Back in May last year when the Government announced their inquiry into the Covid response, we asked a simple question. Should there be a public consultation on its terms? The answer of course is yes, so it was with some relief that today the Government have announced the draft terms of reference, and even better a period of consultation on them. At the moment, we don’t know much about the form of this consultation- it’s web page doesn’t even seem to be up, but we do know that it will be led by Baroness Hallett, the retired judge chairing the inquiry, and will last four weeks.

So, what can we glean from this? The first question for us is whether a four-week consultation is long enough. In our article we highlighted that any consultation process on the terms of reference would have to be handled carefully to avoid becoming a proxy consultation on the subject matter of the inquiry, as opposed to just its process. It might be for this reason that the consultation is rather shorter than we usually see. On balance, given that the terms of the inquiry are relatively short and simple (running to only two pages), it’s probably an appropriate length of time, so long as it is properly advertised, supported and accessible to all who may wish to respond.

But what about the terms of reference themselves? They’re very broad, probably an appropriate decision given the all-encompassing nature of the pandemic. They’re divided into two separate strands: examination of the response to produce a factual narrative account, and identification of the lessons to be learned from this exercise to better inform responses to any future pandemic.

There are several sub-categories of these strands we’re particularly pleased to see, and are of note for consultors. The first are the sections on “how decisions were made, communicated and implemented” and “legislative and regulatory control”. We were critical over the pandemic of situations (particularly in the later phases) of decisions being taken without any, or with only limited consultation and engagement, and this stream would seem to give us the opportunity to address that very important issue.

In a similar vein, we’re also keen to see the results of the section on “highlight[ing] where lessons identified from preparedness and the response to the pandemic may be applicable to other civil emergencies”. For consultors, we had immense challenges in working out how to properly consult and engage in the strangest of circumstances, and we saw the courts having to act responsively in applying the principles. It will be interesting to see if any conclusions are drawn about how this should be carried forward- might we see new guidance or principles on the subject?

Although it’s not specifically identified, we’d also like to see some degree of consideration of post-covid issues. We’ve seen the occasional attempt to make temporary changes permanent without any consultation and engagement, and though in the NHS this was struck down in a court case (Dawson), there are examples where it has happened. It’s also been a big issue in traffic management with LTNs. Some consideration of this as part of the lessons learned string might be welcome.

The inquiry is likely to be long and tough for all parties, and we’ll be watching it closely. We’ll also be looking to see if we can contribute to the terms of reference, so  keep an eye out for that too.