As of July 2020 (the time of writing), calls continue to grow for a judge-led public inquiry into the UK’s response to COVID-19. Campaigners point out that the UK death rate is one of the worst in the world and, according to opinion polling, the British public has lost confidence in the government’s response to the pandemic. It is argued that there are questions to be asked about various issues – government policy, PPE provision, care homes, the virus’s demographic impact (especially on BAME groups). Moreover, according to campaigners, these issues are unlikely to be resolved through any obvious legal routes (eg civil claims, judicial reviews, inquests, criminal proceedings) and, given the potential for a second wave of COVID-19 infections, it is imperative that work starts now to learn lessons. Campaigners argue that there is thus good reason for a judge-led inquiry – set up under the auspices of the Inquiries Act 2005 – to get started as soon as possible.
As a simple matter of public policy, there is clearly scope for reflection on the part of the UK government so as to learn lessons, inform future policy and assuage public concern. But is a public inquiry the right forum to do so?
It is trite but no less correct to say that public inquiries are costly and time-consuming – those looking for a quick solution are likely to be disappointed. Yet any judge-led inquiry into COVID-19 that was held in the short-to-medium-term would face additional challenges – in investigating serving ministers; managing public expectations; and ensuring that its recommendations are implemented in what is an increasingly polarised political climate. The aim of this article is to reflect on the appropriateness of any imminent inquiry into COVID-19 and some of the practical difficulties it would face.
Investigating serving ministers
In any inquiry into the UK’s response to COVID-19, much will depend on its terms of reference, when it begins and so forth. However, it is likely that a central focus of investigation will be government policy and decision-making. This is where any inquiry would face its first challenge, for Boris Johnson retains a large Parliamentary majority and is relatively early in his term as Prime Minister. If a judge-led inquiry commences within, say, the next 12 months, it is likely to end up investigating the conduct of serving government ministers.
Such a situation would pose an obvious risk to the political independence of the judiciary. Where an inquiry would leave Parliament is also of some concern – would its role in holding governments to account be supplanted? Might ministers refuse to answer MPs’ questions out of fear of ‘prejudicing’ the inquiry?
Another issue arises from the ongoing nature of the COVID-19 pandemic, which makes it impossible at this stage to identify any end point to any inquiry. We may also ask whether it would be appropriate to commence a fact-finding exercise that would divert government resources and potentially limit the willingness of serving ministers to govern for fear of being chastised.
Those agitating for an inquiry may seek to draw a favourable comparison with the Leveson Inquiry into press standards, which was judge-led and which examined the conduct of serving government ministers (including the then Prime Minister, David Cameron). Yet this comparison is of limited utility. After all, Leveson was predominantly concerned with relationships between politicians and the media (government policy took a back seat). Moreover, the Leveson Inquiry’s scrutiny of the relationship between politicians and the media extended to a period of several years thereby implicating politicians from various parties.
The same cannot be said for an inquiry into the COVID-19 response. It would likely have at the centre of its focus government policy over a narrower period of time involving ministers who are still in office. The risk is that we might end up in the situation where a member of the judiciary does the job of the electorate in evaluating the competence of serving ministers.
Managing public expectations
Where an inquiry is announced prematurely, there is a risk in transporting a highly charged social issue to a forum that is ill-equipped for dealing with it. The Grenfell Inquiry is one such example.
Given the systemic failures that led to the tragedy, plus the implications for other residents of high-rise tower-blocks, an inquiry was apt. Yet its premature announcement by then Prime Minister Theresa May, made before attempts to fully listen to those who had suffered from the tragedy, led to many of the concerns of the Grenfell residents being projected onto the new Inquiry. But because it had not yet heard evidence or investigated what had happened, the Inquiry’s Chair could say little publicly in response. Indeed, because the Grenfell Inquiry commenced before any proper dialogue, the bereaved and campaigners continued to agitate for criminal prosecutions to be brought, not realising that determinations on criminal or civil liability are prohibited under the Inquiries Act 2005.
It is not inconceivable that an inquiry into the COVID-19 response might be similarly disadvantaged. Granted, the intensity of feeling that followed the Grenfell tragedy has not been matched by COVID-19. However, the point remains that when inquiries are announced prematurely, they run the risk of exporting a political issue into a legal forum – one that moves slowly, must adhere to a set of rules and is unable (and rightly unwilling) to hold elected politicians accountable. In the case of COVID-19, there are circumstances where an inquiry might be appropriate for learning lessons. But seeking to mollify campaigners or those who have lost loved ones is something else. That requires a political initiative.
Ensuring any inquiry’s recommendations are implemented
It is impossible to predict how any government (of whatever political composition) would respond to the recommendations of any inquiry into COVID-19. Much would depend on when it concludes.
However, as the Institute of Government has identified, governments have a ‘patchy’ history when it comes to implementing the recommendations of inquiries. Indeed, there is no requirement or obligation on behalf of governments to accept an inquiry’s recommendations, and several recent inquiries have received little or no response from the government: I am thinking in particular of the Leveson Inquiry, which is both the most political inquiry in recent years as well as (coincidentally) the most overlooked by politicians.
There is also the political context to consider in any inquiry into COVID-19. As stated above, the judicial investigation of serving ministers is problematic at the best of times. The situation becomes more complex still if those ministers are implementing Brexit – easily the most divisive policy in living memory, and one that has already seen judges labelled as ‘enemies of the people’. This begs the question as to whether Brexit-supporting voters would be receptive to criticism of a government that is implementing their desired foreign policy. Conversely, we may well ask whether Remain-supporters would accept findings that some government policies may have been right. This is the political context in which any public inquiry into COVID-19 would operate. The risk of its findings being dismissed on partisan grounds is acute. In such an environment, one may well wonder what lessons could actually be learned.