On 12 May 2021 Boris Johnson announced that there would be a public inquiry into the government’s handling of the Covid-19 pandemic. It will be the biggest, most complex and wide-ranging inquiry ever held in the UK, and it will present a number of challenges. In dealing with these issues, the chair and the rest of the inquiry team will bear in mind that the most important aspect of their task will be to identify whether significant errors were made, if so by whom, and to set out achievable aims in which ways such errors can be prevented from occurring in the future. In doing so it will also assess how a similar event should be addressed, learning from the experiences it hears about.

Stephen Harvey QC

Stephen Harvey QC

The inquiry is not due to start until the spring and will look at what happened between 1 January 2020 and 31 December 2021. There has been criticism that it will not commence sooner, but Johnson said at the outset that the reason for this initial delay was because of a possible winter surge in infections, a topic which would also need to be considered by the inquiry. Although such issues can be looked at as they occur, and during the inquiry hearing, it is obviously better to have such a potentially important matter marshalled before the inquiry’s investigations commence as, for example, aspects of it could inform earlier actions and considerations.

His concerns have proved well founded. Government figures show that those testing positive for Covid-19 rose from just under 8 million on 1 October 2021, to 16.4 million as of 27 January 2022, the same day that Plan B measures were removed. The decision to end Plan B has itself been controversial, with many saying that the science was clear and claiming that it was far too soon to remove the measures. Those same critics claim that the step was both politically and economically motivated, designed principally to appease the populace and to aid the UK’s battered economy, with an obvious disregard for public health concerns. What is clear is that this inquiry, whatever its eventual remit, cannot be allowed to drag on in the way some others have done in recent years.

Establishing the inquiry

The Right Honourable Baroness Heather Hallett DBE was named chair on 15 December and the task of identifying personnel to assist is under way.

The next stage is compiling the terms of reference by which this unprecedentedly complex inquiry will operate. All matters so far mentioned are legitimate, if not essential, for the inquiry to consider and there are obviously a great many more. However, the difficulties involved in drafting the terms of reference for the purposes of this inquiry could not be greater. Once drafted they are then circulated to the interested parties, following which there will be a process of consultation. Baroness Hallett has already made it clear that she will seek views on the terms of reference from those who have been bereaved as a result of the pandemic and ‘all other affected groups’. There are many.

Scottish inquiry

The Scottish inquiry into the pandemic is a step ahead of us. Its draft terms of reference were circulated on 14 December. Consideration of these will obviously form part of Hallett’s task in compiling the terms of reference for her inquiry. Following a brief general statement as to the Scottish inquiry’s aims, its objectives are stated as:

‘To investigate the strategic elements of the handling of the pandemic relating to:

a)    pandemic planning and exercises carried out by the Scottish government;

b)    the decision to lock down and to apply other restrictions;

c)     the delivery of a system of testing, outbreak management and self-isolation;

d)    the design and delivery of a vaccination strategy;

e)    the supply, distribution and use of personal protective equipment;

f)    the requirement for shielding and associated assistance programmes, provided or supported by public agencies;

g)    in care and nursing homes: the transfer of residents to or from homes, treatment and care of residents, restrictions on visiting, infection prevention and control, and inspections;

h)    the provision of healthcare services, including the management and support of staff;

i)    the delivery of end-of-life care and the use of DNACPR (do not attempt cardiopulmonary resuscitation decisions);

j)    welfare assistance programmes, for example those relating to benefits or the provision of food, provided or supported by public agencies;

k)    the delivery of education and certification;

l)    financial support and guidance given to businesses and the self-employed, including in relation to identification of keyworkers, by public agencies’.

It is noteworthy that these draft terms of reference state that ‘the inquiry must make reasonable efforts to minimise duplication of investigation, evidence gathering and reporting with any other public inquiry established under the Inquiries Act 2005’, from which we can expect a considerable degree of liaison between the English, or as it has become known ‘the UK-wide inquiry’, and the other devolved administrations. In fact, the prime minister has said that the UK inquiry will consider ‘all aspects of the UK response’, which will necessitate an inclusive and collaborative approach between the devolved administrations.

Given the philosophy of this approach, another unenviable task for Hallett will be to seek to harmonise and achieve a degree of consistency with the different inquiries’ final reports, and in particular in their recommendations. This will have to be achieved against a background of what were often strained relationships between the four administrations, when differences existed in relation to a number of important decisions that had to be made.    

Hallett has the unenviable task of proposing terms of reference which adequately cover the myriad issues and agencies that need to be looked at, and of ensuring she delivers within whatever time frame is set. Obvious tensions will exist as to the necessary breadth and scope of the inquiry and the competing need to produce its report within a reasonable time. This promises to be an almost irreconcilable problem. Past examples, such as the Bloody Sunday Inquiry which took 12 years to complete, would be a totally unacceptable period for this inquiry to take. The public and the politicians will expect to have this report in place much quicker.

