Prime Minister Boris Johnson announced a public inquiry into the handling of the COVID-19 pandemic in May 2021. 7 months later, ministers confirmed the inquiry will be chaired by Baroness Hallett – a crossbench peer and retired former judge on the Court of Appeal. Although the inquiry is due to start work in spring 2022, the first public hearings are not expected to begin until 2023.

The decision to hold a statutory public inquiry into the pandemic response is important and welcome – no other type of investigation has greater power or more independence. Once established under the Inquiries Act 2005, the Hallett inquiry will be formally independent from government and operate under a strong presumption of transparency. Baroness Hallett will have powers to subpoena witnesses, require disclosure of evidence and hear testimony under oath. The law will require the inquiry to report its findings to ministers, who must then publish it.

An effective inquiry is essential for preparing the health system for future shocks. However, even with all the powers of a public inquiry, Baroness Hallett faces an unenviable task. The pandemic has affected the lives of everyone in the UK. The nature, extent and consequences of the actions taken by the state with the aim of protecting lives and livelihoods are without precedent. Unpicking what a select committee investigation described as ‘one of the most important public health failures the United Kingdom has ever experienced’ will not be remotely straightforward.

This long read considers what purpose the Hallett inquiry could most usefully serve, where the inquiry should focus its attention and what may be learned from the past 50 years of NHS inquiries – and public inquiries more generally – in bringing about meaningful change.

How the inquiry is established, resourced and chaired should be influenced by what Baroness Hallett is expected to achieve. Previous inquiries have served different purposes, some explicit and others implicit (see Box 1). Each of these purposes is relevant to the pandemic response but would entail different and potentially conflicting approaches to deliver.

Within government, the longstanding view is that ‘the primary purpose’ of public inquiries is to prevent recurrence by learning from the matters under investigation. As a signatory to the European Convention on Human Rights, government also has a general obligation to investigate and review where the actions or omissions of the state may have contributed to lives being lost.

A statutory public inquiry works within the terms of reference set by ministers. These determine the scope of an inquiry by listing matters to be investigated and questions to be addressed. The government has recently published the draft terms of reference for the Hallett inquiry, which is now the subject of a 4-week public consultation. This is not a requirement, but follows the precedents set by the Grenfell Tower and infected blood inquiries.

Reviews of past inquiries and investigations highlight the need to manage expectations and for investigations to be tightly focused. A review of the 50-year history of inquiries in the NHS emphasises the difficulties of investigations tasked with meeting impossibly high expectations. The Institute for Government has also found wide-ranging public inquiries tend to take longer and, most critically, risk not extracting relevant learning in time to prevent comparable failures. While the findings of the Chilcot Inquiry exposed the shortfalls and flaws in the decision to invade Iraq, for example, the 7 years the inquiry took to report is thought to have reduced the impact of its recommendations – several of which are yet to be acted on.  

The draft terms of reference would see the Hallett inquiry tasked with addressing a dauntingly broad remit, rather than seeking to determine where a public inquiry can make a distinctive and timely contribution. That said, the inquiry does have the major advantage of being able to draw on a considerable body of existing knowledge. This includes the evidence, analysis and data about the important factors that created the context for COVID-19 in the UK, all of which had consequences for the approach to handling the virus and influenced the impact of the pandemic (Box 2).

The inquiry can, for example, draw on existing analysis of NHS and social care workforce shortages, the fragility of the adult social care system, cuts to local public health services or the pernicious impact of health inequalities. There have already been major efforts to document and categorise policy measures in response to COVID-19, domestically and internationally. More widely, a substantial volume of work has already been undertaken, through parliamentary inquiries, National Audit Office investigations, academic research, investigative journalism and others.

Public inquiries are not renowned for moving quickly – the Institute for Government found those undertaken between 1990 and 2017 lasted an average of 2.5 years. The Hallett inquiry is not expected to begin hearing evidence in public until 2023. While preparatory work is happening behind the scenes, progress will be limited until the terms of reference is finalised. This will, for example, dictate what evidence the inquiry needs to seek and from whom – 2 years into an all-consuming national emergency, those at the heart of the response will hold substantial written material relevant to the investigation.

There will be much to do before the inquiry can start hearing evidence. While public inquiries occur relatively frequently – with 31 statutory inquiries completed, in progress or being planned under the Inquiries Act 2005 as of November 2021 – the practical support from government has been limited. There are resources to support and guide inquiry chairs, but the official guidance has not always been easily accessible – Sir Robert Francis, for example, discovered the guidance only after completing his inquiries into Stafford hospital.

Learning from other approaches

Successive governments have been slow to act on repeated recommendations from parliament to create a dedicated inquiries unit, even though inquiry teams may be tasked with everything from finding office space to managing the more complex procedural aspects of the investigation. With minimal support from the centre and no guarantee of prior experience, inquiry teams have often had to rely on advice from informal networks.

