The COVID inquiry … about time?

Nigel Lambert KC considers the implications of the government announcement of a public inquiry into the Covid pandemic.

Facing mounting pressure from a number of critics that his delays in implementing lockdowns [the first being imposed in March 2020] cost thousands of lives, the Prime Minister, Rt Hon Boris Johnson MP, on 12^th May 2021 announced plans for a public inquiry into the government’s handling of the Covid pandemic, under the powers of the Inquiries Act 2005.  It is due to commence in the Spring of 2022. Its terms of reference will not be announced until closer to its start. 

Examining the UK Covid response

More than 128,000 people have died in the UK with Coronavirus, making it one of the worst affected countries by number of deaths. It had one of the highest Covid death rates relative to the population of any major economy.

Mr Johnson has said that the government is “fully committed to learning the lessons at every stage” of the pandemic. He has said that the Inquiry would place “the state’s actions under the microscope.”

No remit has been set. The government has already stated that the prime purpose of the inquiry will be to prevent recurrence.

However, the public, the families of the victims and many of the Covid survivors will want to know whether the government listened to and acted upon earlier warnings about a pandemic. Consideration will need to be given to what advice was received following the publicity of the extreme measures that the People’s Republic of China took – successfully – to combat the virus as early as January 2020.

The Inquiry must and will look at the extent to which the experience here mirrored that of other countries and how, where and when decisions and policies affecting outcomes were different.

The Inquiry should certainly examine how the government controlled the movement of people through its borders. There can be no doubt that further pressure will be brought to bear to extend the inquiry to consider – the timings and strategy of the lockdowns, whether sufficient doctors, nurses, hospital wards and medical supplies were put in place at the earliest opportunity – or whether deliberate delays cost lives.  Why were personal protection equipment [PPE] supplies so inadequate and when eventually supplied were they sometimes of poor quality?  When did the government become aware of the increased risk to Black, Asian and Minority Ethnic [BAME] communities? What efforts were made to protect care home residents and staff?  What were the issues surrounding the lack of testing and tracing?

National newspapers are asking questions. Why were Covid patients discharged to care homes? Why were purpose built Covid Nightingale Hospitals not used so that other acutely ill patients could be hospitalised? How extensive was the use of “Do Not Resuscitate” orders without patient/family consent?

Since the Summer of 2020 the Covid-19 Bereaved Families for Justice UK Group has been lobbying the Prime Minister to meet them to launch an urgent independent investigation.

The Parliamentary Public Administration and Constitutional Affairs Committee published its Fifth Report of Session 2019-21, “A Public Inquiry into the Government’s response to the Covid-19 pandemic”.  One of its recommendations included –

“It should ensure that the right lessons are learnt from any mistakes that have been made.  Accountability cannot be ignored: for learning to take place, it is important to understand the events that have occurred, the decisions that were taken and the reasons for that.  The impact of decisions on those most directly affected by them must be understood.  There must be honesty about mistakes made.  But the public inquiry should be forward looking, and the primary purpose of any look backwards should not be to apportion blame but to understand how to ensure that the country is better prepared for any future pandemic…”

It went on to say –

“It is clear that non-statutory inquiries are able to proceed more flexibly outside the confines of the Inquiries Act.  Their reliance on cooperation can also create an environment that is more conducive for evidence gathering.  Nonetheless, the safeguard that the statutory powers provide for accessing evidence or administering oaths means that it would be preferable that an inquiry into the Government’s response to the Coronavirus pandemic should be established under the Inquiries Act.”

Further, it recommended –

“The Government should, alongside the terms of reference, set out its plans to cover issues that cannot be included in the public inquiry.  This will allow those who are impacted by the wider issues to understand how and when they can contribute to lessons learned and allow the public inquiry to focus on the issues with which it has been tasked.”

It follows that the terms of reference for the Inquiry will be critical.

Preparation – what we know so far

Statutory public inquiries are held under the Inquiries Act 2005 and have the advantage of having legal powers to compel witnesses to give evidence, provide legal safeguards and can set limits on the Government’s control of an inquiry.

