The UK Covid-19 Public Inquiry

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5 min read

Public inquiries are used most commonly to look into issues of national importance. The Covid Inquiry will create debate, interest and will no doubt be controversial. This article looks at some of the broader issues relating to public inquiries and what we may expect to see over the next few months, if not years.

Here at Mills & Reeve, we have a huge depth of experience advising on all types of investigations and including advising key players in public inquiries. The Covid Inquiry is no exception.

Background to the Inquiry 

Covid is a word we are all too familiar with and, in many respects, have started to learn to live with. However, even if the pandemic itself is now less newsworthy than wars, floods and the cost of living crisis, we have not yet heard the last of it.

Whilst the UK was still in the grips of the crisis our then Prime Minister, Mr Johnson, announced on 15 July 2020 that there would be an “independent inquiry” although the details at that time were vague.

Nearly two years later on 28 June 2022, the Terms of Reference were finally agreed (after public consultation) for a statutory public inquiry governed by the Inquiries Act 2005 with Baroness Heather Hallett as the Chair. 

The Terms of Reference

The Terms of Reference are broad. They include the UK preparedness for a pandemic of this scale (one of the first modules to be considered), the use of lockdowns, contract tracing and isolation and generally how decisions were made; and the impact on mental health, on health and care workers and on young people and education. These are just a few of the specific matters identified.

The aims of the inquiry are to examine the Covid-19 response and impact, and then to produce a factual narrative report. Some would say that the most import aim is to identify lessons to be learned in order to inform preparations for future pandemics. 

Health-related public inquiries

Public inquiries are often called for after major disasters and catastrophic events where the general public want answers. 

There have been a number of important health-related public inquiries, a number of which we have been, or are currently involved, in (including the Covid Inquiry).  These have then shaped how health services are delivered – for example, the Shipman Inquiry influenced the way deaths are reported and investigated.  

The Mid Staffs Inquiry (where we acted for the Healthcare Commission, the NHS regulator at the time) resulted in the development of a “duty of candour” within the NHS to ensure patients are dealt with in an open and transparent way when things go wrong. 

The Infected Blood Inquiry is an example of a current public inquiry that was called long after the events in question took place. This was after a number of less formal inquiries and investigations failed to satisfy public demands for answers. This example has prompted some to question whether convening a public inquiry earlier would have avoided years of unanswered questions and devastating consequences for those that were affected. 

The legal framework

The Inquiries Act 2005 together with the Inquiry Rules 2006 provide a legal framework that govern how the Covid Inquiry will operate. 

Importantly the inquiry chair has the power to order disclosure of documents and for witnesses to attend to give evidence with criminal sanctions for non-compliance. Public organisations on occasions forgo their right to legal professional privilege in order to behave in an open and transparent way with a public inquiry. This engenders public confidence. 

The chair of a public inquiry is able to designate “core participants” to the inquiry process where an organisation played a significant role in relation to the matters under investigation, and/or they have a significant interest in an important aspect of the matters to which the inquiry relates or where they may be the subject of criticism. 

In the case of the Covid Inquiry, the core participants are likely to be key government departments that can be called to account for decisions made.  They could also include groups that have been specifically affected. 

The Inquiry Rules set out a formal process to allow those who may be criticised to have an opportunity to respond to the potential criticism during the inquiry or before the final report is published. A public inquiry cannot, however, make any finding of criminal or civil liability, although any findings of fact could be used in any subsequent proceedings. 

The decision to hold a public inquiry

So, at the time Mr Johnson made the decision to set up a public inquiry, was there really any choice for him? 

With the examples of past public inquiries, the issues have usually affected a portion of society – patients at Mid Staffs Hospital or patients affected by contaminated blood products – but with the pandemic we have all been affected in some way or another. 

Any informal inquiry without the power to order disclosure from government departments and evidence from politicians and their advisers would be very unlikely to “cut the mustard”. 

The Covid Inquiry is likely to be the largest public inquiry the UK has ever known. Before it has even started, there has been criticism of the likely cost to the public purse. 

What matters will unfold?

The Inquiry legal team will deal with millions of documents that track decision-making over the crucial months and years of the pandemic. Questions will be asked about how decisions were made, who made them, whether the advice given was effective and ultimately whether more could have been done. As well as reviewing documents, oral evidence will heard from well-known politicians and advisers that have become household names. Mr Johnson himself could be called to give evidence.

This is likely to be one of the largest public inquiries we have seen over recent years but often it will be the smallest comment or email that provides a key to understanding some of the most controversial issues.

Will it be worth the cost and time?

Time will only tell if the resulting evidence from the Inquiry and the final report and recommendations will be worth the financial cost and management hours inevitably involved. However, if the process assists in any way in preventing the massive loss of life we have seen over the past few years we would hope that history will endorse the decision. 

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