There have been almost 10,000 deaths involving Covid-19 in Wales since March 2020. The pandemic and the response to it have also had an impact on almost every aspect of our daily lives, from health and education to business and personal freedoms.
The UK Government is setting up an independent public inquiry to examine the response to Covid-19 and the impact of the pandemic, including in Wales. The inquiry is now consulting on draft terms of reference.
There have been high-profile calls for a separate inquiry into the devolved response to the pandemic in Wales. This article looks at what the UK inquiry is planning to do and how it might approach its work to examine the response to the pandemic in Wales.
Public inquiries are independent investigations set up by government ministers. They can be set up following major accidents, disasters or public failures to examine what happened and why, what went wrong, and what can be learned.
Public inquiries can be statutory or non-statutory. The Inquiries Act 2005 provides the legal basis for statutory inquiries. It empowers such inquiries to compel witnesses to appear at public hearings and provide documentary evidence.
The Act enables Ministers in both the UK and devolved governments to set up statutory inquiries. Two or more governments may also hold a joint inquiry. The Welsh Government has commissioned one statutory inquiry to date, into the E. coli outbreak in 2005.
Under the Act, the Welsh Ministers can only set up inquiries about matters in relation to which they have functions (“Welsh matters”). Welsh inquiries can only compel witnesses to give evidence or produce documents about Welsh matters, or for the purpose of inquiring into such matters. They cannot compel evidence or documents from the UK Government.
When a UK Minister wants the terms of reference for an inquiry to cover Welsh matters, that Minister must first consult the Welsh Ministers.
Ministers set the chair and terms of reference for an inquiry. When an inquiry has been set up, the chair runs it independently. Once an inquiry has taken and considered evidence, it reports with conclusions and recommendations. Ministers will typically respond to the recommendations, but there is no formal process for recommendations to be followed up. The Institute for Government has argued that this should be made a core task for parliamentary committees.
The UK Covid-19 inquiry
The UK Government has commissioned a statutory inquiry into the response to the Covid-19 pandemic. In December, it announced the former Court of Appeal judge Baroness Heather Hallett as chair.
The chair is now consulting on draft terms of reference for the inquiry. The draft terms of reference set out what the inquiry should look into and how it should carry out its work. The chair has also said that she will be travelling the UK to gather views on the draft terms of reference, including from bereaved families.
Once the chair has considered responses to the consultation, she will be able to recommend changes to the draft terms of reference to the Prime Minister.
The inquiry is expected to start taking evidence this year and begin holding public hearings in 2023.
The draft terms of reference
The draft terms of reference set out that the inquiry will aim to examine the Covid-19 response and the impact of the pandemic in England, Wales, Scotland and Northern Ireland and produce a factual narrative account, including:
- a wide range of aspects of central, devolved and local public health decision-making and its consequences;
- the response of the health and care sector across the UK; and
- the economic response to the pandemic and its impact.
They state that the inquiry will aim to identify the lessons to be learned from this, to inform the UK’s preparations for future pandemics.
The consultation asks if the draft terms of reference cover all the areas that the inquiry should address. For example, barrister Adam Wagner has already said a notable omission from the inquiry’s terms of reference is the impact of pandemic decision-making on human rights.
The draft terms of reference also set out how the inquiry will set out to achieve its aims. As part of this, they say the inquiry will listen to the experiences of bereaved families and people who have suffered hardship or loss as a result of the pandemic. The consultation asks for views on how the inquiry should be designed and run to ensure that such voices are heard.
The draft terms of reference say that the inquiry will produce reports (including interim reports) and recommendations in a timely manner. Complex inquiries can take a long time. For example, the Chilcot Inquiry into the Iraq War was published seven years after it started hearing evidence. The consultation seeks views on what the inquiry should look at first and whether the inquiry should set a planned end date for hearings.
Examining the response in Wales
In Wales, responsibility for responding to the pandemic has been shared between the Welsh Government and the UK Government. For many, diverging approaches to the pandemic across the UK countries have put devolved powers in the spotlight for the first time.
The draft terms of reference say that the UK inquiry will consider reserved and devolved matters across the UK. In doing so, it will try to minimise duplication with any inquiry set up by the devolved governments.
There have been longstanding calls for a separate inquiry into the devolved response to the pandemic in Wales, including from the Welsh Conservatives, Plaid Cymru, the Older People’s Commissioner, and the Covid-19 Bereaved Families for Justice (Cymru) group. Proponents have argued that a Welsh inquiry could more effectively hold Welsh Ministers accountable for their decisions, ensure understanding of decision-making in the devolved context, and be accessible for people across Wales.
The First Minister has said that “a UK-wide Covid inquiry is the best option” for scrutinising decisions made in Wales, because Welsh Government decision-making “has been inextricably linked to consideration of the wider UK science and policy landscape”. The Senedd narrowly voted against a motion calling for the Welsh Government to commission an inquiry in December.
In September, the First Minister wrote to the UK Government to set out his views that Wales should not be “an after-thought or footnote” to the UK inquiry, saying that:
- the inquiry team should come to Wales to take evidence;
- the inquiry should have Welsh-specific expertise available to it; and
- there should be a chapter or chapters on Wales in the inquiry report.
In March, the First Minister confirmed that he had been consulted on the draft terms of reference before publication, and that he also intended to respond formally to the consultation “to ensure the experiences of people in Wales are properly heard”.
The Scottish Government has commissioned a separate statutory inquiry on the devolved response to the pandemic, chaired by senior judge Lady (Anna) Poole. The Scottish Government consulted on and set the terms of reference for this inquiry in 2021. The inquiry was formally set up in February and is expected to begin its work this summer.
You can respond to the consultation on the terms of reference for the UK Covid-19 inquiry until 7 April.
Article by Lucy Valsamidis, Senedd Research, Welsh Parliament