A Public Inquiry into the Government’s response to the Covid-19 pandemic Contents

4Terms of reference

38.The coronavirus pandemic has involved the most far-reaching range of government interventions seen in peacetime. Inevitably then, the range of issues to be covered by any public inquiry is going to be exceptionally wide. Jason Beer QC gave an indication of the breadth of the issues that might be included:

I wrote a list of the things that it might look at: past response to pandemics, the implementation of recommendations from previous reviews, the fitness for purpose of the Civil Contingencies Act, the role of the World Health Organisation in providing timely and accurate advice to the Government, decisions as to when to restrict movement, the introduction of social distancing, the closure of schools, the closure of businesses, the provision of information to the public, the use and misuse of statistics, the role of the media, the approach taken to care homes, the availability of PPE, the availability of other medical equipment, including ventilators, the non-use of the EU procurement route, the impact on members of BAME communities, the impact on elective treatments not being carried out, decisions to lift restrictions, differences in approaches across the four nations—my list goes on and on.51

39.The terms of reference for public inquiries are set by the minister establishing the inquiry. However, the Inquiries Act obliges the minister to consult the inquiry chair (or proposed chair) before setting out the terms of reference for statutory inquiries.52 However, it seems that such consultation is often tokenistic and, in practice, chairs may have little or no input. Jason Beer QC said:

having been on the inside on some inquiries, generally what happens is the chair gets given the terms of reference, and then very shortly afterwards they are made public. Although the public statement says the terms have been agreed with the chair, the extent to which there can be meaningful participation in their formation has been relatively limited. It tends to be a fait accompli.53

40.The terms of reference for Lord Butler’s inquiry were the outcome of negotiations between political parties which left little scope for his input.54 Dame Una O’Brien also found party political negotiation as the basis for establishing the terms of reference for the Renewable Heat Incentive inquiry.55

41.The Institute for Government have noted the increasing length and detail of inquiry terms of reference. There is a legitimate concern that they are set too early and leave inquiry or panels too little flexibility in following lines of inquiry as they emerge. Lord Butler told us he simply ignored parts of the terms of reference, which he viewed as “absurd”. In his view, not to have done so would have made it impossible for the inquiry to report by the deadline they were set.56 Dame Una O’Brien emphasised the need to ensure that terms of reference focussed on those things that only an inquiry could investigate.57

42.In some instances, genuine consultation does take place. The example of the public inquiry into the Grenfell Tower fire, where draft terms of reference were the subject of consultation with local residents, survivors and other affected families, was noted.58 Sir Robert Francis QC said that he felt that the authority and effectiveness of the terms of reference for his inquiry derived from the consultation process.59 Similarly, the Institute for Government have written the legitimacy of an inquiry can be improved through consultation:

The idea of such consultation is to ensure that the expectations of different groups—including affected parties—are acknowledged from the outset, and to help build trust in the inquiry.60

43.However, whilst consultation can widen the range of viewpoints incorporated into the terms of reference, it can equally present difficulties. Jason Beer QC struck a sceptical note about the value of extensive consultation on terms of reference.

I am not convinced about the idea of a consultation period. That happened in a very recent inquiry, the Grenfell Tower inquiry, and from my sense from the outside, that led to increased delay and frustration, rather than any meaningfully better terms of reference.61

44.Whilst more positive towards consultation, the Institute for Government has acknowledged that it can create difficulties. In particular, the consultation process can lead to pressure to extend terms of reference too far.62 A balance needs to be struck between comprehensive terms of reference and the need for a focussed and manageable inquiry.63 Timeliness is also an important consideration, with overly broad terms of reference one of the factors that contribute to excessively drawn out public inquiries.

45.Inquiries should have a clear purpose, be it policy learning or accountability, and the terms of reference should be determined by that. Consultation with those who have been directly affected by the coronavirus pandemic can make a significant contribution to a public inquiry. Gaining the input of those with direct experience of the issues being inquired into can ensure the inquiry covers the most important questions far better than would be the case if the terms of reference were to emerge fully formed from a ministers’ office. However, the expectations need to be managed and a single inquiry cannot address every issue. The minister and chair must balance the need to be inclusive with the need to allow the inquiry to maintain focus and to report in a timely manner.

