The UK Government has announced that an independent chairperson will be appointed the end of 2021 with a view to a public inquiry (the inquiry) being established to start inquiring into the management of the pandemic by Spring 2022.
In addition to the management of the pandemic by the government, whereby relevant departments and ministers will be called to give evidence, it is likely that the Terms of Reference (ToR) of the inquiry will include the impact of the pandemic on NHS Trusts and healthcare providers generally and in relation to their management of and response to the pandemic.
It is understood that some NHS Trusts have already been notified that they should start preparing for an inquiry as they may be considered a core participant, essentially a party to the inquiry. Other organisations such as care homes, government departments, education settings, general practitioners, small businesses and transport providers may also be considered as core participants for the purpose of any inquiry.
This then leads to the question: should an organisation apply for core participant status and if an organisation or individual is made a core participant by the chairperson of the inquiry, what does that entail?
What is a core participant?
On reaching an agreement as to the ToR for an inquiry, the chairperson will be required to consider which persons and/or organisations should be given core participant status. A core participant can be appointed at any point during an inquiry and an organisation or person can also apply to be a core participant with permission of the chairperson.
A core participant may be an individual or organisation which had or may have had a direct and significant role in relation to the ToR which the inquiry relates and a core participant may find themselves the subject of significant criticism during the inquiry proceedings or in any interim or final report.
Disclosure and witnesses
The chairperson has the power to compel core participants and indeed others under Section 21 of the Inquiries Act 2005 to:
- Give evidence.
- Produce any documents in their possession or control that relate to the ToR of the inquiry.
- Produce any other item in their custody or control for inspection, examination or testing.
Any organisation requested to provide documentation in its possession should consider the following:
- Does the request for information fall within the ToR?
- Whether the document is legally privileged?
- Would disclosure of information involve a breach of confidentiality/lead to the risk of civil proceedings?
- Should the document be redacted to take out irrelevant information?
- If there is any suggestion that the document may cause economic damage if disclosed?
Disclosure will need to be requested by the chairperson from relevant departments within the government and relevant bodies which will be called upon to give evidence, such as NHS Trusts. Nicola Sturgeon has already indicated that she will do what it takes to ensure the Scottish Inquiry’s chairperson has access to all government emails, WhatsApp messages, and other forms of communication by which pandemic decisions were taken.
Witnesses who are requested to provide statements should have the requisite knowledge to respond to the ToR of the inquiry. They must be provided with relevant information to assist in preparing their statements and offered reassurance as well as guidance throughout the process of providing a statement as well as giving evidence, if required.
As part of the ‘Coronavirus: lessons learned to date’ report published on the 12 October 2021 by the Commons Science and Technology and Health and Social Care Committees, over 50 witnesses (Including Rt Hon Matt Hancock MP and Professor Chris Whitty), 400 written submissions and various documents were considered. No doubt the same documents and witnesses could be called upon for the purpose of the inquiry but there will also be pressure for many of the witnesses to come from the “shop floor”, a cross-section of NHS staff who can give first hand evidence of the realities on a day-by-day basis of managing the pandemic.
Although an inquiry is not designed to determine civil or criminal liability, organisations and individuals tend to engage a legal team to advise them through the process, including disclosure, written submissions, giving evidence and asking appropriate questions during the inquiry itself. The chairperson and any panel for the inquiry will also have the support of a legal.
In the meantime, relevant organisations and/or individuals that suspect they may be a core participant should commence collating relevant disclosure as well as establishing who could be potential witnesses.