With just under a week remaining on the Cabinet Office’s online consultation process into the COVID-19 Public Inquiry, we explore the current stage of the Public Inquiry process, the next steps, and the importance of ensuring organisations and individuals have their say in the draft Terms of Reference (“TORs”) by 7 April 2022, which will shape the future for the Inquiry process.

In May 2021, the Prime Minister announced a Public Inquiry to examine the UK’s preparedness and response into the COVID-19 pandemic and to identify lessons to be learned, including a promise to put the “state’s actions under the microscope”. The Inquiry will be chaired by the Rt Hon Baroness Heather Hallett DBE, former Presiding Judge and Vice-President of the Court of Appeal Criminal Division, who has significant experience in dealing with a range of complex Inquests and Inquiries, including acting as the Coroner for the Inquests into the deaths of the victims of the London 7/7 bombings and chairing the Iraq Fatality Investigations, which inquired into allegations of unlawful killing by British Forces.

Originally announced to commence in spring 2022, the Inquiry is already delayed in its embryonic stages due to a lack of progress made on the Inquiry’s Terms of Reference (TORs) and the obvious ongoing pandemic, which has channelled resources and attention elsewhere. However, a milestone was reached on 10 March 2022 when the Cabinet Office published the draft TORs for the Inquiry.

The TORs of any Inquiry are crucial, as they define the scope and purpose of what matters are to be investigated through the Inquiry process, as well as providing the Chair with the legal authority to investigate the defined areas of concern, which can shape the whole tone and structure of the future Inquiry process. Any agreed scope will also of course influence the length and cost of the Inquiry which, given the scale of the pandemic and number of potential issues to explore, will both be huge.

What are the draft TORs?

Aims

The draft TORs focus on two broad aims to:

• Examine the COVID-19 response and the impact of the pandemic in England, Wales, Scotland and Northern Ireland, and produce a factual narrative account; and

• Identify the lessons to be learned from the above, thereby informing the UK’s preparations for future pandemics.

Three focus areas

These two umbrella aims are clearly very broad and there is therefore a risk of the Inquiry process becoming prolonged and unwieldly. The Cabinet Office have therefore proposed to focus on three defined areas under the first umbrella aim, each with further, narrower topics falling underneath them. The breadth of the topics covered are vast and potentially subject to being extended even further by the consultation process (see further below).

(1) Central, devolved and local public health decision-making and its consequences

This area currently proposes to explore matters such as:

• Preparedness and resilience;

• How decisions were made, communicated and implemented;

• Intergovernmental decision-making;

• The availability and use of data and evidence;

• Legislative and regulatory control;

• Shielding and the protection of the clinically vulnerable;

• The use of lockdowns and other ‘non-pharmaceutical’ interventions (e.g. social distancing, face coverings);

• Testing, contact tracing, and isolation;

• Restrictions on attendance at places of education;

• The closure and reopening of the hospitality, retail, sport and leisure sectors, and cultural institutions;

• Housing and homelessness;

• Prisons and other places of detention;

• The justice system;

• Immigration and asylum;

• Travel and borders; and

• The safeguarding of public funds and management of financial risk.

(2) The response of the health and care sector across the UK

This area intends to explore:

• Preparedness, initial capacity/the ability to increase capacity, and resilience;

• The management of the pandemic in hospitals, including infection prevention and control, triage, critical care capacity, the discharge of patients, the use of DNACPR decisions, the approach to palliative care, workforce testing, changes to inspections, and the impact on staff and staffing levels;

• The management of the pandemic in care homes and other care settings, including infection prevention and control, the transfer of residents to/from homes, treatment and care of residents, restrictions on visiting, and changes to inspections;

• The procurement and distribution of key equipment and supplies (e.g. PPE, ventilators);

• The development and delivery of therapeutics and vaccines; and

• The consequences on the provision for non-COVID related conditions and needs; and

• Provision for those experiencing long-COVID.

(3) The economic response to the pandemic and its impact, including government interventions

Finally, this area is proposed to include:

• Support for businesses and jobs, including the Coronavirus Job Retention Scheme, the Self-Employment Income Support Scheme, loans schemes, business rates relief and grants;

• Additional funding for relevant public services; and

• Benefits, sick pay, and support for vulnerable people.

Next steps: consultation process

The consultation process is an opportunity for anyone who wishes to contribute towards the shaping of the final TORs to do so, and it is crucial that individuals and organisations have their voices heard in respect of the scope, particularly if they are concerned that they will be impacted by the Inquiry process and/or any recommendations arising out of it. Given the numerous critical commentaries already published in the three weeks since the consultation process began, identifying a number absences in the draft TORs, it is likely that the consultation will produce a number of further topics for the Chair to consider including within the Inquiry’s scope. For example, the TORs currently expressly ignore the effects of the pandemic on children, which has been described as “disappointing and concerning”, and there is no explicit reference to the impact of the pandemic on private organisations or businesses.

The first and current stage of the consultation process involves a short, online survey (open until midnight on 7 April 2022) for anyone to express their views on the following areas:

• Whether the Inquiry’s draft TORs cover all the areas you think should be covered by the Inquiry, and any reasons why not;

• Which issues or topics you think the Inquiry should look at first;

• Whether you think the Inquiry should set a planned end date for its public hearings, so as to help ensure timely findings and recommendations; and

• How the Inquiry should be designed/run to ensure that bereaved people or those who have suffered serious harm/hardship as a result of the pandemic have their voices heard.

The consultation process will then move into a round table discussion phase, which will be held by invite only and across the UK with “key organisations and representative groups”. Further details on the nature of these discussions and the timeline for when they are expected to happen are not yet known. The Chair is also planning to visit UK towns and cities to meet with small groups of bereaved families, as the Inquiry is committed to listening to the views and experiences of the bereaved and others who have suffered hardship or loss as a result of the pandemic.

The Chair will then review all of the information obtained through the consultation process and send her recommended changes to the TORs to the Prime Minister for finalising. The Inquiry will also publish a summary of the consultation response. It is at this stage when real preparations for the Inquiry’s investigative process can commence, though how long until we reach this stage is not presently clear and is in any event likely to be months down the line.

What can I do?

Through the current public consultation process, businesses and individuals can provide feedback to inform the Chair’s final recommendations to the Prime Minister on the Inquiry’s finalised TORs. It is therefore crucial that if you are concerned about the investigation and outcome of the Inquiry, you ensure your voice is heard in the online survey before the midnight deadline on 7 April 2022.