46.The Government should, alongside the terms of reference, set out its plans to cover issues that cannot be included in the public inquiry. This will allow those who are impacted by the wider issues to understand how and when they can contribute to lessons learned and allow the public inquiry to focus on the issues with which it has been tasked.

The devolved nations

47.The Committee considered whether the devolved administrations should be included in a single, UK-wide public inquiry. Important aspects of the UK’s response to the coronavirus pandemic fall within the competency of the devolved administrations and there has been a degree of policy divergence between them and the UK government.

48.The territorial aspects of statutory public inquiries are mainly addressed in sections 27–31 of the Inquiries Act. The Act limits the ability of the UK Government to establish inquiries into devolved matters without the consent of the relevant devolved administration. Under the Act, ministers of the UK Government can establish inquiries which cover the entire UK. The Act’s Explanatory notes state that:

It is envisaged that UK Ministers will not usually set up inquiries into devolved matters without the agreement of the relevant devolved administration.64

49.UK Government ministers cannot include in the terms of reference anything that would require evidence to be received or recommendations to be made on areas which are entirely or primarily the responsibility of a devolved administration without the consulting that administration.65 Where a UK-wide inquiry wishes to receive evidence on devolved matters, the inquiry chair is expected to consult devolved administrations before compelling them to produce evidence.66 These restrictions would be avoided with a non-statutory inquiry. But such an inquiry would lack the statutory powers to compel the participation of witness or to take evidence under oath. Professor Aileen McHarg wrote that the Government could try to circumvent the provisions of the Inquiries Act with a bespoke piece of legislation giving it statutory powers to inquire into devolved areas. But such a piece of legislation would be subject to the Sewel convention and would require the consent of the devolved parliaments.67 There is little way in which the UK Government could include devolved issues within the remit of a public inquiry without the cooperation of the devolved governments.

50.The Committee believes that each administration, be it the UK or devolved should establish its own inquiry. This is because most aspects of the response to the pandemic are devolved matters but doing such also ensures proper attention is granted to each of the nations’ response, it is the route to a statutory inquiry that requires the least negotiation and deliberation and it is still possible to understand the UK-wide response by including cooperation between administrations in the terms of reference within each inquiry. The UK Government should consider the coordinating role between the Governments of the UK, including public communications.

Recommendations and implementation

51.Inquiries end when the final report has been published and there is very little formal process surrounding the next steps.68 Where some inquiries bring about substantial change, others do not and their recommendations are quietly shelved.69 Once the inquiry has reported, responsibility for the next steps lies with the Government. It must decide whether to accept the inquiry’s recommendations and decide if and how they should be implemented.

52.The Government is under no obligation to accept the recommendations of an inquiry, but it is expected to respond. This response might be through a written or oral statement in Parliament or a written report. In the response, it is expected to indicate which recommendations it accepts.70 However, responses vary in their substantiveness. A review of a sample of government responses to public inquiries by the National Audit Office (NAO) found that it was often unclear whether recommendations had been accepted or not. The NAO found that, for their sample, 45% of recommendations were accepted by government, 33% were ‘accepted in principle’, ‘partially accepted’ and ‘subject to wider reform’, 7% were explicitly rejected, and no clear response was given to the remaining 15%.71

53.Governments are within their right to reject inquiry recommendations and in some instances may be correct to do so. As Dame Una O’Brien said, inquiry panels are not “completely omniscient”:

sometimes their recommendations do not quite fit, having sat inside government and received recommendations from various inquiries. Of course, life moves on, and they have to be reinterpreted for a changing context.72

54.However, the Cabinet Office Inquiries Guidance requires only that the Government indicates which recommendations it accepts. It is under no obligation to give a detailed explanation for why it has accepted a recommendation or not. Some government responses have done this, but it is not always the case.

55.With an event as far reaching and impactful as the coronavirus pandemic, government policy has been put under enormous strain, so it is important that the Government can clearly demonstrate that it is learning lessons. The Committee would expect the Government’s response to include a full explanation of why it does not accept a particular recommendation. It should also adopt this “comply or explain” approach where a recommendation is only partially accepted or addressed by different means.

