In an address to the House of Commons in June 2020, Prime Minister Boris Johnson committed to creating an "independent inquiry" into the UK's response to the COVID-19 pandemic. The Prime Minister announced on 28 September 2021 that the Chair of the upcoming Covid Inquiry is to be appointed before Christmas.
The timings, format, terms of reference and participants are all yet to be decided. Nonetheless, organisations who may have a role to play in the Public Inquiry should have already begun preparing themselves for the upcoming Inquiry process. For those public bodies who are likely to be involved – this will include familiarising themselves with the ever-evolving commitment, or duty, to candour. Before we consider in more detail what this means for public bodies, it is worth providing background as to the role and purpose of a Public Inquiry.
Role of a Public Inquiry
Public Inquiries are convened by the Government in situations where there is a "public concern" following an event or set of circumstances. Public Inquiries often arise where lives have been lost, which necessitates an independent investigation. Inquiries are intended to be fact finding exercises; they are not intended to assign criminal or civil liability on a particular individual or organisation. They seek to investigate why something happened and what can be done to prevent a recurrence. According to the Ministry of Justice, the government considers "preventing recurrence" to be the primary purpose of public inquiries and the Prime Minster has already intimated that "lessons learned" is the driver of the upcoming COVID-19 inquiry.
Public Inquiries are led by a Chair, most commonly a senior judge or barrister, with assistance from panel members who are likely to have expertise in the subject matter of the Inquiry. The Chair will appoint Counsel to the Inquiry, almost always a senior barrister, who will advise the panel and be responsible for questioning witnesses giving oral evidence.
The Inquiry will need to establish Terms of Reference ('ToR'), which sets out what the Public Inquiry will seek to address. The ToR will cover what and why something happened. In the context of the COVID-19 Inquiry, the ToR are likely to include the suitability and sufficiency of the Government's pandemic planning, the actions it took to mitigate the spread and impact of the virus and the support measures it put in place to safeguard the wellbeing of the nation as a whole. The COVID-19 inquiry will need to ensure that the families and friends of those who have lost loved ones are placed at the heart of the Inquiry. The Prime Minister's timescale commitment to appointing a Chair followed shortly after meeting a group called "Covid-19 Bereaved Families for Justice", suggesting those most affected will have input into the establishment and conduct of the Inquiry.
The Duty of Candour and why should it matter to public bodies
In the Oxford English Dictionary, candour is defined as "the quality of being open and honest; frankness". The concept of candour has long existed in the healthcare system, including the NHS, which will of course be central to any COVID-19 inquiry. 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 "thing go wrong" on a vast scale, the same duty will still apply. The duty for NHS organisations has now been transposed into statute under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. In April 2015, this legal duty was extended to all other health and social care providers registered with the Care Quality Commission.
However, in a COVID-19 Inquiry, it is likely that all public bodies including central government departments and local authorities will be expected to conduct themselves with candour. According to the Cabinet Office guide "Classification Of Public Bodies: Guidance For Departments", a ‘public body’ is a formally established organisation that is (at least in part) publically funded to deliver a public or government service.
One of the first ways public bodies can, and almost certainly should, demonstrate their intent to act transparently and with candour will be by signing up to the "Charter for Families Bereaved through Public Tragedy" ('the Charter').The Charter was inspired by the experience of the Hillsborough families and in which public bodies commit to placing the public interest above their own reputations. For public bodies, acting with candour goes beyond legislative requirements; it reflects public expectation.
For public bodies 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. A natural instinct of all organisations, including public bodies, is to defend themselves against allegations of illegality or wrongdoing. However, under the duty of candour, public bodies are expected to become introspective when assessing their own failings and, where appropriate, make any admissions before any such wrongdoing is demonstrated during inquiry hearings or in a court of law. In short, candour means not seeking to "defend the indefensible" but rather showing an "open hand" and demonstrating to the wider public that you are as keen to investigate the circumstances of the event(s) leading to the inquiry as the Public Inquiry itself. If organisations involved in an inquiry act with candour, it will be easier for the Inquiry to get to the truth and provide the necessary answers to those affected.
How can organisations prepare themselves for an Inquiry?
Core Participant status
In order to play an active role in a COVID-19 Inquiry, an organisation must be granted "Core Participant" status. The Chair of the Inquiry will have power to designate an individual, group, or organisation who has an interest or involvement in the subject of the inquiry as a Core Participant. Core Participants will have the right to make submissions to the Inquiry and potentially ask questions to witnesses giving live evidence.
Certain bodies will be granted Core Participant status at the outset, whilst others may need to apply to become a Core Participant. Where a public body has not been given Core Participant status by the Chair of the Inquiry, but they believe they hold documentary evidence or believe they can otherwise make a meaningful contribution to the Inquiry, an example of acting with candour would be to apply for Core Participant status.
