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The UK and the devolved nations: Will there be an inquiry or inquiries into the response to Covid-19?

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

28-04-2021

Introduction

The administrations of all four nations in the UK are under pressure to establish inquiries into how the current pandemic has been handled. Public inquiries have a two-fold purpose; first, to find out what happened - what went well, and what didn’t, and secondly, to identify what lessons should be learned for the future. But how are these issues going to be examined by any public inquiry?

The devolved governments of Scotland, Wales and Northern Ireland have each committed to undertaking an inquiry. Boris Johnson has also confirmed that the UK Government will establish an “independent review”.   Neither the UK Government nor the devolved administrations have provided details as to the scope, nature or timing of any future inquiries, nor whether there will be any formal link or liaison between the inquiries, if established independently. So how could it all work?

At the outset of the pandemic there was close coordination from all parts of the UK - the “four-nations approach”. There were minimal differences in the policies adopted by the nations. However, this changed in early May 2020 following the second review of lockdown restrictions which took place at that time. Since then, there have been significant policy differences, with each nation adopting its own plans for easing restrictions, reopening parts of the economy and implementing lockdowns during the second wave of the virus.

Many key aspects of the response to the pandemic relate to devolved matters, where the devolved administrations have legislative competence. Each devolved administration is responsible for developing and implementing its own policies in relation to health, education, social care, and  emergency services. Other matters of relevance to the response, such as some aspects of international travel, are reserved matters in relation to which policy remains the sole responsibility of the UK Government. Furthermore, there were a number of UK wide initiatives undertaken at the start of the pandemic, including the introduction of a UK-wide Joint Action Plan and a UK-wide scheme to procure Personal Protective Equipment (PPE). The purchase and delivery of vaccines is also organised on a UK wide basis.

Accordingly, any inquiry into the handling of the pandemic in a devolved nation which is broad in scope, is likely to involve consideration of both devolved and reserved matters. This will involve investigation into the decisions and actions of both the relevant devolved administration and the UK Government. Each nation will have its own perception of where the strengths and weaknesses of pandemic performance may lie, and each nation may have different expectations as to what a public inquiry may reveal, and what lessons may be identified as being needed to be learned.

The Inquiries Act 2005

Could the UK Government convene a UK wide inquiry to investigate all aspects of the response to the pandemic?

The Inquiries Act 2005 (the “Act”) is the act under which public inquiries are commonly established. It is often the case that a retired senior judge will be appointed to chair an inquiry, possibly with other panel members, or assessors, who can offer expertise in different sectors. Such inquiries are powerful beasts in holding decision makers to account, and can compel attendance. Inquiries that are not set up under the Act, and the accompanying rules of a year later, will not have such powers.

Sections 27 – 31 of the Act set out the respective powers of United Kingdom Ministers, Scottish Ministers, the Welsh Ministers and Northern Ireland Ministers to convene a public inquiry in accordance with the Act - a statutory inquiry.[1]   

The inquiry’s terms of reference must first be established. These include:

  • the matters to which the inquiry relates;
  • any particular matters as to which the inquiry is to determine the facts;
  • whether the inquiry is to make recommendations; and
  • any other matters relating to the scope of the inquiry.

When setting up an inquiry, a Minister of the UK Government cannot, without first consulting the relevant devolved administration, include in the terms of reference, anything that would require the inquiry  to determine any fact that is “wholly or primarily concerned” with a Scottish/Welsh/Northern Ireland matter. An inquiry established by a Minister of the UK Government also cannot make any recommendation that is “wholly or primarily” concerned with one of the devolved administrations and matters within their devolved competency. While the Act requires “consultation” with the relevant devolved administration, as opposed to seeking its consent, the explanatory notes to the Act, state:

It is envisaged that UK Ministers will not usually set up inquiries into devolved matters without the agreement of the relevant devolved administration and that Ministers will consider whether a joint inquiry between the two administrations would be appropriate instead.”

In addition, the powers granted to the chair of an inquiry to compel evidence cannot be exercised in relation to evidence that relates to a devolved matter unless the Minister who established the inquiry grants written permission to the chair. Before granting such permission, the Minister must consult with the relevant devolved administration. Again the explanatory notes set out an expectation which goes further than the wording of the act, stating:

It is envisaged that UK Ministers will not usually grant permission without the agreement of the relevant devolved administration.”