Notwithstanding this, the wide range of issues that need to be considered will inevitably take up time if they are to be investigated properly, and if all the necessary stakeholders and interested parties are to have their say which, for the simple reason of transparency, must occur. 

Steps to help expedite the process

To achieve a timely report, there perhaps needs to be an overarching inquiry, with separate aspects of the inquiry focusing upon different aspects, groups and issues, with an eventual consolidation of the findings by the chair in a conventional style of inquiry report. Lessons might be taken from the inquiries into undercover policing and child sexual abuse, both of which published lists further defining their scope which were then discussed with the relevant parties.

Interested parties, core participants and other consultees

Identifying who these will be provides Hallett with another significant and immediate challenge. The effects of the pandemic have touched the lives of everyone, in one way or another and to varying degrees. Some were bereaved as a result of decisions made by the government; some will have suffered more than others, possibly as a result of inequalities that existed. She has to find a way to make this inquiry both fair and inclusive.

Human rights perspective

The draft terms of reference of the Scottish inquiry concluded by stating that it will report on the key strategic elements of the handling of the pandemic and identify lessons and implications for the future, providing recommendations together with an assessment of the impact the actions had upon the exercise of convention rights (as defined in section 1 of the Human Rights Act 1998).

The importance of human rights cannot be overstated and any inquiry into the pandemic must address the convention rights and fundamental freedoms. These, of course, include Article 2(1) which provides that: ‘Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which the penalty is provided by law.’ This imposes an obligation upon the inquiry to investigate what happened to people set against this obligation.

It is well established that the state has a substantive obligation to ‘(reasonably) protect life’ and to investigate any death where it ‘appears that (a substantive obligation has been, or may have been, violated and it appears that agents of the state are, or may be, in some way implicated’ (R (Middleton) v HM Coroner for Western Somerset [2004] 2 A.C. 182).

For the same reasons, the inquiry must give due consideration to Article 3 which proscribes ‘inhuman or degrading treatment’ being inflicted upon anyone and consider, in particular, the care home and end-of-life issues in respect of which restrictions affected many.

Considerations over and above those mentioned in the Scottish terms of reference will doubtless involve a perceived difference of impact and responses to the infection in black and other minority ethnic communities, decisions relating to travel restrictions, and the decision and timings of other measures taken, particularly the decisions to impose the lockdowns. 

The devolved administrations:

Wales  

Although stating at an earlier stage that its own inquiry would be held, Wales will not now have a separate inquiry. On 15 December, the Senedd debated the need for a Wales-only public inquiry into the pandemic. The Welsh government opposed the motion, arguing that a UK-wide inquiry was the best option as the response in Wales was inextricably linked to UK policy and advice. The motion was defeated on the required casting vote of Y Llywydd. It was supported by Conservative and Plaid Cymru members. No Labour member spoke in the debate other than Eluned Morgan, minister for health and social services.

Northern Ireland

In Northern Ireland, there have been fresh calls for its own public inquiry. The Northern Ireland Human Rights Commission (NIHRC) made the recommendation in its annual report. However, in the absence of a separate NI-only inquiry, the NIHRC’s ‘fallback’ position is that it believes any inquiry must ensure an input from Stormont.

In England the government’s SAGE committee said, as recently as late December, that there should be four separate inquiries. Its report states that: ‘An appraisal will also need to be made of the ways in which different departments of government reacted, the timings of their respective actions and comparisons drawn as to the actions and timings of the devolved administrations themselves.’ Its also said: ‘All the inquiries must be inclusive and seek to take a comprehensive view of the pandemic response’, echoing the view expressed by Johnson. However, as of the time of writing, only the English and Scottish inquiries are due to take place.   

Conclusions

This inquiry will undoubtedly be centre stage in the media once it commences, with front-page billing whenever a particularly important and inevitably controversial topic is dealt with. Many will want to contribute, and the whole process, particularly the initial stage of identifying who will be the main core participants, will need to be done in a way that maintains the public confidence necessary for the inquiry’s integrity and for the integrity of the process generally. Perhaps this is particularly so given recent events and revelations as to what may have happened in Downing Street. Fortunately, in Hallett, a former vice-president of the Court of Appeal Criminal Division with a long background of dealing with complex and controversial issues, and with experience of chairing high-profile public inquiries, we can be assured that the entire process will be as well served as it could possibly be.

Under her leadership we have the very best chances of a report emerging which will satisfy the British public that a thorough, fair and objective analysis has been conducted on their behalf, and that both criticisms and praise for those involved have been accurately apportioned.

 

Stephen Harvey QC is a barrister at 3 Paper Buildings, London

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