The consultation on the Terms of Reference for the UK COVID-19 Inquiry has now ended and it is expected that the Terms of Reference will be finalised this month. In the meantime, the Chair has published a cost protocol detailing the criteria that organisations and individuals must meet if they wish to obtain funding from the Inquiry. She has also made recommendations to the Prime Minister on amending the Terms of Reference in light of the consultation responses.

Costs of engaging with the Inquiry

Section 40 of the Inquiries Act 2005 empowers the Chair of an inquiry to make payments to participants to compensate them for the loss of their time and/or the expenses that they incur. This can include making awards that relate to the cost of legal representation.

To be eligible for an award, the 2005 Act provides that a person must:

  • be involved in producing evidence to the inquiry; or
  • in the opinion of the Chair, have such a particular interest in the proceedings or outcome of the inquiry as to justify such an award.

In deciding whether to make such an award, the Chair must generally take into account a person's financial resources and whether making an award is in the public interest.

The minister who is responsible for establishing an inquiry, which in the case of the UK COVID-19 Inquiry is the Prime Minister, can impose conditions or qualifications on how the Chair may exercise this power.

The Prime Minister has published a determination and has stated that the Inquiry does not need to consider the financial resources of families of people who died having been infected with COVID-19 before granting funding to them. However, financial resources will remain a relevant consideration in relation to all others who apply for funding.

The Chair may only make an award where she considers it "necessary, fair, reasonable and proportionate" to do so. The Prime Minister has stated that awards should not be made for the legal expenses of "of substantial bodies, or of individuals who could reasonably expect their expenses to be met by such bodies, unless there are special circumstances which justify a call on public funds".

Therefore, large private and public sector organisations should not expect to receive funding, other than in exceptional circumstances. However, organisations in the charitable sector and organisations who have been economically affected by the pandemic may be eligible for funding.

The Chair of the Inquiry has also published a Costs Protocol setting out how an application for funding should be made and how the Inquiry will determine such applications from core participants and witnesses to the Inquiry.

A separate protocol setting out how the Inquiry will determine applications from individuals or organisations who wish to become core participants in the Inquiry will be published in due course.

In the Costs Protocol the Chair confirmed that the Inquiry will split the issues to be investigated into modules and that it may only grant funding to applicants for participation in specific modules.

For further information please contact Christine O'Neill, Kirstyn Burke or your usual Brodies' contact.

Contributors

Christine O'Neill KC

Chair & Partner

Kirstyn Burke

Senior Associate