Covid-19 Inquiry – Devolved Administrations and Article 2 Considerations

From very early on in the Covid-19 pandemic, there have been calls for a public inquiry into the UK Government’s response to it. These calls have come from a wide range of individuals and bodies and the questions they put forward for an inquiry’s consideration are manifold.  Whilst there has already been considerable scrutiny into the Government’s handling of the crisis^[1] this has been limited in scope and conducted without the statutory powers of a public inquiry.  These give a public inquiry the power to compel the production of evidence – people can be required to make statements and to attend to give evidence and documents must be produced when requested, crucial powers to enable the inquiry to uncover how events unfolded and decisions were made[2].  A statutory public inquiry will be able to consider actions across all levels of government (local, central, devolved and cross-departmental) seeking to understand what went wrong, who was responsible and what can be done to prevent recurrence.  For many, personally and deeply affected by the Covid-19 crisis, only a public statutory inquiry will provide a suitable forum for investigation of the adequacy of the Government’s actions – it will have the independence necessary for public trust and the gravitas to satisfy those who have lost loved ones or otherwise suffered greatly.

Succumbing to public and political pressure, on 12 May 2021 Prime Minister Boris Johnson committed to an independent public inquiry on a statutory basis, with full powers under the Inquiries Act 2005.  He indicated that the inquiry would begin in spring 2022[3].   Boris Johnson also indicated that he was committed to working closely with the devolved administrations in establishing the Inquiry.

Devolved administrations and a Covid-19 inquiry

There are some aspects of the UK Government’s response to the Covid-19 crisis which are wholly the domain of the UK Government – including most economic support measures.  For some areas there is a degree of overlap – for example, the level of inter-governmental cooperation between the UK Government and the devolved administrations[4].  Others, such as health, education, the imposition and lifting of restrictions, are devolved matters, dealt with primarily by the devolved authorities.

There are calls for independent public inquiries to be held in all three devolved nations.  To date only the Scottish Government has committed to holding its own public inquiry into the handling of the covid pandemic[5] Nicola Sturgeon, Scotland’s First Minister, indicated that the public inquiry will scrutinise decisions taken over the course of the crisis and start by the end of the year, not waiting for the commencement of the UK wide public inquiry.

The terms of reference of the UK wide inquiry will determine what matters the inquiry considers and it is yet to be seen to what extent these cover devolved matters.  It is possible, indeed probable, that as well as the UK wide public inquiry, and the Scottish public inquiry there will also be separate public inquiries conducted on behalf of the Welsh and Northern Irish Governments.  This will be influenced by the terms of references of the UK Government’s inquiry and the degree of co-operation between the devolved administrations and the UK Government in establishing them[6].  To a lesser extent they will also be influenced by the terms of reference of the Scottish inquiry.

The Inquiries Act 2005 makes it clear that consultation is required when terms of reference are included which relate to wholly or primarily devolved matters, and envisages that agreement will be made between the UK Minister and devolved administrations[7].  Consultation is again required should a UK wide inquiry wish to compel the production of evidence.

As the scope of the inquiry will include matters which are primarily concerned with devolved matters, there is the potential to require considerable negotiation and deliberation over the terms of reference and use of powers of compulsion in evidence gathering, between the UK Government and the devolved administrations. It may be that it will be necessary for expediency and clarity for at least some of these matters not to be included in the UK Government’s terms of reference, requiring investigation under separate inquiries by the devolved authorities. Indeed many of these issues may be best considered by each administration in question, to make the task more manageable and to ensure that proper attention is granted to the response of each administration.

A comparison of the impact of a devolved policy (for example, the effect of the differences in the timing of imposing and easing of restrictions) may arise in any inquiry.  In addition, consideration of matters relating to inter-governmental cooperation in the terms of reference of any inquiry would ensure that the UK level response as a whole is understood, even if devolved matters are the subject of separate inquiries.

The Scottish Government has indicated that the Scottish public inquiry will give particular consideration to the ‘four harms’ of the pandemic – direct health impacts (including cases and deaths in care homes), other non-covid health impacts, societal impacts (including education) and economic impacts.  It remains to be seen whether there are any issues which will be covered by both the UK-wide and the Scottish inquiries, or whether there are any issues not covered by either.  Ideally, co-operation in drafting the terms of reference of both inquiries would ensure that this does not occur.  It will be interesting to see whether there is sufficient political co-operation to allow for the terms of reference of both inquiries to be both complimentary and conclusive.

