By Una O’Brien*
The former Department of Health Permanent Secretary gives the pros and cons for a Covid-19 public inquiry.
The pressure is intensifying for a public inquiry into the UK response to Covid-19. There are many questions about what happened and who was responsible for preparedness, the quality of response and generally the Government’s decisions. Crucially, what lessons need to be learned before this infection doubles down and an even worse one emerges in the future?
Before its task gets too unwieldy however, we should ask what type of inquiry, and how it could work.
Since 2005, when the inquiry legislation was modernised, there have been 29 major inquiries. Grenfell and Infected Blood are two such current inquiries, both still working but with hearings on hold during this crisis. Is the huge time and effort involved in major inquiries worth it?
Too often, there is scepticism about whether they can make a difference. It’s said inquiries take too long; the Saville Inquiry into Bloody Sunday, an extreme example, lasted 12 years (1998-2010) while the average is nearer to three years from start to report. Costs can run into millions with lawyers often being the main beneficiaries, and recommendations are not always implemented in full – so much so that former Inquiry Chairs such as Sir Michael Bichard (Soham) and Sir Robert Francis (Mid Staffs) have made a point of calling out failure to follow through on key recommendations.
Ways already exist to address the public’s questions about Covid-19 without the full panoply of a major inquiry. Select Committees are on the case, questioning Ministers and experts. Investigative journalists are burrowing deep (on testing and PPE for example) and public health academics and economists are researching and writing – in real time – about the impact of the virus on the UK population. This necessary work is highly valuable, but will it satisfy the magnitude and depth of the public’s concerns? Did we have to lose so many loved ones and key workers? Could more have been done sooner by government to mitigate the impact on the economy? How effective was the government machine as a whole?
It’s the enormous impact of Covid-19 on people’s lives and the government response that, despite the downsides, could justify an independent, statutory public inquiry with powers to compel production of documents; take evidence on oath and require statements from witnesses. Yet even these powers may not go far enough. The public need to be confident that all relevant documents, minutes, emails, texts and even Zoom records are handed over to the Inquiry in a timely way. We also need to be satisfied that politicians, officials, scientific and health experts will give their evidence willingly, under oath and in public. While only the Government can establish a formal public inquiry, Parliament has a crucial job to ensure that its powers are up to the task.
If there is to be an inquiry, the search for a Chair should start now. Any Chair worth her or his salt will want to have a say over the scope of what’s to be investigated, so it would be smart to appoint someone before terms of reference are fixed. In the past doctors, scientists and even former civil servants have chaired major inquiries. But this one is likely to need the independence and authority of an inquisitorial process that only a senior judge, or even a panel of three judges with a range of deep specialist experience between them, can confidently deliver.
A letter in the Financial Times from a group of Lords recently urged cross-party dialogue and consensus on the terms of reference. The Covid-19 public inquiry will have to reach deep into the process of government, at its centre as well as across many departments, thus an inclusive approach to the terms of reference makes sense. Cross-party dialogue is something that can start now and best practice would then be a short period of public consultation. Any Inquiry will need to focus on the UK-wide response; that means careful liaison with the devolved administrations over the terms of reference and more broadly the conduct of the Inquiry. These actions together could help enhance the inquiry’s authority and independence.
Some say, ‘now is not the time, an inquiry can come later’. Yet bear in mind that from initiation, at least in old ‘normal’ time, it took a minimum of 4-6 months for a major inquiry to get powered up. It’s not just a question of people and logistics, but the time and effort needed to obtain and absorb a vast amount of material and statements so that informed questions can be asked. That’s all the more reason for any inquiry, if it’s to do its work well and in a timely way, to be established as soon as possible, allowing the background preparatory work to start so that public hearings can start later this or early next year.
When hearings get underway, a QC and team with the skills to deliver a fair, investigatory approach should lead the questioning from all perspectives, making sure that participants can explain their actions. To keep the focus on learning lessons for the future, the approach will have to be inquisitorial; it cannot be a ‘prosecution’ and the inquiry, however much some might wish otherwise, cannot be a blame game.
Expectations of a swift report are bound to be high, yet a tight timeframe would depend on early co-operation from government and the quantum of evidence, unknowable at the start. Inquiry Chairs are understandably reluctant, until they’ve seen the evidence, to commit to early reports. That said, for the Covid-19 Inquiry, answers to some questions are urgent, not least the facts of what happened; how well prepared we were, who knew and did what in relation to the early response and what needs to be done differently for the future. We may well face another pandemic; lessons from this one are vital, so care is needed to prioritise the Inquiry’s stages, maximising the scope for an early or initial report.
Voice of the people: public inquiries tend to follow a disaster where people were killed, injured and bereaved because something went wrong when they should have been safe. We have only to think of Grenfell, Ladbroke Grove and Mid-Staffs. For the Covid-19 inquiry, perhaps its biggest challenge will be to hear the voice of all those who have suffered in this crisis. No previous Inquiry can guide us here; for the Covid-19 public inquiry, as with so many other aspects of life the virus has affected, we will need innovation on a previously unimaginable scale. It will certainly be a public inquiry like no other.
* Una O’Brien was Secretary to the Bristol Royal Infirmary public inquiry (1998-2001) and the independent panel member on the Northern Ireland Renewable Heat Incentive public inquiry (2017-2020). She was Permanent Secretary at the Department of Health until 2016.