A number of organisations will already be thinking about whether they can and should become involved in one or both of the public inquiries into the handling of the pandemic that are being set up by the UK and Scottish Governments.
Those with a particular interest in the work of the inquiries may want, down the line, to apply to become core participants.
What is a core participant?
The Inquiries Act 2005 doesn't refer to "core participants", but the Inquiry Rules 2006 and the Inquiries (Scotland) Rules 2007 do, and they give core participants a special status.
Unlike 'ordinary' witnesses who may be asked to give evidence to an inquiry, core participants can usually:
- make opening and closing submissions;
- have access to documents and witness statements before they are made public;
- apply to question witnesses at inquiry hearings; and
- obtain a copy of the inquiry's report before it is made public.
Except for the right to see an advance copy of the report (which is a right protected by the 2006 and 2007 Rules), these rights are subject to the discretion of the chair of the inquiry, who is responsible for determining how the inquiry is run. For example, the chair may decide that there shouldn't be opening statements, particularly in Scotland where this is not common practice in court cases.
It is rare for the chair to grant permission for core participants (or their lawyers) to directly question witnesses. Recent inquiries have followed a process that involves core participants being invited to submit suggested lines of questioning for witnesses, with the questions then being asked by Counsel to the Inquiry. If a core participant thinks that a line of questioning has not been fully explored, it can make an application for questioning, but such applications are generally only granted in exceptional circumstances.
How to become a core participant
A party must apply to become a core participant and cannot be forced to do so by the inquiry. The inquiry may invite those that it considers have played a key role in the matters being looked at, to apply, but there is no obligation upon an individual or organisation to accept this invitation.
Equally not every person or organisation who applies will be granted core participant status.
In deciding who should be granted core participant status the chair will take into account whether the applicant:
- played a direct and significant role in relation to the matters to which the inquiry relates;
- has a significant interest in an important aspect of the matters to which the inquiry relates; or
- may be subject to criticism during the inquiry proceedings or in any report published by the inquiry.
However, not every individual or organisation who meets these criteria will automatically be granted core participant status. The "desirability" of including that person as a core participant must also be considered. This provides the chair with wide discretion and an inquiry may publish its own guidance in relation to how this discretion will be used.
This is likely to be the case where there have been a large number of people directly affected by the event or events and who may wish to be involved in the inquiry. For instance, in the Infected Blood Inquiry the chair, Sir Brian Langstaff, noted that anyone who was infected with Hepatitis C or HIV by contaminated blood or blood products, or who was affected by being close to a person who was infected, could satisfy the relevant criteria to be a core participant. However, he also acknowledged that this raised challenges of scale that few other public inquiries had faced.
As a result, he published guidance providing that those who had been infected or affected were not automatically entitled to be granted core participant status. This guidance set out additional criteria which applicants had to satisfy.
Participation in the COVID-19 Inquiries
The COVID Inquiries will raise even greater challenges of scale than in the Infected Blood Inquiry. Everyone in the UK is likely to have been impacted to some extent by handling of the pandemic, with those in Scotland being affected by decisions of both the UK and Scottish Governments.
It seems very likely that guidance issued by the chairs of the inquiries will play a significant role. In order to limit the number of core participants involved, commercial organisations and/or charities may be encouraged to become involved through a trade or umbrella body, which then applies for core participant status.
Whether organisations should apply for core participant status will depend on the extent to which they have been involved in responding to and/or impacted by the pandemic. Some will already be anticipating their involvement in the COVID-19 Inquiries, particularly those in the health, social care and education sectors following the Scottish Government's announcement on 24 August[A1] [A2] 2021. However, others may be awaiting the terms of reference that will set out the scope of the respective inquiries.
Parties who expect to be called to give evidence to the COVID-19 Inquiries should start thinking now about whether they may want to apply for core participant status.
For more information on participating in a public inquiry, please contact Christine O'Neill KC, Kirstyn Burke or your usual Brodies contact.
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