Covid Inquiry: What Is It And Will Prosecutions Follow?

• Published date: 27 July 2021
• Subject Matter: Government, Public Sector, Coronavirus (COVID-19), Constitutional & Administrative Law, Government Measures, Employment and Workforce Wellbeing
• Law Firm: BCL Solicitors LLP
• Author: Mr Richard Reichman and Suzanne Gallagher

Why is a Covid inquiry taking place?

Since March 2020, there have been calls for an inquiry into the government response to the Covid pandemic. An inquiry could provide a forum for understanding what happened and why. This is, in part, to give closure to those affected (which unusually is almost all of us to some degree) while also providing recommendations to help prepare the UK for the next pandemic, an inevitability according to many experts in the scientific community.

The Prime Minister stated in Parliament in July 2020 that "of course we will seek to learn the lessons of the pandemic in the future, and certainly we will have an independent inquiry into what happened". Almost a year later, in May 2021, he went on to say that "Amidst such tragedy the state has an obligation to examine its actions as rigorously and candidly as possible and learn every lesson for the future". He confirmed that "the government will establish an independent public inquiry on a statutory basis with full powers under the Inquiries Act 2005".

What is a public inquiry?

Inquiries (i.e. major investigations) come in many forms but can be broadly categorised into statutory and non-statutory. Public inquiries are statutory inquiries into matters of public concern, governed by the Inquiries Act 2005 ('the Act') and the Inquiry Rules 2006 ('the Rules').

In contrast, non-statutory inquires can take any form and be established by anyone, although previous iterations of this have also been ministerially led, such as the Hutton Inquiry into the death of Dr David Kelly and the Scott Inquiry into the arms-to-Iraq affair. These inquiries are often similar in style and objectives to statutory inquiries, but without the obligation to have proceedings or findings made public.

When are public inquiries set up?

Section 1 of the Act allows Ministers to establish inquiries where it appears that (a) particular events have caused, or are capable of causing, public concern, or (b) there is public concern that particular events may have occurred. Given the broad nature of this definition, there are few areas of public life that would be precluded from being subject to a public inquiry.

Forming a statutory inquiry under the Act is therefore, ultimately, a political and discretionary decision. They are set up following lobbying by campaigners and interested parties.

Who sets up a public inquiry?

Under Section 5 of the Act, it is for a Minister to specify the setting-up date (before which no evidence can be considered) and the terms of reference of the inquiry, which must be set in consultation with the chairman (see below). The terms of reference are a moveable feast in that he can "amend them if he considers that the public interest so requires". The power is vested in Ministers of Her Majesty's Government, and also in Scottish Ministers, Welsh Ministers and Northern Ireland Ministers. Ministers from the devolved administrations have the power to establish inquiries into matters within their remit. Given that much of the response to the pandemic involved devolved powers to some degree, many will argue that they should also be subject to the scrutiny that comes with a public inquiry.

The terms of reference are crucial as they set the framework for the matters to be considered by the inquiry, any particular matters as to which the inquiry panel is to determine the facts and whether the inquiry panel is to make recommendations. The effectiveness of an inquiry can often be traced back to the drafting (good or bad) of the terms of reference. They need to be wide enough to cover all points of public interest but are often inhibited. Ministers may be incentivised to narrow the focus of an inquiry out of fear of criticism of the government's handling of the matter. Balancing the need for speed and depth is a key issue to be considered by the chairman. Matters to be considered at the Covid inquiry may include the UK's pandemic preparedness prior to March 2020; the timing, strategy and...