Is it time to think about the inquiry? (The Answer is: YES)

Roger Gomm in his recent blog for the Crisis Response Journal (CRJ) helpfully signposted us to the principles of Integrated Emergency Management (IEM) in the context of preparing to learn the lessons of the current pandemic.  Mr Gomm also quoted Lord Kerslake who has gone on record predicting that there will be a public inquiry into the events of the last few months.  Few people understand the importance of inquiries as much as Bob Kerslake.  As a former senior civil servant and the chair of the review into the Manchester Arena bombings he is well placed to see that some sort of inquiry will be required to cement the lessons emerging from all parts of the UK’s response to the pandemic.

Of course there are some that would suggest that we should attempt to have a ‘blame free’ inquiry.  They point to best practice in safety critical sectors which have long established, and successful, systems for inquiries that do not seek to apportion blame.  A glance at the excellent reports produced by the Air, Rail or Maritime Accident Investigation Branches shows that much can be achieved without seeking guilty parties.  However there is no basis for thinking that it would be possible to run an inquiry that did not involve the identification of fault.  It would be a big mistake to label an inquiry as being blame free and then allowing everybody (and especially the media) to draw their own conclusions, regardless of the evidence.  In the UK the system of Coronial Inquests has a lot to recommend it.  By law inquest verdicts may not be framed so as to apportion liability.  They are inquisitorial not adversarial.  Many people who have appeared at inquests may be forgiven for believing that these provisions are, in reality, a fiction.   It most cases it is very clear where fault is thought to lie. Any inquiry will have to be a ‘warts and all’ examination of the national response. Thousands of people have died from Covid-19.  The loss of those lives deserves the highest level of detailed scrutiny.

 It is inconceivable that any inquiry will not find much that was wanting in the management of the pandemic.  Such conclusions are inevitable.  They are, together with the multiple examples of excellence, part of the process of learning.  A well led inquiry can avoid the temptation to abuse hindsight.  We have no right to second guess decision makers who have been called upon to take high stakes decisions with few facts and very little time.  But the public expect questions to be asked about decisions taken at a senior level in the lead up to the crisis and at key points during it.  Our enormous debt of gratitude to those who have responded to this disaster cannot impede the societal need to understand why this happened and how our nation has responded.  After every major incident the bereaved need answers.  This incident is different only in its scale.

What Sort of Inquiry?

The Prime Minister has a number of options.

 The speediest way of obtaining a result would be through a non statutory review.  This could take the form of a review by a trusted individual with access to all the necessary paperwork and supported by the civil service.  The problem with this is that such a review would not have any powers to demand answers.  It would not be long before accusations (quite probably unfounded) of a whitewash would emerge.  The public are unlikely to be satisfied with a review that could be depicted as being a government device.  This issue could be mitigated to a small extent by a review  that was seen to be at arms length from the government.  The Kerslake Review into the Manchester attack was truly independent of the Mayor who commissioned it but was still unable to look at some of the detail that will be examined by the public inquiry established under Sir John Saunders.   Given the scale of the death toll in the pandemic an ad hoc review of any kind is unlikely to satisfy the general public.

A Royal Commission would have the gravitas to match the enormity of what is happening.  A few ago Royal Commissions were seen as an anachronism in the UK (although they continued to feature elsewhere in parts of the Commonwealth).  However as recently as the Queen’s Speech in December 2019 the government announced that there would be a Royal Commission to review and improve the efficiency and effectiveness of the criminal justice process.  A Royal Commission is a product of the Royal Prerogative.  This means that the powers held by the Commission and the terms of reference can be tailored to the needs of the circumstances.  In general one would expect a Royal Commission to look at broad issues rather than individual decisions but the format is flexible.

