Global menu

Our global pages

Close

What form might the UK Government’s “independent review” take?

  • United Kingdom
  • Inquiries and investigations
  • Litigation and dispute management
  • Local government - Special reports

30-11-2020

This is the second 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 second article, we consider:

  • the various forms an independent inquiry may take
  • the work being undertaken by the Public Administration and Constitutional Affairs Committee in relation to establishing a public inquiry into the Government’s response to the Covid-19 pandemic
  • whether Article 2 of European Convention on Human Rights will be engaged in a public inquiry

The first article can be found here.

Boris Johnson confirmed during Prime Ministers Questions on 15 July 2020 that the UK Government will establish a “independent review” into the pandemic, although he did not confirm what format this review would take.  

As stated in the first article in this series, the Public Administration and Constitutional Affairs Committee (the “Committee”) held an evidence session on 23 July 2020 in order to consider the options for the formation of a public inquiry into the Government's handling of the Covid-19 pandemic and the strengths and weaknesses of these various options. The Committee heard evidence from a number of individuals including, the Chairs or panel members of previous public inquiries. The report included a recommendation that a statutory inquiry should be convened under the Inquiries Act 2005. Since this report was published, the Prime Minister has not, however, provided any further detail in relation to the form its ”independent review” might take. Therefore, the form the inquiry will take remains unknown. Crucially, there has been no commitment from the UK Government in respect of whether this will be a statutory inquiry with the associated powers to compel evidence.  

In recent weeks, we have seen greater divergence in the approaches taken by the nations within the UK than we saw during the first wave of the virus, namely in terms of the restrictions imposed on the hospitality and leisure industries and the general public. As noted in the first article, the Scottish and Welsh Governments have committed to holding independent inquiries. Since then, there have been calls in both jurisdictions for the inquiries to be established as a matter of urgency. The Scottish Government has come under increased pressure to hold a public inquiry into the response to the pandemic in care homes, and an opposition motion for such an inquiry to be established immediately passed in the Scottish Parliament on 4 November 2020. However, the Scottish Health Secretary has stated that the inquiry should be broader in scope and, while a public inquiry is “is undoubtedly important”, resources should not be diverted to immediately establishing one at this time. The Scottish Health Secretary is reported to have made contact with her counterparts in the Northern Irish, Welsh and UK governments in order to discuss whether and how such an inquiry could be established on a four nations basis. Calls for the Northern Irish Assembly to commit to holding a public inquiry continue, also with a particular focus in relation to deaths in care home settings. 

It remains to be seen how the inquiries in the devolved nations will be structured and what level of interaction and co-operation there will be between the devolved Governments and the UK Government when establishing them. However, this article will focus on the options available to the UK Government in establishing its independent review.

What constitutes a “public inquiry”?

The term “public inquiry” refers to a major investigation convened by a government minister to investigate an event, or set of events, which has caused public concern. The term may be used to refer to either a statutory or non-statutory public inquiry. Furthermore, as outlined below, there are a number of different forms a non-statutory inquiry may take. There is no presumption in favour of a statutory inquiry being formed to investigate matters of national importance; the Cabinet Office’s Inquiries Guidance does not indicate a preference for the use of one type of public inquiry over another.  The lack of a clear criteria to determine which type of inquiry will be used in which circumstance has come under criticism and the Parliamentary and Health Service Ombudsman has recently called upon the Government to clarify its guidance in relation to public inquiries.[1]

Differences between statutory inquiries and non-statutory inquiries

Statutory inquiries are established under the Inquires Act 2005 which, together with the Inquiries Rules 2006, sets out the framework for the running of inquiries[2], including matters such as the appointment of the Chair, the taking of evidence, the manner in which to deal with criticisms (a process known as Maxwellisation) and the production of a final report. There is a presumption that as much of the Inquiry’s business as possible will be conducted in public, for example, the taking of evidence. Witnesses will also provide evidence on oath. The Chair of a statutory public inquiry will have the powers to compel evidence.