Therefore, the UK Ministers could not set up a UK wide statutory public inquiry into issues relating to the pandemic which requires the inquiry to investigate matters such as health, social care and education in the devolved nations without, at the very least, consultation with the devolved administrations, and arguably their consent. 

Going it alone?

Could the devolved administrations convene an inquiry which investigates all aspects of the response to the pandemic which occurred within their relevant jurisdictions?

Ministers of the devolved governments may not establish a statutory public inquiry which includes a term or terms of reference of the inquiry which require it to determine any fact or to make any recommendation that is not “wholly or primarily concerned” with a devolved matter within their own jurisdiction.

An inquiry established by a devolved administration may take evidence on reserved matters, if the inquiry considers that it is relevant to the terms of reference. However, it cannot compel that evidence, unless it relates to matters which are wholly or primarily devolved matters. Furthermore, the Act specifically prohibits a Scottish, Welsh or Northern Ireland inquiry from requiring any evidence to be provided by or on behalf of the UK Government or from the Ministers of any of the other devolved administrations.

This situation therefore gives rise to interesting legal and logistical difficulties. These go to the heart of the issue of what will be the nature of public inquiries into the response to the pandemic by the UK, and by the devolved administrations. How could a single UK inquiry investigate what happened, and lessons to be learned around the UK, without the consent of the devolved administrations? The same applies to any inquiries set up by the devolved administrations, unless they are very limited in scope. If the same medical or other scientific advice was relied upon by the UK Government and the devolved administrations, will evidence about that advice have to be given by the same experts to separate inquiries? What if separate inquiries, and their chairs/panels come to different conclusions on what happened, and the lessons to be learned? Of what benefit will that be to improving any future responses to pandemics?

Concurrent inquiries have happened before however. For example, there have been a number of independent inquiries into sexual abuse of children. The Independent Inquiry into Child Sexual Abuse was established by the UK Government in 2015 to investigate child sexual abuse in England and Wales. Later that year, the Scottish Government established the Scottish Child Abuse Inquiry to investigate child abuse, not limited to sexual abuse, in Scotland. The Northern Ireland Executive had previously established the Historical Abuse Inquiry which ran from 2014 to 2017. In this case, each inquiry has been able to develop their terms of reference to best suit the circumstances and investigative needs in their nation. The Scottish Child Abuse Inquiry has indicated that it is in contact with the ongoing UK inquiry, but these inquiries remain distinct and fully independent of each other. An inquiry into child sexual abuse was also run in Jersey, by the States of Jersey. Interestingly,  that inquiry was run under States of Jersey law, which avoided some of the pitfalls of the  Act and the 2006 Inquiry rules.

While Scotland, Wales and Northern Ireland can freely set up distinct inquiries into the response to the pandemic, these inquiries would be predominately confined to investigating matters within the competence of their relevant administrations. For example, this would mean that they may not be able to fully investigate and compel evidence in relation to decisions taken at a UK wide level,  such as the UK Government’s approach in relation to the procurement of PPE, despite these matters having had an impact on all four nations. 

Joint Inquiries

Section 32 of the Act enables two or more ministers to assume responsibility for an inquiry, including ministers from more than one administration. This provision allows an inquiry to be jointly established by the UK Government and one or more of the devolved administrations, or alternatively between the devolved administrations themselves.

The first, and to date only, joint inquiry undertaken by more than one administration was established in 2008 by the Scottish and United Kingdom Governments to carry out an investigation into an explosion in May 2004 at the ICL factory in Glasgow which killed nine people (the “ICL Inquiry”). The ICL Inquiry was a joint inquiry as health and safety matters are not within the competence of the Scottish Ministers, and it was anticipated that the inquiry might need to consider matters relating to Scotland that were not reserved. This inquiry was held in Scotland and conducted under the Inquiry (Scotland) Rules 2007.

While the ICL inquiry illustrates that joint inquiries can effectively be undertaken with cooperation between administrations, it related to a specific event located within one jurisdiction and is therefore unlike to serve as a blueprint for the complex issues to be considered within an inquiry into the pandemic. Any such inquiry will need to investigate an extremely broad range of issues, and independent inquiries established by all four administrations would often involve comparing and contrasting a number of different approaches taken to similar issues, in similar circumstances.

