The COVID-19 Public Inquiry – Practicalities, Possibilities and Predictions

On 10 February 2022, Shoosmiths hosted a webinar exploring practicalities, possibilities and predictions ahead of the upcoming UK COVID-19 Public Inquiry, which is due to commence in the spring. The webinar was aimed at supporting any businesses affected by the pandemic, and who might wish or be required to take part in the Inquiry.

Compered by Charles Arrand (Partner), the webinar included talks by Paul Eccles (Partner), Joanne Sear (Principal Associate) and Hannah Howard (Associate). Shoosmiths also welcomed Fiona Barton QC of 5 Essex Court as a guest speaker covering her personal experience of Public Inquiries.

What are Public Inquiries and why do we have them

Joanne Sear and Hannah Howard outlined the purpose and structure of Public Inquiries. The only justification required for an Inquiry to be set up is the existence of ‘public concern’ about a particular event or set of events, such as the Grenfell Tower fire tragedy. According to the Ministry of Justice, the Government considers “preventing recurrence” to be the primary purpose of Public Inquiries, and this is achieved by addressing three key questions:

• What happened?
• Why did it happen and who is to blame?
• What can be done to prevent this happening again?

The UK COVID-19 Inquiry will not be looking to prevent recurrence of the pandemic, but rather it will be seeking to prevent recurrence of the adverse personal, economic and public health consequences of COVID-19.

Establishing an Inquiry

Given the cost and significance of Public Inquiries, it is unsurprising there is extensive guidance setting out how an Inquiry should be established. Each Public Inquiry begins when its terms of reference are set out. These are specific instructions outlining the questions that the Inquiry should address, the types of information and feedback that the Government wants, and a sense of when the Inquiry should issue its report – we are still awaiting these in respect of the UK COVID-19 Inquiry. The terms of reference have already been set out for the separate Covid-19 Inquiry taking place in Scotland. These are encapsulated under one strategic goal, which is “To investigate the strategic elements of the handling of the pandemic”.

Each Inquiry is led by a panel which itself is led by a chairperson. The choice of the chair lies with the minister who initiates the Inquiry. The chair of the COVID-19 Inquiry has already been selected – Dame Heather Hallett, who has significant experience of a number of high-profile inquests and inquiries.

How the COVID-19 Public Inquiry might look

Fiona Barton QC presented using her own experiences of Public Inquiries and made predictions to the audience as to the form and shape of the Inquiry. Public Inquiries are not ‘one size fits all’. They depend on various factors, including the scope of the Inquiry, number of the core participants, control of the Inquiry by the chair, any panel members appointed to adjudicate upon the issues and the involvement of Counsel to the Inquiry. What is different about the UK COVID-19 Inquiry is that the central focus will not be on a small group of bereaved families who have been directly affected by an event / series of events. To manage the evidence and conclusions and report within a reasonable time, the format of this Inquiry will be unique in focusing on the experiences of the UK as a whole. This will present an enormous practical difficulty.

As the focus is on a large-scale, Fiona anticipates that the Inquiry will seek to have groups/trade associations as core participants rather than individual businesses. Those umbrella bodies will be well placed to give a balanced overall account of the experience of sectors such as health care, hospitality, retail, travel, finance, insurance. The Inquiry will likely ask the trade associations to collate the experiences of their members. Any application for core participant status by such organisations is likely to be looked on favourably by the Chair because it is an efficient and an effective way of ensuring that the Inquiry receives a comprehensive account of effects.

Practical considerations for businesses

You should make decisions early in relation to potential involvement and legal representation. Firstly, question whether your business would like to be involved as a core participant or a witness. You should then identify key individuals within your organisation with the requisite knowledge who might act as the liaison between you and the Inquiry or your trade association. The main consideration is to ascertain what you want out of the Inquiry, be that having your voice heard or seeking to influence the Inquiry’s recommendations, as this will impact upon decisions you make as to what extent you want to get involved.

Key topics

Paul Eccles concluded the webinar by highlighting the uniqueness of the current situation (compared to other events which have led to Public Inquiries), especially regarding the fact that the pandemic is ongoing and that circumstances may change during the midst of a Public Inquiry.

The sixth report of the Health & Social Care Committee’s Third Report (Science and Technology Committee session 2021 to 2022) gives insight into several key areas for the Inquiry. We expect the Inquiry to cover the following topics:

• Preparedness of the UK for a pandemic.
• Use of non-medical interventions such as lockdowns, border controls and social distancing.
• Use and effectiveness of ‘Test and Trace’ and isolation strategies.
• Impact of the pandemic on the NHS.
• Impact of the pandemic on specific communities, both social and ethnic.
• Procurement of medical and other equipment such as PPE, roll-out of the vaccines and therapeutics.

Paul also noted that it would be remiss of an Inquiry not to tackle the following:

• That significant financial support has been provided for businesses such as rates relief, payment holidays for VAT and the ‘Eat out to help out’ scheme, but many sectors were excluded from such support, such as automotive, aerospace, aviation, arts, and health and beauty.
• That 3 million workers were unable to access financial support at all.
• The impact on those self-employed who fell between the cracks, including directors.

Paul highlighted, however, that there are numerous practical hurdles standing in the way of a detailed forensic examination of these or indeed any other issues. Ultimately, what the COVID-19 Public Inquiry needs to achieve is to ascertain how prepared we were as a nation, which measures were effective, which individuals and groups in society got left behind, and what can we learn to be better prepared moving forward. There is a balance to be struck between the need to hear full and balanced evidence, and the need to keep the Inquiry focussed and at a manageable size. We anticipate that the Inquiry is likely to be broken down into distinct modules, with hearings taking place across the UK. Breaking it down into smaller chunks would make the vast content more manageable and easier to digest when it comes to making recommendations and conclusions.

Conclusion

Our advice to individuals and businesses is to reflect on how you and your business could best be approaching the Inquiry. It is now the time to be deciding whether you go it alone or as part of with trade associations and other organisations who are better funded and / or organised to ensure that your interests are represented and your voice is heard.

As we await further information about what the UK COVID-19 Public Inquiry will look like, we will endeavour to keep you updated on topics, trends, and further thoughts.