Former High Court Judge Baroness Hallett has been announced as the Covid-19 Inquiry chair, with the public inquiry due to commence in Spring 2022.
It is yet to be seen whether the arrival of Omicron puts paid to this schedule. Statutory public inquiries may be held under the Inquiries Act 2005 where it appears that “particular events have caused, or are capable of causing, public concern, or … there is public concern that particular events may have occurred” (Inquiries Act 2005, s 1(1)). The Inquiry’s terms of reference are set by the relevant minister (Inquiries Act 2005, s 5(1)) and determine the reach of the inquiry and the issues that it will consider. Here, there will be a balance to be struck between an inquiry which addresses the central issues of concern and the importance of avoiding an inquiry which becomes unwieldy.
For important lessons to be distilled, the inquiry needs to be both focused and proximate in time to the pandemic. An inquiry may conduct a single investigation or multiple investigations into specific issues or timeframes. For example, the Independent Inquiry into Child Sexual Abuse ran multiple simultaneous investigations into a range of issues and areas. Is it the case that adopting a similar structure for the COVID-19 inquiry could help achieve this balance?
As to the scope of the Inquiry there are a number of voices seeking to be heard and there is no doubt that for anyone wanting to influence the shape of the terms of reference, the time is now. The Institute for Government offers the view that the inquiry should focus on how decisions were made – what evidence informed decisions, what options were discarded and why, and how lobbying and political pressure affected the ministers and officials who took key decisions. In Learn Lessons, Save Lives, Covid-19 Bereaved Families for Justice shine a light on a number of areas which they identify as priorities for the inquiry to include the impact on the care sector, 111 services, key workers, access to protective equipment and the disproportionate impact of the virus on people of colour, and those with disabilities. Dr Gabriel Scally, visiting Professor of Public Health at the University of Bristol, on behalf of Independent SAGE, has raised as a further issue the timing of adequate public health border controls during the pandemic which raises the prospect of the terms of reference extending to a review of the current structure, functioning and legislation governing our public health infrastructure. Others have highlighted areas such as fiscal and social measures such as the furlough scheme and the Lockdown, its principles and the proportionality of measures taken, the vaccine programme and economic impacts on sectors such as aviation, hospitality and the arts.
Finally given the scale of death and human suffering, in the context of a public inquiry, the issues relevant to ECHR article 2 and article 3 mistreatment seem likely to be among the priorities for the inquiry, such that the terms of reference are likely to include the death of state employees and inhuman and degrading treatment.
In a follow up article we will consider, regardless of the absence of terms of reference, what is likely to be involved for those who are called upon to participate from document management and data rooms, through to disclosure and support for witnesses, advice on witness statements and representations to the Inquiry.
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