Member Article

On 10 March 2022, the Cabinet Office published the long-awaited draft Terms of Reference for the UK COVID-19 Inquiry.¹

In this article we consider the implications for businesses impacted by the pandemic and how they may wish to get involved in the Terms’ finalisation.

Terms of Reference are critical to a public inquiry as they define its scope and purpose. They provide the Inquiry Chair, in this case the Rt Hon Baroness Heather Hallett DBE, with the mandate to investigate specific areas and aspects of public concern. The recently published draft Terms of Reference are far from finalised, and there will now be a public consultation which will inform the Chair’s final recommendations to the Prime Minister.

What are the draft Terms of Reference?

On first glance, the draft Terms of Reference appear very wide. They state that the Inquiry will:

1. Examine the COVID-19 response and the impact of the pandemic in England, Wales, Scotland and Northern Ireland, and produce a factual narrative account; and
2. Identify the lessons to be learned from the above, thereby to inform the UK’s preparations for future pandemics.

Wide Terms of Reference could lead to a long and protracted Inquiry. However, Baroness Hallett has repeatedly stated that she wants to provide timely recommendations with the aim of preventing and reducing the suffering and hardship that occurred during the pandemic. This is reflected in the use of more tightly-defined topics for consideration under the umbrella terms.

Unsurprisingly, many of the areas specified relate to the actions and reactions of the government and healthcare sector. They also include important topics such as testing and contact tracing, and non-pharmaceutical interventions including the effectiveness of social distancing and face coverings. However, there is explicit reference to the economic response to the pandemic, which includes investigation of “the closure and reopening of the hospitality, retail, sport and leisure sectors, and cultural institutions” and “support for businesses and jobs, including the Coronavirus Job Retention Scheme, the Self-Employment Income Support Scheme, loans schemes, business rates relief and grants”. These areas will be of particular interest to businesses impacted by the government’s response to the pandemic.

The draft Terms of Reference also includes a draft ‘Method Statement’, explaining how the Inquiry will go about meeting its aims. This includes specific reference to listening to the experiences of bereaved families “and others who have suffered hardship or loss as a result of the pandemic” and considering the experiences of and impact on key workers. However, this section omits explicit reference to considering the experiences of and impact on business and industry during the pandemic. This is a potential oversight that might be addressed by the consultation process, as the Inquiry could, in our view, properly consider what lessons could be learnt from this, in order to protect businesses from severe economic losses during future pandemics (or, indeed, other comparable civil emergencies). This is one of the reasons why the public consultation period is an important step in the process of setting up a public inquiry and why businesses should consider participating now.

Consultation Period

The public consultation process is an opportunity for everyone to contribute to the final Terms of Reference for the COVID-19 Inquiry.² Baroness Hallett has indicated that she will be visiting towns and cities across the UK to “gather the views of bereaved families, community and support groups, and other organisations”. The COVID-19 Inquiry website outlines that the process will take the following three forms:

1. Online consultation
2. Round table discussions
3. Meetings with bereaved families

Online Consultation

The online consultation opened on 11 March and closes on 7 April 2022 at 23:59pm. As the online consultation is only open for four weeks, it is crucial that businesses who want to have their voices heard consider what they want the scope of the COVID-19 Inquiry to include and respond accordingly. The process is simple enough and consists of an online survey which can be found here.

The Inquiry has clearly stated that is it not seeking evidence at this stage, and is instead looking for individuals and organisations to provide their views on the following topics:

• Do the Inquiry’s draft Terms of Reference cover all the areas that you think should be covered by the Inquiry?
• Which issues or topics do you think the Inquiry should look at first?
• Do you think the Inquiry should set a planned end-date for its public hearings, so as to help ensure timely findings and recommendations?
• How should the Inquiry be designed and run to ensure that bereaved people or those who have suffered harm or hardship as a result of the pandemic have their voices heard?

Round Table Discussions

At the moment, little is known about the nature and timeline of the round table discussions. We do know they will be held across the UK with “key organisation and representative groups” and will be by invite only. We have previously suggested that the Inquiry will likely seek out representative bodies and trade associations to represent the many business sectors impacted by the pandemic³, and we expect that, in part, these discussions will be just that. At this point, we can only speculate how these key organisations will be selected. However, businesses hoping to get involved with the COVID-19 Inquiry will want to keep up to date on the Inquiry’s consultation process and be ready to react once more information is released. We will be monitoring this carefully.

After the Inquiry has completed its consultation on the draft Terms of Reference, the Chair will send her recommended changes to the Prime Minister. At that time, the Inquiry will also publish a summary of the consultation responses.

Conclusion

The draft Terms of Reference for the COVID-19 Inquiry are very broad in scope, but do not explicitly, at this stage, cover all topics of potential importance to business and industry. Now is the time for businesses to help shape the scope of the Inquiry so that their concerns are addressed, and their voices are heard. The online consultation process is now open and concerned businesses should make sure they participate at this important stage. There may also be opportunity to take part in round table discussions, and we await further details about these.

¹Draft Terms of Reference - COVID Inquiry - March 2022 (public-inquiry.uk)
²Terms of Reference Consultation - UK Covid-19 Public Inquiry - Citizen Space
³The COVID-19 Public Inquiry – Practicalities, Possibilities and Predictions (shoosmiths.co.uk)