The COVID-19 Inquiry: Some potential issues - Scope and terms of reference

This series of short articles reflects on some matters that may arise in relation to a public inquiry (or inquiries) into the government’s response to the COVID-19 pandemic, set to be launched in Spring 2022. While little is publicly known about the details of the inquiry, these articles consider the relevant legislative framework and some possible questions of scope, structure and participation.

Scope and terms of reference

The Prime Minister has confirmed that a COVID-19 inquiry will be established on a statutory basis.  Statutory public inquiries may be held under the Inquiries Act 2005 where it appears that “particular events have caused, or are capable of causing, public concern, or … there is public concern that particular events may have occurred” (Inquiries Act 2005, s 1(1)).

The terms of reference of a public inquiry are set by the relevant minister before the inquiry starts (Inquiries Act 2005, s 5(1)). Terms of reference set out the overall scope of the inquiry’s investigations and determine the issues that it will consider.  

The scope set for the inquiry (or inquiries) into the government’s response to COVID-19 will be important in fostering public confidence in its process and conclusions, and will also affect its duration. The terms of reference drafted for the inquiry should be sufficiently broad to cover the range of public concerns engaged, while enabling the inquiry to conduct investigations in a focused and proportionate manner. 

The issues that an inquiry into the government’s response to COVID-19 might consider are wide-ranging.  They could include: causes and management of the COVID death rate in the UK; the provision of medical equipment such as PPE, ventilators and hospital beds; test and trace; the tier system; school closures; lockdowns, restrictions and their effects on small businesses and vulnerable individuals; management of COVID within care homes; the differential impact of COVID within black and minority ethnic communities; consideration and effects of long COVID; management of borders, travel restrictions and quarantine; and the vaccine rollout.  Government response processes, planning and decision-making are likely to be key aspects.

Terms of reference have sometimes been developed with input from interested parties, as in the Grenfell Tower Inquiry. However, there is a distinction between an inquiry where interested parties are likely to be identifiable and relatively small in number and an inquiry (or inquiries) where the issues may affect the whole population.  After it has started, an inquiry might publish Issues Lists or a Definition of Scope on particular issues, which may be the subject of consultation with relevant parties.  This has been done, for example, by the Independent Inquiry into Child Sexual Abuse and the Undercover Policing Inquiry.

Terms of reference for public inquiries tend to be both backward- and forward-looking.  Inquiries consider what happened and why, and make recommendations for the future. As well as enabling examination of the government response to date, the terms of reference for the COVID-19 inquiry should aim to ensure that the UK is better prepared for any future pandemic and future effects of COVID-19.

Up next: Follow the series with the next article on 'Structure of a public inquiry'.