The Who’s Who of the COVID-19 Inquiries – could it be you?

The Scottish Government has launched its independent judge-led public inquiry into the handling of the COVID-19 pandemic, and the UK COVID-19 Inquiry is officially underway, which will be of particular interest to entities with cross-border interests.

As we wait for further updates on the Scottish COVID-19 inquiry, one of the key questions to think about is who will be involved.

Following a government consultation exercise and stakeholder engagement during the course of Autumn 2021, the Scottish Government announced the full terms of reference for the inquiry in December 2021 in the form of 12 strategic areas:

1. pandemic planning and exercises carried out by the Scottish government,
2. decision to lockdown and to apply other restrictions,
3. delivery of a system of testing, outbreak management and self isolation,
4. design and delivery of a vaccination strategy,
5. supply, distribution and use of Personal Protective Equipment,
6. requirement for shielding and associated assistance programmes, provided or supported by public agencies,
7. in care and nursing homes: the transfer of residents to or from homes, treatment and care of residents, restrictions on visiting, infection prevention and control, and inspections,
8. provision of healthcare services, including the management and support of staff,
9. delivery of end of life care and the use of DNACPR (do not attempt cardiopulmonary resuscitation decisions),
10. welfare assistance programmes, for example those relating to benefits or the provision of food, provided or supported by public agencies,
11. delivery of education and certification,
12. financial support and guidance given to businesses and the self employed, including in relation to identification of keyworkers, by public agencies.

The Scottish Government is considering who should be appointed as Chair, and this will likely be one of the next announcements for the COVID-19 Inquiry.

Who will be involved?

The remit of the is far ranging and it is clear that the Inquiry in Scotland is intended to address all the major areas impacted by the pandemic; which is to say almost every facet of society and industry. These areas cover a significant pool: public bodies; front-line services; economic operators; higher education providers; representative bodies; and individuals.

Given the potentially vast remit of the Inquiry, and the many discrete and distinct topics to be addressed, the number of Core Participants could be significant. Recent inquiries have had procedural issues in managing the large numbers of interested parties, and there are a range of measures an inquiry might take to mitigate against this. Early monitoring of developments will be important to ensure that any potential participant is prepared at the earliest stage for engagement with the Inquiry.

What are Core Participants?

A Core Participant is a person, organisation or other entity with a significant interest in the Inquiry and is formally designated a Core Participant in the Inquiry.

Core Participants have certain rights in terms of participation in an inquiry, although the exercise of these rights is often discretionary and will depend on the procedure of the inquiry. For example a Core Participant might wish to access evidence and to make an opening and/or closing statement but not undertake any work in terms of putting forward lines of questioning for witnesses.

A key challenge for entities considering participation is the difficulty in properly anticipating the work to be undertaken until the Inquiry is live and the issues, scope and potential areas of investigation/concern are better established.

Unlike most public inquiries, this Inquiry will be looking at the handling of an ongoing situation; the proximity of the Inquiry to the events will present some legal and procedural challenges for the Inquiry. The public interest in this Inquiry will be particularly high, and the almost universal relevancy of the Inquiry will increase media scrutiny.

Control of the number of Core Participants and efficient management of the respective groups of Core Participants who have similar or related interests will be a key issue to be navigated by the Chair.

Could it be you?

The Inquiry aims to invite applications for designation as a Core Participant by early autumn. The wide range of issues to be examined by the Inquiry means the potential net for participants is cast very widely.  If an entity or individual is asked to be a Core Participant it is very rare for this to be declined; and equally there are many entities who may actively seek to be a Core Participant. In practice taking on this role provides the only opportunity to have access to the Inquiry process, and to take protective steps during the process. Core Participant status affords special rights in any proceedings such as access to disclosed documentation, being represented and making legal submissions, suggesting questions and receiving advance notice of the Inquiry’s report.

Our team can help you take steps at the earliest stage to assess the merits in being a Core Participant, and alternative routes of involvement in the Inquiry. We have experience preparing entities in advance of inquiries, and supported clients throughout the full life journey of an inquiry, from pre-commencement to recommendations, and onto subsequent litigation.

Burness Paull has one of the strongest, dedicated teams of lawyers who focus purely on matters relating to government, the public sector and their relationship to business and society, working regularly across high profile and highly sensitive issues within public inquiries and judicial reviews.