Conversely, the running of a non-statutory inquiry is not confined by a set framework and therefore has greater flexibility as to how it may operate. There is no presumption that hearings will take place in public, and it is unusual for such hearings to be convened. Non-statutory inquiries do not have the power to compel witnesses to give evidence, therefore there is reliance on co-operation from relevant parties. Non-statutory inquiries are often used when the Government or public bodies are under investigation, where compliance with requests from the Inquiry is to be expected. 

Different types of non-statutory public inquiries

Ad-hoc non-statutory inquiries

Ad-hoc non-statutory inquiries are the most commonly used form of non-statutory inquires in recent years. They are often used to allow a less formal approach to be adopted and for evidence to be taken in private.

This type of inquiry has been used to investigate systemic problems at public institutions over a prolonged period of time, such as in the Morecambe Bay Investigation. This non-statutory public inquiry was established to investigate the management, delivery and outcomes of care provided by the maternity and neonatal services of the University Hospitals of Morecambe Bay NHS Foundation Trust between January 2004 and June 2013. Similarly, an ad hoc non-statutory inquiry chaired by Lord Harris was convened to investigate self-inflicted deaths in custody of 18 to 24 year olds from 1 April 2007 to 31 December 2013.

Committee of Privy Councillors

An inquiry conducted by a Committee of Privy Councillors is essentially a variation of an ad-hoc inquiry. The composition of the Committee of Privy Councillors allows for information related to security to be seen by the inquiry, which otherwise could not be made available. Deliberations are conducted in private, which allows highly sensitive matters to be considered. Therefore, this form of inquiry has been used to consider matters of national security and international relations, such as the Chilcot Inquiry into the Iraq War (which was announced in 2009 and reported in 2016) and the Detainee Inquiry into whether Britain was involved in the improper treatment of detainees (announced in July 2010 and reported in December 2013).

It is unlikely that the matters to be considered by a Covid-19 inquiry would require this additional level of security, and an inquiry with anything less than full transparency is likely to be unacceptable to the general public in the current climate.

Royal Commissions

Royal Commissions are usually convened  to consider matters of policy, rather than to investigate a particular event or series of events. Therefore, it appears this type of inquiry can be discounted for current purposes. In any event, Royal Commissions appear to have fallen out of fashion with the last, relating to the reform of the House of Lords, having reported in 2000.

Parliamentary Commissions

In 2012 the government established the Parliamentary Commission on Banking Standards  to investigate the LIBOR scandal, in lieu of a public inquiry. This has been described as “essentially an ad hoc select committee” with additional resources and funding. Establishing a similarly structured Parliamentary Commission into Covid-19 is unlikely to fulfil the criteria of the review being fully independent. 

The Public Administration and Constitutional Affairs Committee (“the Committee”) has discounted the use of a Parliamentary Commission in relation to the Covid-19 pandemic, stating:

an independent public inquiry is the most appropriate means to scrutinise the Government’s coronavirus response. The available resources and time obligations would risk overwhelming any parliamentarians involved and would prevent them from fulfilling their main responsibilities.”

The Committee has however noted that such a body could be used to investigate matters which fall outside the scope of the inquiry’s terms of reference. 

Recommendation made by the Public Administration and Constitutional Affairs Committee

A significant advantage of non-statutory is that they are often considered to be less unwieldy than statutory inquiries and the lack of rigid formality may allow them to progress at a quicker pace.  That being said, given the Chair’s powers of compulsion for both documentary and oral evidence, a statutory public inquiry could proceed at speed with the correct team structure. However, upon publishing its report in September, the Committee predicted that it was already too late to see meaningful results from any type of a public inquiry, whether statutory or non-statutory, prior to the second wave of the virus. As we are now in the midst of the second wave, speed may no longer be a determining factor in deciding which type of inquiry should be established.  The Committee has, however, called upon the Government to announce the inquiry immediately to allow time for the administrative matters to be dealt with in time for the inquiry to commence its substantive work next year.