An inquiry established under the Inquiries Act 2005 has extensive powers and we have become used to seeing such inquiries (normally referred to as Public Inquiries) being established in the aftermath of major incidents.   Such inquiries may not determine civil or criminal liability but they are not inhibited ‘by any likelihood of liability being inferred from facts that it determines or recommendations that it makes’ (s2).  The terms of reference are set and the chair appointed by the government.  But, as we have seen in cases such as the Inquiry in Child Sexual Abuse and the Grenfell Tower fire there is considerable public and parliamentary interest in the appointment of the chair and in the formulation of the terms of reference.  Indeed in some cases the terms of reference themselves are subject to external consultation.  It is this form of inquiry that is the most likely to be established to look into the management of the pandemic.  Royal Commissions and public inquiries can become monsters, taking years to report and becoming bogged down by the sheer volume of the evidence.  For this reason judges (or retired judges) are often appointed as chairs of public inquiries.  Experience of handling complex issues and numerous witnesses make judges ideal candidates for the role.  However in this case it may be that an expert with a background in medicine or science might be better placed to steer an inquiry to quick and definitive results.

What Would an Inquiry Look At?

Getting the terms of reference right will be key.  Too wide and the inquiry will take years.  Too narrow and questions will go unanswered.  The remit will be much influenced by the topics current at the time of the setting up of the inquiry.  These topics might include (in no particular order):

The relationship between risks on the National Risk Register and mitigation measures put in place to deal with a pandemic.

Stockpiling of equipment: policy and changes to policy as the risk was re-assessed.

Given the information available to senior and political decision makers at the time of their decisions, could more lives have been saved?

Were the lessons from pandemic themed exercises understood and were they used to improve the response when it was required?

The quality and success of the pandemic plans in the NHS and in other sectors.

Command and control structures used during the pandemic at national and local level.  How successful was the co-ordination between government departments and between central government, local government and the devolved administrations?  How well suited was the system of (non statutory) Local Resilience Fora (in England and Wales) and Strategic Co-Ordinating Groups?  Was consistency achieved between different authorities.

How did the NHS cope?  What was the knock on effect of having to concentrate on Covid-19?

The resilience and security of the supply chain – both for specialist materials and for food.

Decisions around lock down, especially around timing and extent.

The arrangements for obtaining scientific and medical advice both at national and local levels.  How did they work?

Communicating with the public – including technical issues around the use of SMS.   How clear were the messages given to the public?

Emergency powers.  Could they have been better drafted?  Could more have been done in advance to consider the content and wording of the Coronavirus Act and the Regulations made under its provisions.  Why couldn’t the powers in the Civil Contingencies Act have been used?

Leading on from the above point, is the Civil Contingencies Act fit for purpose?  Are the structures that it created still relevant?  If the current crisis is not worthy of a State of Emergency perhaps we should be looking at the legislation that creates the concept.

Policing and enforcement of the regulations and the potential for confusion between regulation and guidance. 

The international position.  British citizens abroad.  Relationships and fast time information, sharing with allies etc

How ready are we for the next pandemic?  What can be done to ensure readiness?  Should there be a civil protection inspectorate?

The emergency planning ‘profession’.  What is it and should there be mandated standards and levels of service?

Nobody will agree with every entry in this hastily scribbled list and everybody would be able to add further items. This is an illustration of the difficulties faced by those who will have to draw up the terms of reference for any inquiry.

There will be some sort of inquiry so it is probably best if we embrace the idea and work together to ensure that it covers what needs to be covered and comes to conclusions that will make a difference for the future.  There is nothing to fear from a formal examination of the UK’s response.  This is very largely a good news story.  Many many people have done amazing things.  Difficult decisions have been taken and lives have been saved.  In a democracy we require the sort of transparency that acknowledges the success and the failures of any disaster response – especially one of this scale.

Philip Trendall

Philip@scott-trendall.co.uk   

April 2020

Scott Trendall Ltd is a small civil protection consultancy and training provider.  The views expressed in this blog are those of the author and should not be taken as the view of any client of Scott Trendall Ltd.