The Covid-19 Inquiry – the importance of the terms of reference

13 January 2022

Any day now the Covid-19 Inquiry will publish draft terms of reference. This will be a significant event. Once agreed, the terms of reference will determine the scope and length of the inquiry which is due to begin its work in the Spring. In turn this will have a direct impact on how valuable the inquiry turns out to be.  

It would be tempting to give the inquiry the broadest possible remit, to empower it to examine any and all aspects of planning ahead of the crisis and of decision-making once the crisis was upon us. Politically this might be attractive – it would satisfy those calling for the widest possible inquiry and would enable Ministers comfortably to decline to answer questions about their handling of the crisis since all such questions would fall within the remit of the inquiry.

But this would be a mistake.

First, such a remit would be almost impossible to fulfil within any sensible and useful timescale. The only inquiries of similar magnitude in recent years have been the Iraq Inquiry (7 years) and the Independent Inquiry into Child Abuse (nearly 7 years and counting). We simply do not have that sort of time to give to this inquiry if it is to have any useful role in helping us to cope with future crises of a similar nature, which surely must be its primary purpose.

Secondly, asking the inquiry to examine the correctness of the decisions taken by the government would, for the most part, be more than it can credibly achieve. As I explain below, there is much valuable work that the inquiry can undertake in examining the processes by which decisions were made and in making recommendations for the future. But asking the inquiry to substitute its own judgement as to the correctness of the decisions themselves, even if limited to the major decisions, would not settle arguments as to whether or not those decisions were correct. For these were essentially political decisions and there would be plenty of commentators to say, at the end of an exhaustive process of inquiry, that the opinion of an eminent judge (which Baroness Hallett most certainly is), while of interest, has little value. 

This is not true of all decisions. There will instances where some detailed investigation and conclusions will be needed, the most obvious of which was the decision by the NHS to send back to care homes patients who were infected by Covid. This was a practical, not political decision, which arguably had a direct impact in causing deaths within those homes. But most government decisions cannot be related so closely to causes of death.

A decision not to examine the correctness of the government’s decisions would be controversial. Baroness Hallett will consult on the draft terms of reference, and it is to be expected that victims’ families, in particular, will argue that the government should be held to account through the inquiry process. It is undeniable that this has a value through the catharsis of achieving closure. But experience suggests that meeting the requirements of natural justice through a process which may attribute blame takes a great deal of time. The government and the inquiry will have to decide whether the importance of examining this issue justifies delaying the inquiry’s conclusions by some years. It is certainly strongly arguable that the greater public interest is in a swift conclusion accompanied by a set of worthwhile recommendations.

If the inquiry is to make a genuinely useful contribution towards averting future disasters there are, however, a number of areas that it could explore. 

One such concerns planning for the next pandemic. It is essential that this country is better prepared for the next pandemic, or next wave of the pandemic, whenever it come upon us, so that we are in a position to implement steps immediately to get ahead of the curve. We now have not just our own experience but also that of other countries to look to.  The government has accepted already that it was not fully prepared for Covid-19. Its planning was based on preparing for an influenza pandemic and it conducted a large scale exercise - Exercise Cygnus - in preparation for such a pandemic. Although this exercise assisted it in responding to the Covid-19 pandemic, the government has accepted that “not all recommendations from Exercise Cygnus [could] be applied to the current Covid-19 response”.

But beyond this it looks as if the planning that could be done was quite general in terms. For instance the pandemic strategy that was in place in 2019 had recommendations for reducing the risk of transmission through good infection prevention and control practices such as hand washing (though not other issues such as controls on movement) but crucially there appears to have been nothing there to guide the government as to how quickly it should implement measures to contain the virus. The decision to go into lockdown was politically controversial and the government was in unknown territory, certainly within the lifetime of the key decision-makers. Perhaps understandably it was cautious about taking stringent measures. However, if following its review of the evidence the inquiry were to devise a clear set of recommendations for any government faced with a future crisis, that government would have much stronger grounds for the action that it takes, including if necessary early action.

Next, there seems to be a real issue to explore concerning the scope of the advice given to the government. Scientific advice appears to have dominated, but while this was a public health emergency, it was also an economic emergency affecting both the country as a whole and also particular socio-economic groups, yet there was no economic equivalent of SAGE. It was the task of politicians to weigh competing considerations in making their decisions but in doing so they needed access to all advice relevant to that task so that they were properly informed in weighing alternative options. Without this it seems inevitable that the advice given to government would always have been weighted towards minimising health impacts on the population with alternatives not adequately considered. Alternative sources of advice might not have affected every decision, but it might have affected some, particularly as respects the detail of those decisions; and at the very least such decisions would have been properly informed.

Finally, there is the whole process of decision-making. Covid-19 has been an enormous crisis for the government to handle, which must have absorbed, for much of the time, most of the attention of the Prime Minister, the Health Secretary and the most senior officials. The usual processes of government decision-making when faced with a crisis were deployed, involving decisions by a handful of individuals, followed, once the crisis was fully underway, by rapid decision-making. But should this approach have been adapted once it became clear that there would be no early solution to the pandemic? How much genuine debate was there within the Cabinet? What consultation took place with affected organisations and businesses? Would not the process of decision-making have been better if it had engaged a wider number of people? 

Beyond this, was the support given to the decision-makers adequate?  In particular, how well-developed within the civil service is crisis management expertise, and is there a case for developing a permanent cadre of officials with the skills and training to provide clear, focussed advice on handling and decision-making. For too long and too often there has been a sense that decisions are made on the hoof, with no precedent or expertise to draw upon.

This could be the most important public inquiry in a generation. The myriad of stakeholders/interested parties – victims and their families, medical, political and the wider public - means that this inquiry this has the potential to be way more complex than anything we have seen before. But if the terms of reference are properly focussed to where the inquiry can add value there is every possibility that it will make a difference.

FURTHER INFORMATION

For further information on the issues raised in this blog, please contact Stephen Parkinson in our Public Law team.

ABOUT THE AUTHOR

Stephen Parkinson is Kingsley Napley’s Senior Partner. Stephen is a highly experienced and versatile litigator with extensive experience of advising on, or undertaking, investigations for organisations, companies and individuals. His previous client list has included numerous individuals at the top of their fields, whether in business or politics, and he has acted in many of the major public inquiries of the last twenty years.

 

 

 

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