DISOUTE RESOLUTION AND COMMERCIAL LITIGATION

The legal scope and basis of the Covid Inquiry – off to a bad start?

Yesterday the Covid Inquiry, set up under the Inquiries Act 2005, opened. It got off to a bad start.

There is an ongoing dispute between the Cabinet Office and the Inquiry over the scope of disclosure. The Cabinet Office are refusing to release documentation they consider to be manifestly irrelevant. The Inquiry takes the view that it is for the Inquiry to make all determinations on relevance.

The point will now be taken to Judicial Review by government. The Cabinet Office, like any other party to legal process, has every right to seek the guidance of the Court in judicial review. Not only this, Government has a duty to seek guidance from the Court where the public interest of Government needing privacy to discuss policy options is under attack. Those who criticise the Government’s position are wrong in this regard. Some regard the Inquiry as aggressive in its attitude to disclosure.

To those of us interested in law and Government, there is nothing to reassure in the opening speech of Mr Hugo Keith KC (counsel for the Inquiry). The Inquiry is scheduled to last for two – three years and estimates of the costs range into the hundreds of millions of pounds. The purpose of the Inquiry is inquisitorial under the Inquiries Act 2005 – the clue is in the title. The purpose is not to be accusatory – to assign blame. Listening to Mr Keith KC yesterday, one would have thought the time and money could be saved: the conclusions have already been reached. Further, the condemnations have been made.

The opening of the Inquiry will have done much to assuage public anger, but it will have done nothing to persuade those in Government, that their case will be heard in a cool and unprejudiced way. The impression to those in Government and likely to be called to give evidence, will reinforce them in their opinion that they were right to withhold documents from the Inquiry and put that matter in the hands of a Court.

Yesterday, Mr Keith said Government gave ‘Very little thought’ about the impact of lockdown.

Counsel for the Bereaved Families for Justice UK, Mr Peter Weatherby KC made the following submissions:

  • The UK authorities were ‘complacent’ and that the evidence will demonstrate an absence of (i) responsibility in Government in terms of civil emergency planning and (ii) leadership at ministerial level and (iii)  ‘a chaos of committees’.

Mr Keith KC has suggested that pandemic planning was lacking in the run up to the outbreak of the disease.

He even went so far as to bring in Brexit ‘[Brexit] crowded out and prevented some or perhaps a majority of improvements’ in relation to emergency planning.

These conclusions beg two questions, why have the Inquiry under the Act? We can just go straight to trial and conviction. And what is the proper scope of an Inquiry under the Act? To me as an observer of Government and law, the opening of the Inquiry fell far short of an objective, unprejudiced fact- finding exercise.

To those of us interested in law and administration, these questions matter…

Under Section 1, a Minister may cause an inquiry to be held under act where (a) particular events have caused or may cause public concern or (b) there is a public concern that particular events may have occurred.

The Inquiry was set up with defined aims.

  1. The examination of the UK response to Covid- and produce a full factual narrative.
  2. Identify lessons to be learned from that response ‘to inform preparations for future pandemics across the UK’

[cabinet office 28.06.2022]

This remit was updated and now the Inquiry is proceeding in four Modules. Module 1 Resilience and Preparedness, Module 2 Core UK decision making and political governance, Module 3 impact on Healthcare, Module 4 Vaccines and Therapeutics.

The key point under the Act is that an Inquiry is not a prosecutorial process. Other mechanisms exist within our system of law. The 2005 Act is designed to get the facts out, and without assigning blame.

Yesterday’s opening felt a long way from that ideal.

About the authors


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Jonathan Compton

Partner

Specialist in commercial disputes, banking and finance, regulatory and anti-trust/competition law.

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