The different approaches taken by previous statutory inquiries suggests the Inquiries Act 2005 allows Baroness Hallett considerable flexibility to shape her investigation. For example, the hearings of the Baha Mousa Public Inquiry were organised into four distinct modules, each of which examined a particular theme within the inquiry’s terms of reference. The Grenfell Tower Inquiry is also using a modular approach, spread across two phases – phase one examined what happened on the night of the fire, which the chair sought to establish first, with phase two now looking at the wider circumstances of the disaster.

In the US, the 9/11 Commission worked on multiple topics in parallel by dividing its investigators into separate teams, each tasked with assembling the evidence on a specific aspect of the investigation. A similar model, properly resourced, might allow the Hallett inquiry to move more quickly than a single team focusing on each issue in turn. The scale, complexity and impact of the pandemic response would certainly justify Baroness Hallett recruiting a substantial inquiry team, assuming government is willing to agree the necessary budget.

Expert evidence

As well as a rapid evidence synthesis to put the pandemic response in context (see above), the Hallett inquiry could consider creating an expert panel or using expert witnesses to set the scene, explain key concepts or supply testimony on technical issues. To support and expedite the process of developing policy recommendations, the Hallett inquiry could look at how the Kennedy and Francis inquiries used a series of seminars to involve people with relevant experience and expertise. With the scope for definitive findings to be substantially delayed by ‘Maxwellisation’ (the process to allow those to be criticised to respond before publication), it is welcome that the draft terms of reference allow the Hallett inquiry to produce interim reports to highlight the most urgent matters.

A related approach used by the 9/11 Commission was the production of ‘staff monographs’, setting out factual summaries of the evidence investigators uncovered prior to the relevant stages of oral evidence. The inquiry will also need to give early thought to how government and other bodies might be held to account for implementing recommendations following publication of its final report.

Engaging the public

Finally, the Hallett inquiry will need to consider how to engage the public in the proceedings. First and foremost, this means working closely with people who lost loved ones during the pandemic to ensure their voices are at the heart of the inquiry and to agree suitable arrangements for engaging and supporting them throughout. While catharsis may be one of the purposes of public inquiries, it is not an inevitable product of the process and demands sensitive and deliberate thought.

Second, there is the need to promote wider public involvement with the inquiry. No one in the UK has been untouched by COVID-19, but the pandemic has affected people’s lives in different ways. Developing meaningful and constructive ways to engage the public, beyond the obvious step of holding proceedings in public, will be one of the most difficult aspects of the inquiry. The inquiry will also need to consider the welfare of the witnesses called to give evidence. While politicians, advisors and senior public servants may be used to the spotlight, this will not be case for many of those redeployed into immensely difficult roles during the pandemic response. The inquiry should work closely with the organisations participating in proceedings to ensure all witnesses receive appropriate support.

The impact of COVID-19 has already been devastating – but the next pandemic could be even worse. Failing to understand the lessons from the response to this pandemic would leave the UK more vulnerable to the threats posed by future pandemics and other major health emergencies.

A public inquiry is the right vehicle to identify those lessons and to create the impetus for implementing the necessary changes. Nevertheless, expectations for Baroness Hallett’s inquiry need to be grounded in the reality that previous inquiries and investigations have often been comprehensive or timely, but rarely both. Finalising the inquiry’s terms of reference is essentially about priorities – of all the outstanding questions about the pandemic response, which are the most urgent and amenable to the powers and methods of a public inquiry?

The two areas where the Hallett inquiry could make a distinctive and valuable contribution are the adequacy of the preparations made prior to the pandemic, and the decision-making process within government during the pandemic. Given the extent of the suffering brought about, ministers have framed the draft terms of reference to give the inquiry the broadest possible remit. While there may be understandable and entirely legitimate pressure for a wide-ranging investigation, the phasing of the inquiry could clearly prioritise these two critical issues. This would the most effective way to realise the government’s stated aim for the inquiry to result in strengthening the UK’s preparations for and response to future pandemics.

This long read has set out some ideas for the Hallett inquiry that break with the usual model of providing support to inquiries. Assuming the government is truly committed to an effective inquiry, it would do well to consider these and other options for supporting Baroness Hallett to deliver a timely and practical set of findings. Public inquiries are rarely cheap and some of these options – such as a bigger inquiry team – will increase costs. But given what the pandemic has already cost – in every possible sense – the value of an inquiry that leads to meaningful change and improvement is hard to underestimate.

Acknowledgements

The author would like to thank colleagues whose contributions have informed and supported this long read. I am grateful to Emma Norris, Nicholas Timmins, Anna Maresso, Josep Figueras and colleagues at the European Observatory on Health Systems and Policies, as well as country experts in the Health Systems Response Monitor. I would also like to thank Health Foundation colleagues Hugh Alderwick, Ruth Thorlby, Sean Agass and Jennifer Dixon. 

Image © Matt Writtle 2021.