There are advantages and disadvantages to being a Core Participant. Core Participants may be asked to provide input into an Inquiry's Terms of Reference and have an open line of dialogue with the Inquiry's team. However, in being a Core Participant, the organisation is likely to be expected to deal with various Inquiry requests for information and documentation ahead of any oral evidence. Oral evidence is also more likely to be heard from individuals on behalf of Core Participants, which may be critical of the organisation as a whole.
Core Participants in the Covid Inquiry are likely to include a range of public sector organisations, such as central government departments, local government bodies, healthcare and education providers and from the justice system.
In addition, there are also likely to be a number of private sector Core Participants representing a wide spectrum of sectors, including organisations in the logistics, utilities, manufacturing, health and care fields. It will be of interest to see the contrasting approaches adopted by public and private bodies as regards candour.
Document creation and preservation
Any group or organisation likely to have an involvement in a COVID-19 Inquiry should have already taken steps to preserve both electronic and hard copy documents. Organisations in particular should initiate a "litigation hold" whereby no electronic items can be permanently deleted. Moreover, staff should be reminded not to alter or delete any items on devices they use in the course of their employment (including laptops, phones and tablets). As part of its disclosure to the Inquiry, organisations may be asked to demonstrate what steps they have taken to retain their data. Any complaints about the associated costs of additional server storage, for instance, is unlikely to be looked upon sympathetically.
In terms of document creation, organisations should seek to avoid creating any document (whether that be CRM record, meeting minute, email or report) that they would be uncomfortable being disclosed during Inquiry proceedings. Conversely, an organisation that creates a document for the purpose of assisting the Inquiry, which is potentially detrimental to the same organisation, might demonstrate the organisation acting with the spirit of candour.
Once the Inquiry's ToR are set by the Chair and approved by the Prime Minister, organisations can expect to receive a request for the provision of any document of potentially relevance to the ToR. All organisations, but particularly public bodies, will be expected to make all reasonable endeavours to search for, review and disclose any documents which may be of relevance to the Inquiry's work. Depending on the size of the organisation, this may well be a very substantial and time consuming task but one which the Inquiry, and the public, will expect document providers to undertake.
The Inquiry will expect that organisations conduct proper and thorough review exercises, such that an Inquiry is not deluged with large volumes of irrelevant material that they themselves have to sift through. Public bodies will be expected to act with candour during this process and disclose other documents which it thinks might be of potential relevance to the Inquiry's investigations, even if a document doesn't sit neatly within the scope of the inquiry's document request. Core Participants will also be expected to make a detailed disclosure statement, detailing the methodology of their document identification and disclosure process.
Public bodies likely to be involved in the Inquiry should begin planning for how they will deal with a document request from the Inquiry, including identifying key personnel internally who will lead the process as well as speaking with IT teams about how servers and databases might be interrogated to locate all relevant material.
Former and current employees or other staff linked to an organisation (such as contractors, trustees or governors) may be compelled to provide witness testimony to the Inquiry either in writing, orally or both. Organisations should have policies in place to provide the necessary support and guidance to their staff, both former and current, in what is likely to be a stressful time. Once an Inquiry is established, briefing sessions should be provided for relevant employees so they are aware what the inquiry entails and what role they must play. For public body signatories to the Charter, employees should be reminded of the organisations duty of candour and the expectation that this extends to their own employees and agents.
Engagement with bereaved groups
The families, friends and communities affected by the event, or events which have led to an Inquiry being called, are rightly placed at the centre of an Inquiry's work. It is especially important that public bodies open up an early and transparent line of engagement with the relevant groups to ensure that they remain at the heart of the investigations. Senior members of staff might be nominated to attend engagement sessions and PR and Communications departments should be briefed to ensure that corporate messaging is consistent and candid.
Once all evidence has been heard or read, the Inquiry's Chair, will prepare a report setting out their findings. The report will include various, non-binding, recommendations. It is for Government to determine what recommendations, if any, to implement. In the case of the Covid Inquiry, the Government will be under pressure to ensure at the conclusion of the Inquiry that they have taken steps to prepare for, and mitigate the effects of, a similar pandemic or at the very least demonstrate that adequate lessons have been learned.
An Inquiry panel has no authority to rule on or determine an individual's civil or criminal liability. Any regulatory or criminal investigation are likely to be put on hold until the Inquiry's report is published.
Inquiries can be lengthy processes but if organisations involved demonstrate a commitment to candour throughout, an Inquiry will be better informed and able to get to the truth more quickly. To assist this, by making early preparations, public bodies can ensure that they have the right infrastructure and process to prepare for an inquiry as efficiently, and candidly, as possible.