Latest developments in the UK Covid-19 Inquiry

Following recent Preliminary Hearings held by the UK Covid-19 Inquiry, we reflect on the latest key developments, including a pushback of the planned timetable and delay to the start of evidential hearings, an acknowledgement that the issue of race and inequality “runs like a steel wire throughout the Inquiry process” and a commitment (following requests made by Core Participants) to instruct and obtain expert evidence on structural racism, structural discrimination and intersectional issues.

In our last article in this series [https://www.saunders.co.uk/news/hearings-begin-in-the-uk-covid-19-public-inquiry/] we reflected on what we learned from the previous Preliminary Hearings held for the first two Modules of the Inquiry, including key indicators of how the Inquiry will be run. The Inquiry began to shed light on requests for evidence made under Rule 9 of the Inquiry Rules 2006, notably a request for the contents of WhatsApp groups containing key individuals including Boris Johnson. The Inquiry also invited suggestions from Core Participants on areas of expert evidence to be obtained.

Further Preliminary Hearings have now been held during which submissions were made by many Core Participants. More information has been shared about the specific issues and questions to be addressed within the scope of Modules 2 and 3, in which Saunders Law represents Core Participant clients. The Inquiry provided updates on the progress made so far and the Chair issued rulings following the hearings on issues concerning the interests of many Core Participants.

Timetable pushback

As discussed previously, the UK Covid-19 Inquiry is likely to become the most wide ranging public inquiry we have seen to date. The challenge of balancing the need for timely progress and cost efficiency with the need for a thorough and effective investigation of the many relevant issues and areas of concern is not one to be underestimated.

The timetable for the Inquiry has been acknowledged as “ambitious” from the outset by the Chair Baroness Hallett and we have now seen the first slip with the evidential hearings for the first Module (focused on resilience, planning and preparedness) pushed back by 6 weeks.

A significant contributing factor to this delay appears to be a lack of progress with the disclosure process. This process is the mechanism by which the Inquiry obtains evidence, assesses it for relevance, redacts information where necessary and then provides it to CPs to review and utilise in preparing for the evidential hearings. Disclosure review is key in enabling CPs to meaningfully engage in the inquiry process; it is by this means alone that CPs can scrutinise the evidence, suggest lines of inquiry and important areas of questioning to be put to witnesses during the evidential hearings. It is essential therefore that CPs are afforded sufficient time ahead of the hearings to carry out a thorough review of the material disclosed and prepare accordingly.

During the second preliminary hearing for Module 1, it became apparent that the process is taking considerably longer than anticipated. The Chair heard the concerns raised by CPs in the Module and in her ruling confirmed that she too has: “real concerns about the ability of all parties properly to prepare for hearings starting in May 2023”. As a consequence, she has pushed back the start date to Tuesday 13 June 2023. This will have a knock on effect on the start date for the second module, which had been due to commence in June and has now been pushed back to October, and likely the entire Inquiry timetable.

The expected duration of Module 1 has also been extended from four weeks to six following submissions from Core Participants who raised concern that the time initially provided for was insufficient to allow for a rigorous and effective examination of the issues.

Structural racism and other expert evidence

Following submissions from many Core Participants, including the Federation of Ethnic Minority Healthcare Organisations (“FEMHO”), represented by Saunders Law, the Chair has ruled that the Inquiry will obtain expert evidence for Module 2 on the nature and degree of pre-pandemic structural racism. The commission of this expert evidence will seek to address the pre-existing inequalities and their underlying causes, including structural racism, which we submit were aggravated by the pandemic and should have been taken into account in emergency planning and  government decision making. Such inequalities include, for example, the disproportionate rates of death amongst ethnic minority groups in, and the government’s response to, the pandemic.

The Chair stated that, outside of the instruction of an expert on structural racism, the “vital issue of the impact of the pandemic and the response to it on ‘at risk’ or vulnerable or marginalised people, and on ethnic minority groups, has been at the heart of this Inquiry since its inception” and the issue has a central place in the Terms of Reference, obliging the Inquiry to consider any disparities in the impact of the pandemic on different categories of people, including those at risk, vulnerable or marginalised. It is also, she stated, an issue reflected in the many requests for evidence being made under Rule 9, in all three of the Inquiry’s active Modules. These Modules consider planning and preparedness for the pandemic, government decision making, and the impact of the pandemic on healthcare systems, respectively.

In respect of Module 1, expert reports have been commissioned from Professor Michael Marmot and Professor Clare Bambra to examine health inequalities and disclosure of that report is expected shortly.

In respect of Module 2, the Inquiry has issued instructions to the following experts to produce evidential reports on various other matters of concern:

• Professor Alina Henderson (to report on the mechanics of inter-governmental decision making between devolved nations and the UK Government);
• Professor Thomas Hale (to report on the effectiveness of decision making of the UK and devolved administrations with reference to international data);
• Alex Thomas (to report on UK Government emergency decision making structures);
• Gavin Freeguard (to report on access to and use of data by the UK Government and devolved administrations during the pandemic).

