Setting up the COVID-19 inquiry: an expert view

The inquiry into the COVID-19 pandemic is due to start work in the spring, chaired by Baroness (Heather) Hallett, a former Court of Appeal judge. It will be one of the most complex inquiries in legal history, and highly charged politically, with over 150,000 deaths so far, and the pandemic far from over. In January, the UCL Political Science Department hosted an expert panel discussion to pool advice on how best to set up a complex inquiry to ensure that it works speedily and efficiently, victims feel they have been heard, and the findings are accepted as legitimate. Ioana Măxineanu summarises their contributions.

On January 13th, the UCL Political Science Department hosted an online seminar entitled Setting Up the Covid Inquiry. The event was chaired by Robert Hazell, and brought together three distinguished panellists previously involved in high profile inquiries: Lord (Nicholas) Phillips, chair of the BSE Inquiry (1998-2000); Margaret Aldred, secretary of the Iraq Inquiry (2009-2016); and Brian Leveson, chair of the inquiry into press regulation (2011-2012).

This post summarises the initial contributions of the three speakers. The full event, including a very informative and interesting Q&A, is available on the Political Science Department’s YouTube page.

Lord Phillips

Lord Phillips started by explaining the background of the BSE Inquiry. In 1986, the first case of BSE (mad cow disease) was identified in England. The disease deforms the proteins in the brain, and is inevitably fatal. The Conservative government appointed an expert committee to advise on the possibility of humans contracting the disease. The committee concluded that the risk was remote, a view the government passed on to the public. Unfortunately, that was wrong. In 1995, the first death of a man who contracted the human equivalent, Creutzfeldt–Jakob Disease, was identified. Many felt misled by the previous guidance.

In late 1997, a non-statutory public inquiry was set up by the incoming Labour government. Lord Phillips was provided with two assessors: June Bridgeman, a retired senior civil servant, and Professor Malcolm Ferguson-Smith, a geneticist. They were full members of the tribunal, so they could write appropriate sections of the report. Paul Walker, a barrister in Lord Phillips’ chambers, was appointed as counsel to the tribunal.

The inquiry’s terms of reference required Lord Phillips to report within a year, which he had to extend twice. In the end, the Inquiry took nearly three years. It looked at 10 years of government activity, with a huge amount of documents. A large team of young people, many of them students, was recruited to help digest the documents.

The inquiry was divided into two parts. The first, devoted exclusively to fact finding, was followed by a break to reflect on the information, and send out letters to witnesses who might be criticised, inviting them to respond. This provoked indignation among some of the scientists who had advised the government pro bono. While some of the victims and their families contributed, there wasn’t any vehement victim lobby around the Inquiry. All hearings were public and all the evidence was publicised.

At publication, the first question labelled the report a ‘whitewash’. Lord Phillips’ report did absolve some people who, with hindsight, had been proved wrong, provided that they acted reasonably given their knowledge at the time. However his report did contain criticism. The Conservative government had repeatedly stated that there was no evidence that BSE was transmissible to humans. They should have said that they did not yet know if BSE was transmissible, but that it seemed unlikely. To this day, civil servants are warned against using the formula ‘there is no evidence that’, as a direct consequence of the Phillips Inquiry.

Margaret Aldred

Margaret Aldred began by paying tribute to the late John Chilcot, chair of the Iraq Inquiry.  The inquiry was announced in June 2009 by Prime Minister Gordon Brown, ‘to learn the lessons of the complex and often controversial events in Iraq’, between the summer of 2001 and the UK’s withdrawal in July 2009. The inquiry was originally intended to be held in private, as a Privy Council inquiry, but it quickly became clear that was not tenable.

The inquiry was unusual, being one of only four Privy Council inquiries in the last 40 years. This format is used when evidence is sensitive for national security reasons, and has the government retain ownership of all information given to the inquiry until a disclosure agreement is reached.

The members of the Inquiry were John Chilcot (a former senior civil servant), the historians Lawrence Freedman and Martin Gilbert, Roderic Lyne (a former diplomat) and Baroness (Usha) Prashar (a Crossbench peer). They formed a committee rather than a panel, so they took corporate decisions. Roger Wheeler, former Chief of the General Staff, was the military adviser; Rosalyn Higgins, former president of the International Court of Justice, advised on international law.

Because the inquiry was non-statutory, it had to develop its own procedures. Three protocols were published: one about the protection of information provided by the government, one for witnesses giving evidence, and one about how hearings would be conducted. The team was small, peaking at 16 people during the first round of hearings. There was one legal adviser, but no counsel. The committee insisted they would ask questions themselves and encourage witnesses to share what they felt was important, rather than creating an adversarial setting.

The inquiry had 17 different work streams, and took seven years to complete. It resulted in a report consisting of an executive summary and 12 volumes. Transcripts of all the hearings, including the private ones (with some redactions), were released to the public alongside about 1800 of the documents received, and relevant submissions from people who had not given evidence.

Brian Leveson

 In response to the phone hacking scandal, in 2011 Prime Minister David Cameron announced an inquiry into the culture, practices and ethics of the press. It was divided into two parts. The first part was to investigate contacts between the press and politicians, and the press and the police, and consider whether the current regulatory regime had failed. The second part was to investigate unlawful or improper conduct at News International or other media organisations, and whether the police received corrupt payments. The second part was kept separate to allow the concurrent police investigation to be completed. Part one only concerned newspapers, while part two was meant to look at the media as a whole.

The inquiry was initially intended to conclude within a year. That was insufficient, as little information was readily available, and the process of collecting it was bound to be time-consuming. The evidence and submissions were completed within one year of appointment, and the report was published five months later. It received largely negative coverage from the press and part two of the inquiry ended up cancelled.

The inquiry was conducted under the Inquiries Act 2005, as the COVID-19 Inquiry will be. There were four counsel, each assisted by an additional member of the Bar. The inquiry team consisted of about 15 people, with three other barristers assisting in the preparation of the report. The work was split into three modules: 1) the press and the public, which also dealt with politicians; 2) the press and the police; and 3) the press and future regulation.

Leveson was assisted by six assessors: the former political editors of Channel 4 and the Daily Telegraph, a former chairman of the Financial Times, a former chair of the Competition and Markets Authority, the director of Liberty, and a former Chief Constable of the West Midlands. The victims of phone hacking were represented by a firm of solicitors. There were heated exchanges about the extent to which there could be cross-examination, particularly by some of the representatives of the press. In the main, questions were submitted to counsel to the inquiry, who decided whether to ask them, so that the process was kept inquisitorial, rather than adversarial.

The inquiry had a website where new evidence was uploaded daily. Despite initial concerns, Leveson was persuaded to livestream the evidence sessions. The stream was watched around the world, and is even used as teaching material for journalism students, as are the transcripts, statements, submissions and the final report, all of which are also freely available online. He encouraged those interested to visit the website for more information, including the report, which consisted of four volumes.

In conclusion, both he and Lord Phillips said they had never worked harder in their professional lives than during their inquiries. All three speakers wished Baroness Hallett well in her challenging and hugely important task, as she embarks upon her own inquiry.

Q&A

Following their initial presentations, all three speakers participated in a lengthy and informative Q&A, with questions put to them by Robert Hazell and members of the online audience. Topics discussed during that portion of the event include negotiating the terms of reference and deciding the scope of an inquiry, the treatment of witnesses, and the relationship between the inquiry and the government during the relevant inquiries. That Q&A is available as part of the full event video on the Political Science Department’s YouTube page. The event is also available as a podcast.

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About the author

Ioana Măxineanu is a research volunteer at the Constitution Unit.