Hearings begin in the UK Covid-19 Public Inquiry

Following preliminary hearings held for the first two modules of the UK’s Covid-19 Inquiry we reflect on what we have learnt so far, including that former Prime Minister Boris Johnson’s WhatsApp messages are among the evidence requested so far.

In our last article in this series we reflected on the indications given by the Chair, Baroness Hallett, at the official launch of the Public Inquiry as to its planned direction. Baroness Hallett was keen at that stage to emphasise her commitment to an ambitious timetable, including a pledge to hold preliminary hearings and start the exercise of gathering evidence for the first three planned modules before the end of 2022. Just over three months on the Chair appears to be on track to keep this promise, at least for the first two modules for which she has designated Core Participants (“CPs”), held preliminary hearings, made Rule 9 requests and stated that disclosure will begin to be made available to CPs before the end of the year.

Whilst little more information has been shared about the specific issues and questions to be addressed within the scope of Module 1 (resilience and preparedness) and Module 2 (core decision-making) than that which was contained in the provisional outline documents, the preliminary hearings have shed some light on a number of core questions as to how the Inquiry will be run.

Core Participant designations

As explained in our previous article, whilst applications must be considered in accordance with matters set out in Rule 5 of the Inquiry Rules 2006, Baroness Hallett as Inquiry Chair has ultimate and wide reaching discretion over whom she grants CP status to in the Inquiry and has chosen to make designations on a module-by-module basis.

An extremely narrow approach appears to have been taken in the designation of CPs for Module 1. Out of the 130 applications received only 28 designations were made, with the vast majority of these being government or public bodies. Notably missing from the list of CPs, other than the bereaved family groups for each of the devolved nations and the Trades Union Congress, are any public interest and/or rights focused groups. This gap is not through a lack of interest; indeed browsing the many Notices of Determination published to the Inquiry website it is evident that a significant number and variety of groups applied but were declined CP status.

A more liberal approach seems to have been taken for Module 2, with 38 out of the 75 applicants being granted CP status. This number includes a selection of groups representing children’s rights, disability rights, women’s rights, Long Covid interest groups, care sector interest groups and the Federation of Ethnic Minority Healthcare Organisations whom we represent.

Rule 9 requests and disclosure

Formal requests for evidence pursuant to Rule 9 of the Inquiry Rules 2006 have been made already to a significant number of organisations and individuals in respect of both modules and are continuing on a rolling basis. In relation to Module 2, the Inquiry confirmed that amongst other ministerial documents and communications it has requested sight of WhatsApp messages from groups containing key individuals including former Prime Minister Boris Johnson. The Inquiry has thus far refused to disclose copies of these requests to CPs, however, despite numerous submissions being made orally and in writing as to the potential value in doing so both in terms of proactive assistance it may enable CPs to offer the Inquiry team and in facilitating a transparent and open process and building public trust and confidence.

Renewed submissions were made in this regard at the preliminary hearing for Module 2 on 31 October, particularly given concerns raised about the Inquiry’s declared intention to take a “targeted approach” to the requests being made to some government bodies. Further submissions have been made by CPs including requests for a list of issues, key events and decisions to be shared for comment as soon as possible to facilitate proper engagement and enable CPs to assist the Inquiry in identifying any potential gaps.

A ruling from the Chair is now awaited on these matters, though Lead Counsel to the Inquiry Mr Hugo Keith KC encouraged the Chair not to support the requests of the CPs, and in particular to stand by her previous ruling not to disclose the Rule 9 requests arguing that: “no core participant would ever be satisfied with mere sight of the requests; they would inevitably wish to prefer them to be redrawn or recalibrated and, given the number of core participants and requests, that would impose an impossible burden on the Inquiry.”

Experts

The Inquiry confirmed that it will be appointing a significant number of experts to provide opinions on a range of issues and that the process of identifying suitable candidates has begun. These experts will be subject to an overriding duty to assist the inquiry and must be independent and objective in their work, though the difficulty in identifying suitable experts who have not already publicly commented on or been involved in the matters under investigation given the nature of the pandemic has been noted. The Inquiry has committed to considering suggestions on candidates and areas of expertise required made by CPs and requests were made during the hearing for the Inquiry team to share their provisional list of experts with the CPs as soon as possible. Again, the Chair’s ruling on this matter is now awaited.

Listening exercise

The Inquiry has announced it has commissioned two companies, IPSOS and Saatchi, to design and manage the planned listening exercise. Whilst the logistics of the exercise are to be determined the Inquiry’s intention is to gather and record experiences across the nations which will then be analysed, summarised and admitted into the formal inquiry record and fed into the investigations going forwards. Concerns had been raised by many CPs, including the bereaved family groups, as to the appropriateness of outsourcing this exercise and its development to corporate bodies and the Inquiry has committed to consulting them and other interested parties going forwards. The Chair has also confirmed that direct testimony will also be received by the Inquiry where it may shed light on systemic failures.

Commemoration

The Inquiry continues to explore options for commemorating those lost during the pandemic but has now committed to working with CPs over the coming weeks and to hear their ideas and contributions. Current indications are that a physical installation may be created at a future hearing venue and/or a digital picture or video wall also held online on the Inquiry’s website.

Future modules

Further indication on the subject-matter to be investigation in Module 3 (healthcare) was given at the preliminary hearings. It was suggested that the impact of Covid on primary, secondary and tertiary healthcare systems and sectors, including the capacity to respond and how they evolved, people’s experiences of healthcare during the pandemic, healthcare related inequalities, core decision-making and leadership within the system will all be examined. Further areas identified include staffing levels, critical care capacity, the establishment and use of nightingale hospitals and private hospitals, 111 and 999 services, GP surgeries, hospitals and cross-sectional cooperation, healthcare provision and treatment of patients with Covid-19, palliative care, provision of CPR including DNR use, impacts on staff, communications with patients, shielding and impacts on the clinically extremely vulnerable and Long Covid. The Inquiry opened the module, and the window for Core Participant applications, yesterday publishing a provisional outline which sets out twelve key areas for investigation.

Whilst the details and order have not been agreed, the Inquiry has indicated that future modules will be focused on “system” and “impact” matters. System modules will address issues such as vaccines, therapeutics and antiviral treatments; the care sector; government procurement and PPE; testing and tracing; and government business and financial responses across the UK. Future impact modules are likely to focus on health inequalities; the impact of Covid on education and business sectors; on children and young persons; on public services and public sector; and on hospitality, retail, tourism, arts, culture and sport.

Next steps

Aside from awaiting the Chair’s ruling on matters heard during the Preliminary Hearings heard last week for Module 2, interested parties now have until 5 December to apply for Core Participant status in Module 3 (healthcare). Further preliminary hearings on the first two modules are planned for early 2023, with full public hearings due to begin in May 2023, and CPs will begin to receive and work through disclosure over the coming weeks and months.

It is, as Baroness Hallett has been at pains to reiterate, “an ambitious timetable” and there will undoubtedly be many challenges to come in balancing the need for quick answers with the need for a thorough, robust and effective investigation that can result in real lessons being learned such that the unimaginable scale of loss and suffering experienced is not repeated in future.

Saunders Law is proud to be working with the Federation of Ethnic Minority Healthcare Organisations (“FEMHO”) and the Covid-19 Airborne Transmission Alliance (“CATA”) in relation to these issues. We currently represent core participants in the Grenfell Tower Inquiry, the Infected Blood Inquiry and the Undercover Policing Inquiry and can offer expert legal assistance and representation in all public inquiry cases.

Please contact us on 0207 632 4300 or fill in our online enquiry form if you would like our assistance and we would be happy to discuss your matter with you.