How the Covid-19 inquiry should be done

It’s a common cry across Westminster—“something must be done.” Currently, reeling from the impact of Covid-19, the cry has been translated into “there must be a public inquiry.” Of course, calling for one, though fashionable, doesn’t get you very far. You have to know how to set one up and get the best out of it.

Recently, the House of Commons’ Select Committee on Public Administration and Constitutional Affairs added its voice. It held hearings on what role a public inquiry into the nation’s response to Covid-19 could play. It seemed to be accepted, indeed it has become received wisdom well beyond the Palace of Westminster, that there will be a public inquiry. The talk has shifted to the question—what will it be like? Witnesses before the committee were taken through the sort of questions which have occupied the minds of commentators for some time: do we really need a public inquiry, when should it begin (and end), who should lead it, what should it consider, who will take part, what form should it take, how long would it take, what procedure should it adopt, and so on and so on.

In our view these questions cannot wait. Now they’ve been raised, they need to be answered—now. There are lessons to be learned and plans to be made as we go into the autumn and winter still reeling from the “first wave” and faced with the threat of a double whammy—a “second wave” (or continuing outbreaks) of Covid-19, coupled with seasonal flu. As a consequence, we need action.

In what follows, we offer a way forward.

Why a public inquiry?

Public inquiries serve number of purposes, as one of us has argued in a previous paper. They include the rendering of an accurate historical account of events, holding to account those involved in decisions, identifying lessons that can guide future conduct, and making recommendations for action. These should be the principal objectives of any inquiry. Of course, being a public inquiry, it must at all stages and in all matters engage with, inform, and listen to the public.

Notice that we stress accountability rather than referring to “blame.” They are very different concepts, though often conflated. Accountability assumes a pre-existing set of rules or principles known to those under scrutiny and questions whether those rules were observed in the case at hand and if not, why not. By contrast, blame is an after-the-fact, almost serendipitous judgment which often does not respect principles of fairness and objectivity but, rather, fastens on some convenient target to shoot at.

In the case of the response to Covid-19, the principal aims of a public inquiry must be to determine:

- what was known, when, and by whom about the risks posed by the emergence of the new virus - how prepared was the government and its various departments and agencies to respond in terms of the planning and infrastructure in place and the process for making decisions - what factors played a role in shaping the government’s understanding of “public health,” eg as between traditional approaches to public health and general economic concerns - the management of the response to the pandemic and the timeliness of decisions - the effectiveness of the government’s communications in responding to the pandemic - the role of the traditional media and social media in reporting and responding to the pandemic.

When should the inquiry begin?

It’s a good general rule of thumb to wait until you have all (or most) of the evidence before you try to assess it and reach conclusions. In the case of Covid-19, this would mean waiting for perhaps at least another year. For example, there are currently so many uncertainties about such matters as how to measure mortality, as Professor David Spiegelhalter has regularly pointed out, that it is too early to make any considered assessment of the government’s performance when compared with that of other countries, not least because of differences in the nature of the data being collected and analysed. Then we would have to wait the further however many months and years it would take for the inquiry to do the job.

This approach of waiting until the smoke clears and we can see what’s in front of us may be politically advantageous to those whose conduct will be scrutinised, since memories fade and people move on. It may be, of course, that the knowledge that there will be an inquiry concentrates minds, but the fact that it won’t be for a while may also induce a state of mind in which the various actors begin to have one eye on the pandemic and another on their place in the story.

Clearly, by contrast, waiting for who knows how long will not appeal to those who argue that there are lessons which already can and must be learned if we are to deal with the continuing threats posed by the pandemic and its aftermath.

We think that there is a way through this apparent roadblock. We propose that the government should announce that a public inquiry, independent of government, will be established this autumn. The inquiry will operate in two phases.

Phase I

This phase will have two objectives—

looking back to examine the preparedness of the government and others to respond to a pandemic and its actual response from at least December 2019 (or earlier) to the time of the establishment of the inquiry,

and

evaluating regularly the continuing response and making public and commenting on all relevant data, including actions taken and not taken, minutes of meetings, publications in the scientific literature, developments in care and treatment, and non-healthcare considerations, relating eg to the wider health of the population. To undertake this task successfully, the inquiry must be given access to what it needs, including access to decision-makers, but must do so in a way which does not impose too great a burden.

Phase II

This second phase will be launched once the pandemic is deemed to be properly under control, eg once an effective therapeutic response and/or a vaccine has been developed.

In this second phase, the inquiry will sit in public. Importantly, the inquiry will have the advantage of all of the work undertaken in the first phase, so enabling it to proceed with appropriate expedition.

Two aspects of the inquiry are worth noting here: form and money.

Form—How will the inquiry be conducted, what procedure should it follow? It may surprise many that there is no particular form that a public inquiry must follow, provided the ordinary norms of fairness are observed. There is no established template. The chair, therefore, has a very wide discretion as to how to run things.

