Business and the Draft Terms of Reference for the UK COVID-19 Inquiry

On March 10, 2022, the Cabinet Office published the long-awaited draft terms of reference for the UK COVID-19 inquiry.1

In this article, we look at the implications for companies affected by the pandemic and how they might wish to get involved in finalizing the terms.

The mandate is essential to a public inquiry since it defines its scope and object. They give the Chairman of the Inquiry, in this case the Right Honorable Baroness Heather Hallett DBE, the mandate to investigate specific areas and aspects of public interest. The recently released draft terms of reference are far from finalized, and there will now be a public consultation which will inform the President’s final recommendations to the Prime Minister.

What are the provisional terms of reference?

At first glance, the draft terms of reference seem very broad. They state that the investigation:

  1. Examine the response to COVID-19 and the impact of the pandemic in England, Wales, Scotland and Northern Ireland, and produce a factual narrative; and
  2. Identify lessons to be learned from the above, to inform UK preparations for future pandemics.

Extended terms of reference could lead to a long and protracted investigation. However, Baroness Hallett has repeatedly said that she wants to provide timely recommendations with the aim of preventing and reducing the suffering and hardship that has occurred during the pandemic. This is reflected in the use of more narrowly defined topics to be examined under the generic terms.

Not surprisingly, many of the areas specified relate to government and health sector actions and responses. They also include important topics such as testing and contact tracing, and non-pharmaceutical interventions including the effectiveness of social distancing and face coverings. However, there is an explicit reference to the economic response to the pandemic, which includes a survey of “the closure and reopening of the hospitality, retail, sport and leisure and cultural institutions sectors”. and “support for businesses and jobs, including the Coronavirus Job Retention Scheme, the Self-Employment Income Support Scheme, loan schemes, corporate tax rate relief and grants”. These areas will be of particular interest. businesses affected by the government’s response to the pandemic.

The draft terms of reference also include a draft ‘method statement’, explaining how the survey will go about achieving its objectives. This includes specific reference to listening to the experiences of bereaved families “and others who have suffered hardship or loss as a result of the pandemic” and considering the experiences and impact on key workers. However, this section omits explicit reference to considering the experiences and impact on business and industry during the pandemic. This is a potential oversight that could be addressed through the consultation process, as the Inquiry could, in our view, properly examine the lessons that could be learned, in order to protect companies against serious economic losses during future pandemics (or, indeed, other comparable civil emergencies). This is one of the reasons why the public comment period is an important step in the process of setting up a public inquiry and why companies should consider participating now.

Consultation period

The public consultation process is an opportunity for everyone to contribute to the final mandate of the COVID-19 inquiry.2 Baroness Hallett said she will be visiting cities and towns across the UK to “gather the views of bereaved families, community and support groups and other organisations”. The COVID-19 Inquiry website says the process will take three forms:

  1. Online consultation
  2. Round tables
  3. Meetings with bereaved families

Online consultation

The online consultation started on March 11 and ends on April 7, 2022 at 11:59 p.m. As the online consultation is only open for four weeks, it is essential that companies wishing to have their voices heard consider what they would like the scope of the COVID-19 survey to include and react accordingly. . The process is quite simple and consists of an online survey which can be found here.

The inquiry has made it clear that it is not looking for evidence at this stage, but rather is looking for individuals and organizations to give their opinion on the following topics:

  • Does the draft terms of reference for the inquiry cover all areas that you believe should be covered by the inquiry?
  • What issues or topics do you think the survey should look at first?
  • Do you think the Inquiry should set an expected end date for its public hearings, to help ensure timely findings and recommendations?
  • How should the inquiry be designed and conducted to ensure that those bereaved or those who have suffered harm or hardship due to the pandemic are heard?

Round tables

At present, little is known about the nature and timing of the roundtable discussions. We know they will be held across the UK with ‘groups of key organizations and representatives’ and will be by invitation only. We have previously suggested that the survey will likely seek out representative bodies and trade associations to represent the many industries affected by the pandemic.3, and we expect that, in part, these discussions will be just that. At this point, we can only speculate how these key organizations will be selected. However, companies wishing to get involved in the COVID-19 survey will want to keep up to date with the survey’s consultation process and be prepared to respond once more information is released. We will follow this carefully.

Once the Commission of Inquiry has completed its consultation on the draft terms of reference, the President will send her recommendations for changes to the Prime Minister. At that time, the Inquiry will also publish a summary of the responses to the consultation.

Conclusion

The draft terms of reference for the COVID-19 Inquiry are very broad in scope, but do not explicitly cover, at this stage, all topics of potential importance to business and industry. Now is the time for companies to help shape the scope of the survey so that their concerns are heard and their voices are heard. The online consultation process is now open and affected companies should ensure they participate in this important step. It may also be possible to participate in round tables, and we await more details on this.

1Draft Terms of Reference – COVID Inquiry – March 2022 (public-inquiry.uk)
2Consultation on the terms of reference – Public inquiry into the Covid-19 in the United Kingdom – Citizens’ area
3The COVID-19 Public Inquiry – Practical Details, Possibilities and Predictions (shoosmiths.co.uk)

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