How to get your voice heard in the Covid-19 inquiry

1. The first preliminary hearing for Module 1 of the Covid-19 investigation on October 4th[1] is a powerful reminder that it is more important than ever that those who may be called to attend (or who have valuable perspectives to contribute) are prepared for what lies ahead.

2. In its broadest sense, the inquiry aims to examine the UK’s preparedness and response to the Covid-19 pandemic in order to draw lessons for the future. Given the myriad ways in which the pandemic has touched every aspect of life and society in the UK, this inquiry is probably one of the most comprehensive ever undertaken and the mandate[2] of the study do little to limit its scope.

How the investigation will fulfill its mission

3. Given the range of topics to be considered, the research will be divided into modules, with each module addressing different key issues. The first three modules are confirmed. These address planning, resilience and preparedness; central political decision-making; and the impact of the pandemic on healthcare systems. Additional modules will be announced in 2023 and are expected to include, among other things, a detailed look at the economic impact of the pandemic and an examination of business and financial responses to it.

4. Each module includes an investigative phase in which documentary and witness evidence is collected and reviewed, and live evidence is presented under questioning at public hearings. A report is then created for each module. The modules will run concurrently and the investigation has already assembled large legal teams to oversee each module. Requests for documents and testimonies are already being received, and the pace will increase in the coming weeks and months.

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How to secure your position

5. Once the inquiry has submitted a request for testimony, you may only have 2-3 weeks to respond (and given the speed at which it is progressing, we expect requests for extensions to be processed shortly). This is an exceptionally short amount of time to get to grips with all the relevant materials and make a statement that does justice to your position, especially when there are risks of criticism and reputational damage to consider. Given all of this, it’s important to be proactive rather than reactive. Early and specialized legal advice can save you considerable problems later.

6. So how does one progress in a public inquiry? It is worth remembering that public investigations operate in a very different legal framework than civil and criminal proceedings, with which most of us are more familiar. They are inquisitorial and “factually investigative” rather than adversarial, and subject to their own rules of evidence. The chairman is authorized to force the surrender of documents and to invite witnesses to testify under oath. There are no parties in public inquiries, but it is possible to apply as a “Core Participant”.

What is a core participant?

7. Key stakeholders play a key role in public investigations and are distinct from witnesses, who can testify but play a more passive role in the process. Core participant status entails important rights, including the right to make opening and closing statements (giving the chairperson her views on what evidence and issues are important and suggesting how to deal with them), questions at public hearings to provide witnesses (give you the opportunity to challenge contested evidence), access documents and other disclosures, and view draft reports before they are published (allowing the opportunity to correct errors or request review of criticism).

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8. The fact that we are all affected in some way by the pandemic means that an unusually wide range of stakeholders will no doubt wish to play an active and formal role in the inquiry by aspiring to core participant status.

How to increase your chances of being nominated as a Core Participant

9. From the outset, the inquiry has made it clear that it is deeply concerned about its limited resources and the scale of the task it faces, especially given all the voices that may wish to contribute. The chairman said: “[w]With a scale this big, I have to be ruthless.”[3] In order to keep the investigation manageable, it will take a very selective, targeted and carefully planned approach in identifying the core participants in each module. The investigation only wants to deal with key representatives.

10. This is clearly signposted in the July 2022 Core Participant Protocol,[4] which states that ”

11. This reflects the obvious point that a coalition with a clear mandate to represent a sector or community before the inquiry will often do a better job of making the process run more fairly and efficiently than individual votes. The investigation will be grateful to those taking the initiative in resolving disagreements and reconciling competing positions behind the scenes. It will welcome those who provide a one-stop shop through which to manage engagement and get coordinated responses to information requests.

12. In contrast, processing numerous separate lead participant applications for the investigation will be cumbersome and resource intensive. Uncoordinated individual applications are more likely to be rejected and there is a risk that there will be a lack of cohesion. This could result in a sector or community being seen as fragmented and not speaking with a powerful voice – reducing their ‘impact’.

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13. In her opening remarks, the Chair therefore encouraged potential applicants “to join forces where possible with others with similar interests to help manage the potentially large number of individuals and organizations seeking core participant status”.[5] This is not to say that the survey will never admit multiple core participants from the same sector or community, but it will no doubt apply the core participant status test rigorously to weed out all but the strongest and best defined.

14. If you are a sector or community seeking core participant status in a future module, we encourage you to form a coalition now and collectively engage a specialist team of public inquiry advocates with experience to act on your behalf to deal with the investigation. This has real practical advantages in not adding unnecessary or superfluous work to the investigation, as well as advantages in terms of effective presentation and enhancing your voice rather than watering it down.

15. The request specifies the date by which core participant applications for each module should be submitted. This should be followed to maximize the chances of success. As an exception, applications for regular participant status can also be made outside of the deadline.

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