Here is not the place to descend to detail. That said, there should be no doubt that the way in which an inquiry is organised significantly affects how it is perceived by those involved in it and affected by it. For example, the choice of venue constitutes an early statement about the inquiry—aloof in a court-type building or accessible to all in a nondescript location. Other factors which mould the impression that the inquiry creates include how evidence is sought and received, the role assigned to the panel’s experts, the role of lawyers, the use of IT, and how the inquiry communicates with its various audiences. The use of seminars involving national and international experts to assist in arriving at recommendations is another way in which the inquiry can signal its desire to hear as wide a range of views as possible.

These are just some of the matters that the inquiry must settle. And, they must be settled in advance. Those involved and the public are entitled to know how the inquiry will proceed, not least so as to be invited to add in their observations.

Money—What arrangements need to be made to secure funding for the inquiry? A budget must be agreed with the government for both phases. As regards Phase I, an interim budget covering three-six months should be agreed, after which the secretariat can calculate in the light of experience what will be needed for the rest of Phase I.

The budget for Phase II will be informed by the experience of Phase I and the general understanding of the costs of public inquiries in recent years. It should be agreed in advance and make provision for adjustment.

The importance of agreeing budgets lies in the inquiry’s independence. Unless anticipated and provided for, the government, for whatever reason, could seek to affect the progress of the inquiry by revising the funding available to it. At that point, the inquiry will have lost its capacity to do its job as it sees fit, the essential feature of its independence.

For its part, the inquiry must make public its accounts on a regular basis as one means of maintaining its legitimacy and keeping faith with the public.

Who should chair the inquiry?

Undoubtedly, the two most important factors in the establishment of a public Inquiry are who should lead it as the chair and its terms of reference.

The chair—Since there is no template, far less any explicit prescription as to how a public inquiry should be conducted, the choice of who should lead it is of paramount importance. This means that the qualities which make a good chair take centre stage. While the choice of chair will not, of course, satisfy everyone, two qualities are crucial in any chair—legitimacy and respect. That’s to say that the choice is made on proper grounds and that the person chosen is able to command widespread respect. The saga over the appointment of the chair of the Grenfell Inquiry provides a salutary lesson. The selection of each of the two initial choices attracted significant criticism. They were both deemed too close to “the establishment” and thereby lacking in legitimacy in the eyes of many of those involved in the inquiry and of the wider public.

In the past, with some exceptions, public inquiries have tended to be chaired by senior (often retired) judges. This has given rise to the assumption (or presumption) that when there is a call for a public inquiry in the media or parliament, the call is for a “judge-led” inquiry and the call should be answered by choosing a judge.

But given the significance of the role and the task, it is important to pause a moment and ask how this mantra of a “judge-led” inquiry emerged. In our view, calling for a judge to lead an inquiry is actually a form of code. It is intended to signify an acceptance that the inquiry must be led by someone whose integrity and independence from the government are a given. Judges fit that bill. So the temptation is to choose a judge. But, as we have said, what’s important is not the notion that the only person who can lead a public Inquiry is a judge, but that the person who is chosen has those qualities which are associated with a judge (indeed, three of the more important public inquiries, in terms of their impact on the system of healthcare, were chaired by non-judges—Bristol (the first author), Mid Staffs (Robert Francis QC) and Morecombe Bay (Dr Bill Kirkup)).

Indeed, there are, in our view, considerable disadvantages in choosing a judge as the chair. Principal among them is the fact that judges are only familiar with courts, where they have spent their whole professional lives. As a consequence, when led by a judge, the chair defaults to the familiar. Public inquiries can, and often have, become judicial proceedings by another name, with all the appearance of a court. There are legions of lawyers all representing “parties” and all demanding to be heard, because that’s what they do. An adversarial approach, the only approach that judges and lawyers are familiar with, takes over. Cross-examination as the only trusted path to the truth ignores the truism that there are multiple truths and exacerbates the atmosphere of contest, undermining one of the secondary but important aims of the inquiry—some sort of understanding and reconciliation. Procedural niceties emerge to play their part, dragging things out and conspiring to confuse or exclude the public in whose name the inquiry is supposed to be acting. Moreover, it is a commonplace that judges in their professional life have cultivated an aura of relative remoteness, as if to symbolise their independence. But remoteness is decidedly not a desirable quality when leading a public inquiry, which calls for empathetic engagement with the public.

So, the answer to the question of who should chair the Inquiry must not automatically be a judge. Rather, it should be someone whose integrity is unimpeachable, who understands independence and whose background indicates a capacity for engaging empathetically with all involved.

