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A UK statutory public inquiry – to be or not to be?

  • United Kingdom
  • Inquiries and investigations
  • Litigation and dispute management
  • Local government

20-10-2020

It won’t have escaped notice that there have been calls from numerous parties UK-wide for a public inquiry in respect of the Covid-19 pandemic. The devolved Governments have each responded separately; the first to respond was the Scottish First Minister who said there would be a public inquiry into every aspect of the crisis, followed by the First Minister in Wales who has promised an independent inquiry once the pandemic is under control. Northern Ireland has not yet committed to a public inquiry in their jurisdiction, although there have been calls for an inquiry into care home deaths in Northern Ireland by Amnesty International UK, CAJ and Unison1. The Prime Minister finally acceded to the calls during Prime Ministers Questions on 15 July 2020, and confirmed that an independent inquiry will take place.

In terms of timescales, the Public Administration and Constitutional Affairs Committee produced a report on 10 September 2020 in relation to parliamentary scrutiny of the Government’s handling of Covid-19 and William Wragg, the committee’s chairman, has reportedly confirmed the inquiry should be held “as quickly as possible, with the aim of taking evidence at the start of 20212”. However, so far, all of the devolved governments have all been non-committal but seem to agree on one thing - not yet!

Whilst the Prime Minister confirmed that an independent inquiry will take place, no further information was provided in respect of the potential scope or format of the inquiry.

This is the first article in a three-part series where we consider what options are available to the Government in respect of an inquiry into the Covid-19 pandemic.

In this first article, we consider:

  • the potential different forms for the inquiry
  • the current calls for a public inquiry
  • public inquiries in other countries across the UK
  • advantages and disadvantages of a statutory inquiry
  • is Covid-19 of sufficient public concern?
  • timing of the inquiry

In part two of the series we will look at:

  • an update on a Covid-19 public inquiry
  • the format of previous reviews
  • Article 2 role of an inquiry
  • what can we learn from other reviews

In part three, we will consider:

  • an update on a Covid-19 public inquiry
  • the use of technology in public inquiries

Different forms for the inquiry

Statutory public inquiries are established by a Minister under the Inquiries Act 2005 where they consider “particular events have caused, or are capable of causing, public concern or there is public concern”. The current Home Secretary, Priti Patel, established two of the most recent public inquiries at the end of 2019; the Manchester Arena Inquiry and the Brook House Inquiry.

There is little doubt that the events surrounding the response to Covid-19 in the UK have caused public concern. However, the use of this ministerial power is discretionary; a statutory public inquiry is by no means guaranteed.

There are a number of alternatives to a minister establishing a statutory public inquiry. The Government could elect to conduct an internal review of their decisions. Alternatively, the Government could appoint an independent panel to undertake a non-statutory inquiry, and produce a report, setting out any recommendations.  The House of Commons has already published several reports considering specific aspects of the Covid-19 pandemic. For example, the Public Accounts Committee has produced reports on the “Whole Government response to Covid-193 (dated 16 July 2020), “readying the NHS and social care for the Covid-19 peak4(dated 20 July 2020) and “Parliamentary Scrutiny of the Government’s handling of Covid-195 (dated 10 September 2020). A Home Affairs Committee report considered the “Home Office preparedness for Covid-19 and management of the borders6 (dated 30 July 2020). This may give an indication of the topics which could be considered more widely in a further review.

In addition, there are seven select committee inquiries currently calling for evidence between October and December 2020 on a wide variety of topics, including employment and Covid-19, implications of Covid-19 on transport, and workforce burnout and resilience in the NHS and social care. Numerous select committee inquiries have already concluded their evidence and the committees have published reports on topics such as “the cancellation of exams and calculated grades” dated 11 July 20207, “economic impact of coronavirus: the challenges of recovery” dated 11 September 20208 and “delivering core NHS and care services during the pandemic and beyond” dated 1 October 20209.

