Navigating the new normal

COVID-19 prompts calls for public inquiry


All content on this page is correct as of May 28, 2020

PPE supply. Handling of care homes. High proportion of deaths in the BAME population. Award of government contracts. These are just some of the issues which have led to calls for a public inquiry into the government’s response to COVID-19.

Public inquiries can shed light on institutional failings and provide recommendations which, if implemented, pave the way for significant reforms. However, getting the form, leadership, scope and timing right will be critical in ensuring that any inquiry seeking to probe into the government’s approach provides useful lessons. In this article we consider these issues, and how you may be affected by the scope of a COVID-19 inquiry.

Form of inquiry

Public inquiries are set up to examine particular or controversial events which have affected the general public at large, or a section of the population. Specific laws grant government ministers the power to establish statutory inquiries. Ministers can also set up non-statutory inquiries where procedures are more flexible and hearings can be held privately.

Most statutory inquiries are established under the Inquiries Act 2005 which allows for inquiries to be set up where “particular events have caused, or are capable of causing, public concern, or there is public concern that particular events may have occurred.” There are also laws with a specific remit that make provision for the establishment of inquiries.

So what form is appropriate in this context? COVID-19 is a matter of great public concern. Its magnitude has impacted all sectors. The government is not obliged to commence a statutory inquiry, but not doing so or opting for the non-statutory form may result in greater backlash. Although a useful tool in certain instances, non-statutory inquiries cannot compel witnesses to give evidence and cannot take evidence on oath. Reliance on the cooperation of those involved in the UK’s response to coronavirus may dilute the effectiveness of the inquiry. Furthermore, ensuring that all evidence is heard in public by commissioning a statutory inquiry indicates a level of transparency and openness which the public are calling for.

Leadership

As part of the commissioning of the inquiry, the government minister also appoints the chair and panel members, if any.  The Independent Inquiry into Child Sex Abuse, which has seen three chairs resign since its establishment in 2015, shows the importance of getting this right at the beginning.

Professional background, availability and the ability to inspire public trust will influence who is appointed as the chair of any COVID-19 inquiry.

Chairs have ranged from lawyers with little connection to the subject matter to social workers, engineers and health professionals who were experts in the issue being investigated. Former judges have been a popular choice.  Nearly 65% of public inquiries held between 1990 and 2017 were led by judges according to the Institute of Government, with political independence being an important factor for this preference.

Independence will be a key consideration in a COVID-19 inquiry. Although commissioned by a government minister, public inquiries are independent once established and the running of the inquiry is determined by the chair, subject to any legal requirements. Political bias, whether it be actual or perceived, runs the risk of losing public confidence in the inquiry’s ability to independently establish the facts. The inquiry may engage questions of a political nature given that the response has involved the economy, immigration, social welfare and other sectors however the Chair must strive for independence; separating facts from fiction in analysing the government’s approach.

Scope

The scope of a statutory inquiry is set out in the terms of reference. The terms can be broad and brief. For example, [the scope of the Bloody Sunday Inquiry was to inquire into the ““the events on Sunday, 30 January 1972 which led to loss of life in connection with the procession in Londonderry on that day, taking account of any new information relevant to events on that day.” Other terms have been detailed and focussed. For example, after consulting with affected groups and campaigning organisations, the terms of reference of the Infected Blood Inquiry cover 10 areas for examination.

Requests for a COVID-19 inquiry have taken both forms. For example, a petition has called for a public inquiry which looks at the bigger picture “to confirm what decisions were made around preventing the spread of the coronavirus and protection of the UK population, and how this was balanced with the level of health care services available and effects on the economy.” Other appeals have focussed on particular issues such as the disproportionate number of COVID-19 related deaths in the BAME community.

What is clear is that a range of issues could be investigated. Those which may potentially affect you include:

  • Health and social care

Support, or the lack thereof, for the health and social care sector has dominated headlines. The number of deaths in care homes has raised serious questions over the pace of the government in providing assistance to these at-risk groups. Similarly, the availability and quality of equipment for health staff has been deeply criticised. Other issues that may be explored in the context of a public inquiry include: powers under the Coronavirus Act 2020 to register recently retired or former health and social professionals, students ending their medical training; and the relaxation of rules on inquests of COVID-19 related deaths.

  • Funding for charities, and social enterprises

Funding packages for charities and social enterprises are available as part of the government’s financial measures. This includes DEFRA grants up of £100,000 assisting charities providing food to the vulnerable, £750m to frontline charities and DCMS’ £5m Loneliness COVID-19 Grant Fund. However, the sector has said that the funding is not sufficient in circumstances where reliance on charities and social enterprises at this time is inevitable as individuals and families may struggle with sudden loss of income. At the same time, funding sources are drying up. Cancellation of fundraising events such as the London Marathon and the closing of charity shops may mean that organisations have to do more with a lot less. However, it is unlikely that the government’s financial measures would be examined as part of an inquiry.

  • Public procurement

Public bodies bound by the Public Contracts Regulations 2015 have been encouraged to use existing measures which are designed to speed up the awarding of contracts e.g. awards without the competitive process or any advertising in cases of extreme urgency. Examining the award of contracts by public inquiry is not new – 2017 saw the commencement of the Magnox Inquiry which looked into the award of the Magnox decommissioning contract by the Nuclear Decommissioning Authority and its subsequent termination. Reports of over £1bn worth of public contracts being awarded have already raised eyebrows and once the dust settles, the fairness and transparency of these contracts and the related government’s Procurement Policy Notes may be questioned further. View our webinar here for further details on how COVID-19 has affected public procurement.

Timing

The quick implementation of measures may have been necessary in the face of COVID-19. But does an inquiry need to be set up immediately?

There is an urgent demand for answers and a fear that delaying an inquiry would dilute the impetus for an inquiry. However, quick action needs to be balanced with the capacity to undertake an inquiry and starting it off on the right foot. Inquiries require a lot of time and funds. Picking the right Chair, consulting on terms of reference, and defining the scope all take time and this is before the substantial work has even begun.  Identifying relevant parties, reviewing documents and hearing evidence from witnesses cannot be rushed. Public inquiries have a substantial cost and with a significant proportion of the public purse being used to combat COVID-19 and human efforts concentrated on this too, convening an inquiry now may result in a less than effective investigation. A possible approach could be to have a phased inquiry like the Grenfell Tower Inquiry. Issues which can be looked at immediately are progressed whilst other matters are examined once greater control is had over the virus.

The government’s response to the pandemic will continue to remain under the spotlight and calls for inquiries will only get louder. It is important to remember that the purpose of a public inquiry is to establish the facts and produce a report which sets out the lessons to be learnt from any shortcomings and provide recommendations. Responsibility for particular failures may be identified but an inquiry does not determine liability. With this in mind, the right Chair, the right scope, the right timing, a COVID-19 inquiry could provide a cathartic process which yields valuable teachings.

If you have any queries, please contact our Inquiries Team: Melanie Carter (Partner and Head of Public & Regulatory) and Claire Whittle (Senior Associate).


This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.

All content on this page is correct as of May 28, 2020.

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