56.Responsibility for implementation of inquiry recommendations largely falls to Government. But holding Government to account for this implementation is somewhat arbitrary. Some witnesses wanted inquiry chairs and panel members to play a role in maintaining pressure on government to implement recommendations.73 Emma Norris (Institute for Government) noted instances where chairs had played this more activist role after their inquiries had ended.74 One of the arguments against the appointment of judicial chairs was their unwillingness to adopt this post-inquiry role.75

57.The former inquiry chairs and panel members took a different view. Dame Una O’Brien felt that it was unrealistic to expect chairs and panel members to continue to be the voice of the inquiry once it has ceased to exist.76 Similarly, Baroness Prashar felt that the responsibility for implementation lay with the Government rather than her and her fellow inquiry members.77 Lord Butler engaged with the Government’s implementation effort when called upon and Sir Robert Francis QC engaged with the health sector about his inquiry’s conclusions. But neither felt a responsibility to ensure their inquiry’s recommendations were being implemented.78

58.Even where chairs and panel members would like to hold the Government to account for the implementation of their inquiries’ recommendations, there are clear obstacles to them doing so. Once inquiries end, they lose the support of their inquiry secretariat and their status as inquiry chair or panel member. As private citizens, they may also lack access to information about the state of implementation. As a consequence, the responsibility for holding government to account for implementation falls to others.

59.Established for the duration of each Parliament and tasked with scrutinising the administration, expenditure and policy of the respective departments, departmental select committees were singled out as the best vehicles for holding Government to account for its implementation of inquiry recommendations. Some committees have been active in pursuing the Government over its implementation of the recommendations of some public inquiries. But the lack of clear procedure surrounding the period after an inquiry has reported means that this has not always been the case. The Institute for Government found that only a small minority of public inquiries received full or even incidental scrutiny after reporting.79 Their report recommended adding the scrutiny of inquiry recommendations and their implementation to the Liaison Committee’s list of select committee core tasks. There was some frustration apparent amongst some of our witnesses that select committees have not engaged more positively with inquiry findings. Sir Robert Francis QC included in his recommendations that the Health Select Committee scrutinise the implementation of his inquiry recommendations and felt that, for a period at least, it had done so effectively.80 But both Lord Butler and Baroness Prashar felt that the relevant select committees had missed the opportunity to do.81

60.Select committees control their own agendas and it is up to their chairs and members whether to hold the Government to account for the implementation of inquiry recommendations. However, it is clear that, for the value of an inquiry to be realised, there needs to be a some means by which Government is held to account for the steps it takes in response to the inquiry findings. Too often that has not been the case. The breadth of the areas likely to be covered by the inquiry means that a number of select committees will have oversight of key areas of the Government response. The Liaison Committee should consider adding the ‘scrutiny of the Government’s responses to public inquiries’ to the list of core tasks for departmental select committees.

61.In addition to select committee scrutiny, Dr Alistair Stark (University of Queensland) noted the successful use of implementation monitors in holding governments to account in other jurisdictions.82 These might then feed into further oversight by the relevant parliamentary committee. He suggested that the NAO would be well placed to play such a role.

62.The National Audit Office should work with select committees to monitor the implementation of all the elements of the recommendations of the coronavirus public inquiry. It should provide periodic reports to the relevant select committees updating them on the state of implementation across the range of areas covered.

60 E. Norris and M. Shepheard How public inquiries can lead to change Institute for Government (2017), p.15

62 E. Norris and M. Shepheard How public inquiries can lead to change Institute for Government (2017), p.15

63 RC0027 (Institute for Government)

69 E. Norris and M. Shepheard How public inquiries can lead to change Institute for Government (2017), p.26

71 NAO Investigation into government-funded inquiries HC 836 Session 2017–2019 23 May 2018, para. 3.16

73 Q201 (Alistair Stark); Q202 (Jason Beer)

75 See paras 30–32

76 Q266.

79 E. Norris and M. Shepheard How public inquiries can lead to change Institute for Government (2017), p.25–26

81 Q267 (Lord Butler) Q265 (Baroness Prashar)

Published: 10 September 2020