As recently as 8 October 2020, the Health and Social Care Committee and Science and Technology Committee has announced it will jointly examine the Government’s response to the Covid-19 pandemic and in particular consider lessons learnt. Reportedly, this is intended to be a “rapid inquiry” and the committees began to hear evidence from experts and witnesses on 13 October 2020. The committees will consider: the deployment of non-pharmaceutical interventions like lockdown and social distancing rules to manage the pandemic; the impact on the social care sector; the impact on BAME communities;  testing and contact tracing; modelling and the use of statistics; Government communications and public health messaging; the UK’s prior preparedness for a pandemic; and the development of treatments and vaccines10. These topics are wide-ranging.

Other countries have taken different approaches to reviewing decisions made by their Governments. New Zealand, for example, has a committee with a majority opposition party reviewing their response to Covid-19.11 Depending on the success of the review in New Zealand, although unusual, a similar approach could be considered by the UK Government. The UK Government has established an All-Party Political Group (“APPG”) on Coronavirus, which is a cross party group, established to “ensure that lessons are learned from the UK’s handling of the coronavirus outbreak so far such that the UK’s response and preparedness may be improved in the future12.” The APPG is currently calling for evidence.

Sweden has already established a Covid-19 public inquiry, has appointed a chair and has set out broad topics for the inquiry to consider. The Swedish Government has already put in place deadlines for reports; two interim reports due in November 2020 and October 2021 and a final report by February 2022.13

It is not clear whether anything other than a statutory public inquiry would satisfy the UK public’s desire to be assured that any lessons that could be learned from this pandemic are done promptly and people are held accountable. Should campaigns continue, it could be that the Government has no choice but to commission a statutory public inquiry. Should the Government choose to initially conduct an internal review or non-statutory inquiry it could ultimately convert any internal review or non-statutory inquiry to a statutory inquiry, as happened with the Brook House Inquiry.

Previously, the Government has elected to convert existing coroner’s inquests into public inquiries, such as the Manchester Arena Inquiry, where there has been sufficient public concern and the inquests were being conducted by one coroner. Some deaths caused by Covid-19 will be referred to the coroner, who will open an investigation and, if necessary, an inquest; but not all will.

The Chief Coroner has produced several guidance notes during the pandemic, giving guidance to coroners on the use of their powers to hold an investigation, and if necessary, an inquest. For example, Chief Coroner’s Guidance Note 3714 dated 28 April 2020 states “the vast majority of deaths from Covid-19 are due to the natural progression of naturally occurring disease and so will not be referred to the coroner. The Chief Coroner would like to remind coroners of the Ministry of Justice Guidance on the Notification of Deaths Regulation 2019 which provides: “24. A death is typically considered to be unnatural if it has not resulted entirely from a naturally occurring disease process running its natural course, where nothing else is implicated” (para 4). The Guidance Note confirms there are still some circumstances where an inquest will be held, where the cause of death is Covid—19 related, for example, if Covid-19 was contracted during the course of employment, or “if there was reason to suspect that some human failure contributed to the person being infected with the virus” (para 12).

Nevertheless, although some coroner’s investigations and inquests will take place, these are likely to be limited and will be opened by multiple coroners. In addition, in the same Guidance Note, the Chief Coroner has reiterated the position that “Coroners are reminded that an inquest is not the right forum for addressing concerns about high level government or public policy” (para 13). In light of the relatively small numbers of deaths to be investigated by coroners, and the restrictions on scope of inquests, it is unlikely the coroner’s court would be an appropriate forum to consider the overall approach to the pandemic, nor is it likely to satisfy the public.

The Public Administration and Constitutional Affairs Committee heard evidence on 23 July 2020 about the options for the formation of a public inquiry. The Committee heard from chairs and members from recent UK public inquiries, including, Lord Butler of Brockwell, Chair of the Review of Intelligence on Weapons of Mass Destruction (“The Butler Review”), Baroness Prashar, Committee member of the Iraq Inquiry (“The Chilcott Inquiry”) and Sir Robert Francis QC, Chair, Mid Staffs NHS Foundation Trust Public Inquiry (“Mid Staffs Inquiry”). This is part of the Committee’s wider investigation into the Government’s response to Covid-19, and the Committee has published one report on this so far15.

