Covid-19 Inquiry: Draft Terms of Reference Published

Now that the government has published the draft Terms of Reference for the UK COVID-19 Inquiry, organisations across a wide range of sectors will be examining the extent to which these touch their work and how they may, in due course, interact with the Inquiry.  Some organisations may proactively seek to become involved in the Inquiry, whereas others will be required to participate given their roles in the wide range of activities under scrutiny. 

The briefing below provides some initial thoughts which organisations may wish to consider on the ways in which they may interact with the Inquiry’s work, and some of the legal support they may require to do so.

Role in the Inquiry – to be a Core Participant?

One of the first questions which organisations will need to consider is whether or not they wish to be involved in the Inquiry as a core participant, or in a more responsive way simply providing evidence to the Inquiry as and when requested by the Inquiry legal team to do so.

Under the Inquiries Rules 2006, a person (or entity) may be designated as a core participant if they have played a significant role in relation to matters to which a public inquiry relates, have a significant interest in those matters, or if they may be subject to explicit or significant criticism in the inquiry proceedings or any report.  The Chair of an inquiry can designate parties as core participants of their own volition or, alternatively, a party can make an application to be granted core participant status which the Chair can grant or refuse.

Although, in broad terms, a public inquiry’s powers and procedures are set out in the Inquiries Act 2005 and the Inquiry Rules 2006, the detailed procedures of any individual inquiry are set by the Chair themselves.  However, it is likely that the procedures will mean that the benefits of being a core participant are that core participants will be able to:

• make opening submissions to the Inquiry (if designated as a core participant in time to do so);
• have prior sight of written statements and documents provided by witnesses before those witnesses give oral evidence to the Inquiry;
• propose questions to be raised with other witnesses (although it is likely to be in the discretion of Counsel to the Inquiry as to whether to ask those questions); and
• make closing submissions to the Inquiry at the conclusion of the evidence.

Unless an organisation is designated as a core participant by the Chair of their own volition, it will need to give consideration to whether it wishes to be a core participant and, if so, to make an application for such designation to the Chair when the Inquiry’s timetable permits such applications to be made. 

Role of Core Participants

In the event that your organisation is designated as a core participant (whether following an application, or of the Chair’s own volition), and subject to the precise procedures put in place in this Inquiry, you are likely to require legal support in relation to:

• making opening submissions to the Inquiry;
• monitoring the evidence of other parties in advance of it being provided in the public domain (as this is made available to core participants) to identify issues which may be of interest to your organisation and liaising with the Inquiry legal team in relation to any additional questions which you may want Counsel to the Inquiry to raise with that party; and
• making any closing submissions to the Inquiry which you wish to make before the Chair retires to deliberate and prepare their final, or any interim, report.

Providers of Evidence

Whether or not designated as a core participant, your organisation may also be requested by the Inquiry legal team (by way of Rule 9 Requests or orders under section 21 of the Inquiries Act) to provide evidence to the Inquiry in the form of documents and/ or witness statements.  Upon receipt of any such requests, you may require legal support with:

• managing and coordinating any necessary disclosure exercises to identify, and provide, any relevant documentary evidence; and
• liaising with your staff to prepare any relevant witness statements requested on behalf of the organisation.

Individual Staff as Providers of Evidence

It is also possible, depending upon how the Inquiry proceeds, that the Inquiry may also make requests for evidence directed to individual members of your staff, in their personal capacity, in addition to requests for evidence directed to your organisation in a corporate capacity.

Should any such requests be received by individual staff, then you may wish to support those staff by funding legal support to assist them in responding to the requests, and providing any necessary evidence.  It is also likely to be important to ensure that individual staff wellbeing is considered and supported.  Practical steps can be taken to set up lines of communication, protected time, points of contact, managerial support and wellbeing resources.

Responding to Criticisms

In the event that the Inquiry intends to make any explicit or significant criticism of any person (or corporate body) in any final, or interim, report, the Inquiry Rules require that person to be given an opportunity to respond to the criticism before the report is finalised.  Should your organisation or any individual member of staff receive notice of such intended criticism, you may require support to prepare a response for consideration by the Inquiry.

How Can We Help?

We have supported clients to manage their participation in complex and high profile public inquiries, including

• gathering, review and disclosure of documents
• developing organisational submissions
• supporting individuals and employees giving evidence
• managing internal and external communications
• responding to inquiry findings.

If you wish to discuss how we may support your organisation, we would be very happy to discuss this with you further.

• Carlton Sadler
• Joanna Lloyd
• Daniel Purcell
• Julie Charlton