Government formally establishes COVID-19 inquiry

The post below was first published on our Public Law blog.

The UK Government has published the final terms of reference ("ToR") for the COVID-19 inquiry (the "Inquiry"), which has now begun work. Unprecedented in its size and significance, the Inquiry will consider over a two-year period the impact of the pandemic on the UK, and how the UK Government, devolved administrations, local government, and many other parts of the state responded.

Key points

Chaired by Baroness Hallet DBE, the Inquiry will:

• Examine the COVID-19 response and the impact of the pandemic in England, Wales, Scotland and Northern Ireland, and produce a factual narrative, including:
  • The public health response across the whole of the UK;
  • Response of the health and care sector across the UK; and
  • The economic response to the pandemic and its impact, including governmental interventions.
• Identify the lessons to be learned from the above, to inform preparations for future pandemics across the UK.

Background

The Inquiry was announced on 12 May 2021 and the draft ToR published on 10 March 2022, with the subsequent four-week consultation attracting responses from over 20,000 organisations and individuals. The Chair's recommendations and report were published on 12 May 2022. The ToR were published and the Inquiry formally established under the 2005 Inquiries Act on 28 June 2022. 11 QCs have been appointed to lead the Inquiry’s investigations alongside the Chair, alongside 49 junior counsel.

The Terms of Reference

The Inquiry will scrutinise an expansive range of the Government's decision-making and public functions, including in relation to the availability and use of data; preparedness and resilience; legislative and regulatory control and enforcement; the safeguarding of public funds and management of financial risk.

Also under examination are the wide range of interventions impacting different sectors of the economy, including the Coronavirus Job Retention Scheme, the Self-Employment Income Support Scheme, loans schemes, business rates relief and grants, and the role of cost-benefit analysis in decision-making when introducing such measures.

Whilst the scope of the Inquiry did not materially change as a result of the consultation, the following differences between the draft and final ToR are worth noting:

• The unequal impact of the pandemic: The final ToR obliges the Inquiry to, in all aspects of its work, consider the disparities evident in the impact of the pandemic on different categories of people, including, but not limited to, those relating to protected characteristics.
• The impact upon mental health: The final ToR includes an expanded focus on the impact of the pandemic on the mental health and wellbeing of the population, and in particular, the impact on children and young people, including health, wellbeing and social care.
• Transparency and record keeping: The final ToR encompasses investigation of ‘how decisions were made, communicated, recorded and implemented’ (emphasis added). The addition of 'recorded' reflected concerns raised during the consultation process regarding record keeping, in particular that ministerial decisions were being made via private email accounts and WhatsApp messages and were not being recorded in official departmental records.

Gaps in government record-keeping during by the pandemic have been highlighted by the courts: in R (Gardner and Harris) v Secretary of State for Health and Social Care and others [2022] EWHC 967 (Admin), the High Court observed that “where there is no record at all of an important issue being raised with the Secretary of State nor of his response we cannot simply assume that everything relevant was taken into consideration“.

The ToR are not definitive and the scope of the Inquiry is expected to evolve.

Next steps

The Inquiry intends to convene a 'listening exercise' in Autumn 2022 and public evidential hearings in 2023. The Chair is expected to set out the approach for the next stage of the Inquiry’s work in July 2022.

A separate public inquiry has also been established by the Scottish Government to examine the pandemic response in Scotland.

Comment

The ToR make clear that the Inquiry is not limited to the response of the health and care sectors but will examine the wide-ranging social, economic and political impact of the pandemic on the UK and COVID-19 response. The Inquiry has extensive powers to investigate the Government's preparation and response to the pandemic, hold decision-makers accountable and make recommendations.

The courts have considered several cases concerning the exercise of public powers during the pandemic (see out blog posts on Gardner and R (Good Law Project and Runnymede Trust) v Prime Minister and Secretary of State for Health & Social Care [2022] EWHC 298 (Admin)). However, in considering claims for specific breaches of alleged legal duties, the courts have been constrained by public law principles and have been careful not to opine on government decision-making more generally. It will be interesting to see the Inquiry approaches the question of hindsight and the level of discretion afforded to decision-makers operating at a time of immense pressure.