Some organisations have already committed to internal inquiries and reviews, for example, the Health Foundation is conducting its own review. Its UK wide inquiry is time limited and will consider:

  • “How people’s experience of the pandemic was influenced by their health and existing inequalities;
  • The likely impact of actions taken in response to the pandemic on people’s health and health inequalities – now and in the future.16

Likewise, the Joint Committee on Human Rights has commenced an inquiry considering the potential human rights implications of the pandemic. They have already appointed a team, including Specialist Advisors, have heard both oral evidence and received written evidence following a public call. The report on the human rights implications of the Government’s response to COVID-19 was published on 21 September 2020 17.

Public Health England has also undertaken a review of disparities in risks and outcomes from Covid-19 which was published on 2 June 202018. This considered disparities in age and sex, where people live, deprivation, ethnicity, people’s occupation and care home residence.

The topics being considered by these organisations will undoubtedly also be included within any Government review, non-statutory inquiry or statutory public inquiry, and the gathering of evidence at this early stage by these organisations may be of benefit to any future inquiry, which whatever its terms of reference, will no doubt have a lot of ground to cover.

Current calls for a public inquiry

The organisations supporting a UK wide public inquiry vary and include the Parliamentary and Health Service Ombudsman in England (Mr Behrens), the Covid-19 Bereaved Families for Justice UK Group, March for Change UK, Doctors’ Association UK, Royal College of Physicians the Labour Party and the Liberal Democrats.

Petitions have begun; one petition to “hold a public inquiry into the handling of the Covid-19 crisis” has nearly 22,500 signatures19. The Government published a response to this petition on 15 September 2020, confirming that “there will be an important moment to look back, analyse, reflect and to learn lessons. As the Prime Minister has said, this will include an independent inquiry at the appropriate time.” If the petition reaches 100,000 signatures, the petition will be considered for debate in Parliament, so this will be one to watch. Another petition on Change.org, commenced by the Covid-19 Bereaved Families for Justice UK Group20, has nearly 201,000 signatures and yet a further petition by March for Change UK has another 117,000 signatures21. Together there are already over 340,000 signatures on petitions for a Covid-19 public inquiry.

On 22 July 2020, the Covid-19 Bereaved Families for Justice group (“the Group”) referred to above sent a letter before action to the Prime Minister and Secretary of State for Health. Broadly, the issues the Group would like an inquiry to consider include the preparedness for the Covid-19 pandemic; sufficiency of medical personnel, facilities and equipment; shortage of personal protective equipment; capacity of the testing and tracing system; governmental strategy and advice to the public; the approach in care homes; timing of lockdown; approach to travel; effect on BAME communities; the spread of Covid-19 in hospitals, prisons, and other places of detention and compliance with the Human Rights Act 1998 / Equalities Act 2010. The issues proposed by the Group indicate the potentially wide scope of any Covid-19 inquiry.

The Government has not published a response to the letter, but reportedly the Government confirmed it is unable to meet with the Group “due to the pandemic”, but reconfirmed its intention to hold an independent inquiry. The Group has alleged in the press that they feel “actively ignored” by the Government22 and its co-founder Jo Goodman has said “the prime minister has done a 360 - dodging five letters, then agreeing on live TV to meet with us, and now quietly telling us he's too busy”23.

Public inquiries in other countries across the UK

Nicola Sturgeon confirmed on 27 May 2020 that a public inquiry will be held in Scotland. She confirmed: “Of course there will be a public inquiry into this whole crisis and every aspect of this crisis and that will undoubtedly include what happened in care homes24.”

