Sailesh Mehta is a Barrister in Human Rights and Regulatory Law at Red Lion Chambers, who now calls for a Public Inquiry into COVID-19
Coronavirus has claimed more than 34,000 lives in the UK alone and the global death toll will be half a million or more. Major economies have ground to a halt, causing millions of job losses. Unprecedented restrictions have been imposed on the freedom of movement, freedom of assembly and access to health care.
This virus has caused one of the greatest crises in living memory. It has tested every aspect of Government and laid bare weaknesses in how we have arranged our lives. The shock to our system will reverberate for many years. And it could happen again soon.
Is there a need for a COVID-19 Public Inquiry?
Surprisingly, all this has happened in a partial vacuum of information. This is partly because there are huge gaps in knowledge about the virus, and how it has affected us on a macro and micro scale; partly it is in the interest of every Government to tightly control information (for good and bad reason) – the less we know, the easier it is to get us to do things we do not want to do.
The legal test for the need for an inquiry presents a low threshold: that it appears to a Minister that “particular events have caused, or are capable of causing, public concern” (s.1 of the Inquiries Act 2005). Public concerns about COVID-19 clear that hurdle with ease.
Will there be an Inquiry?
Our Government will not be the only one that resists loud calls from the public for an inquiry. Already the arguments are being rehearsed: it is too early – let us focus on the recovery instead (as if these were mutually exclusive); it is impossible to compare our actions with other countries’ actions (even though that is exactly what was being done until the UK started to compare unfavourably); we refuse to pander to the “blame game” – we are all in it together; those that want an inquiry are our enemies.
Of course, the real reason that Governments hate Inquiries that might blame them is because, sometimes, that is exactly what happens.
The likely advice to Boris Johnson from his political minders will be: (i) say no; (ii) say no loudly and attack those who call for it; (iii) when the public pressure is too great, say yes and insist it was the Government’s idea in the first place; (iv) put “one of ours” in charge of it; (v) limit and control the parameters of the Inquiry to “safe” topics (vi) if all else fails, kick any conclusion into the long grass to a time when all will be forgotten.
Preventing recurrence will be the primary purpose of an inquiry – a properly run inquiry could save many thousands of lives here and elsewhere.
Statutory or Non-Statutory?
Most public inquiries have been statutory, since the Inquiries Act 2005. A statutory inquiry has all the benefits of a Ministerial Inquiry, but usually has far more power and is more likely to be perceived as independent.
Recent examples of Public Inquiries include The Grenfell Tower tragedy (started 2017 and only partly complete); Leveson Inquiry (into press culture and ethics following the News International phone hacking scandal – 2011); the Iraq Inquiry (into the lessons learnt from the Iraq Conflict 2009-2016); the Lamming Inquiry (into the murder of Victoria Climbie – 2001); the Ladbroke Grove Inquiry (into a rail crash near Victoria Station – 2000). Some of these have held great dangers for the Government of the day, but many have been so protracted that the report comes long after a change in administration.
Terms of reference
The success or failure of an inquiry can be based largely on the terms of its reference. Too narrow, it will not focus on other important aspects; too wide, it will be diffused and take too long to report. The following topics are essential for coverage:
a) What happened? This is almost always the starting question. How did the virus come into existence and how did it spread? How many people were really infected and how many really died as a result?
b) Why did it happen and who is to blame? Was preparedness for pandemics downgraded and were early warnings missed? How did it enter the UK and what were the drivers? What was the UK’s preparedness for the virus – hospitals, care homes, the economy, work places, supply chains, equipment (from ventilators to masks to toilet paper); why were borders not closed earlier; how did we miss the European offer of PPE? Did Brexit play a part?; what advice was the Government receiving and how was it reflected in policy? How effective was the UK policy, compared to other countries, in preventing deaths – this is likely to be the most politically and factually vexed question? How effective was the Treasury in protecting the economy (while providing support to those most in need?) and what harm has been done to the economy? How efficient was testing?
c) What have we learnt to prevent a recurrence? What scientific research facilities should we invest in and should these be international? How can we reduce the risk of another “wet market” virus? How can we kick start the economy and how do we better protect it next time? What essential equipment should we stock pile in the event of a repeat? What information should be disseminated to the public and how? Should we deal with misinformation by individuals and States? What are the greater implications for the processing of personal data such as the use of “track and trace”?
Chair and Panel
The appointment of the Chair and Panel are often key decisions which will decide whether the Inquiry Report will be hard-hitting or more accommodating to the Government. The Chair will simply be a person who has the trust and respect of the public, and who has enough clout to make the Inquiry matter. The Chair will rely heavily on a panel of experts in medicine, economics, supply chains and Government. The Inquiry will need powers to make witnesses give evidence and to require Government departments and corporations to disclose potentially sensitive information.
Many Inquiries have faltered due to the time they have taken – the Bloody Sunday Inquiry into the killing of 14 people by members of the Parachute Regiment in 1972 took 12 years to complete. The Inquiry needs to be concluded within 3 years (with numerous interim reports on specific topics) so that the conclusions can be put into action as soon as possible.
The Inquiry needs to be concluded within 3 years
There can be no doubt that a Public Inquiry is necessary. A properly constituted inquiry will almost certainly save lives during the next crisis – which is inevitable. The only question is whether public demand is too great for the Government to ignore.
Did the Government “stay at home”, did it “protect the NHS”, did it “save lives”?
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