Last October, the Health and Social Care Committee and the Science and Technology Committee in the House of Commons announced an inquiry into the lessons to be learned from the UK Government’s response to the Covid-19 pandemic. The two committees are conducting joint evidence sessions to examine the impact and effectiveness of the action taken by Government, and the advice it has received, including (among other things):
- the deployment of non-pharmaceutical interventions, such as lockdowns and social distancing rules;
- the impact of the pandemic on the social care sector, BAME communities, and other at-risk groups;
- the test and trace system;
- the UK’s preparedness for a pandemic; and
- the development of treatments and vaccines.
The inquiry has already held hearings with clinicians, care providers, the UK Vaccine Task Force, senior government officials, and National Health Service managers. The appearance by the Prime Minister’s former senior advisor, Dominic Cummings, in March was the most high-profile meeting to date. Other parliamentary select committees are conducting their own inquiries, or have held one-off evidence sessions relating to the pandemic.
Although the media attention accorded to some of these hearings demonstrates the increased prominence of parliamentary committees since the select committee system was reformed more than a decade ago, the increasing clamour for an independent public inquiry into the Government’s pandemic response illustrates the limitations of parliamentary scrutiny alone. In particular, select committees tend to focus on their discrete areas of policy responsibility — health, transport, business, and so on — rather than looking at Government action holistically, across all relevant departments and agencies. They also lack the investigatory resources and evidence-gathering powers of independent public inquiries, most of which tend to be established under the Inquiries Act 2005 (the “2005 Act”).
For the same reason, opposition parties tend to favour statutory public inquiries over parliamentary commissions of inquiry. Although parliamentary commissions can be afforded powers that are not customarily given to select committees — including the power to send for evidence and to invite specialist advisors to examine witnesses, which was granted to the Parliamentary Commission on Banking Standards — they may be perceived by political parties as an inadequate substitute for a statutory inquiry.
Given the way the pandemic has dominated global and national headlines for over a year, it is inevitable that there will eventually be a public inquiry into the UK’s response. The Prime Minister has committed to an inquiry in principle, but has resisted starting the process while the pandemic is ongoing, on the basis that it could distract ministers and officials who need to remain focused on the vaccination campaign.
The terms of reference for such an inquiry will be hotly contested, and its scope and timelines will be the subject of intense political debate. They will define whether the inquiry produces useful lessons-learned or scores cathartic political points. Opposition parties will push for the inquiry to be as broad as possible and to take place on a timeline which will deliver potential ammunition for the 2024 General Election. For the same reason, the Government is likely to try to limit the scope and adjust the timing. Recent experience suggests that a multi-year process is almost inevitable. The House of Commons Library has calculated that the average statutory inquiry under the 2005 Act takes two and half years to publish its final report.
Who will lead the inquiry will also be closely examined. Inquiries led by retired judges have become the accepted norm. But the breadth of issues that may need to be considered — from public health and epidemiology issues, to vaccine development, to the economic response — may weigh in favour of appointing a retired civil servant or a panel of experts with knowledge and experience of the subject matter.
With such a large public enquiry on the near horizon, it is important for any company that may be involved to understand the legal, political and reputational risks in such intense exposure. An appearance before a public inquiry is not something to be taken lightly, and doing so effectively requires considerable preparation, as well as an understanding of the rules and culture of the relevant forum — whether a parliamentary committee, a statutory inquiry, a Royal Commission, or some other relevant body.
Although the rules governing parliamentary select committee enquiries are somewhat opaque, resting on old precedents that have rarely been tested in the past century, the position is not the same for public inquiries established under the 2005 Act. For example, select committees generally seek evidence by informal request, and there is no effective way of compelling a person to appear before a committee hearing if they refuse. While the House of Commons retains the ability to censure a non-cooperative witness, as they did with Mr Cummings in the past, the impact on the individual is political and reputational: refusal by a company executive to attend following an invitation to do so would likely be damaging both for that executive and for their company.
Conversely, statutory public inquiries under the 2005 Act have a range of significant powers. For instance, the chairman of an inquiry may give notice requiring a person to attend to give evidence or produce documents, and it is an offence for a person to fail without reasonable excuse to do anything required pursuant to such a notice. Non-statutory public inquiries — such as the Chilcot Inquiry into the UK’s role in the Iraq War, which was established as a committee of Privy Counsellors — offer relatively greater procedural flexibility. But because such inquiries rely on the voluntary compliance of witnesses, we expect that opposition parties will push for any pandemic-related public inquiry to be placed on a statutory footing under the 2005 Act. This will ensure, for example, that witnesses can be required to give evidence under oath.
The form of questioning also differs substantially between public inquiries under the 2005 Act and inquiries by parliamentary committees. Members of Parliament and peers conduct the questioning in select committee hearings, they usually have limited time to explore issues in detail, and rapid-fire questions are often designed to achieve “soundbite” responses. In contrast, questions during statutory inquiries under the 2005 Act are often led by lawyers, and may involve lengthy analysis of documentary records or the testimony of other witnesses. The Inquiry Rules 2006 also afford certain procedural rights to so-called “core participants” in the inquiry — i.e. individuals with a direct and significant role or interest in the matters to which the inquiry relates, or who may be subject to explicit or significant criticism.
There is a general presumption that inquiries are public and the responses given are, therefore, available to the media and to members of the general public. Reputations can be enhanced or destroyed through engagement with parliamentary or public enquiries. Done right, an appearance before an inquiry can be beneficial to a participant’s reputation, and it offers a unique opportunity to set the record straight and give a different side of the story to the one that may be running in the media. However, careful preparation is required before any company or individual gives evidence to an inquiry, or appears as a witness — particularly if the inquiry relates to matters that could give rise to follow-on litigation, criminal investigations, or regulatory enforcement actions. Companies and their representatives also need to be aware of potential political agendas and media angles.
Covington has significant experience helping individuals and entities to prepare for appearances before UK parliamentary and public inquiries. We would be delighted to apply that experience to help clients prepare effectively, or think through their strategy in making an appearance before an inquiry.
*post updated March 31, 2021