As we enter the early weeks of the Public Inquiry into the Covid-19 pandemic, it is hard to believe that in three years from now we will still be seeing snippets of evidence on the news, as the whole Inquiry itself is set to run until summer 2026. What the public is seeing now is Module 1 of the Inquiry which is set to examine whether the UK was properly prepared for and able to respond to a civil emergency of the type seen in the United Kingdom in 2020 and 2021. The present hearing will scrutinise government decision making relating to pandemic preparedness and planning and seek to identify lessons that can be learned.
At present there are four active modules in the inquiry with Module 2 set to commence public hearings in October 2023. Module 2 will look at the United Kingdom's core administrative and political decision making in order to respond to the pandemic as it unfolded from early 2020 onwards. Modules 3 and 4 will look at the impact of the pandemic on healthcare and vaccines respectively. Future modules which have not yet been opened include Module 5 on government procurement and Module 6 on the care sector, both due to open towards the end of 2023.
The Covid-19 Inquiry is a statutory public inquiry pursuant to the Inquiries Act 2005. In broad terms a public inquiry may be triggered where there are matters of public concern arising, such as large scale loss of life, serious health and safety concerns or systemic failings. Those of you following the evidence in the first weeks of this inquiry will have heard questions put to witnesses suggesting that there were failures in the planning for the type of pandemic that the country faced. Despite the terminology adopted in some of the questions posed by Counsel to the inquiry (CTI), the process is an inquisitive one and not designed to be adversarial. It seeks evidence as to what happened, why it happened, who was responsible or should be accountable for events and what lessons can be learned. In the Covid-19 inquiry the stakes are high as it will likely act as a big catalyst for future change.
Inquiries are bound by Terms of Reference which diligently set the focus of the inquiry and the evidence will be expected to be faithful to those terms. Witnesses have requests for evidence in written statements or documentary form under Rule 9 of the Inquiry Rules and these requests will usually direct the recipient to the key issues that their evidence should cover. It is vital that all relevant documents should be disclosed in response to a Rule 9 request to avoid the compelling provisions of section 21 of the Inquiries Act 2005 being relied on. A section 21 notice compels the provision of documents and may require a person to attend to give evidence, produce documents within their control that relate to the matters in question or to produce any other item to the inquiry for inspection, examination or testing. Failure to comply with a section 21 notice is a criminal offence and justified refusal to comply with a notice is limited to just two circumstances:
- Inability to comply (e.g. the document is no longer in your possession);
- It is unreasonable to comply (e.g. timescales, possibly relevance).
Otherwise, section 22 of the act excuses the material provider of the document from disclosing it if the information in question is privileged for some reason or incriminatory.
Lastly, if any document sought is outside the scope of the Terms of Reference then disclosure should not be ordered.
Anyone following the inquiry will know that the mechanism being utilised by the inquiry Chair, Baroness Hallett, to obtain full unredacted WhatsApp messages and notebooks from Boris Johnson, is section 21 of the Inquiries Act 2005. At the end of June 2023, the High Court will hear the government's legal challenge, by way of judicial review, against her order pursuant to Section 21.
Lastly, those participating in an Inquiry are known as Core Participants (CP). They are identified as such by the inquiry Chair as being an organisation or entity with a significant interest in the inquiry pursuant to Rule 5 of the Inquiry Rules 2006. CPs will generally be provided with disclosure of relevant evidence, be able to make opening and closing statements, suggest lines of questioning (although rarely question directly) and be provided with a copy of the interim report of the Chair before publication. In the 'Infected Blood' inquiry some 2007 people infected and / or affected were designated as CPs and so the number of CPs can be large. In the Covid-19 inquiry the numbers have been more limited and in Module 1 there are approximately 28 CPs. This shows that the Chair has a wide discretion when it comes to such appointments of CPs and this will vary on a case by case basis.
For the bereaved and all those involved in the Covid-19 Inquiry it will be a long process and at times may evoke political controversy but ultimately its purpose will be to try and make positive changes where they may be needed and this can only be a good thing.
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