The UK Covid-19 Inquiry’s work is under way and is expected to continue until 2026. Alex Walker explains what a public inquiry is, why the Covid-19 Inquiry was established, what it aims to find out, how it is structured and what powers it has, and what the implications of the Inquiry might be.
What is a public inquiry?
Public inquiries in the UK are typically established by the government when there has been a major incident of public concern, such as a disaster which has led to a considerable loss of life or when there has been a significant failure of government regulation or decision-making. An inquiry can be set up in such instances to determine what happened, what went wrong, who is responsible, and what lessons can be learned.
Some inquiries, like the inquiry set up to investigate the death of Sarah Everard, are ‘non-statutory’ which means they have no formal legal powers. However, most public inquiries are established under the Inquiries Act 2005. These are statutory inquiries and follow the framework established in the Act, including for evidence-taking, reporting, recommendations, and costs. A statutory inquiry may compel witnesses to give evidence and persons to hand over documents. Failure to comply can lead to sanctions.
“Given the sheer scale of loss of life, it is hard to imagine a scenario in which the government had not at some point established a public inquiry.”
Only government ministers have the power to establish statutory public inquiries. The minister sets the terms of reference for the inquiry and appoints the inquiry chair. More often than not, inquiries are chaired by judges. The report of a statutory public inquiry must be published by the relevant minister.
Inquiries are formally independent of government, but the relevant minister does have power under the 2005 Act to remove the chair or end the inquiry, though no minister has yet done so.
When and why was an inquiry set up to look at the UK government’s handling of the Covid-19 pandemic?
The then-Prime Minister Boris Johnson announced in Parliament in May 2021 that a public inquiry into the government’s handling of the pandemic would be established in the following year. This came after sustained political pressure for a statutory public inquiry to be set up.
The announcement came soon after the UK’s third national lockdown and with more than 127,000 people having lost their lives. Opposition parties along with the Covid-19 Bereaved Families for Justice group and others had been calling on the government to set up a statutory public inquiry into the UK’s pandemic response. Given the sheer scale of loss of life, it is hard to imagine a scenario in which the government had not at some point established a public inquiry.
Johnson said to Parliament that “Amid such tragedy, the state has an obligation to examine its actions as rigorously and as candidly as possible and to learn every lesson for the future”.
Baroness Heather Hallett was appointed as the inquiry’s chair in December 2021. Hallett is a retired a Court of Appeal judge who was made a crossbench life peer in the House of Lords in 2019.
The UK Covid-19 Inquiry was formally established and commenced its work on 28 June 2022. The inquiry aims to have concluded taking public evidence by the summer of 2026, but its final report is likely to be published later than this. However, the Covid-19 Inquiry will also be publishing interim reports after the completion of each of its sections, so the public will not have to wait until 2026 for all of its findings.
What is the Covid-19 Inquiry trying to establish?
The final terms of reference for the Covid inquiry were received in June 2022, after a public consultation and a letter from the Chair to the Prime Minister recommending that changes be made to the draft terms of reference.
The Inquiry is to examine ‘the UK’s response to and impact of the Covid-19 pandemic, and learn lessons for the future’. It is aiming to examine the response and impact of the pandemic and produce a factual narrative account covering the public health response, the response of the health and care sector, and the economic response.
This will include how prepared the UK was, how decisions were made in government and beyond, the interactions between different responsible bodies, the use of lockdowns, test and trace, the capacity and resilience of the health and care sector, the economic support for businesses and individuals, and other relevant topics.
It will also identify lessons the UK can and should learn from the pandemic in its preparations for future pandemics.
The Inquiry will cover the handling of the pandemic in England, Wales, Scotland and Northern Ireland and therefore encompass both devolved and reserved matters. A separate inquiry has been established in Scotland, and the UK Inquiry says it ‘will work with the Scottish Inquiry to avoid duplication of evidence and findings where possible.’
How is the Inquiry structured?
The Inquiry is structured around a series of sections referred to as ‘modules’. Six modules have been announced so far, with four of them currently active and two planned for the future.
The four active modules are:
- Resilience and preparedness (module 1)
- Core UK decision-making and political governance (module 2)
- Impact of Covid-19 pandemic on healthcare systems in the four nations of the UK (module 3)
- Vaccines and therapeutics (module 4)
The two future modules are:
- Government procurement
- Care sector
Each module will hold preliminary and public hearings. The structure of the public hearings is decided in the preliminary hearings. The public hearings are when the Inquiry will hear evidence from witnesses, including under oath.
