UK COVID-19 Inquiry – Who should be planning for Module 2?
Module 2 is going to consider the central government structures and bodies concerned with the UK response to the pandemic and their relationship with the devolved administrations and regional and local authorities; the initial understanding of, and response to, the threat of COVID-19; the decision-making relating to the imposition of non-pharmaceutical interventions (e.g. lockdowns); access to and use in decision-making of medical and scientific expertise, data collection and modelling; public health communications; and the public health and coronavirus legislation that was enacted. The full provisional scope can be found here: Module 2 Outline of Scope (covid19.public-inquiry.uk).
Applications for Core Participant status for Module 2 are open and will close on 23 September. In this article, we consider who might wish to make an application for Core Participant status in Module 2. The likely range of Core Participants for Module 2 is much more diverse than one might initially assume, though potential applicants should consider whether their greatest chances of success in obtaining Core Participant status lie here, or in future modules anticipated to focus on specific areas such as healthcare, business, education, care and public sectors.
Core Participants – the Inquiry
There are broadly two ways that an organisation can take part in the Inquiry – by providing evidence to the Inquiry, or by being a Core Participant. Core Participants have participation rights over and above those afforded to witnesses. In particular, Core Participants can access evidence relevant to the investigation, make opening and closing statements, and suggest lines of questioning to Inquiry Counsel.
The Inquiry has published a Core Participant protocol (“the Protocol”), which provides guidance on the application process, and gives an indication of the type of applications that are likely to be successful. One of the difficulties with the Inquiry is that every natural and legal person in the UK has been affected in some way by the pandemic, so the pool of potential Core Participants is extremely wide indeed.
The Inquiry Chair, Baroness Heather Hallett, has made it clear she intends to run the Inquiry in as streamlined and efficient way as is possible whilst doing justice to its subject matter. This means there will be tight control over the numbers of Core Participants, and the Protocol appears to be designed, in part at least, to discourage applications from what might be thought of as peripheral parties, stating in the opening text that “It will not be necessary for those who plan to share their experiences through the Inquiry’s listening exercise to be designated as Core Participants”. This is positive, in the sense that those who do not have the desire and/or the resource to take a prominent role in the Inquiry will nevertheless have an opportunity to have their voices heard, but it comes with risk attached. It is one thing to give an account to the Inquiry, but without Core Participant status, an individual or organisation will have very little control over what happens to that account, how it is viewed or used, and consequently any reputational impact.
In Baroness Hallett’s Opening Statement , she explained that “… those wishing to take a formal role in the Inquiry [will be] invited to apply to become ‘core participants’ for each module, rather than throughout the Inquiry as a whole.” She went on to say that she recognised that some individuals, groups and organisations may apply for Core Participant status in more than one Module, but it’s apparent this is anticipated to be the exception rather than the rule. It is likely that the COVID-19 Bereaved Families for Justice group may be one such exception, having already submitted applications for Modules 1 and 2.
As part of her commitment to streamlining the process, the Chair has also invited 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. The extent to which the Chair will permit applications from individual applicants is not yet clear, but until we get some indication of this as the Inquiry progresses, those considering Core Participant status should make efforts to identify others with similar interests with whom a joint application can be made.
Core Participants – Module 2
We hope that those statements do not discourage those with a legitimate interest in Module 2, and future upcoming modules, from making an application for Core Participant status. The Protocol sets out three (non-exclusive) circumstances in which applications are likely to be successful, which when applied to Module 2 can be summarised as follows:
The individual, group or organisation played, or may have played, a direct and significant role in relation to the political and administrative decision making of the UK and devolved governments.
This sector is likely to encompass central and local government structures and bodies. It should also, in our assessment, encompass any bodies which provided information to the UK and devolved governments about COVID-19 to enable their decision making. Those governments relied on many and varied sources of information, including data and analysis from Universities and commercial organisations.
- The individual, group or organisation has a significant interest in an important aspect of the political and administrative decision making of the UK and devolved governments.
As well as looking at the process of decision making, the provisional scope of Module 2 (in accordance with the proposed approach of the Inquiry as a whole) appears to include some scope for consideration of its impact. The Inquiry has said it will consider “the identification of at risk and other vulnerable groups and the assessment of the likely impact of the contemplated NPIs [non-pharmaceutical interventions, including the national lockdowns, restrictions etc] on such groups in light of existing inequalities”. Those at risk and other vulnerable groups therefore arguably have a significant interest in Module 2.
- Accordingly, this sector should include representatives for at risk and other vulnerable groups who were disproportionately or particularly affected by the imposition of lock-downs and other restrictions. Larger charities representing these groups are likely to be in a strong position to apply for Core Participant status under this heading.
The provisional scope of Module 2 also includes a commitment to consider “The public health and coronavirus legislation and regulations that were proposed and enacted”, and “their proportionality and enforcement”.
We anticipate that groups representing those responsible for the enforcement of the coronavirus legislation will therefore be considered to have a significant interest in Module 2.
- The individual, group or organisation may be subject to explicit or significant criticism during the investigation of the political and administrative decision making of the UK and devolved governments, or in any report.
We anticipate that this sector will include those with direct and indirect responsibility for the process, communication and enforcement of decision making. There will be a good deal of cross over with sectors (1) and (2) above.
Although central and local government structures and bodies are likely to take centre stage, there are myriads of individuals, groups and organisations who were involved with, or particularly affected by, the political and administrative decision making of the UK and devolved governments. Those individuals, groups and organisations should consider now whether it would be appropriate for them to make an application for Core Participant status; either for Module 2 or (given the likely overlap) a later module. This is important, not only to ensure that voices are heard, but to retain some influence over the conclusions that the Inquiry may reach on the evidence submitted, and the recommendations that it will undoubtedly make to improve the response to any future pandemic or comparable civil emergency. For some, it will be of considerable importance to provide protection against reputational damage or, conversely, to achieve some recognition for the role played in the administrative and political response to the pandemic.
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