Wales has also committed to an independent inquiry. During a debate in the Senedd on 3 June 2020, Welsh Ministers considered a motion for an independent inquiry into Covid-19 proposed by Darren Millar MP from the Welsh Conservative Party. The motion passed was for: “an independent inquiry into the Welsh Government’s handling of the Covid-19 pandemic, to be commenced at an appropriate date, when the pandemic is under control.25A separate amendment was debated in relation to committing to an independent judge-led inquiry to be commenced in parallel, into the UK Government’s handling of the Covid-19 pandemic, but interestingly it was not passed. Opposition parties in Wales have since confirmed they want an independent inquiry to report to the Senedd before the elections in May 202126.

We have seen other public inquiries lead with nation specific inquiries in the first instance, prior to a UK wide public inquiry, for example the Infected Blood Inquiry. However, there is merit in considering the cost and resource implications of holding both national and UK wide inquiries, where there will inevitably be a crossover of in terms of key issues. Political pressure may of course be the deciding factor; with the Government and each of the devolved administrations facing slightly different pressures and perhaps with different degrees of confidence that their decision making will stand up to scrutiny.

A UK wide inquiry would need to consider ways to ensure engagement from all countries, for example, holding inquiry hearings in major cities across all nations in a similar way to the Infected Blood Inquiry, meaning all those affected by the Covid-19 pandemic can be part of the process.  However, it remains within the gift of the devolved nations to commence their own review in advance of the UK Government making any announcement and they will not automatically form part of any UK Government announced review.

Advantages and disadvantages of a statutory public inquiry

There are advantages and disadvantages of holding a statutory public inquiry rather than an internal review or a non-statutory inquiry.

The UK public often has confidence in the statutory public inquiry process, perhaps because they involve public hearings and have powers to compel evidence (oral and written). Given the subject matter of a potential inquiry, there will inevitably be concern in relation to attending in person, either as a witness, interested party or member of the public. We have seen that other public inquiries, for example the Independent Inquiry into Child Sexual Abuse (“IICSA”) and the Grenfell Tower Inquiry, have successfully moved towards ‘virtual hearings’ or hearings with limited physical attendance by only those necessary to hold the hearings. There is however a risk with this approach, depending on the technology used, that Core Participants, in particular victims and their families, may not feel fully engaged in the process. For example, the IICSA hearings are utilising the Zoom platform, allowing questions in real-time, whereas this is not utilised in the Grenfell Tower Inquiry.

A public inquiry has the powers to compel evidence from witnesses and establishments, should any decline to engage with the process. Such powers can be useful to ensure prompt disclosure of evidence, and ensure the inquiry can fulfil its terms of reference. It also means that witnesses give evidence to the inquiry under oath and witnesses can be compelled to do so.

Given the concerns expressed by the public and numerous organisations, including other political parties, it may be that agreement for an internal review or non-statutory Inquiry will not quell the calls for a public inquiry. This in turn could lead to duplication of investigations, and could ultimately lead to a public inquiry being established in any event, which we have seen with the Infected Blood Inquiry, or a later conversion from non statutory inquiries or an inquests and the associated time and cost implications. Another option would be to go for an IICSA style inquiry, which will essentially have a series of smaller inquiries under the overarching umbrella of a large inquiry. This could deal with some of the key issues at an early stage and leave some of the ongoing debates and issues to be considered at a later date.

A public inquiry would also give the Government the freedom to appoint an independent chair or panel with the appropriate specialisms to cover the complex and wide-ranging subject matter. Inquiries can be conducted by a chair on their own, for example, the Leveson Inquiry. A chair must be appointed before the work of the inquiry can begin. The Government would need to consider the skills needed to chair an inquiry of this scale; in previous Government-focussed public inquiries, such as the Al-Sweady Inquiry and the Chilcot review, the Government appointed a judge and retired civil servant respectively. In addition, the Government would need to ensure that any chair does not have a conflict of interest, which may be a challenge given the inquiry is likely to be wide-ranging, and that the chair is committed to being available for the duration of the inquiry. By way of example, IICSA experienced many difficulties in this regard having appointed four chairs in total: Baroness Butler-Sloss; Fiona Woolf; Dame Lowell Goddard and finally Professor Alexis Jay, a social worker by profession.

