Member Article

Following Prime Minister Boris Johnson’s recent announcement in Parliament, it is now certain that there will be a Public Inquiry into the handling of the pandemic. What is the planned Inquiry likely to consider, and who might be involved?

For over a year now, the government’s focus has been on the here and now - managing and responding to the rollercoaster that is the COVID-19 crisis. But as the country reopens and the lockdown restrictions ease, the time is approaching for us to take stock of what has happened, and to learn lessons from it.

The Prime Minister Boris Johnson has announced that a Public Inquiry into the handling of the COVID-19 pandemic will commence in Spring 2022, within the lifetime of this government, but there are calls from, amongst others, the Labour leader Kier Starmer and families of the bereaved for it to start sooner.

It will be a statutory Public Inquiry held under the Inquiries Act 2005, which means the Inquiry will have powers to compel provision of information and attendance of witnesses.

The Public Administration and Constitutional Affairs Committee published its Report titled ‘A Public Inquiry into the Government’s response to the COVID-19 pandemic’ on 10 September 2020 (“the PACEC Report”). The PACEC Report made several recommendations as to what the Inquiry should consider (its possible “terms of reference”).

The recommendations of the PACEC Report may be adopted in full, in part, or not at all. There will be many stakeholders to take views from, including the devolved administrations. The PACEC Report will certainly, however, provide a starting point, and it seems safe to assume that:

• The Inquiry is likely to examine the Government’s decision making by investigating what advice the Government received, and which recommendations were implemented or should have been implemented. In addition, the Inquiry may seek to explore the adequacy and effectiveness of the Government’s advice on topics including social distancing and masks, decisions relating to travel and the easing of restrictions;
• The Inquiry may raise questions about whether the legislation introduced (namely the Coronavirus Act 2020 and associated regulations) was effective and appropriately enforced. The Inquiry could also address the effect of the COVID-19 pandemic on the court system and the administration of justice;
• The Inquiry may consider the controversy surrounding the supply and procurement of PPE equipment, along with more general questions as to the healthcare response, and the effectiveness of the NHS test-and-trace system launched in May 2020;
• The Inquiry may also look into the cost of schemes (e.g. furlough scheme, “eat out to help out”, stamp duty “holiday”) introduced by the Treasury, and whether the economic support provided was both fair and effective, both for individuals and businesses;
• The impact of closure of schools and universities will also be an issue of concern for the Inquiry, particularly in relation to learning and development and issues around home schooling. Was enough support offered to the public, particularly vulnerable groups whose physical and mental health were affected; and
• It is likely that all stages of vaccine development and roll-out will be closely examined by the Inquiry, including prioritisation. The Inquiry may also look at measures taken by devolved administrations and other non-UK jurisdictions who took a different approach to analyse what worked well and what didn’t.

The PM has said that the terms of reference have not yet been defined but will be published “in due course”.

In our view, public and political pressure is likely to dictate that the Inquiry be wide-ranging in scope, with requests for evidence made of many and varied sources. These might include any companies or organisations, both public and private, which were involved with any of the issues summarised above; potentially, a very large number. Those who may be involved should ensure that relevant documents and evidence are securely captured, and, in particular, that audit trails supporting COVID-related decision making are preserved.

With our extensive previous experience (we are currently acting on the Grenfell Tower Inquiry), Shoosmiths expect to be instructed to represent clients at the COVID Inquiry, and we will be keeping a close eye on developments in the lead up to it. Please sign up to our Coronavirus alerter service here, or check back for further Insights in due course.