We learnt a several weeks ago from the Prime Minister that the Chair of the Covid-19 Public Inquiry is due to be appointed before Christmas. We therefore take this opportunity to share some considerations which Core Participants may need to bear in mind.
1. Insurance policies and funding
Public Inquiries by their very nature are extremely expensive. Between 1990 and 2017 the UK and devolved nations spent at least £630m on public inquiries (2017 prices). The actual cost will have been higher, since not all Inquiries publish their costs and others are ongoing. These costs only represent organisations that are publicly funded. These costs do not include privately funded individuals/organisations.
When an Inquiry is announced, it is usually the case that whichever Government Minister Office has called for the Inquiry will then fund the Inquiry's own legal team, including the reasonable legal costs for those directly affected by the subject of the Inquiry. For present purposes, this will likely extend to funding for legal teams acting on behalf of groups of families bereaved through the Covid-19 pandemic. However, other Core Participants, including local authorities, NHS trusts, care homes and private sector bodies will all likely need to bear their own legal costs. Unlike criminal or regulatory investigations, it is rare for Public Inquiry costs to be covered in EL/PL or D&O insurance policies so such organisations would need to budget their costs should they anticipate being involved.
2. Terms of reference
One of the first things the Inquiry will need to establish is a set of Terms of Reference (ToR). The ToR will codify the areas in which an Inquiry will investigate. The Covid Inquiry's ToR will need to be clear and well-demarcated because of the all-consuming nature of the pandemic on the country. Core Participants acting for the victims will want to ensure that their stories are placed front and centre of the Inquiry.
3. Document retention
Document preservation is one of the single most important steps an organisation can take ahead of such an Inquiry. Any Inquiry will seek to establish at an early stage the types of documents it wishes to request from Core Participants. Documents will be relevant to the Inquiry terms of reference and normally participants are expected to assess the relevance and avoid sending duplicate documents to the Inquiry. Therefore, organisations should ensure that no documents, hard copy or electronic, are permanently deleted or destroyed until it has had the opportunity to discuss with their own legal teams and the Public Inquiry legal team.
4. Expert evidence
Inquiries tend to hear from a multitude of experts during the course of the hearings and often much emphasis is placed on their views in the final report. The Covid Inquiry will need to ensure they have suitably qualified experts with expertise in the relevant areas, but who weren’t themselves involved in the management of the Government's response to the pandemic such that their independence cannot be questions. Experts in contingency planning for example, are likely to become highly sought after in the Covid Inquiry
5. Witness support
Being called to give evidence at an Inquiry can be an extremely stressful time for witnesses. It will be up to individual organisations to support "their" witnesses, who are likely to be current or former staff members. Support can be provided in various different ways. For example, organisations might consider providing or contributing to the legal costs of witnesses who might wish to be separately represented. Any documents they would have had access to should be made available to them. Most importantly, regular checks should be made on wellbeing and mental health and maintain an open dialogue so any witness feels necessary provisions are being made during what can be a stressful time.
6. Oral evidence
A Public Inquiry may have the look and feel of a trial, but it is intended to be an inquisitorial rather than adversarial process. Cross-examination will usually only take place by Counsel to the Inquiry rather than barristers acting for Core Participants. Core Participants may get the opportunity to submit questions to be put to witnesses, but the cross-examination will be carried out by Counsel to the Inquiry rather than barristers instructed by Core Participants.
Organisations involved in Inquiries will be scrutinised and criticised in the mainstream media and the growing online social media. The Covid Inquiry will inevitably attract much press interest. Organisations should already be establishing communications strategies with both internal stakeholders such as employees and shareholders, as well as external shareholders such as customers/patients, suppliers and investors.
8. Lessons learned
The Inquiry itself will be looking to produce recommendations [and often interim recommendations] bespoke to the Inquiry's terms of reference. However, organisations shouldn’t wait until the conclusion of a Public Inquiry to determine what could have been done differently. Organisations should already be considering what steps they have taken to better prepare themselves for a future event. Simply sitting back and waiting is unlikely to be considered acceptable. The Inquiry, through the submission of statements from various participants, will be looking for candour in terms of what could have been done differently, in order to assist the Inquiry.
9. Regulatory action
Regulators will likely choose to wait until after the conclusion of any Inquiry before deciding whether to take enforcement action against any organisations or individuals. Whilst witnesses may successfully apply for privilege against self-incrimination when giving evidence at the Inquiry, any evidence heard at the Inquiry will clearly be followed very closely by regulatory bodies.
The medical duty of candour applies in the context of care provided to patients and promotes staff taking an open, honest and transparent approach when things go wrong. It follows that where "things go wrong" on a vast scale, the same duty will still apply. For organisations seeking to act "with candour", one way to demonstrate this might be to consider an "accept and apologise" approach, as opposed to a "deny and defend" approach. Candour as a principle should be embraced in particular by all public bodies. They could consider, for example, looking to publicly confirm their commitment to candour.
Core Participants at a recent Inquiry have been accused of engaging in a "merry go round of buck passing" and all organisations involved, both public and private sector, should consider what steps they can take to avoid similar criticisms.
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DWF have significant experience in acting for core participants during public inquiries. To discuss any points made in this article or public inquiries in general please contact Steffan Groch or Simon Naylor.