In light of the announcement that an independent inquiry into the Government’s handling of the coronavirus pandemic will begin in spring 2022, Kingsley Napley hosted a webinar last week on the theme of Preparing for Public Inquiries in conjunction with Blackstone Chambers and FTI Consulting. For anyone who missed this event, we have prepared the summary below.
Panel Chair Stephen Parkinson (Senior Partner of Kingsley Napley) opened with the big question of ‘why do we have inquiries?’ Foremost, of course, they help us understand what happened in relation to matters of public concern and make recommendations for the future. The other purpose of inquiries, Stephen explained, is to enable people to be heard, to tell their stories and put those involved under the spotlight.
Our first speaker was Kate Gallafent QC of Blackstone Chambers, who reflected on her experience of the Bichard Inquiry in 2004 into child protection procedures following the conviction of Ian Huntley for the Soham murders. She said that the tight timetable and focus which applied in that inquiry shows what can be achieved if desired, despite the Prime Minister’s insistence in July 2020 that no COVID inquiry could take place fast enough to assist with the difficult judgements required during an ongoing pandemic.
Kate’s expectation is that the forthcoming COVID inquiry will be longer than the average three and a quarter years, due to the myriad issues involved and our somewhat inflexible model for inquiries under the Public Inquiry Act 2005. The still-awaited terms of reference will determine the shape and size of the process, and all eyes will be on the emphasis. Will the inquiry be about apportioning blame, or will it adopt a more forward-looking analysis? If, as Kate thinks likely, the question of accountability dominates the inquiry then this will be an invitation to participants to ‘lawyer-up’ with the intention of defending themselves robustly.
Whilst there is no obligation for the UK Government to consult widely on the terms of reference, once appointed the Chair can consult on the terms and amend them. Kate highlighted numerous investigations going on already at a Parliamentary Committee level, as well as elsewhere such as that planned by the BMA, which suggest interest groups are gearing up to try to influence the terms of reference.
Kingsley Napley’s Head of Public Law Sophie Kemp then spoke about what she called the “nuts and bolts” of responding to a inquiry. Sophie has extensive experience, from representing families in the 7/7 inquest and the Catholic Church before IICSA, to advising senior witnesses in the FCA’s Davis Inquiry and Undercover Policing Inquiry, as well as acting as solicitor to RICS’ recent Levitt Review.
Sophie discussed the wide-ranging information gathering powers at the Inquiry’s disposal, including the Chair’s ability to issue a section 21 notice requiring information and reminding recipients that intentionally witholding information is a criminal offence. She recommended that those likely to be a witness in the forthcoming COVID inquiry would be well advised to have a document retention policy in place now, given evidence requests can be extensive and made at short notice.
Sophie also described the ‘pervasive power’ of the public profile of inquiries. The fact that most inquiries have their own You Tube channel to stream live hearings, tweet evidence and set up media interviews for the Chair, raises the stakes for participants reputationally. The forthcoming COVID inquiry is likely to attract unprecedented public and media interest, she said, which will present a real challenge for participants and experts.
Above all, Sophie stressed the importance of cooperation with any inquiry process, not only in terms of evidence but during the hearing and final report stages. In contrast to The Rt Hon Ken Clarke, who recently did himself no favours with a truculent appearance during the Infected Blood Inquiry, witnesses should prepare thoroughly, be respectful and sincere and think about how their evidence will land. Taking early ownership of mistakes can be important.
Lastly Alex Deane, Senior Managing Director Partner and Head of Public Affairs at FTI Consulting gave his perspective on preparing clients for significant appearances before public inquiries. He has provided reputation management counsel to many inviduals and organisations in the spotlight, including participants in the Leveson inquiry. Alex offered 3 takeaway points:
- The importance of an aligned approach between legal and PR advisers.
- How mindset can be critical – it can help to view the process as a positive opportunity to explain and be heard, rather than a prospect to be endured.
- Beware the trap of informality due to the drawn-out nature of enquiries.
The panelists agreed that, despite there being justifiable reasons for a rapid consideration of the issues relating to the Government’s COVID response, the forthcoming COVID inquiry will likely be a protracted process and highly politicised. The Chair, when appointed, will need to be robust and careful in agreeing the terms of reference and in pursuing an independent path, whatever buffering comes from political winds and the media. However, the COVID inquiry represents an important opportunity for those involved in our response to the pandemic to reflect on their conduct and to contribute to a learning process for the nation.
Interestingly, the results of a poll of those who joined our event were:
- 11% felt a COVID inquiry next Spring is too early;
- 56% felt the timing is about right;
- 33% believe the inquiry will be too late.
ABOUT THE AUTHORS
Sophie Kemp is an experienced public lawyer, advising on major public inquiries judicial review and modern slavery and human rights. Sophie acts for individuals, charities, companies and regulatory bodies in judicial review litigation. She has considerable investigative and public inquiry experience representing individuals, institutions, charities, public figures and senior professionals in major public inquiries, inquests, IOPC investigations, and before Select Committees.
Stephen Parkinsonis Kingsley Napley's Senior Partner. Stephen is a highly experienced and versatile litigator with extensive experience in advising companies, organisations, and individuals caught up in criminal and regulatory investigations or public inquiries. His previous client list has included numerous individuals at the top of their fields, whether in business or politics.
Partner and Head of Department
Stephen Parkinson (he/him)