On 6 April 2022, Shoosmiths hosted the second in a series of webinars about the UK COVID-19 Public Inquiry. The webinar focussed on the current status of the inquiry and gave practical tips for potentially interested parties.

Hosted by Hayley Saunders (Partner), the webinar included talks by Charles Arrand (Partner), Alex Friston (Associate) and Hannah Frost (Associate). Shoosmiths also welcomed Nicholas Griffin QC, Head of Inquests, Inquiries and Public Law at QEB Hollis Whiteman Chambers, as a guest speaker.

The role of experts in Public Inquiries

Charles Arrand outlined the role of expert witnesses in a Public Inquiry and the relevant considerations for an Inquiry participant instructing its own expert. The UK COVID-19 Inquiry will inevitably require input from a variety of experts such as data analysts and medical professionals. As a comparative example, the Grenfell Inquiry has heard from 17 experts. Expert input can have a hugely significant impact on the outcome of an Inquiry.

The Inquiry Chair will decide what expert evidence will be commissioned after careful consideration of the terms of reference and a discussion with the Inquiry Legal Team. Core Participants are not involved in appointing experts and have no right for their own expert report to be submitted.

Nonetheless, a Core Participant will often wish to appoint its own expert to:

(1) conduct his own assessment of the validity of the Inquiry expert’s views; and

(2) enable the Core Participant to formulate questions to put to the Inquiry expert.

Questions can test the inquiry expert’s views but have to be channelled through the counsel to the inquiry, who may or may not decide to ask them.

It is also possible to make representations to an Inquiry Legal Team about the instruction of inquiry experts. Potential Core Participants should start to consider at this stage whether to engage an independent expert, or seek to shape the Inquiry’s approach to experts by making representations.

Charles also highlighted a practical consideration - in relation to Covid-19, there will likely be a scarcity of truly independent experts. During the pandemic many experts from different fields have been involved in or commented on some aspect of the response, all of which is likely to be within the scope of the UK COVID-19 Inquiry. This leaves a risk that experienced experts will not be sufficiently independent, or that independent experts will have insufficient experience. Charles anticipates that the UK COVID-19 Inquiry will likely need to adopt the same approach as the Grenfell Inquiry, which has a policy that some prior participation in events is permissible if it can be shown it does not adversely affect the expert’s independence or the fulfilment of his overriding duty to the Inquiry.

Practical considerations for businesses

Nicholas Griffin QC shared the benefit of his experience on other practical decisions organisations will need to consider at this stage.

Firstly, anticipate how your organisation might fit into the UK COVID-19 Inquiry and any pressure points or danger areas. Consider that, as it is a statutory Inquiry, you could be compelled to give evidence. There will be a high level of scrutiny of the evidence due to the public and political interest in the Inquiry.

For businesses which anticipate being required to give evidence, it is crucial that preparation begins now. Documents need to be identified, preserved, and prepared for disclosure. A large organisation may require substantial time to ensure this is done thoroughly and correctly. There are potential criminal sanctions if it is not done properly. Now is also the time to consider whether your organisation might wish to seek Core Participant status (that is to say, fuller involvement in the Inquiry rather than simply appearing as a witness). The Inquiry Chair will ultimately determine who is sufficiently interested to be a Core Participant, but organisations may wish to apply for consideration. The key advantages to being a Core Participant are the ability to influence proceedings with greater access to documents and closer contact with the Inquiry. However, Nicholas highlighted that some organisations may make a positive decide not to invite additional scrutiny by playing an active role, such as those with a peripheral involvement in the issues under consideration.

Considering these questions early on, and engaging with the Inquiry as appropriate, affords the opportunity to be involved in shaping its focus and direction from the beginning. Public consultation on the draft Terms of Reference closed on 7 April 2022 but there will many other areas about which to make representations.

Throughout the process an involved organisation will benefit from legal representation and advice. There may be funding options available through insurers or the ability for organisations who have similar interests to be jointly represented. Nicholas explained that in his experience witness and participant legal teams can develop professional relationships with an inquiry legal team, which can speed up the resolution of certain issues. Communication between legal representatives and the Inquiry is often crucial.

There is also a need to maintain an awareness of the potential for parallel proceedings. Criminal investigations, civil proceedings, disciplinary investigations and parliamentary proceedings can all overlap with an Inquiry. Note that evidence given in an inquiry is in the public domain, and in the absence of specific agreement to the contrary, may be used in other investigations and forums.

Where are we now?

Alex Friston and Hannah Frost concluded the webinar by summarising what we know so far about the scope, timelines and structure of the inquiry.

Firstly key members of the Inquiry team have now been appointed:

• Chair - Dame Heather Hallett
• Director of Inquiry Set-Up - Ben Connah
• Counsel to the Inquiry – Hugo Keith QC
• Solicitor to the Inquiry – Martin Smith

The draft Terms of Reference have been published and set out two key themes:

• Examine the response to the COVID-19 pandemic and create a factual narrative of events.
• Identify lessons to be learnt for preparedness for the next pandemic or similar crisis.

The inquiry proposes to consider an extremely broad range of topics from the impact on healthcare to the economic management of the pandemic. Measures such as lockdowns, face coverings and social distancing are included as well as the communication and implementation of these responses. The inquiry will also consider the experiences of bereaved families and key workers. Lessons learned should then be taken into account when planning preparedness for future pandemics, and other civil emergencies.

The timescales for the inquiry are still not clear. Dame Heather Hallett’s open letter states: “We shall gather evidence throughout the year [2022] and I hope to begin public hearings in 2023”. We remain on standby for further information on structure and the final terms of reference later in the year.

Conclusion

Our advice for businesses is to start considering now how you may be involved in the inquiry. If you may be called upon to provide evidence, documents need to be identified, preserved, and prepared for disclosure. If you believe that your organisation may wish to apply for Core Participant status, then now is the time to consider funding, prepare yourself to apply to the Inquiry, and begin to engage with it on matters such as experts. Legal representation can be hugely beneficial, not least to provide a route to engaging with the Inquiry Legal Team, and should be considered at this stage.

We await the results of the consultation and the finalised Terms of Reference. We will continue to provide updates on the UK COVID-19 Inquiry as new information becomes available.