On 12 May 2021, Prime Minister Boris Johnson committed to holding a Public Inquiry into COVID-19 that will place "the state's actions under the microscope". Demonstrating that it is independent, objective and fair is fundamental to an Inquiry’s purpose.
We take a look at the extent to which the State can effectively examine itself in a Public Inquiry when it has ultimate responsibility for determining the remit, and therefore inevitably the scope of any conclusions.
The Importance of Independence – Best Practice
Public Inquiries are generally commissioned to look into matters of great public importance, requiring a rigorously independent, fair and objective approach to the issues involved. The fundamental aim of a Public Inquiry is to seek to restore public confidence and help Government and/or other organisations identify improvements and/or avoid recurrence of issues by unravelling what went wrong. As the COVID-19 Inquiry will be an investigation into (primarily) the State commissioned by the State, it will be necessary for the Inquiry team selected by the Government/commissioning body to demonstrate that there is no conflict of interest. How can it do that and achieve its aims?
In recognition of the lack of guidance available and in light of the Government’s disappointing response to a review of the Inquiries Act 2005 carried out by a Select Committee, in 2015 the Centre for Effective Dispute Resolution (CEDR) published its own guidance for setting up and running a Public Inquiry (the Guidance). This Guidance sets out the best practice against which the Government’s approach to independence in the COVID-19 Inquiry can be assessed.
The Government has confirmed that the Inquiry will be established on a statutory basis – where witnesses can be legally compelled to attend and give evidence and provide relevant material under oath – that may signal a commitment to securing a transparent and robust investigation of the issues.
Two key areas in which the independence of the Inquiry will be scrutinised are the selection of the Chair and the determination of the terms of reference:
It is fundamental to the proper functioning of an Inquiry that the Chair must be independent and impartial. The selection of the Chair should be a transparent process whereby both those involved in the selection and the wider public can see how the selection was made. The selection of the Chair in a COVID-19 Inquiry was considered in September 2020 when the Public Administration and Constitutional Affairs Committee (the Committee) published a report on the Government’s response to the pandemic (the Report), along with recommendations on how the Inquiry should be set up and run, including:
- a non-judicial appointment as Chair to ensure that the Inquiry remains forward-looking and policy focused; and
- a greater than usual degree of transparency in selection and appointment of the Chair.1
Transparency, for us, is key here. Where there are time pressures associated with the setting up of an Inquiry it can be more difficult to ensure transparency, but the Government’s decision to delay the start of the COVID-19 Inquiry (against the express recommendation of the Committee) negates any such argument in this case.
In September 2021, Boris Johnson informed the COVID-19 Bereaved Families for Justice group that a Chair will be appointed by Christmas and sessions should take place around the country.
The Government’s approach to the selection of the Chair will be an important factor in public perception of the Inquiry’s independence, but it is the terms of reference that will define the extent of the examination to which the State is prepared to expose itself.
Terms of Reference
Terms of reference are absolutely critical to an Inquiry as they define its purpose and parameters, as well as providing the Chair with authority to probe particular areas and lines of enquiry. Frequently however, terms of reference can be too rigid and limited in their scope, become misunderstood or misinterpreted by those who need to refer to or understand them or become misaligned with the evidence as it develops. The scope of the COVID-19 Inquiry will be critical in determining how seriously it is taken by the public.
There are a number of issues that the public will want to see considered including UK death rates, the suitability and sufficiency of the Government's pandemic planning, the actions it took to mitigate the spread and impact of the virus and the support measures it put in place to safeguard the wellbeing of the nation as a whole – particularly measured against the expert advice it received as to the actions which were recommended. There have already been calls for and legal action in relation to a wider examination of the issue of PPE procurement for example, but whether or not the Government opens itself up to such scrutiny remains to be seen.
For a statutory Public Inquiry, the terms of reference will be set by the Minister under whose Department the Inquiry is held. We believe that it should be possible for the Chair to suggest improvements to the terms of reference, a view that is supported by the Guidance. It recommends the introduction of a one-month consultation period following the release of draft terms of reference to allow interested parties to make representations on what the terms of reference should be before they are finalised.
Though the scale of the COVID-19 Inquiry may make such a collaborative approach difficult, the Government’s decision to delay the start until 2022 means that time can be no real barrier — certainly in terms of the Chair helping frame and agree the terms of reference. We take the view that open consultation with relevant stakeholders ought to form part of that framing process; indeed you could gather such feedback in the same way that you might approach a Government consultation. There is support for such an approach in the Report, which notes that it is important to ensure meaningful consultation with the Chair and other interested parties while acknowledging the need for a balance to be struck between comprehensive terms of reference and the need for a focussed and manageable inquiry.2
Previous experiences make it clear that the public’s perception of what it is vital to consider ought to be followed but effective communication will be necessary to ensure the public remain engaged, notwithstanding the necessary limitations of any Public Inquiry. You achieve that, in our view, through a process of transparent consultation and perhaps scrutiny by further Parliamentary committees. In ideal circumstances, you need to separate the politics from the process.
Inquiries are frequently criticised for having overly limited terms of reference; and when they do conclude they can be judged by some to have had no effective impact. We have little doubt that such a situation would attract major criticism if the Government get this wrong. It is imperative that the terms of reference factor in potential outcomes of the Inquiry, to put it in the strongest position to make meaningful recommendations that stand the greatest chance of implementation and effecting real change — the primary purpose of any Inquiry.
- While independent from Government, Public Inquiries are largely under its control in terms of members, remit, and the publishing of reports (as well as budget). It is clear that the Inquiry should be able to reach its conclusions without the need for deference to any other party, but there is an inherent risk of this being compromised where the Inquiry is investigating the very organisation responsible for selecting its principal members. As a matter of reality and as a matter of perception the Inquiry must – as far as possible – be free of any taint or suggestion of “politics”.
- The utility of Public Inquiries has long been questioned, as many of the extensive recommendations arising out of them do not translate into meaningful change – a point also made in the Guidance. In order to stand a reasonable chance of avoiding such obvious criticism – but accepting that there will be those who criticise come what may – in the COVID-19 Inquiry the Government needs to ensure that it is set up and run in such a way as confront the territory which is seen as key, to provide clear and achievable recommendations to address the identified shortcomings and to commit to delivering, within measurable timescales, what must be done to achieve the meaningful change the public will demand.
- In 2015 the Guidance recommended that Inquiries be established and administered by an independent Inquiries office, both for reasons of independence and to ensure that there was an institutional memory of how best to undertake such endeavours. We agree. This recommendation was not adopted however, which begs the question – why not? The scale of public interest in the COVID-19 Inquiry, with all sectors of the population and business impacted, may be the catalyst for reconsidering the recommendations included within the Guidance in the interests of achieving independence, objectivity and fairness.
- The COVID-19 Inquiry will put the government under the microscope. But it should be under the microscope already as regards how the Inquiry is set up. If it is not the entire Inquiry may be flawed before it is functional.
1Establishing a Public Inquiry into the Government’s response to the Coronavirus pandemic (UK Parliament)
2 https://committees.parliament.uk/writtenevidence/9382/pdf/ (Institute for Government)