Covid Inquiry - will you be a core participant?

Following on from our first piece which explored the background to the COVID Inquiry and its likely terms of reference we will now explore the issue of the role of a core participant: who are they likely to be and what legal support is it likely core participants and evidence providers will need to be thinking about.

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.  Baroness Hallett, as the newly appointed Chair of the Inquiry, in due course can designate parties as core participants of her 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 determined by the Chair.  Together, these will define the benefits of being a core participant and these are likely to include:

• making opening submissions to the Inquiry (if designated as a core participant in time to do so);
• having prior sight of written statements and documents provided by witnesses before those witnesses give oral evidence to the Inquiry;
• proposing 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
• making closing submissions to the Inquiry at the conclusion of the evidence.

So one of the first questions an organisation should ask itself is whether it wishes to be a core participant and, if so, should it not be so designated by the Chair, whether and when to make an application for such designation.

In the event that an organisation is designated as a core participant (whether by application or designation) and subject to the precise procedures put in place in this Inquiry, thought should be given to what support is likely to be needed in relation to:

• making any 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 and liaising with the Inquiry legal team in relation to any additional questions which the organisation may want Counsel to the Inquiry to raise with that party; and
• making any closing submissions to the Inquiry before the Chair retires to deliberate and prepare her final, or any interim, report.

Support to a Provider of Evidence

Whether or not an organisation is designated as a core participant, it 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, an organisation will need to give thought to:

• managing and coordinating any necessary disclosure exercises to identify, and provide, any relevant documentary evidence it holds. Given that the matters to which the Inquiry relates are recent, it is likely that all relevant documentary evidence will be held in electronic format; as such, depending upon the nature and scale of any such evidence request made by the Inquiry, it may be that the use of electronic disclosure platforms would be of assistance in terms of managing any such exercise effectively and efficiently;
• liaising with staff to prepare any relevant witness statements requested on behalf of the organisation; and
• any information law and privacy issues associated with the disclosure of information to the Inquiry. Whilst it is likely to be lawful to disclose personal data to the Inquiry where it is necessary for its purposes (and requested under its statutory powers), consideration should still be given to the data protection rights of any individuals who may be identifiable.  In particular, organisations should consider whether personal data could be redacted before disclosure and how to comply with the transparency obligations imposed by the UK GDPR.

Support to Individual Members of 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 staff, in their personal capacity, in addition to requests for evidence in an organisational capacity.

Organisations will want to support staff receiving such requests and may want to give thought to underwriting relevant legal costs incurred responding to such a requests. For practical purposes, there are considerable advantages in any such support to individual staff members being provided by the same legal team providing organisational support, provided there is no conflict of interest between the individual and the organisation and an agreement can be reached with the Inquiry legal team around mechanisms to comply with any specific confidentiality restrictions which arise under the Inquiry’s own procedural rules.

Support Responding to Criticism

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 an organisation or any individual member of staff receive notice of such intended criticism, they are likely to require support in preparing a response to such criticism for consideration by the Inquiry.

The Prime Minister will now consult Baroness Hallett and ministers from the devolved administrations on the terms of reference for the Inquiry, which have been promised for publication in the New Year; the clock is ticking.

If you would like to discuss this topic in further detail, please contact:

• Joanna Lloyd, Partner
• Carlton Sadler, Partner
• James Cassidy, Partner