How to get your voice heard in the Covid-19 inquiry – Lexology

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1. The first preliminary hearing for module 1 of the Covid-19 Inquiry on 4th October[1] is a powerful reminder that it is more vital than ever that those who may be called to participate (or who have valuable perspectives to contribute) are prepared for what lies ahead.
2. In the broadest possible terms, the Inquiry aims to examine the UK’s preparedness for, and response to, the Covid-19 pandemic in order to learn lessons for the future. Given the myriad ways in which the pandemic touched every aspect of UK life and society, this Inquiry is likely to be one of the most wide-ranging ever held, and the terms of reference[2] of the Inquiry do little to limit its scope.
How the Inquiry will cope with its remit
3. Given the range of issues to be considered, the Inquiry will be staged in modules, with each module addressing different key topics. The first three modules have been confirmed. These address planning, resilience, and preparedness; core political decision-making; and the impact of the pandemic on health care systems. Further modules will be announced in 2023 and it is anticipated that these will include detailed consideration of the economic impact of the pandemic, amongst other things, and an examination of the business and financial responses to it.
4. Each module will include an investigative stage where documentary and witness evidence is obtained and reviewed and live evidence is given under questioning at public hearings. A report will then be prepared for each module. The modules will run concurrently and the Inquiry has already gathered large legal teams to oversee each one. Requests for documents and witness statements are already coming in and the pace of this is only set to increase in the coming weeks and months.
How to safeguard your position
5. Once the Inquiry makes a request for a witness statement, you may have only 2-3 weeks to respond (and given the pace at which it is moving, we expect requests for extensions to be given short shrift). This is an exceptionally short period of time to get on top of all the relevant material and produce a statement which does justice to your position, especially where there are risks of criticism and reputational harm to consider. Given all this, it is vital to be proactive rather than reactive. Seeking early and specialist legal advice could save you significant trouble down the road.
6. So how do you get ahead in a public inquiry? It is worth keeping in mind that public inquiries operate under a very different legal framework to the civil and criminal proceedings which most of us are more familiar with. They are inquisitorial and “fact-finding” rather than adversarial and are subject to their own rules of evidence. The Chair has the power to compel the production of documents and summon witnesses to give evidence on oath. There are no parties in public inquiries, though it is possible to apply to be a “Core Participant.”
What is a Core Participant?
7. Core participants play a key role in public inquiries and are different to witnesses, who may give evidence but play a more passive role in proceedings. Core participant status brings with it important entitlements including the right to make opening and closing statements (which highlight to the Chair your view of what evidence and issues are important and suggest how she should approach them), ask questions of witnesses at public hearings (giving you the chance to challenge contested evidence), access documents and other disclosure, and view any draft report before it is published (giving the opportunity to correct mistakes or invite reconsideration of criticism).
8. The fact that we have all been affected in some way by the pandemic means an unusually broad spectrum of interest groups will doubtless want to play an active and formal role in the Inquiry by seeking core participant status.
How to increase your chances of being designated as a Core Participant
9. The Inquiry has made clear from the outset that it is deeply concerned about its limited resources and the scale of the task it faces, especially given all the voices that may wish to contribute. The Chair has said “[w]ith such a wide scope I need to be ruthless”.[3] To keep the Inquiry manageable, she will adopt a highly selective, targeted and carefully planned approach to the designation of core participants in each module. The Inquiry wants to deal with key representatives only.
10. This is clearly signposted in the July 2022 ‘Core Participant protocol’,[4] which states that “[t]here will be few if any people or organisations who are designated as Core Participants for the whole Inquiry” and indicates that the Inquiry is particularly interested in applications from “groups of individuals and organisations with similar interests, rather than from individual persons and organisations”. The preference of the Inquiry would be to receive a single application (or as few applications as possible) from each interest group (e.g. a particular industry sector or category of people – such as those who were unable to benefit from a particular category of financial support), rather than a range of independent applications. The Inquiry might even approach key representative bodies and invite them pro-actively to form coalitions and become core participants.
11. This reflects the obvious point that a coalition with a clear mandate to represent a sector or community before the Inquiry will often contribute better to a fairer and more efficiently run process than individual voices would. The Inquiry will be grateful to those that take the initiative by resolving differences and reconciling competing positions behind the scenes. It will welcome those who provide a single point of contact through which engagement can be managed and from which coordinated responses to information requests can be received.
12. By contrast, numerous separate core participant applications will be burdensome and resource intensive for the Inquiry to deal with. Uncoordinated individual applications are more likely to be rejected and they risk demonstrating a lack of cohesion. This could lead a sector or community to be seen as fractured and not speaking with one forceful voice – thereby reducing its ‘clout’.
13. In her opening statement the Chair therefore called on potential applicants to “group themselves together with others with a similar interest, wherever possible, to help manage the potentially large number of people and organisations seeking core participant status”.[5] That is not to say that the Inquiry will never allow several core participants from the same sector or community, but it will doubtless apply the test for core participant status strictly to weed out all but the strongest and most well defined.
14. If you are a sector or community aiming for core participant status in a future module, we recommend that you form a coalition now and collectively instruct a specialist team of public inquiries lawyers with the experience to engage with the inquiry on your behalf. There are real practical benefits in doing so by not creating extraneous or superfluous work for the Inquiry, as well as benefits in terms of effective presentation and amplifying, rather than diluting, the strength of your voice.
15. The Inquiry will specify the date by which core participant applications for each module should be submitted. To maximise the chance of success, this should be adhered to. Exceptionally, applications for core participant status can be made out of time.
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