As well as the formal evidence-taking process the Inquiry has also established a process referred to as ‘Every Story Matters’, in which members of the public can tell the inquiry about their experience of the pandemic via an online form. However, the Covid-19 Bereaved Families for Justice group, which is participating in the Inquiry, wanted bereaved families to give evidence in person, something which has not been taken forward on logistical grounds.
Public hearings for the first module looking at resilience and preparedness began on 13 June 2023. Public hearings for the second module will begin in October 2023 and those for module 3 in autumn 2024.
Who is involved in the Covid-19 Inquiry?
A team of individuals assist the Chair in the operation of the Inquiry. Some of these individuals, such as the Inquiry Secretary, are seconded from the civil service. Others, such as the Counsel to the Inquiry, are appointed by the Chair to provide them with legal advice. Hugo Keith KC, a leading barrister, was appointed by Baroness Hallett to be Lead Counsel to the Covid-19 inquiry. He presents evidence and questions witnesses at the public hearings. The Lead Counsel to the Inquiry and Solicitor to the Inquiry are supported by an extensive legal team which currently consists of eleven King’s Counsel and 50 junior Counsel.
“As well as the formal evidence-taking process the Inquiry has also established a process referred to as ‘Every Story Matters’”
Under the Inquiry Rules 2006, the chair of the inquiry can designate certain individuals or organisations as ‘core participants’ of the inquiry. As the House of Commons Library sets out, core participant status comes with certain rights including ‘disclosure of information, being represented and making legal submissions, suggesting questions and receiving advance notice of the inquiry’s report’.
For the Covid-19 Inquiry, an application process to be designated as a core participant is opened for each module. The Inquiry’s Core Participant Protocol states that ‘There will be few if any people or organisations who are designated as Core Participants for the whole Inquiry’.
Core participants in module 1 on resilience and preparedness include the campaign group Covid-19 Bereaved Families for Justice, various UK government departments, the devolved governments, and organisations such as the British Medical Association and Trades Union Congress.
What powers does the Covid-19 Inquiry have?
The 2005 Inquiries Act allows for evidence to be taken from witnesses under oath, either through an interview or a public hearing. The 2005 Act also allows for the Inquiry to require a person to produce documents.
A person can be guilty of an offence if they fail ‘without reasonable excuse to do anything that he is required to do’ under the above powers. They can be guilty of an offence, for example, ‘if they intentionally suppress or conceal a relevant document, or prevent it from being given to the inquiry.’ A document is defined as relevant ‘if it is likely that the inquiry panel would (if aware of its existence) wish to be provided with it’.
If witnesses give false evidence under oath, they can also be found to have committed perjury.
The Covid-19 Inquiry’s capacity to compel the disclose of certain documents was challenged in the courts by the UK government. In response to the Inquiry’s request for unredacted WhatsApp communications and notebooks involving in particular former Prime Minister Boris Johnson, the Cabinet Office launched a judicial review on 1 June 2023, arguing that the Inquiry does not have ‘the power to compel production of documents and messages which are unambiguously irrelevant to the Inquiry’s work’. The Cabinet Office further argued that ‘It represents an unwarranted intrusion into other aspects of the work of government. It also represents an intrusion into their legitimate expectations of privacy and protection of their personal information.’
“The High Court concluded that just because an inquiry’s request may yield some irrelevant documents, this does not invalidate the request.”
Legal commentators suggested in advance of the judgment that it was most likely that the courts would decide in favour of the Inquiry Chair being the one to determine what material was ‘relevant’ and so needed in order to properly conduct its investigation.
The case was heard by the High Court at the end of June and its judgment was issued on 6 July 2023. The government lost the judicial review, with the Court finding that the Inquiry had not acted beyond its powers in requesting the unredacted messages and notebooks from the Cabinet Office, and that the request for it to do so was valid.
The High Court concluded that just because an inquiry’s request may yield some irrelevant documents, this does not invalidate the request. Inquiries have powers to make speculative requests (in other words, ‘fish’) for documents that relate to its lines of inquiry and that may lead to new lines of inquiry. ‘Such an exercise is bound to lead to the inclusion of some irrelevant material,’ the judges stated.
