The COVID-19 public inquiry: a case of when, and not if
Is an inquiry inevitable?
Martin English is the Recognised Legal Representative for the North West Ambulance Service NHS Trust at the independent public inquiry investigating the deaths of the victims of the 2017 Manchester Arena terror attack.
As soon as Boris Johnson announced lockdown on Monday 23 March 2020, much of the press started to reference a future hypothetical public inquiry when discussing the internal debate within government on the speed and range of lockdown measures taken against the pandemic. The spectre of a future inquiry has also often been cited by government ministers at the daily Downing Street press conference as a rebuttal to questions probing at potential discord in the government’s approach.
However, the clamour for a public inquiry is becoming louder and more organised, and now the question is not if there will be a public inquiry but when. First, bereaved families and prominent lawyers were widely reported requesting a public inquiry and an urgent commencement of hearings to learn lessons (bereaved families call for inquiry). Second, the First Minister of Wales, Mark Drakeford, became the first leader of any of the devolved nations to outline his support for an independent public inquiry (Drakeford backs inquiry).
Is an inquiry inevitable?
There are legal reasons why an independent public inquiry is inevitable and why it will need to be wide-ranging. The state’s obligations under Article 2 of the European Convention of Human Rights will necessitate an effective investigation into the handling of the pandemic. The coronial process for individual cases is unlikely to discharge that obligation; we only need to look at the Chief Coroner’s Guidance No.37 published on 28 April 2020 to identify why. Many deaths caused by coronavirus are naturally occurring and will not be referred to a coroner. Furthermore, emergency legislation removed the requirement for coronavirus-related deaths to automatically trigger a jury inquest as a notifiable illness. For the limited number of deaths that do require an inquest, the issues which might be most pertinent to the family’s concerns are likely to fall outside scope once coroners pay due regard to the Chief Coroner guidance in paragraph 13:
Coroners are reminded that an inquest is not the right forum for addressing concerns about high level government or public policy.
Indeed, when considering paragraph 14, the Chief Coroner seems to be another important figure planning for the future independent public inquiry when he advises that if the coroner considers that a proper investigation into the death requires that evidence or material be obtained in relation to matters of policy and resourcing (e.g. the adequacy of provision of PPE for clinicians in a particular hospital or department), he or she may choose to suspend the investigation until it becomes clear how such enquiries can best be pursued (Link to Guidance 37).
What will a future inquiry cover?
Under the Inquiries Act 2005 it is for the government to institute a statutory inquiry and set the terms of reference, but given the effects of the pandemic, a future inquiry is likely to set wide-ranging and multifaceted terms of reference. It must also do so to address the legal issues which different coroners across many jurisdictions will not be able to fully investigate, or indeed cannot fully investigate.
Recent inquiries have managed to handle wide-ranging subject matter. The statutory framework of a public inquiry is well suited to dealing with issues such as the early attempts to track and trace, the timely provision of appropriate PPE for healthcare staff, the efficacy of the scientific modelling, the timing of lockdown measures, the government’s preparedness for a pandemic and the steps taken to protect care homes.
Witnesses, documentary evidence and designated Core Participants will be drawn from all corners of society and all sectors of our economy, from frontline healthcare trusts, to companies which manufacture medical and protective equipment, as well as national and regional organisations co-ordinating the response to the outbreak.
The inevitable inquiry has not been instituted and history tells us it takes many months and years for the hearings to start but the clamour for an inquiry is growing and the need inevitable – be prepared for the process to start before we see a return to normal, new or otherwise. It is critical any organisation involved in some way in the pandemic response ensures evidence is preserved and key decisions clearly documented.
If this topic raises any issues or concerns for you, please speak to Martin English, Principal Associate, on firstname.lastname@example.org.
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