Section 33 of the Act sets out how the limitations on the terms of reference and the powers to compel evidence apply to joint inquiries for which the responsibility is shared between two (or more) administrations. The terms of reference of the joint inquiry can include matters that any one of the relevant Ministers would be permitted to establish an inquiry into. Therefore using the ICL Inquiry as an example, its terms of reference were permitted to include matters that were wholly or primarily concerned with matters on which a UK Government minister could require an inquiry to investigate, and also matters which were within the competence of the Scottish Ministers. It could not, however, investigate matters which were devolved to the Welsh or Northern Ireland administrations. The chair also had the power to compel evidence relating to UK or Scottish matters, including evidence from the UK Government. 

Therefore, a UK wide joint inquiry into the pandemic established by all four nations would be able to investigate all matters relating to the UK’s response to the pandemic, and compel evidence from all four administrations. However, there has to date been no indication that such an inquiry will be established.

What has been said to date about how an inquiry or inquiries into the pandemic will operate?

While there has been no confirmation from the four administrations as to whether or not they intend to coordinate in establishing a public inquiry or inquiries, the matter has been considered by the House of Commons Public Administration Select Committee in its report titled “A Public Inquiry into the Government’s response to the Covid-19 pandemic”, published on 10 September 2020. It was noted that the restrictions as to terms of reference contained within sections 27 – 30 of the Act could be avoided by establishing a non-statutory inquiry. However, such an inquiry would not have the powers to compel evidence from witnesses or take such evidence under oath. It was alternatively suggested that the Government could try to circumvent the provisions of the Act by enacting a new piece of legislation giving it statutory powers to inquire into devolved areas. However, such a piece of legislation would itself require the consent of the devolved parliaments. The Select Committee concluded:

There is little way in which the UK Government could include devolved issues within the remit of a public inquiry without the cooperation of the devolved governments.

The Committee believes that each administration, be it the UK or devolved, should establish its own inquiry. This is because most aspects of the response to the pandemic are devolved matters, but doing such also ensures proper attention is granted to each of the nations’ response; it is the route to a statutory inquiry that requires the least negotiation and deliberation and it is still possible to understand the UK-wide response by including cooperation between administrations in the terms of reference within each inquiry. The UK Government should consider the coordinating role between the Governments of the UK, including public communications.”[2]

Conclusion

In light of the fact that each of the four administrations has publicly committed to holding an independent review into the response to the pandemic, it is surely inevitable that scrutiny of political performance during the pandemic by a public inquiry will follow. It remains to be seen, however, whether this will be done jointly under section 31 of the Act, or whether each administration will establish an inquiry independently.

The different administrations may have different perspectives as to what is required by way of public scrutiny. Therefore, the form of the inquiry that the administrations wish to establish may have an impact on decisions in relation to co-operation. For example, one or more administration may wish to establish a statutory inquiry, while others wish to proceed on a non-statutory basis to avoid being confined by the requirements of the Act and the Inquiry rules. The timescales within which the administrations wish to establish an inquiry may also have an impact on this decision. It may be that one or more nations wish to proceed to establish an inquiry more quickly than the others.

The key purpose of an inquiry is to establish what happened and to make recommendations as to  lessons that should be learned.  There is nothing to prevent independent and distinct inquiries from coming to different conclusions in relation to the same facts and circumstances, and making different recommendations as to what measures should be implemented as a result. The benefits of such an outcome are questionable, and could undermine the public confidence in the outcome of any inquiry.

There will be advantages and challenges to either approach, i.e. having a joint inquiry or four separate inquiries. In any event, inquiries into the response to the pandemic are likely to involve unprecedented challenges for the relevant administrations, and those practising in the field of public inquiries, alike.



[1] We discussed the difference between statutory and non-statutory public inquiries in some detail in our previous article “What form might the UK Government’s “independent review” take?” https://www.eversheds-sutherland.com/global/en/what/articles/index.page?ArticleID=en/Public-sector/What_form_might_the_UK_Government_s_independent_review_take

[2]   htts://publications.parliament.uk/pa/cm5801/cmselect/cmpubadm/541/54107.htm