What other qualities are needed? We regard the following as essential:

- experience in leading a team—administrative staff, a communications team, IT specialists, lawyers - an understanding of due process and fairness in establishing the procedures of the inquiry and in conducting it, (though the way of proceeding will differ as between Phase II and Phase II - an understanding of and experience in the workings of government and the public bodies involved in responding to the pandemic - an understanding of and experience of working with the healthcare and social care systems - an understanding of and experience in making public policy - experience in dealing with the media

The terms of reference (ToR)—The most important initial task of the chair is to negotiate and agree with the sponsor (the government) the inquiry’s ToR. The purposes and aims of the two phases of the inquiry should be clearly set out. The chair should resist the stipulation of any definite date by when the inquiry must report. Otherwise, once the due date arrives, pressure will be applied to produce a report even though intervening contingencies mean that more work is called for (as in the inquiry into BSE). Instead the ToR should require the inquiry to proceed with all due expedition. Apart from the detailed examination of the response to Covid-19 which must be at the heart of the inquiry , the ToR should require the chair to produce recommendations for action. One lesson from the Report of Michael (now Lord) Bishart into the Soham murders was that the ToR should include the obligation on the commissioning secretary of state to report to parliament on progress made in acting on recommendations contained in the report. The ToR should also state explicitly to whom the chair reports, whose report it is until that moment (in our view it is the inquiry’s report), and that it will be published in its entirety. We regard these as fundamental elements of the ToR of any public inquiry.

Set-up—It’s worth noting also how the inquiry should be set up. In the two-phase process that we propose, we envisage that in Phase I, the inquiry will be chaired by one person, assisted by a small secretariat and a pool of expert advisers, supported by a team of researchers, plus communications and IT staff.

We envisage that the person chairing Phase I will also chair Phase II. It may be that the time commitment involved makes it difficult for the same person to chair both phases but, that said, it would clearly be preferable if it were the same person.

Unlike in Phase I, in Phase II the chair would sit with a panel of three-four others who, between them, would bring a range of relevant knowledge and experience. The panel would be supported by a secretariat, advised by lawyers, and have at their disposal a group of experts who would be experts to the panel rather than representing particular individuals or groups. This is a crucial point. Information, analysis and appraisal cannot be allowed to become partisan issues. Those advising the panel exist to help the panel rather than score points off each other.

What if the government rejects a two-phased approach?

There are a number of reasons why the government might reject the proposed two-phased approach, the most obvious being a preference for delaying scrutiny for as long as possible so as to get as many ducks in a row that will tell a supportive story. In addition, there appears to be a general antipathy to scrutiny as exemplified by the saga of the special adviser’s trip to Durham and its environs, not to mention the government’s by-passing of the established practice in foisting its preferred chair on the Liaison Committee. A more valid ground is that the sort of scrutiny contemplated by phase 1 would be a distraction when everyone is already working flat out.

The first two reasons are political. With a very large majority in the House of Commons, the government would have no fear of being called out if they rejected what is being proposed. But that’s where the third supposed reason comes in and can be turned to the advantage both of the proposed approach and of the government.

The argument is as follows. It is accepted by all that responding to the pandemic is complex and full of uncertainty. Decisions are made which have to be unmade or reconsidered in a matter of days because data on this or that has changed. The government may be accused of uncertainty or vacillation without justification. In such circumstances, it would be hugely advantageous to the government to have an independent body which can analyse, explain and put in context its decisions. The downside, of course, would be that the overtly political features of the government’s decisions, where there would be no ground for asserting that “we are following the science,” would be exposed. But you can’t have the security of reasoned and reasonable explanation without the cost of transparency.

Moreover, where the political is in fact about differing views on the economy and the general notion of a nation’s health understood more widely, making this clear can only be a good thing. It would bring out into the open the choices which attend being confronted with what analysts call “wicked problems”—problems for which there is no “right” answer. People will still object, but they (or at least those not signed up to “deep state” conspiracies and the like) would have to address the arguments, rather than peddle their own line in the absence of anything to show they are wrong.

The government would have to choose. It would need a brave government to endorse our approach, but one which would find itself on the right side of history when the story is told.

If the government chose not to do as we propose, all is not lost. Given that there will be a public inquiry on the lines of what we call Phase II, what is needed is a sponsor for Phase I, with enough standing to persuade the government that it is in its interests to cooperate. Of course, the chair of the two phases may be different, as the government would want to be seen to appoint its own chair to what we are calling Phase II. But that would not prevent whoever is the chair from benefiting from the work carried out in Phase I.

Who might act as a sponsor? There may be a number of candidates able to take on this role. Here we mention three. They are: the Wellcome Trust (it should be possible to agree that Phase I falls within the trust’s terms of reference); an alliance of organisations led by the Royal Society; and a combination of universities, led, for example, by Oxbridge. There may be others able and willing to support such an important enterprise.

The first step is to engage with the government. This alternative step may not be needed if the government were prepared to come on board.

Talking is easy and cheap. There’s been a lot of talk about “the public inquiry” into the nation’s response to Covid-19: that there must be one, that there will be one. Thereafter the talking is less clear, more confusing. “We need one now.” “It’s too early—we need to wait.” The politics of managing the narrative of history lurks in these various positions. Our position is clear. There is much to be gained and a great deal to be lost if we do not act now. A public inquiry along the lines that we propose should be established by the autumn.