Preparing for the COVID-19 Inquiry programme

Introduction – LGA’s approach

The COVID-19 Inquiry – What do we know so far?

An update on the announced modules in the Covid Inquiry, their scope and our view on the implications for local authorities:

• Module 1 - Resilience, planning and preparedness across the UK
• Module 2 - Core political decision making, 
• Module 3 - Health care system,
• Future modules – system and impact issues. 

The aims of the Inquiry and likely areas of interest for local authorities. 

• Key points from the preliminary hearing on 4 October 2022:
• Designation of Core Participants
• Rule 9 Requests
• Disclosure to Core Participants
• Expert Witnesses
• The Listening Exercise
• Commemoration
• Future Hearing Dates. 

Likely timelines for the Inquiry.

The Inquiry Process in brief

• Core Participants – Track record we have seen from Module 1; will local authorities or associate members want to apply?  Powers of the Inquiry to require different organisations to work together.
• Written evidence – powers of production, public access, withholding evidence from the public.
• Oral Evidence – witness summons, questioning witnesses, evidence relating to the evidence of another witness.
• Warning letters for persons subject to criticism in the Inquiry.
• The Inquiry Report – publication and withholding material.
• Recommendations by the Inquiry.
• Implications in the case of criticism (e.g. for local authorities potentially around business support grants, council tax, vaccine take up, test centre usage, care home oversight, school admissions, support for children and young people with special educational needs and disabilities (SEND), housing and homelessness (if the themes of complaints to the LGSCO are to be believed). Explaining mitigations – the impact of staffing issues, resourcing, consequent difficulties in meeting statutory duties etc.
• Recovery of costs (s40(1) of the Inquiries Act 2005, the Inquiry Rules 2006 and the Covid-19 Inquiry Costs Protocol).

Rule 9 requests for evidence

Rule 9 requests for evidence – what are they, what do they mean, what is expected in response, how long can local authorities expect to have to respond? What is the usual process for identifying relevant information and documents? How to ease the pain of a rule 9 request.

Analysis – our view of the Modules / subject areas in which LA members and associate members are likely to receive rule 9 requests.

Challenges posed by the time span of the Inquiry; how to require the Inquiry to be specific with requests (s21(4)(b) Inquiries Act 2006).

Data Management

• Powers of production – s21 Inquiries Act 2005.
• Data preservation – the need to preserve documents, suspension of routine document destruction, consequences of failure to preserve relevant documents. Comments about document preservation from the preliminary hearing on 4 October.
• Communication - how to communicate a document preservation policy, internal practicalities (Internal Inquiry Team to support staff?)
• Information audit process – what documents do you have to search, who identifies documents, and who devises / applies search terms? What software is available to assist?
• Accounting for the process - remember document providers will be asked to give an account of ‘how the documents were originally stored, the search terms used or other processes used to locate documents, and the nature of any review carried out’, which may be questioned by the Inquiry (Preliminary Hearing on 4 October, transcript page 37).
• Types of data:
  • Disclosure from the Inquiry for Core Participants
  • Disclosure from involved parties to the Inquiry.
• Options for data management (depending on the amount of information), and pros and cons:
  • In-house discovery – cheapest option and suitable for a small issue.
  • E-discovery software (e.g. Relativity), hosted by an outsourced provider to upload documents, apply search terms etc. Several levels of review by e.g. – outsourced provider, then paralegal, then solicitor.

Withholding data and redactions

Justification for – and issues surrounding - withholding information from disclosure and redactions – privilege, confidential and personal data (including sensitive data).

Practicalities.

Witnesses

• The role of witnesses in a Public Inquiry. 
• Powers of the Inquiry to require oral evidence / written statements.
• When to offer oral evidence even if it is not required.
• Who are witnesses likely to be?
• What makes a good witness?
• Witness preparation:
  • Familiarisation with the evidence giving process - who will be in the room, the type of questions to expect, the special nature of Inquiry process and the hearing room process.
  • Reviewing relevant material shared with Inquiry and relevant comments in other witnesses’ oral evidence.
  • Identification of supporting documents.

Next steps

• Develop a strategy for engaging with the Inquiry – are you likely to be called to give evidence / will you want to?
• Internal communications strategy – document preservation, press statements etc.
• External communications strategy – preparing for scrutiny / potentially criticism.
• Ways of keeping track of Inquiry developments.

Questions

30 minutes for questions – please submit these in advance if possible, otherwise in the chat.