Temporary provisions in the Coronavirus Act 2020 will expire by 25 March 2022. How is the Government planning for this deadline?
The Covid-19 pandemic was a severe test of the state’s preparedness, resilience and co-ordination. The response from the UK Government and devolved administrations has raised broader questions about how effectively the challenges have been met.
This Insight explains the context behind these public inquiries, how they will be run and what issues they will consider.
What is a public inquiry?
The term “public inquiry” is used to refer to a type of investigation commissioned by a Government minister.
The purpose of an inquiry is usually to “establish the cause of a major disaster, accident or other incident involving significant damage or loss of life” (PDF). Inquiries will look at “serious allegations” and, where appropriate, will apportion blame or responsibility.
Inquiries are often intended to provide some degree of public catharsis: to bring systemic failings out into the open and fully acknowledge their impact. Inquiries will often make recommendations about “lessons to be learned” for public institutions.
A Government minister decides:
- whether a public inquiry should take place
- what powers it should have
- who should chair the inquiry
- what the inquiry should be allowed to look at (its “terms of reference”).
Once an inquiry has been set up, it functions as an independent investigation run by the chair, who often has considerable discretion about how to fulfil the terms of reference. The inquiry will take evidence and publish one or several reports with their findings and recommendations.
What form will the Covid-19 public inquiries take?
Both Covid-19 public inquiries are “statutory” inquiries having been set up under the Inquiries Act 2005. This primary legislation, alongside the Inquiry Rules 2006 and the Inquiries (Scotland) Rules 2007, provides an “off the shelf” framework of rules and powers for public inquiries.
Three features of statutory inquiries are particularly important.
- Statutory inquiries have similar evidence powers as courts. The chair can compel an individual to attend the inquiry as a witness, and can make legally enforceable demands for documents to be produced. This is not true of non-statutory inquiries, which rely far more on voluntary co-operation from participants.
- The default expectation is that statutory inquiries are public. Nowadays they often have a YouTube channel and broadcast oral hearings. Although the chair can decide that some proceedings should be heard in private, a key part of the process is transparency, public accountability, and catharsis.
- Statutory inquiries can recognise, and give a special role to, “core participants”. Such participants have a right to be legally represented in an inquiry’s proceedings. This allows them to put questions to witnesses, see draft reports, and make representations to the inquiry (through opening and closing statements). Core participants typically include key decision-making organisations and, where relevant, victims and their families.
Two public inquiries (UK-wide and Scottish-only)
The Inquiries Act gives both UK ministers and devolved administrations powers to set up public inquiries. Two or more administrations can also agree to hold a joint inquiry, with shared ministerial responsibility. However, this only ever happened once, with the 2007-09 ICL Inquiry (PDF).
The UK Government’s Covid-19 inquiry is being chaired by Baroness Hallett, a former Court of Appeal judge. She has advised in an open letter (PDF) on the inquiry website that public hearings are unlikely to begin before 2023.
The Scottish Government’s Covid-19 inquiry is being chaired by Lady Poole, a Court of Session judge. The inquiry is expected to launch properly in “early summer 2022”.
The Welsh Government resisted calls to hold its own public inquiry. It argued that it was better to have a co-ordinated, UK-wide approach that recognises relevant devolved dimensions. The Welsh First Minister, Mark Drakeford, indicated he is satisfied that “decisions made by the Welsh Government and other Welsh public services during the pandemic [would be] properly scrutinised” by the UK inquiry.
Although the devolved authorities were consulted about the terms of reference for the UK-wide inquiry, ultimately those terms will be decided by the UK Government.
What will the inquiries look at, and who will participate?
The Scottish Government inquiry’s terms of reference have been published, following the consultation period in the second half of 2021.
The two inquiries will look at a wide range of issues, including:
- the use of public health powers and expertise (eg lockdowns and other restrictions, mask requirements, medical evidence)
- health and social care policy (eg ventilator and PPE availability, shielding, care homes, test and trace, vaccine rollout)
- justice policy and administration (eg law enforcement, prisons, remote proceedings in courts and tribunals)
- education and childcare settings (eg closures/re-opening, exam contingencies)
- housing and homelessness (eg support, notice periods and evictions)
- financial impacts (eg furlough, business support, Statutory Sick Pay, public sector procurement safeguards)
- intergovernmental decision-making between the UK Government and devolved administrations.
Each chair will have to decide who to designate as “core participants” in their inquiry (see above). Because the inquiries will be so wide-ranging, many organisations and individuals might seek this status.
How long will the inquiries take?
The terms of reference, for both of inquiries, are very wide compared to those of other public inquiries. Both aspire to examine a large number of distinct if connected issues, which puts greater pressure on the timescale for obtaining evidence and publishing reports.
Even quite narrowly-focused public inquiries can end up taking several years. The Edinburgh Tram Inquiry (an admittedly extreme example) has now run for almost eight years without reporting.
The fact that there are two inquiries may also raise concerns about duplication of work. The terms of reference for both inquiries explicitly seek to avoid this through consultation and co-ordination.
Examining the human rights impact
The Scottish inquiry’s terms refer specifically to the impact of pandemic decision-making on human rights (specifically, Convention rights as defined by the Human Rights Act 1998).
The barrister Adam Wagner has said this is a notable omission from the UK inquiry’s terms of reference, and has urged that it be added following the engagement process and consultation. He has also said that any human rights-based approach should be broad, dealing with the full suite of rights under the Convention, not just the right to life under Article 2.
- UK Covid-19 Inquiry – Draft Terms of Reference (PDF), March 2022
- Inquiry opens public consultation on its Terms of Reference, UK Covid-19 Inquiry, March 2022
- Scottish Government Covid Inquiry Terms of Reference, December 2021
- Stakeholder Engagement Report, Scottish Government, December 2021
- Statutory public inquiries: the Inquiries Act 2005, House of Commons Library, March 2022
About the author: Graeme Cowie is a researcher specialising in constitutional law at the House of Commons Library.
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