How will the UK COVID-19 Inquiry be structured? 

February, 2022 - Shoosmiths LLP

As we await a formal announcement about how the UK COVID-19 Inquiry will be structured, we compare the different approaches that have been adopted by other public inquiries.


Introduction

Public inquiries are an important and increasingly utilised vehicle for change in society, but they are sometimes criticised for delay, for inefficiency and for providing recommendations that are not ultimately implemented. Giving real thought at the outset to the way that an Inquiry is to be structured and operated is hugely important to ensure that it is concluded in a timely manner and that its process is robust and efficient. In turn this will act to maintain public and institutional confidence in the process and maximise the likelihood of its conclusions being followed. Importantly, the way an inquiry is structured can also have a significant impact on those taking part in an inquiry in terms of both time and cost.


Basic Structure: Phases vs Modules

Inquiry structures can be split into two main categories. The first approach is commonly referred to as a “modular” approach and is generally reserved for scenarios where the topics being investigated are sufficiently discrete to allow different strands of an inquiry to be split and run separately from one another. Each strand is referred to as a module and the modules are run as a series of smaller inquiries, with separate participants and discrete evidence to be heard. Sometime two or more of these smaller inquiries can run simultaneously. This modular approach avoids the need for participants to be involved in all elements of an inquiry and allows them to take part only in the part or module that is relevant to them.


This contrasts with an approach where the topics an inquiry is investigating are inextricably linked to one another and therefore cannot be easily or neatly separated. A phased approach is similar to a modular approach in that an inquiry is usually divided into sub-sections that are referred to as “phases”. However, the key differences are (i) that the phases are run sequentially as one long investigation, and (ii) that participants are likely to remain involved at all stages.


How does the basic structure of an inquiry impact those involved in an Inquiry?

Whether an inquiry chooses to take a modular or a phased approach will have considerable implications for participants, in terms of cost and time in particular.


For example, in the Independent Inquiry into Child Sexual Abuse (IICSA) the scale and nature of the subject matter of the Inquiry meant that a modular approach to the Inquiry was considered appropriate. The inquiry – which is ongoing – is split into 15 modules each dealing with different topics, different periods of time and/or different locations - albeit with a common thematic link. Each module focusses on a different institution, for example Rochdale Council or topic, for example child sexual exploitation and the internet.


This modular approach allows those taking part in the inquiry to be involved only in the part(s) that is or are relevant to them. Participation is for a limited time, and a party only receives and hears evidence relating to a specific topic. This allows the disclosure process to be more streamlined, and it follows that the time commitment involved in reviewing it is more limited. This doesn’t mean to say a modular inquiry itself will be concluded more quickly than a phased inquiry, as the IICSA inquiry was launched in 2014 and is not expected to conclude until later in 2022. However, it does mean that reports and recommendations can be issued more frequently, helping to maintain momentum and public confidence. Unlike the IICSA inquiry, the Grenfell Tower Inquiry is being run as a single inquiry structured in two phases.


  • Phase 1: Investigate what happened on the night of the fire.
  • Phase 2: Investigate the underlying causes that led to the fire.

Phase two of the Grenfell Tower Inquiry is split further down into subtopics that are referred to as “modules”.


The consequence of adopting a phased approach is that participants must be involved for longer, and receive and hear all of the evidence called by the inquiry, even if it does not directly concern them. This increases the costs of taking part significantly, and can draw out the process considerably, since all participants need to be kept informed of and involved with everything that happens at the inquiry.  It also means that final reports and recommendations cannot come until the conclusion of all of the evidence, by which time the political landscape and opportunity for meaningful change may have altered. However, the Grenfell Tower Inquiry has taken steps to address that by issuing an interim report following the conclusion of Phase 1.


The nature of the subject matter at the Grenfell Tower Inquiry is much less suited to a fully modular approach than the IICSA Inquiry because it relates to one single event rather than multiple separate incidents separated by time and distance, albeit with a thematic link. In the Grenfell Tower Inquiry,  it is desirable in the interests of fairness for all participants to be involved throughout, to give an opportunity to hear and challenge any relevant evidence that arises.


Will the COVID-19 Inquiry adopt a phased or modular approach?

It appears likely that the UK COVID-19 Inquiry will adopt a modular approach. The Inquiry has recently published an advertisement to recruit a legal team. This has revealed that it is envisaged there will be “separate… [and] individual Inquiry modules”.


Whilst this is not to be considered a formal announcement about the structure of the COVID-19 Inquiry, it almost certainly reflects the current thinking of the Chair, the Rt Hon Baroness Heather Hallett DBE.


Adopting a fully modular approach and running a series of smaller inquiries with limited scope is likely to make for a more effective and efficient inquiry experience for participants. Structuring the inquiry in this way would help, for example, to avoid a situation whereby a participant in the retail sector is subjected to large amounts of disclosure and evidence relating to development of vaccinations which, while relevant to the wider inquiry, is not strictly relevant to them.


Given the high level of public interest in the UK COVID-19 Inquiry and the national and individual importance of the questions that need to be considered however, efficiency alone cannot be the driver behind any decision relating to how it is structured. We can see that some topics such as procurement of PPE, management of COVID-19 within care homes and the NHS response are so interlinked that many participants will want to have the opportunity to take part in every or multiple stages of the inquiry to subject the evidence to an appropriate level of scrutiny, and this is a factor which would normally mitigate in favour of a phased rather than a modular approach to structure. Whatever decision is ultimately made, it must balance the need for the inquiry to be efficient with the need for it to be fair and sufficiently robust.


 



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