The format that an inquiry will take will be influenced by what it is primarily seeking to achieve. While some inquiries will principally be concerned with establishing what went wrong and proportioning accountability, others will predominantly be focused on the lessons that can be learned and how these may influence future policy decisions. The Committee noted that the use of courtroom style hearings, are better suited to establishing facts and accountability, as opposed to developing recommendations to improve policy, due to their adversarial nature. The Committee further considers that, as the pandemic itself did not arise because of human error or systematic failures of policy, the associated inquiry should be forward looking and primarily focus on learning lessons and improving policy. Accordingly, the Committee recommend that the inquiry should “avoid the excess adversarial of the quasi court-style proceedings of some inquiries”. 

Given the high levels of widespread interest in the coronavirus pandemic, it is however likely that those following the inquiry will want to see hearings conducted in public. Despite the observations made by the Committee, inquiries are generally considered to be inquisitorial, as opposed to adversarial, proceedings particularly in their approach to the questioning of witnesses.  As can be seen from the ongoing Infected Blood Inquiry and the Grenfell Tower Inquiry, witnesses are only examined by Counsel to the Inquiry, and other core participants must submit their questions to the inquiry; neither core participants nor their recognised legal representatives are permitted to cross examine witnesses.

Consideration must also be given to whether the statutory power to compel evidence is likely to be required. In providing evidence to the Committee, Jason Beer QC noted that as the primary source of evidence will be from the Government, powers of compulsion are unlikely to be required. Public perception, however, must also be considered. Particular significance is attached to providing evidence on oath in that a witness will commit perjury should they give false evidence. As noted by the Committee, a non-statutory inquiry may be viewed as having an inferior status. The public may still hold the view that a non-statutory inquiry is inferior to a statutory inquiry, despite the fact that a number of high profile matters have been investigated in this manner. Accordingly, the Committee stated:

the safeguard that the statutory powers provide for accessing evidence or administering oaths means that it would be preferable that an inquiry into the Government’s response to the coronavirus pandemic should be established under the Inquiries Act.”

The Government is, of course, under no obligation to accept the recommendations of the Committee. Therefore, it remains to be seen what type of inquiry will be commissioned.

Ongoing reviews in to the pandemic

As noted in the first article this series, there are currently 14 select committees investigating various aspects of the Covid-19 pandemic.

On 8 October, Jeremy Hunt, who currently leads the Commons health committee, and Greg Clark, who leads the science committee, announced that they will spearhead a cross-party investigation into the UK’s handling of the Covid-19 crisis. This has been prompted by the fear that a government inquiry will take too long for lessons to be learned. It is intended that hearings will take place weekly and a report will be published by spring 2021. However, it is unlikely that it will take the place of an independent review which is likely to require significantly more time and resources.

Article 2 of the European Convention of Human Rights (“ECHR”)

In considering the form of inquiry that should be convened, consideration must also be given to whether Article 2 of the ECHR is engaged. Under Article 2, member states have a substantive obligation to take appropriate steps to safeguard the lives of individuals within its jurisdiction.

Due to the number of deaths that have occurred as a result of the pandemic, there are likely to be a number of arguments made in relation to Article 2 by those representing the bereaved. For example, it may be arguable that the state failed to take appropriate steps to protect life, when the risk to life was known, by failing to provide adequate PPE to healthcare workers, for example. Parallels have been drawn with the case of Brincat v Malta [2014] ECHR 60908/11, in which it was held that the Maltese authorities had failed to provide appropriate protective equipment to protect ship workers employed by the state against asbestos and had accordingly breached its substantive duty under Article 2.

It may also be arguable that Article 2 is engaged in care home settings, which is significant due to the high numbers of deaths related to Covid-19 that occurred within care homes in the UK. The state has a substantive duty to protect life in relation to vulnerable people under the care of the state. While this clearly applies to prisoners or those held in immigration detention centres, it may be arguable that this duty will also apply to decisions to discharge patients from hospitals to care homes in some circumstances.