According to The Times newspaper, Mr Johnson’s aides, in anticipation of the public inquiry “…have been gathering emails and documents for more than six months…” to support his case. It is understood that he would be willing to give evidence on oath.

On 11^th March 2021 Mr Johnson told MPs that the Inquiry would consider the UK’s handling of the coronavirus before the first lockdown in March 2020 and would not exclude the idea of looking at the condition known as “Long Covid”.

The Prime Minister plans to defend the Government following recent claims in the press by Mr Dominic Cummings, his chief adviser between July 2019 and November 2020. Mr Cummings called for an urgent investigation into the Government’s handling of the pandemic and described the Department of Health and Social Care as a “smoking ruin” at the start of the crisis.

Mr Cummings is expected to give MPs on a committee investigating the Government’s handling of the pandemic – emails, WhatsApp messages and documents in support of his arguments.

In response, it is reported that the Government is preparing to set up a dedicated unit in the Cabinet Office to provide the Inquiry with “thousands of emails, policy documents and minutes of meetings that will form the backbone of the evidence on which witnesses are questioned.”

The Times has recently reported from one source that “… since last Spring officials have made sure there was a clear ‘paper trail’ of the most controversial decisions: “Everyone has always known that an inquiry was inevitable.  And people have made sure that they’ve covered their backs.””

It is said that Mr Johnson will run a three-pronged defence –

1. The delay until 23^rd March 2020 before implementing the first lock-down.  Heavy reliance will be placed upon advice given by SAGE, the Government’s scientific advisers – and the chief adviser, Sir Patrick Vallance.

2. The “Cummings Delay Criticisms”. Again Mr Johnson will rely upon scientific advice – and that from Dominic Cummings himself.

3. That the “Kent Variant” could not have been predicted before it was detected in December 2020.

The role of the Inquiry

The job of this Public Inquiry is to respond to public concern.  The Grenfell Fire Inquiry and Manchester Arena bombing are good examples.

Although the terms of reference will not be announced until closer to its start – plainly the Inquiry will be faced with a huge amount of evidence and documentation covering many different aspects of the Nation Health Service, Government Policy and funding.

Almost certainly the general public will want the Inquiry to reveal just how well the United Kingdom was prepared for the pandemic and the circumstances surrounding the timings of all three lock-downs.

Those who called for the Inquiry include health workers, bereaved families, the police and campaigners for transparency. 

It will be an Independent Inquiry – but there is ministerial power to remove the Chair or terminate the inquiry. It is the Government that appoints the Chair.  That, in itself, can be a cause of complaint. Chairs have been mostly male, white and judges or civil servants.

The Inquiry is not a court. Criminal or civil “guilt” cannot be pronounced. But the evidence uncovered may later become part of a criminal investigation.  Almost all inquiries end without pleasing all of the interested parties.

This Inquiry may be the only opportunity to get the answers from those who made the most important decisions – decisions that affected the United Kingdom about a pandemic that almost brought it to its knees. The consequences of this pandemic may be with us for decades.

Important considerations

The Chilcot Inquiry into the Iraq war took seven years. The Bloody Sunday Inquiry took twelve years. Plainly the Covid Inquiry must not be allowed to run and run. 

The Inquiries Act 2005 has its faults and is said by many to favour and protect Governments. But at least witnesses can be legally compelled to attend and provide relevant material – and will be called. Evidence will be given on oath.

Questions must be focused. Those parties represented require the expertise of those who are used to understanding and distilling such complex facts and information – and who will put relevant questions fearlessly and with clarity. 

Contrary to the views of some – good counsel save time and are essential to secure the trust of those who have lost loved ones.  And the Prime Minister is committed to placing “the state’s actions under the microscope”.

It can only be hoped that the Inquiry will be concluded before the summer of 2022 and will be given full disclosure of all relevant documentation. Witnesses must be called, and their evidence properly and skilfully tested. The Inquiry must allow those parties most interested to be properly represented so that their concerns can be fully ventilated and satisfactory answers given.

Nigel Lambert KC is one of the most experienced criminal silks practising at Carmelite Chambers and the Bar. He welcomes commentary and enquiries via the Carmelite Chambers clerking team. This piece is written in a personal capacity prior to instruction.