-inquiry-chair
[2] ‘Prime Minister announces Covid-19 Inquiry Chair’, 15 December 2021. https://www.gov.uk/government/news/prime-minister-announces-covid-19-inquiry-chair
[3] https://www.gov.scot/publications/covid-19-inquiry/pages/terms-of-reference/
[4] The Inquiries Act 2005, sections 27 to 33.
[5] See Chief Coroner’s Guidance Note No. 34, Covid-19. https://www.judiciary.uk/guidance-and-resources/chief-coroners-guidance-no-34-covid-19/