Duty to instigate an effective investigation

If the state may have breached its duty to take appropriate steps to protect life, a duty to instigate an effective investigation will arise. The threshold to trigger the duty to investigate under Article 2 is low, all that is required is that there is an arguable breach of the state’s substantive duty to protect life. While the extent of the investigation that is required will vary depending on circumstances, there are a number of minimum conditions that must be satisified for the investigation to be compliant with Article 2. For example, the investigation must: be commenced by the state; be carried out with promptness and reasonable expedition; collect relevant evidence; be undertaken by an independent individual or body; have a sufficient element of public scrutiny and ensure the effective involvement of the deceased’s next of kin, who should have access to public funding.

In England and Wales and Northern Ireland, the duty to investigate in under Article 2 will often be satisfied by a coroner’s inquest being conducted in relation to the relevant death. While not every death in relation to Covid-19 will invoke the need for an Article 2 investigation, there are likely to be a number of cases where this is required. The Joint Committee on Human Rights has noted that the absence of an imminent inquiry in relation Covid-19 means that in England and Wales, and in Northern Ireland, inquests will be the principal means of discharging the UK’s procedural duties under Article 2.[3]

However, as noted by Lord Philips in R (Smith) v Secretary of State for Defence [2010] UKSC 29 an inquest is not suitable to consider the impact of high level policy decisions, such as the procurement of protective equipment. Additionally, an inquest is only suitable to investigate the cause of a single death or multiple deaths arising from a single incident. It cannot be used to investigate numerous separate deaths which may involve similar factors or systemic issues. Therefore, it appears that these wider issues will need to be addressed by any public inquiry that is to be convened by the Government.

The Joint Committee on Human Rights has warned that inquiries which are broad in scope often fail to address their narrower Article 2 purposes. It has therefore called upon the Government to:

consider whether there is a need for a more targeted and automated Article 2 inquiry process to enable a more cost-effective, depoliticised and focussed means for the UK to swiftly learn lessons from unnecessary deaths and discharge its right to life obligations.”[4]

It is however unclear what form this process would take.

The Grenfell Tower Inquiry has within its remit the Article 2 investigations into the deaths of those who lost their lives on the night of the fire on 14 June 2017. The Penrose Inquiry in relation to contaminated blood in Scotland also included the Article 2 review of named individuals who died as a result of being infected with Hepatitis C. Therefore, it is clear that Article 2 investigations can be undertaken as part of a wider public inquiry. If this is to be the case, the Chair and/or the panel, will have to be careful that the Article 2 determination is not lost within the wider issues and that it is not subject to unreasonable delay. Furthermore, the inquiry must ensure the reasonable involvement of the deceased’s next of kin. The Grenfell Tower Inquiry has stressed it takes its obligations in relation to Article 2 seriously, and the Chairman of the inquiry has supported the suggestion that lawyers acting for the bereaved should take the lead in marshalling the evidence surrounding the circumstances in which their loved ones died.

Conclusion

There have been many parallels drawn between the ongoing Infected Blood Inquiry and the inquiry that is to be established in relation to Covid-19. This is primarily due to the similarity of the subject matters, with both focussing on the emergence of a previously unidentified virus. While the Infected Blood Inquiry is now well underway, it was not established until some 30 years after the events to which it relates. Previous attempts to investigate this matter, such as a private inquiry conducted by Lord Archer, did not stem the calls for a public inquiry from those who were affected by the scandal. It is likely that current calls for an investigation in relation to Covid-19 will also not be stemmed until a public inquiry, with extensive and far reaching terms of reference, is commissioned. As outlined above, there are positives and negatives to statutory and non-statutory inquiries. We will continue to monitor the deliberations of the UK Governments and provide a further update in the third installation of this series of articles. 


[1] https://www.ombudsman.org.uk/news-and-blog/blog/covid-19-means-public-inquiry-guidance-more-important-ever

[2] The Inquiries (Scotland) Rules 2007 apply in Scotland 

[3] Joint Committee on Human Rights, Seventh Report of Session 2019–21, p.65 https://committees.parliament.uk/publications/2649/documents/26914/default/

[4] Ibid p. 66