Article 2

The Human Rights Act 1998 (the “HRA”) was intended to make the exercise of public power more fully accountable against standards of fundamental human rights and to provide effective remedies in UK courts for breaches of human rights. The UK Government had long had obligations to comply with the European Convention on Human Rights (ECHR) and with the judgments of the European Court of Human Rights (ECtHR): but where previously a person’s human rights could be vindicated only by a relatively inaccessible international court, the Human Rights Act set out to “bring rights home” and to make the rights imported from the Convention an intrinsic part of national law.[8]

Article 2 of the ECHR requires that everyone’s right to life shall be protected by law. Section 6(1) of the HRA provides that it is unlawful for a public authority to act in a way that is incompatible with a Convention right. By section 6(2) a public authority includes a person “certain of whose functions are of a public nature.” This includes the Government and the question has been posed as to whether a future public inquiry into the Government’s handling of the Covid-19 pandemic, would need to consider whether the Government have breached Article 2 rights, by not protecting the populations’ right to life.

Amnesty International have highlighted that the Covid-19 pandemic has brought about strong support for the Human Rights Act. A poll was conducted in February 2021 and found that more than two thirds (68%) of those polled thought it was important to have a safety net to hold the Government to account when things go wrong, and more than half (53%) agreed that the coronavirus pandemic has made it clear we need human rights protections more than ever.[9]

The Government’s handling of an international pandemic has never before been legally scrutinised, let alone by a public inquiry. This is an unprecedented situation. However, we can draw upon previous legal principles which have been considered by the House of Lords to assist us in analysing how a public inquiry may approach this. In Re Officer L and Others [2007] UKHL 36, [2007] 1 WLR 2135, the House considered applications for anonymity in the context of a statutory inquiry. This was considered by Sir Christopher Pitchford, the previous Chairman to the Undercover Policing Inquiry, when outlining his Ruling on Restriction Orders^[10]:

Lord Carswell identified the component parts of the obligations on the state and the threshold test to be met under Article 2. First, the state must “take appropriate steps to safeguard the lives of those within its jurisdiction”.[11]

Secondly, when the authorities know or ought to know of “a real and immediate risk to the life of an identified individual” there is a positive obligation on the state to take reasonable preventative measures.[12]

Thirdly, the “real” risk to which the European Court of Human Rights referred is one that is objectively verified and an “immediate” risk is one that is present and continuing.[13]

Fourthly, the threshold for a “real and immediate risk” is constant and not variable according to the type of act contemplated.

Fifthly, the subjective fear of the applicant is no part of the test, although it might be evidentially relevant in identifying the risk.[14]

As Lord Carswell identified, in the event of a real and immediate risk to life, the state must take ‘reasonable preventative measures’. This will be a pertinent question for a future public inquiry to consider: did the UK Government take ‘reasonable preventative measures’ in the face of a real and immediate risk to life posed by Covid-19? In this context, how will ‘reasonable’ and ‘preventative’ be defined?

These and many other interesting questions will need to be considered when drafting the Terms of Reference for the Covid-19 public inquiry. Any future developments regarding Article 2 of the HRA will no doubt be followed with interest by the legal profession.

This article on the Covid-19 Inquiry – Devolved Administrations and Article 2 Considerations was written by Emily Hamilton and Stephanie Painter. To enquire about instructing either counsel or further information on our Inquests and Inquiries team please contact our clerks via our switchboard on 020 7353 0711 or email: clerks@pumpcourtchambers.com

[1] The National Audit Office has so far conducted 21 investigations covering a wide range of topics (ranging from a consideration of the housing of rough sleepers to the backlog in the NHS following the Covid-19 pandemic) and the House of Commons and Lords have both established a number of select committees to conduct targeted inquiries.  Devolved authorities have also conducted a number of inquiries.

[2] Section 21 Inquiries Act 2005

[3] Explaining delaying the commencement of an inquiry until spring 2022, he cited the persistent threat of new variants, potentially highly transmissible and able to elude the protection of vaccines, combined with the high likelihood of winter surge in cases, putting pressure on the NHS.

[4] This appears to have been good in the initial stages of the Covid-19 crisis, with all administrations attending COBRA and MIG meetings and decisions being made and announced jointly.  This appears to have deteriorated after in May 2020 with each administration making independent decision about the easing of lockdown restrictions.

[5] This was announced on 24 August 2021, in a press briefing.

[6] The Public Administration and Constitutional Affairs committee report: A Public Inquiry into the Government’s response to the Covid-19 pandemic recommended that each administration should (UK or devolved) establish its own inquiry and terms of reference. It made this recommendation as it found that most aspects of the response to the pandemic are devolved matters.

[7] Section 27 – 29 of the Inquiries Act 2005 and explanatory notes.

[8] https://publications.parliament.uk/pa/jt200304/jtselect/jtrights/39/39.pdf

[9] https://www.amnesty.org.uk/press-releases/strong-public-support-human-rights-act-after-covid-crisis

[10] https://www.ucpi.org.uk/wp-content/uploads/2016/05/160503-ruling-legal-approach-to-restriction-orders.pdf

[11] Osman v United Kingdom [1998] 29 EHRR 245 at paragraph 115

[12] Osman v United Kingdom (supra) at paragraph 116

[13] In re Officer L and Others [2007] 1 WLR 2135 at paragraph 20

[14] In re Officer L and Others (supra) at paragraph 20