The (Long) Covid Inquiry – the challenge of complying with Article 2 in timing the Covid Inquiry

16 March 2022

The UK Covid-19 Inquiry has published its long awaited draft terms of reference, and a consultation on those proposed terms. The final terms of reference are of considerable importance to those taking an interest in the inquiry, as set out here by Stephen Parkinson.

In my blog I wrote that while it would be tempting to give the inquiry the broadest possible remit, to do so would be a mistake, due to the timeframe that this would require. The draft terms, however, appear to have taken this exact approach, listing a large array of topics, from the UK’s preparedness for a pandemic event, to the pandemic’s effect on the justice system and prisons. At the same time, Baroness Hallett has confirmed that she hopes the inquiry begins public hearings in 2023, with this year being primarily occupied by the gathering of evidence.

Many will now turn their attention to the likely timescales of the inquiry, and wonder when we will see a full published report. The inquiry will seek to avoid undue delay for both political and legal reasons, as set out below, but reality will mean that even without undue delay, this inquiry will likely go on for many years.

Article 2 of the ECHR and the duty to investigate promptly  

As set out by Sophie Kemp in this blog, it is long established that while article 2 of the European Convention on Human Rights, the right to life, primarily creates an absolute prohibition on taking life, it also includes a procedural duty to investigate deaths where the state was potentially responsible. Where a state investigates a death, the Convention also gives victims’ families the right to challenge that investigation in the event that it was not sufficiently rigorous or thorough.  

Typically, the procedural obligation to hold an investigation under article 2 concerns lives and deaths of specific or defined individuals, and is most frequently discharged through coroners’ inquests. In cases such as Oyal v Turkey (2010) 51 EHRR 30 and Šilih v. Slovenia [GC], no. 71463/01, however, the European Court of Human Rights acknowledged that where there are findings in relation to errors committed in the care of an individual in hospital, for example, the investigation of such errors is central to the safety of all other patients. This is particularly relevant when we consider the inquiry’s strand on the specific lessons to be learnt from Covid-19 that inform the UK’s preparations for future pandemics.

Considering the Chief Coroner has explicitly advised coroners against making findings in relation to systemic factors in individual Covid deaths, and the Covid Inquiry’s draft terms, it appears that the inquiry may well be the vehicle through which the UK discharges its article 2 responsibilities.

In Edwards v United Kingdom (2002) EHRR 19, the European Court on Human Rights gave useful guidance on what it considered to be an article 2 compliant investigation. This included requirements that the investigation be independent, subject to public scrutiny, and is able to compel witnesses to give evidence. Crucially, the case also reiterated the longstanding principle that investigations must be brought promptly. As seen in Re Jordan’s Application for Judicial Review [2019] UKSC 9, [2019] WLUK 50, so strong is the weight placed upon the duty to investigate promptly, a victim’s family can bring a claim for damages under article 2 where there is an improper delay to investigating a death. We have already seen this reflected in campaigns for an immediate inquiry as far back as summer 2020, by the Covid-19 Bereaved Families for Justice.

Furthermore, the UK’s experience of Covid-19 also creates an additional imperative to be as best prepared as possible for any future pandemic, learning from the mistakes of this one. The draft terms of reference include identifying the lessons to be learnt, so as to inform the UK’s preparations for any future pandemics, and it is clearly important that the country be able to begin such preparations as soon as possible, to avoid unnecessary deaths.

The flipside of the need to avoid undue delay, however, is the inquiry’s broader, overarching responsibility to investigate the handling of the pandemic, and to use the evidence to come up with clear conclusions and recommendations. While, as noted above, undue delay to an inquiry can lead to a finding of a breach of article 2, an unduly light-touch or high level investigation may also be found to be ineffective for the purposes of meeting the state’s Convention obligations. In Re Finucane’s Application for Judicial Review [2019] UKSC 7 [2019] HRLR 7, the Supreme Court found that successive investigations into the killing of Irish solicitor Pat Finucane were not compliant with article 2 as they lacked sufficient depth and rigour. The Supreme Court in Finucane cited the Strasbourg Court in Jordan, which set out the same principle that an investigation must be effective in the sense that it is capable of leading to a determination. In that case, such a determination concerned the state’s use of force, but the key principle is that the inquiry must be able to take all the steps required to fact-find, interrogate and analyse, in order to reach a safe set of conclusions.

As part of the consultation, the Chair is seeking views on  how the inquiry should be designed ‘to ensure that bereaved people or those who have suffered harm or hardship as a result of the pandemic have their voices heard’. To this end, and laudably, Baroness Hallett has committed to a series of round table discussions as part of the consultation process, and will meet with small groups of bereaved families across the country. Similarly, she has undertaken to set out how people ‘can share their experiences in a less formal way’ when the public hearings take place.  

Despite these worthy efforts, it will simply not be possible in the literal sense to hear the voice of every individual who has been through ‘hardship’ as a result of the pandemic. Such an exercise can only realistically take place through collective groups being granted core participant status, as has happened in other public inquiries. 

While many of those affected will not want to wait years to hear the inquiry’s conclusions, they will also not be well-served if their evidence is merely rushed through in order to reach that goal. We must, therefore, be prepared for the evidence gathering stage of this Inquiry to take a long amount of time.

Conclusion

As it stands, the consultation document’s only question on its scope is whether any additional topics ought to be added to the proposed list, implying the scope of the inquiry can only get wider, rather than narrower. The consultation also asks the public whether it supports a ‘planned end-date’ for its public hearings, and Baroness Hallett, in her letter accompanying the consultation, writes that she will do what she can to deliver her report ‘as soon as possible.’

Right from the off, therefore, the inquiry is setting itself a hugely ambitious task; it will investigate an extensive range of aspects of the pandemic in the UK, and will do so both thoroughly and with a view to delivering its conclusions as soon as possible. The experience of the Iraq Inquiry, which lasted 7 years, or the still-ongoing Independent Inquiry into Child Sexual Abuse (7 years and counting), will add a note of realism when trying to ascertain the likely end date of the Covid-19 Inquiry. While promptness is a laudable goal, this cannot be prioritised over the efficacy of the inquiry. Since it appears the Chair is minded to delivery an all-inclusive inquiry, hopes for a ‘quick answer’ will clearly not be satisfied.

Where there is a particularly pressing need for haste on a topic, this should be taken into account in terms of what the inquiry deals with first. The UK’s preparedness for future pandemics is included in this Inquiry alongside the handling of Covid-19, and this would appear to be the most urgent of all issues to be considered, lest the UK find itself unprepared again. This strand to the Inquiry contains a particular objective to ‘produce its reports (including interim reports) and any recommendations in a timely manner’, and it may well be that the ‘preparedness strand’ comes to pass as an inquiry-within-an-inquiry.

The inquiry’s final terms of reference will be published later this year, and those with an interest in it would be well-advised to be prepared for a long-haul investigation into what has happened in this country over the last two years, and how we can be more prepared in the future. 

FURTHER INFORMATION

Should you have any questions about the issues covered in this blog, please contact a member of our Public Law team.

 

ABOUT THE AUTHORS

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.

Rory O'Donovan is a trainee solicitor in the Public Law team. Rory’s first seat was with the Real Estate and Construction team, where he assisted the team in residential and commercial property and construction matters; and his second seat was with the Dispute Resolution team. Rory’s third seat was spent on secondment at the in-house legal team at Ofgem, where he was involved in a wide range of regulatory and legal matters concerning the energy system in Great Britain.

 

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