Alternatively, a public inquiry could be conducted by an inquiry panel, consisting of a chair working in conjunction with other appointed persons, for example, on the Grenfell Tower Inquiry the Prime Minister appointed a panel for Phase 2 of the inquiry. Prof Alexis Jay also sits with a panel in IICSA. Panel members are permanent and will often have specific specialisms relevant to the inquiry’s Terms of Reference. Finally, another option open to the Government would be to appoint a chair and for the chair to then appoint assessors to assist them with specialist areas relating to specific areas within the inquiry. Given the reliance on scientific evidence during the response to Covid-19, the chair could consider appointing expert scientific advisors as assessors, which would give the chair greater flexibility than working with panel members. This degree of independence and specialism can gain the confidence of stakeholders and would assist with ensuring any report can withstand public scrutiny.

However, the challenge of public inquiries can be the length of time to complete them. Inquiries like the Chilcot review took seven years to complete, which would likely be undesirable in a Covid-19 Inquiry; the campaigners all consider any public inquiry should be prompt. In our experience, if correctly managed and resourced a statutory public inquiry can also be conducted swiftly, for example, the Mid Staffs Inquiry commenced on 8 November 2010, with the report being published on 6 February 2013. The investigatory work and hearings on the Mid Staffs Inquiry were completed within 12 months, with the report following around 12 months later, showing that it is possible to complete a public inquiry within tight timescales when correctly resourced.

Is Covid-19 of sufficient public concern?

Under the Inquiries Act 2005, the matter has to be of public concern and then a minister may establish a public inquiry. Where the Government decides not to hold a public inquiry, that decision is open to Judicial Review in the High Court.

With some public inquiries, public concern has not been sufficient for the Government to establish a review, and additional pressure was required before a review was established, for example, a change in Government, backbench pressure or significant amounts of campaigning by interested groups. The Infected Blood Inquiry is an example of this and was established after years of campaigning by affected and infected individuals and groups. Having said that, one will struggle to find anybody in the UK who has not been affected in some way by the Covid-19 pandemic, therefore it is difficult to see how an argument of insufficient public concern would be justified.

Timing of an inquiry

The timing of any review will undoubtedly be at the forefront of stakeholder’s and the Government’s minds. The purpose of any review would be to investigate what happened, hold people accountable where necessary, and to make recommendations for the future to avoid the same mistakes being repeated.

Some argue that that there would be value in holding a review now, to provide immediate scrutiny of the decisions made and to see whether any steps could or should be imposed imminently, whilst the pandemic is ongoing. This approach is supported by professionals, such as Martin McKee, Professor of European public health, Mike Gill, former regional director of public health and Sarah Wollaston, former chair of health and social care select committee, and bereaved, survivors and relative groups alike. The British Medical Association has also “called for a rapid inquiry so that we can plan properly, learning from all the things that didn’t go right the first time around” following a meeting with delegates on 15 September 202027. This would also ensure preservation of evidence, which inevitably becomes more challenging with the passage of time.

On the other hand, it would be difficult for an independent panel or chair to prepare Terms of Reference for the review, without knowing the full extent of the nature of the pandemic;  Terms of Reference may need to be broad, to allow flexibility as the pandemic continues to unfold. This could lead to additional topics being added throughout the pandemic, as and when new issues come to light, which could result in a longer review or inquiry, with the associated implications on time and cost.

It would also be difficult for some stakeholders to provide evidence to a review during the crisis, whether oral or documentary evidence. Stakeholders will include front line staff, involved in delivery of front line services or crisis management. In addition, should any review require independent experts as assessors, to comment on any aspects of the Terms of Reference, it may be difficult to find experts that are not already engaged in dealing with the pandemic. Under the circumstances, given the ongoing nature of the pandemic, it is unlikely these stakeholders could easily be pulled away from their current roles in managing the crisis.

Conclusion

There is a considerable amount for the Government to consider before commencing a review into Covid-19, including the timing of a review, and the format. The Government has indicated there will be time for looking back and reflecting on the response, although it has not committed to the nature of this review nor the timing. The Covid-19 pandemic is likely to be a once-in-a-lifetime event given its extent and impact across the globe. An inquiry into the Covid-19 pandemic will be unprecedented in its size and potential scope.

