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The COVID-19 Inquiry: Preliminary thoughts on its scope and efficacy

Fiona Scolding QC, Christopher Jacobs, Carine Patry, Ben Fullbrook and Alex Goodman offer some preliminary thoughts on the scope of the public inquiry into the handling of the Covid-19 pandemic inquiry, scheduled to commence in 2022, focusing in particular on the inquiry’s “terms of reference”.

Section 1 of the Inquiries Act 2005 (thereinafter “the Act”) allows for anything of public concern to be the subject of a public inquiry. Sections 4 and 5 of the Act then provide for the Minister to appoint a chair of the inquiry, and that before doing so, the Minister must set the terms of reference. The terms of reference are therefore an early decision – one taken before the inquiry is instituted. Thus, if a person or an organisation wishes to influence the terms of reference of the forthcoming Covid inquiry then now is the time to do so as there is obviously a diminishing likelihood of return once the terms are set.

There are potentially minimum legal requirements that a public inquiry must cover as under the European Convention on Human Rights (“the Convention”) - where certain substantive human rights appear to have been breached - there is a parasitic procedural investigative obligation that arises. Given the scale of death and of human suffering and the fact that a public inquiry will be held, the issues relevant to article 2 and article 3 seem likely to be among the priorities for that inquiry. Probably, the minimum considerations are likely to include the number of deaths and the scale and extent of possible inhuman and degrading treatment, in particular, the treatment of care home residents.

It is well established that there does not have to be an intentional element in article 3 mistreatment: see R (Limbuela) v SSHD [2006] 1 A.C. 396, which was concerned with the inhuman effects of street homelessness on vulnerable people. Absent the enormity of the pandemic, that policy alone would be seen as a disaster justifying a public inquiry, just as the infected blood scandal did.

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There is a wide discretion to include a whole range of matters in this inquiry, including but not limited to:

  • Deaths: causes, culpability; preparedness;
  • Care Homes: deaths; moving patients from hospitals; detention; visitation restrictions;
  • Detention environments: immigration detention centres; mental hospitals;
  • Education - schools, children’s learning, school meals, what happened, what lessons;
  • NHS: resilience; staff deaths; lessons for the future;
  • Test, track and trace system;
  • International arrivals and quarantine measures;
  • Learning lessons from other countries’ response;
  • More positive aspects: housing homeless; environmental improvements?;
  • Fiscal and social measures such as the furlough scheme, ‘Eat Out to Help Out’; suspension of evictions;
  • Government messaging;
  • Lockdown: the principles; local and national; proportionality of measures;
  • The vaccine programme;
  • Economic impacts – aviation; hospitality; the arts
  • Procurement decisions: lawfulness; effectiveness, value for money, etc.

The purpose of the inquiry is to establish what happened and what we can learn.[1] An important component of the ECHR investigatory duty is promptness. That raises an issue of pragmatism in terms of the scope and the scale of the inquiry. Given the vast array of matters that could be included, one can see that the scope of inquiry could become unwieldy.

Ultimately, the fact-finding element is intended to be pragmatic, open, cathartic and useful. So too is the lesson-learning component. Something like the Bloody Sunday Inquiry that took 12 years, or even the current Brook House Inquiry, which is yet to hear evidence four years after the period of detention with which it is concerned, is not going to properly fulfil the functions of an inquiry. One can therefore see a number of parallel inquiries on different components might be a sensible means of setting it up.

For a more detailed discussion of the issues related to the Covid-Inquiry, please access the webinar delivered by Fiona Scolding QC, Christopher Jacobs, Carine Patry, Ben Fullbrook and Alex Goodman here.

Alex Goodman practices in public law and is the winner of the Outstanding Achievement Award at the Legal Aid Lawyer of the Year 2021.

[1] R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653, Lord Bingham explained at [31] and May, J in MA and BB v SSHD [2019] EWHC 1523 (Admin) at [42].

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