Spring 2022 COVID-19 public inquiry?

Following a long-awaited meeting with the UK Government, members of the COVID-19 Bereaved Families for Justice have been reassured that a chairperson will be appointed by the end of this year with a view to establishing a public inquiry (the Inquiry) into the management of the pandemic in the Spring of 2022.

Despite the government’s reassurance that an inquiry will start its work in Spring 2022, there has been little progress compared to Scotland, which has already held a public consultation. This has spurred calls for other parts of the UK to follow suit. First minister, Nicola Sturgeon, said the statutory inquiry should start “as soon as possible” and that the Scottish Government would continue to liaise with the UK Government about its own inquiry.

The pressure on the UK Government to hold an inquiry is increasing, with recent data from the Office for National Statistics stating that there continues to be approximately 1,000 deaths attributed to COVID-19 a week and approximately 40,000 infections. This is in addition to the recent publication of the 150-page ‘Coronavirus: lessons learned to date report’ on 12 October 2021 which was critical of the UK Government’s handling of the pandemic.

In this article, we consider the role of the chairperson in a public inquiry, what the focus (known as the Terms of Reference (ToR) of the UK Government’s inquiry into COVID-19 may be in light of the Scottish Government’s recent public consultation, and whether a Spring 2022 inquiry is realistic taking into account the steps taken to date.

The role of the chairperson

The establishment and operation of a statutory inquiry is governed by the Inquiries Act 2005 and the Inquiry Rules 2006. As required under the legislation, the inquiry should be led by a chairperson or panel of independent persons led by a chairperson, of suitable independence and qualification. The choice of the chairperson lies with the minister who initiated the inquiry.

There is tendency to appoint judges as chairperson however, other professional persons with a high degree of trust can also be appointed. The Scottish Government has already indicated that it will seek to appoint an independent judge, current or retired, to oversee its COVID-19 inquiry.

Once appointed, the chairperson will determine the rest of the panel with the minister and engage with relevant organisations, including the COVID-19 bereaved families for justice groups, with a view to determining the ToR.

Terms of Reference

The ToR define the scope and how wide-ranging the Inquiry’s investigations should be. The ToR are likely to involve a consultation with the public to ensure that it is a meaningful inquiry and to avoid criticism in the long-term.

Minsters in Scotland have made clear that the inquiry should have a “person-centered, human rights-based approach to ensure that every person and taking part can meaningfully participate, be treated fairly and be empowered to take part in the inquiry”. The Scottish Government engaged with the public in August 2021 with a view to determining the ToR. The public were asked for their views as to what should be covered by the inquiry, whether there should be interim reports and what organisations should partake.

The Scottish minsters’ draft aims, which they considered should be adopted as part of the ToR, were referenced as follows in the consultation:

The inquiry should examine the actions taken in response to the pandemic and should give particular consideration to the four harms of the pandemic in relation to Scotland:

  • Direct health impacts of COVID-19, including cases and deaths in care homes (we anticipate this would include exploring issues related to lack of PPE in medical settings).
  • Other health impacts (we anticipate this would include the effect of lockdown on members of the public physical and mental health, as well as delays in operations/seeing a doctor and members of the public reluctance to attending a doctor/hospital during lockdown).
  • Societal impacts, including education (for example the result of home schooling, isolation, movement from cities to the countryside on local demographics and subsequent strain on public services).
  • Economic impacts ‘(anticipated to be in relation to businesses, the self-employed etc.).

It is anticipated that the inquiry in England would adopt a similar approach. We understand that some NHS organisations have already been informed that they should start preparing for an inquiry. Based on what has been reported, we believe it is more likely than not that a cross-section of NHS Trusts will be considered to be core participants in any inquiry, along with other health settings and government departments. We believe it would be unmanageable for every NHS Trust to participate and would lead to an inquiry lasting many years. Rather, in our view, the acute Trusts which acted as ‘surge centres’ would be more likely to be asked to assist, along with Local Health Boards. Other allied organisations such as the General Medical Council (GMC), British Medical Association (BMA) and Nursing and Midwifery Council (NMC) may also be asked to contribute.

When will hearings commence?

Public inquiries are well known to be slow moving. For example, in relation to the tragic Grenfell Tower fire which occurred on 14 June 2017, the chairman for the inquiry was appointed the end of June 2017, phase one of the inquiry did not commence until June 2018 and the inquiry is still ongoing and is unlikely to report until the end of 2022. A similar timescales seems likely for the COVID-19 inquiry.

In relation to the COVID-19 inquiry, the draft timeline with a commencement of Spring 2022 seems unachievable when a chairperson is yet to be appointed, the ToR are yet to be determined, the core participants to be confirmed, or disclosure and witnesses requested. We suspect that what that date means is for the establishment of the inquiry team and its ToR being agreed. We cannot see that it could be achievable for any other progress by that date.

Comment

Between the years 1990 and 2017, there have been 69 inquiries which varied from 45 days to 13 years and three months. On conclusion of an inquiry, the final report with any recommendations and thereafter, any changes to legislation or public policy can take months, if not years, to be published. It is likely to therefore be a very drawn-out process.

The UK Government is being placed under increasing pressure to bring forward the current start date of Spring 2022 but in reality this is unachievable. We think it is more likely that hearings will not commence until 2023. A balancing act is required between meeting the public’s expectations in terms of timeframe, whilst ensuring that the inquiry is as thorough and meaningful as it should be.

Related item: A post-COVID-19 public inquiry: lessons to be learnt?