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The coronavirus inquiry has been announced- but should there be a public consultation on its terms?

Perhaps the biggest political story of the week was the announcement of the inquiry into the Government’s covid response. Announced on Wednesday the inquiry will commence in 2022 and take place under the Inquiries Act 2005, allowing it to compel the production of evidence and take public evidence under oath. Announcing the inquiry in Parliament the Prime Minister reported that the Government will consult with the devolved administrations on the precise terms of reference for the panel. Which left us asking one big question. Why just the devolved administrations? Why not run a general consultation?

The Act does not determine how terms of reference for inquiries should be arrived at, though they are covered in broad terms in s.5. One of the major criticisms of the Act has consistently been that as it allows the Government to define the terms of the inquiry, a careful phrasing of the terms of reference can be used by a worried Government to avoid generating a report too critical of its actions (we seem to recall an old Yes, Minister episode dealing with something similar back in the day).

There are legitimate reasons why the Government might not want to consult broadly on the terms of reference of course. Particularly with something as wide-ranging as this, there is a risk that the process of the inquiry (that determining the terms of reference falls under) becomes confused with the subject of the inquiry. A consultation on the terms of reference could easily, were the narrative not controlled tightly, become a proxy, receiving submissions that are more appropriate to be made to the inquiry after its establishment. Similarly, there is the argument that the general public probably do not have a sufficient understanding of the machinery of government to be able to usefully contribute to a consultation on the terms of reference.

In our view however, these are poor arguments. The coronavirus pandemic has been the most significant global event we have seen since the Second World War, and has had enormous impacts on every aspect of day to day life. It has entailed significant restrictions on civil liberties, major economic damage and to date over 128,000 deaths. Any inquiry must, both in the evidence it takes, and in its own constitution, reflect that significance. For the Government to ensure that happens, determining what the inquiry covers should be done in consultation with a wide range of stakeholders.

One of the most important reasons that the inquiry should be engaged upon from the start is trust. Polls suggest that (with the notable exception of the vaccination programme), the British Government is considered to have handled the pandemic poorly. We were twice forced back into lockdowns that experts considered to have been created by unforced errors on the part of the Government. If the general public is to have confidence in the inquiry, they should be heavily involved from the start and should be given an opportunity to comment on and help refine the precise terms of reference.

Another reason is that the burden of coronavirus has not fallen equally. Ethnic minority groups and those living around the poverty line have suffered far more than those who have the capacity to work from home, or able to take furlough. By taking their views into account when determining the terms of the inquiry, it would be far better equipped to look at some of the institutional problems that both led to, and have been highlighted by the disproportionate impact of covid on certain communities. Not doing so, and allowing the terms of inquiry to be determined solely by an unrepresentative political class would increase the risk of things being overlooked and of a lack of faith in the results by communities who already suffer increased rates of detachment and justified cynicism.

There is also a good argument that the machinery of government is not the sole factor in the Government’s response to the pandemic, with many external bodies having played a role. Pharmaceuticals companies, financiers, and almost every economic sector have played key roles at the behest of government and would be well placed not only to contribute to the substance of the inquiry when established, but also its constitution. They could help set terms that cover their relationships with the Government during the crisis, and how effective those relationships were. They have special knowledge of the processes used, including the bits the Government might be less willing to bring up themselves.

Consulting on the terms of reference would also demonstrate a genuine willingness to learn from the inquiry. The Government must accept that whatever report the inquiry ultimately publishes is not likely to be universally edifying to them, and should treat it not as an inconvenient necessity, but a genuine learning experience. If they attempt to set terms of reference without consulting widely, then they increase the risk of being seen as treating the inquiry as an exculpatory whitewash, designed to insulate them from political damage.

Related to this, a full consultation would also make it more difficult for the Government to pick and choose terms designed to exculpate them of responsibility. If they undertook a consultation then they would have to explain why they had included something, or not included something, with respect to consultation responses. On this ground it is perhaps understandable why there is not a consultation planned, but in the long term something viewed as a carefully selected government whitewash is likely to be more damaging, particularly if it leads to further deaths in a future pandemic.

In short, there are very many compelling reasons that the Government should engage the general public not only on the substance of the inquiry, but also in setting it up. With the PM making the much criticised decision to delay the start of the inquiry until spring 2022 there is ample opportunity to consult widely on the terms of reference, and in our view this would lead to a better, more comprehensive, more just, more trustworthy and ultimately more educational inquiry. Although there is a need to retain appropriate separation between the substance and process of the inquiry, there is no reason that a well-run consultation narrative could not relatively simply do so.

Although at the moment there is no public consultation planned, we can perhaps take a little comfort from the fact that the devolved administrations who are being consulted are (in two cases) controlled by opposition parties, unlikely to be content with a poor inquiry. The degree to which they are consulted will be very important, as will the eventual form of the inquiry. To be effective, it should be a joint effort across all the governments that share our country, with sub-reports for each devolved administration. If instead of this model, four separate inquiries are run, there is a serious risk not only that the inquiry reports will be used as mere political footballs to criticise other parties, but also that the response will be so disparate as to be functionally useless.

The need to respond better to pandemics has never been more serious, with increasing instances of potentially threatening novel diseases being driven by climate change and population concentration. Although in the short term a negative report might do political damage, accepting its recommendations is vital and has the potential to save thousands of lives going forward. Demonstrating a willingness to listen to a wide range of stakeholders from the very start would be a good initial step in showing a genuine interest to do better in future but ultimately, the question may come down to whether the Government are more interested in the interests of the party, or the interests of the nation. We hope they make the right choice.

About the Author

Stephen serves as the Institute’s Legal and Parliamentary Officer. Before joining the Institute Stephen studied Law at Bangor University and pursued a Masters’ degree in Aviation and Space Law at McGill University in Montreal. After this, he returned to London and was called to the bar in 2016 at the Honorable Society of Gray’s Inn, before deciding not to go into practice and move towards public policy work instead. Within the Institute, Stephen provides legal, political and policy analysis of UK and global current affairs of interest to consultors and consultees.

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