Rule 9 requests and disclosure

A substantial number of requests for evidence under Rule 9 of the Inquiry Rules 2006 have been made in respect of all active Modules in the Inquiry. Requests have been sent to key individuals including current and former ministers and participants in the Scientific Advisory Group for Emergencies (SAGE) as well as government departments and other relevant organisations involved in the response to the pandemic and organisations representing the interests of at risk and vulnerable groups. In response to these requests, the Inquiry has received information and supporting evidence from a range of sources including governmental bodies, arm’s length organisations and individuals.

As outlined in our previous article in this series [https://www.saunders.co.uk/news/hearings-begin-in-the-uk-covid-19-public-inquiry/], many Core Participants have made submissions, and renewed those submissions at the recent preliminary hearings, that the Rule 9 requests being prepared and sent by the Inquiry should be disclosed to Core Participants such that the Inquiry can be assisted in identifying potential gaps in the evidence being requested. The Chair has maintained that the Rule 9 requests will not be disclosed and instead elects to keep Core Participants informed of the progress of Rule 9 requests via monthly updates.

Scope

Many Core Participants requested that a List of Issues should be provided in respect of each Module. Lists of Issues provide clarity on the remit the Inquiry envisages for the areas of investigation in a given Module and would give Core Participants the opportunity to raise concerns or points of clarification if matters of concern are seen to fall outside the planned areas of investigation.

Following the Chair’s ruling that a List of Issues be provided in relation to Module 1 by 8 March 2023, it is now ruled that a provisional List of Issues will be provided to Core Participants by 28 April 2023 in relation to Module 2. In relation to Module 3, the Chair has stated that a provisional list of issues will be provided as soon as possible.

While the Chair did not make any further rulings in relation to the detailed scope of Modules 1 or 2, she has confirmed that the provisional scope of Module 3 will not be amended at this stage. Module 3 will not be split into sub-Modules for each devolved nation as is the case with Module 2 and had been requested by a Core Participant. Instead, she considers a single hearing more efficient and best placed to take account of the structural differences in healthcare systems without the need for each devolved nation to be considered separately.

Parliamentary privilege

Another issue debated in the recent preliminary hearings relates the doctrine of parliamentary privilege. This doctrine originates from Article IX of the Bill of Rights 1689 which states: “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of parliament.”

In practice, this means that courts, and possibly public inquiries such as the UK Covid-19 Inquiry, cannot question statements made in Parliament and select committees. Whether the doctrine applies to public inquiry proceedings has not been tested in law, and so there is currently no clear cut position on its application. However, if it is the case that the privilege does prevent an Inquiry from questioning statements made in Parliament, the Inquiry would not be able to introduce, or allow witnesses to the Inquiry to introduce, statements made in Parliament to support evidence given to the Inquiry. In some submissions, it was suggested that witnesses could use the privilege to shield themselves from scrutiny.

Lead Counsel to the Inquiry, Hugo Keith KC, has stated that it is at least arguable that parliamentary privilege does apply to the Inquiry. However, he argues that it “presents no practical problem” as it can be “sidestepped” by a practical workaround solution in issuing Rule 9 requests that ask the same information of witnesses that they are already known to have said in Parliament.

The Chair has declined to Rule on whether parliamentary privilege applies at all for now, but has confirmed she will keep the issue under review. Many Core Participants have reserved the right to make further submissions on this thorny issue if and when it presents any issue down the line.

Listening Exercise

As discussed in our previous article [https://www.saunders.co.uk/news/hearings-begin-in-the-uk-covid-19-public-inquiry/], concerns have been raised as to the appropriateness of outsourcing this exercise to corporate bodies. The Inquiry committed to consulting Core Participants going forwards and has also directed that the Inquiry team explore further ways in which it could improve its communications to Core Participants in relation to this exercise.

Further submissions were made by bereaved family groups as to potential conflicts of interest arising from the Inquiry’s work with certain corporate bodies in the exercise, as those bodies worked with the government during the pandemic. The Chair has stated that in her view, no such conflict arises, as the corporate bodies in question are not and will not be involved with the receipt of accounts of people’s experiences, or with the analysis of the information collated. More detailed information on the plans and process has been promised.

Next steps

The Chair confirmed that there will be a further Preliminary Hearing for Module 1 on 25 April 2023 and that a further Module 2 preliminary hearing will take place, but the date for this is yet to be confirmed. A further Preliminary Hearing will take place for Module 3 later in 2023, again, with a date to be confirmed. Further preliminary hearings for Modules 2A-2C, focused on the devolved nations, are taking place.

The start date for oral hearings for Module 1 has been postponed to 13 June 2023. As a result, the anticipated start date for oral hearings for Module 2 has been postponed to 2 October 2023. It is further anticipated that the oral hearings for Module 3 will take place at some time in 2024.

Until then, Core Participants will continue to receive and work through large amounts of documentary disclosure provided by the Inquiry team over the coming weeks and months.

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 the issues examined by the Inquiry. We currently represent Core Participants in the Grenfell Tower Inquiry, the Infected Blood Inquiry and the Undercover Policing Inquiry and can offer 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.