Essential Planning for the COVID Inquiry

By Sophie Kemp, Head of the Public Law team at Kingsley Napley LLP (www.kingsleynapley.co.uk)

Given a judge-led inquiry into how the Scottish Government handled the COVID pandemic will start before the end of this year, many are anxiously awaiting news of the Government’s promised UK- wide public inquiry.

Back in May 2021, No 10 committed to that inquiry starting in Spring 2022. Yet months on, details are scant. Who will Chair it? What are its terms of reference? Yes, there may be six months to go, but vital ques- tions remain before any inquiry of this national significance and stature begins.

CHOICE OF CHAIR

The choice of Chair will be crucial. We saw what happened with The Independent Inquiry into Child Sexual Abuse, with three appointed Chairs falling by the wayside. With the COVID inquiry, we need a Chair who will command the respect of myriad stakeholders and interest groups including families, businesses and the healthcare / scientific community. More importantly, the postholder will need to stand up to intense political pressure, be robust in the face of media scrutiny, as well as policing responses to information requests whilst the pandemic is on-going. Boris Johnson has reportedly promised to appoint a Chair by Christmas.

TERMS OF REFERENCE

There is no obligation on the Government to consult widely on pro- posed terms of reference; however, the Chair once appointed can consult and amend them. The terms of reference shape any inquiry, its scope, the evidence required and therefore, inevitably to some degree, the conclusions eventually reached. Given there are are already numerous investigations going on at a Parliamentary Committee level as well as by organisations like the People’s Inquiry and BMA, it is to be expected that interest groups will likely want to have the ability to influence the terms of reference set. It will be important for those in the Care home sector to seek to feed in to any consultation process.
INQUIRY LENGTH AND STRUCTURE

Since the Public Inquiries Act 2005 came into force 17 inquiries have concluded. The average length was three and a quarter years, although the longest (still ongoing) has already taken 7 years. Most anticipate the UK-wide COVID inquiry will be amongst the longest to be heard since the Act was introduced. Some have even cynically suggested the timing of the Inquiry has been deliberately chosen to avoid a Final Report appearing before the next election. It is entirely possible to have short and focused inquiries but all the indications are that the forthcoming COVID inquiry will be long and complex, with sessions taking place around the country and an emphasis on accountability as much as learning lessons for the future.

PREPARATION

So what can be done now to prepare for the Inquiry?

Those who anticipate being a Core Participant or called as a Witness may want to consider speaking to lawyers now with independent experts already dusting down their cvs.

Participants should be thinking now about the lines of enquiry they want to see pursued and how they can best engage with the Chair when appointed. Those who expect they will be required to give evidence should also be thinking now about their document retention and storage policy.

Professional witnesses may want to meet the inquiry team early on to explain a technical subject or enhance their understanding before information requests are made. Thinking ahead is advisable.

A statutory public inquiry has enormous information gathering powers and the ability to draw on information from a wide range of sources. The Chair can even issue a section 21 notice, requiring information, and reminding recipients that intentionally witholding information is a criminal offence. Requests can be extensive and issued at very short notice, requiring significant effort to search, collate and organise. It is wise not to be caught on the back foot. The inquiry, once underway, will need to follow a strict timetbable.

CONCLUSION

Public inquiries are by their very nature daunting, stressful and time consuming. For those involved, in whatever capacity, preparation is key at each stage whether that be evidence gathering, during hearings or at the final report phase.

From experience, stamina, resources and sincerity are the three essential elements when preparing for an Inquiry. And this applies more than ever for the forthcoming COVID inquiry.

Inquiries have a hugely valuable purpose. Foremost they help us understand what happened in relation to matters of public concern and make recommendations for the future. They also enable people to be heard, to tell their stories and put those involved under the spotlight.

The COVID inquiry is never going to keep everyone happy, but this will represent probably the most important opportunity we have for those involved in our response to the pandemic to reflect on their roles and to contribute to a learning process for the nation.

The author is Sophie Kemp, Head of the Public Law team at Kingsley Napley LLP. Sophie has extensive inquiry experience from representing families in the 7/7 Inquest and the Catholic Church before the IICSA, to advising senior witnesses in the FCA’s Davis Inquiry and the Undercover Policing Inquiry. More recently she acted as solicitor to RICS’ Levitt Review into Treasury Management.

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