The FCA – Transformation to Assertive Supervision
In December 2021, the Prime Minister appointed Baroness Heather Hallett DBE as Chair of a statutory public inquiry into the handling of the Covid-19 pandemic across the UK. The announcement concerning the inquiry stated that there would be a public consultation on the draft terms of reference. This blog discusses the likely approach and scope of that consultation.
The terms of reference set out the purpose and scope of a public inquiry. The proposed consultation will be an important part of the inquiry’s process. Given that the Inquiry has been set up, at least in part, to address public concerns about the handling of the pandemic, it will need to foster public confidence. The consultation on the terms of reference will be the first opportunity for the Chair to hear directly from affected groups.
Considering the scale of the pandemic’s impact, the terms of reference have the potential to cover a substantial number of topics, including:
The consultation itself will likely ask for the views of a great many interest groups, representative bodies and corporations.
Over the past few months, such interest groups have already published their own reports or open letters advocating for specific topics to be covered by the inquiry. For example, the Learn Lessons, Save Lives report of Covid-19 Bereaved Families for Justice, in coalition with other major organisations such as Amnesty International, calls for the inquiry to cover 16 specific areas, including NHS 111 services, the devolved nations, migrants and refugees, as well as homelessness.
Independent SAGE have also published draft terms of reference, which suggest that the inquiry should have the broadest possible remit to consider changes in public health and general resilience to disease in the decade before the pandemic, as well as an assessment of the public health system as a whole.
The consultation will be the process by which such views can be put forward to the Chair, after which the terms will be finalised.
This is a slightly different approach to that taken in Scotland. As raised in a previous blog in this series, the approach in Scotland was to hold a public consultation on the draft aims and principles for the Scottish Covid-19 Inquiry, which it did from August to September 2021. The aims and principles were drafted in an open-ended manner, calling for views across a range of areas including cases and deaths in care homes, health impacts generally, societal impacts, and economic impacts. Four months after the consultation opened, the aims and principles were drafted into the final terms of reference. These include 12 granular areas of investigation for the inquiry, spanning PPE, lockdown restrictions, testing, shielding and the use of DNACPR orders.
The terms also require that the Scottish inquiry must also consider the impact of the strategic elements of the pandemic on the exercise of human rights under the European Convention.
In relation to the UK inquiry, the Prime Minister has chosen to prepare draft terms of reference in the first instance, as opposed to broad aims and principles, and hold a public consultation before finalising them. As it stands, we do not know when the draft terms will be published, or the likely length of the consultation period. If the Prime Minister commits to the inquiry beginning work in spring 2022, the consultation will have to be considerably telescoped. Otherwise, as indicated by the length of the Scottish consultation process, we should not expect the inquiry to begin until at least the summer.
The most important aspect of the inquiry report is its recommendations. Although these are not legally binding, they will form the basis for any real change that is to come from the inquiry. As such, their achievability should be borne in mind throughout the process of the inquiry. If the inquiry takes years to reach its conclusion, it risks an unwieldy report with an unmanageable number of recommendations. For example, the report of the Mid Staffordshire Trust inquiry, which ran for three years, runs across three volumes and made no less than 290 recommendations for change.
It will be for the Prime Minister and the Chair to assess the responses to the consultation and decide how these questions should be addressed in the terms of reference. It is crucial, however, that the overarching objective of the inquiry is satisfied: that the UK is better prepared for any pandemic that may arise in the future.
Please see Stephen Parkinson’s previous blog in this series on the importance of the Terms of Reference.
Should you have any questions about the issues covered in this blog, please contact a member of our Public Law team.
Stephen Parkinson is 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.
Phoebe Alexander joined Kingsley Napley in 2020. She is currently a trainee solicitor in the Public Law team. Her previous seats were with the Private Client team, where she assisted with the administration of trusts and estates, and the drafting of Wills and Lasting Powers of Attorney. Phoebe also assisted with Court of Protection matters, including the drafting of Deputyship applications; and the Medical Negligence and Personal Injury team.
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