COVID-19 public inquiry to begin in spring 2022

On 12 May 2021 the Prime Minister confirmed in a statement made to the House of Commons that the UK Government will establish an independent public inquiry into the response to the COVID-19 pandemic. It was confirmed that the inquiry will be established under the Inquiries Act 2005 (the "Act"), which means that the chair, who has yet to be appointed, will have the power to compel evidence and require witnesses to provide evidence under oath. There is also a presumption contained within the Act that the inquiry's hearings will be held in public and that documents provided to the inquiry will be made public.

Timing of the inquiry

The Prime Minister stated that he expects that the right time for the inquiry to begin is spring 2022 due to the high likelihood of a surge of cases over the winter months and the need to avoid "inadvertently distracting" the NHS by requiring members of its workforce to prepare documentary evidence for the inquiry and testify at public hearings during this time. However, it was clarified that preparatory work, such as appointing the chair and setting the terms of reference, will take place prior to spring 2022. The decision not to start the inquiry until next year has been met with criticism from the Labour and Liberal Democrats parties, the Covid-19 Bereaved Families for Justice campaign group, and the British Medical Association, which has stated that distracting medical staff must not be used an excuse to delay the inquiry.

Intention for a UK-wide inquiry

In establishing the inquiry, the UK Government has said that it intends to work closely with the devolved administrations in Scotland, Wales and Northern Ireland and will consult with them before finalising the scope and arrangements for the inquiry. Accordingly, it is the UK Government's intention that the inquiry will investigate the response to the pandemic in all four nations of the UK.

Scotland's First Minister previously committed to establishing a statutory public inquiry focusing on Scotland's response to the pandemic before the end of this year. The Scottish National Party's 2021 manifesto, published in advance of the Scottish Parliament election in May, stated that it would "begin to take the necessary steps to establish the public inquiry as soon as possible after the election." The First Minister has, however, also spoken of the benefits of an inquiry being established on a UK-wide basis, which could consider the response across the four nations as well as examine the specific issues within each nation.

In responding to the Prime Minister's announcement, the First Minister encouraged the UK Government to appoint a chair "as quickly as possible" so that the inquiry can commence its work this year. A Scottish Government spokesperson also stated that once the Scottish Government has a clearer idea of the remit of the UK Government's inquiry it will determine whether the UK-wide inquiry will address all of the issues that need to be addressed for Scotland or whether "there is a need to have a part of the process that looks at other issues." On the issue of timing they said:

“We are also clear that we expect it to begin its work by the end of this year. If the UK Government does not take this forward swiftly, we will determine if a distinct Scottish inquiry is required to meet the needs of families who have been impacted by the pandemic.”

Therefore, it remains to be seen whether the Scottish Government will commission a separate inquiry to investigate matters in Scotland.

Scope of the inquiry

As yet, there has been little detail from the UK Government in relation to the scope of the inquiry. However, in response to questions following his statement, the Prime Minister confirmed that there is a need to establish the facts surrounding the impact of the pandemic on the UK's black, Asian and minority ethnic communities and did not exclude the possibility of the inquiry considering issues relating to long COVID. It is anticipated that the inquiry will be extremely wide in scope and will also need to consider matters such as:

• the UK's preparedness for a pandemic;
• the timeliness of the response by the UK government and the devolved administrations;
• the procurement of PPE and other equipment, such as ventilators, needed to respond to the pandemic;
• the adequacy and timeliness of the track and trace systems;
• the impact of decisions taken in relation to restrictions to and measures associated with international travel;
• the handling of the response in care homes and the decision to discharge patients from hospital to care homes during the pandemic;
• the suitability of end-of-life care and the impact on people who have lost loved ones to COVID-19;
• the adequacy of measures implemented to support businesses, employees and the self-employed, with reference to specific sectors such as the hospitality and leisure industry;
• the impact on the education of children and young people;
• the rollout of the vaccination programme; and
• delays to NHS treatment for patients suffering from medical conditions other than COVID-19.

The terms of reference, which will set out the scope of the inquiry, will be developed in due course.

Need to prepare

There will be a large number of public, commercial and third sector bodies who are already anticipating that they will be called upon to provide evidence to the inquiry and that may wish to apply for core participant status when the time comes to do so. We recommend that you begin preparing for that now.

Brodies is well placed to help you with all aspects of participation in a public inquiry. For more information, please contact Kirstyn Burke or your usual Brodies contact.