Undoubtedly, Covid-19 has impacted everyone to some degree; particularly those that have contracted the virus; those that have lost loved ones to it, without the opportunity to say goodbye or mourn their loss in the way they would like; and those who have worked tirelessly on the front line in hospitals and government. A review of the response to the pandemic may help those individuals to acknowledge the impact of the pandemic and begin to recover. It will also be essential to ensure that any lessons to be learned are learned swiftly and, where necessary, new policies and procedures are implemented to avoid the repeat of any avoidable mistakes being made in the future.

If you would like to discuss any element of this article please do not hesitate to contact the Eversheds Sutherland Inquiries and Investigations team.



[1]           https://caj.org.uk/2020/06/23/amnesty-caj-unison-call-for-public-inquiry-into-care-home-deaths/

[2]           https://www.independent.co.uk/news/uk/politics/coronavirus-inquiry-boris-johnson-cases-second-wave-covid-19-b421065.html

[3]           https://committees.parliament.uk/publications/2024/documents/19531/default/

[4]           https://www.parliament.uk/business/committees/committees-a-z/commons-select/public-accounts-committee/news-parliament-2017/readying-nhs-and-social-care-for-covid-19-peak-report-published-19-21/

[5]          https://publications.parliament.uk/pa/cm5801/cmselect/cmpubadm/377/37702.htm

[6]           https://www.parliament.uk/business/committees/committees-a-z/commons-select/home-affairs-committee/news-parliament-2017/home-office-covid-19-management-border-report-published-19-21/

[7]          https://publications.parliament.uk/pa/cm5801/cmselect/cmeduc/617/61702.htm

[8]          https://publications.parliament.uk/pa/cm5801/cmselect/cmtreasy/271/27102.htm

[9]          https://publications.parliament.uk/pa/cm5801/cmselect/cmhealth/320/32002.htm

[10]          https://committees.parliament.uk/work/657/coronavirus-lessons-learnt/news/

[11]          https://www.theguardian.com/commentisfree/2020/apr/03/in-the-absence-of-parliament-we-must-ensure-new-zealands-response-to-covid-19-is-the-best-it-can-be

[12]          https://appgcoronavirus.marchforchange.uk/appg_details

[13]          https://www.government.se/press-releases/2020/06/mats-melin-to-chair-covid-19-inquiry-in-sweden

[14]          https://www.judiciary.uk/wp-content/uploads/2020/04/Chief-Coroners-Guidance-No-37-28.04.20.pdf

[15]          https://committees.parliament.uk/publications/2459/documents/24384/default/

[16]          https://www.health.org.uk/what-we-do/a-healthier-uk-population/mobilising-action-for-healthy-lives/inquiry-into-covid-19-health-and-health-inequalities

[17]          https://committees.parliament.uk/work/218/the-governments-response-to-covid19-human-rights-implications/publications/

[18]          https://www.gov.uk/government/publications/covid-19-review-of-disparities-in-risks-and-outcomes

[19]          https://petition.parliament.uk/petitions/302576

[20]          https://www.change.org/p/hold-a-public-inquiry-into-the-government-s-handling-of-the-covid-19-pandemic-covid19/u/27222738

[21]          https://www.marchforchange.uk/coronavirus_inquiry

[22]          https://www.independent.co.uk/news/uk/politics/boris-johnson-coronavirus-covid-19-families-justice-bereaved-a9655571.html

[23]          https://www.liverpoolecho.co.uk/news/liverpool-news/families-who-lost-loved-ones-18867496

[24]          Live from Holyrood on Sky News on 27 May 2020.

[25]          https://business.senedd.wales/ieListDocuments.aspx?CId=401&MId=6331

[26]       https://www.bbc.co.uk/news/uk-wales-53838413

[27]          https://www.bmj.com/content/370/bmj.m3591