Furthermore, the Court found that Baroness Hallett did not act ‘irrationally in issuing the notice’.
A Cabinet Office statement following the ruling said that ‘We will comply fully with this judgment and will now work with the Inquiry team on the practical arrangements.’
What has happened so far?
The inquiry has heard from several high-profile witnesses since 13 June when the resilience and preparedness module began its substantive public hearings. Among those who have given evidence so far have been former Prime Minister, David Cameron, former Chancellor, George Osborne, former Secretary of State for Health and Social Care, Matt Hancock, and former Minister for Government Policy, Oliver Letwin, among others.
“Relations between the UK government and the devolved governments have also been under the spotlight”
One of the lines of questioning the Inquiry pursued in this module was whether the austerity policies pursued in particular by the 2010-2015 coalition government left the UK less prepared for a the pandemic. While Cameron and Osborne denied that this was the case, and defended austerity, some of the experts and officials before the Inquiry took a different view.
Another line of question looked at whether the UK focused too much on planning for an influenza outbreak at the expense of other possible viruses.
Questions were also been raised about whether Brexit – in particular, planning for a no-deal exit – diverted resources away from pandemic planning. When asked, Welsh First Minister Mark Drakeford admitted that resources in Wales were indeed diverted away from pandemic preparedness in order to deal with a possible no-deal scenario, whilst highlighting that the possibility of no-deal presented immediate and serious risks which had to be addressed.
Michael Gove, who was Chancellor of the Duchy of Lancaster between 2019 and 2021, told the inquiry that no-deal planning had in fact helped the UK’s response in that “Preparation for the EU exit was some of the best preparation we could have undergone for any future crisis.”
Relations between the UK government and the devolved governments have also been under the spotlight, with former Scottish First Minister Nicola Sturgeon also giving evidence to the Inquiry. Former Welsh health minister Vaughan Gething told the inquiry he believed strained ministerial relations between UK and devolved level had hampered Wales’s pandemic preparedness.
Public hearings for module 1 concluded on 19 July, with public hearings for module 2, on decision-making across the UK, set to start on 3 October.
How might the Inquiry progress and what might its impact be?
The Inquiry is not planning to finish taking evidence until 2026, which means that there will be a UK general election while its work is ongoing. There have already been significant political changes since it was established by Boris Johnson, with a different Prime Minister now in Number 10.
While the Inquiry will publish a final report with recommendations, Baroness Hallett has announced that it will also be publishing a series of interim reports once specific modules are completed. The Inquiry has made clear that it intends to publish reports from the first two modules – on preparedness and resilience, and political and administrative decision making – in the course of 2024. This means that findings and recommendations from two of the most politically consequential modules will be published during an election year.
Baroness Hallett’s willingness to defend the Inquiry’s powers in court against the government implies that she is not as concerned about avoiding political controversy as other chairs might have been, leaving open the door to the possible publication of reports that are critical of the government at politically sensitive moments.
“This means that findings and recommendations from two of the most politically consequential modules will be published during an election year.”
This said, the Covid-19 Bereaved Families for Justice group has criticised the fact that module 4 – which will include consideration of the vaccine rollout – will now hear evidence in summer 2024, meaning there may be positive findings for the Conservative government ahead of an autumn general election. Module 3 hearings, on the other hand, which will look at the impact on healthcare systems are not expected to begin until autumn 2024, meaning that less positive news relating to the health and care response might not come until after a general election.
While there is no formal process for following up on the recommendations of public inquiries there is likely to be political pressure to make changes in response to the findings of the Covid-19 Inquiry. While it is too early to say what might be in the Inquiry’s reports, the ongoing lines of questioning offer some indication.
As well as practical proposals as to how the UK and its healthcare system can be better equipped to manage a future pandemic, recommendations may also touch on the machinery of UK and devolved government (Oliver Letwin proposed a senior minister solely devoted to resilience in his evidence, for example), the lack of clarity around lines of accountability, and the complexity and diffuseness of public administration across various different areas.
The breadth of the Inquiry means that its findings could have far-reaching implications for the wider legacy of the period and those involved.
By Alex Walker, Research and Communications Officer, UK in a Changing Europe.
