The COVID 19 Inquiry approach to Core Participants and Legal Representation

On 21 July 2022, the Chair of the COVID-19 Inquiry (‘the Inquiry’), Baroness Heather Hallett, issued an opening statement. As part of her commitment to streamlining the process, the Chair has invited applicants to group themselves together with others with a similar interest, wherever possible, to help manage the potentially large number of people and organisations seeking Core Participant status.

Those wishing to take a formal role in the Inquiry are invited to apply to become Core Participants for each module, rather than the Inquiry as a whole. Though the deadline for applications for Module 1 has now closed, the Inquiry may consider late applications where an applicant can provide an acceptable explanation as to why they did not submit their application within the relevant timeframe. For those who have already submitted an application for Core Participant status, or are considering a late application for Module 1 or subsequent modules, we explore what this means in light of the approach the Inquiry has indicated it intends to take.

What is a Core Participant?

Core Participant status may be granted to an individual, group of individuals or entity under Rule 5 of the Inquiry Rules 2006.

Those designated as Core Participants will:

  • be provided with electronic disclosure of evidence relevant to the particular subject matter of the Inquiry in respect of which they are so designated, subject to any restrictions made under section 19 of the Inquiries Act 2005;
  • have the right to make opening and closing statements at any hearing;
  • have the right to suggest lines of questioning to be pursued by Counsel; and
  • have the right to apply to the Inquiry to ask questions of witnesses during a hearing.

Determination of Core Participant status

All applications received by the Inquiry for Core Participant status will be determined by the Chair. In reaching decisions on these applications, the Chair will consider whether:

  • the person played, or may have played, a direct and significant role in relation to the matters to which the inquiry relates;
  • the person has a significant interest in an important aspect of the matters to which the inquiry relates; or
  • the person may be subject to explicit or significant criticism during the inquiry proceedings or in the report, or in any interim report.

The Inquiry’s opening statement gave an insight into the restrictive approach that the Chair is likely to take in designating Core Participant status, highlighting the following points:

  • The Chair is not obliged to designate a person or organisation that meets the criteria set out in Rule 5 of the Inquiry Rules as a Core Participant. She has a wide discretion that she will exercise fairly and with an open mind.
  • There will be few if any people or organisations who are designated as Core Participants for the whole Inquiry.
  • While the discretion in Rule 5 (which allows ‘a person’ to apply for Core Participant status) will be exercised in accordance with the wording of the Rule, and fairly and with an open mind, the designation of Core Participant status to groups representing the interests of more than one person will assist the fair and efficient running of the Inquiry (our emphasis).

Timescales and Content

As mentioned above, applications for Core Participant status will be sought on a module-by-module basis, and details and timescales will be published on the Inquiry’s website. Where applications are received that do not relate to modules for which applications have been invited, or that relate to areas not under current examination by the Inquiry, the Chair may exercise her discretion not to determine such applications. Those whose applications fall within this category will be informed and will be invited to resubmit an application at a later date during the appropriate application window.

If at any stage during the course of the Inquiry the Chair considers it appropriate to do so, she may invite individuals or institutions to become Core Participants. It will be a matter for each individual or institution as to whether they wish to be designated as a Core Participant.

Except where exceptional circumstances apply, all applications should be submitted in writing to the Solicitor to the Inquiry by email to [email protected] The Chair may either determine applications on paper without hearing oral submissions, or with submissions at a preliminary hearing.

Applications should specify in what respects the applicant considers that they meet the criteria for designation. As a minimum, all applications should:

  • confirm that the applicant consents to being designated as a Core Participant, if their application is successful;
  • indicate in respect of which module(s) or part(s) of module(s) the application is made;
  • indicate which of the matters within Rule 5(2) of the Inquiry Rules applies to the application and why;
  • if applying as an individual person or organisation, indicate what steps the applicant has made to explore making an application in association with another person or organisation and the outcome (our emphasis); and
  • confirm whether the applicant is or wishes to be legally represented and, if so, the details of the lawyer concerned.

This suggests that, in order to be successful, applications should be tightly focused on the remit and content of a specific module. Applicants should also either submit a joint application with others with similar interests or, where this is not possible, evidence the attempts that have been made to explore submitting such an application. This indicates that the submission of joint applications goes beyond invitation or preference, becoming more a requirement that applicants will have to meet or explain their inability to do so.

Legal Representation

Though the subject of legal representation is separate from the decision to designate an individual or institution as a Core Participant, in opening the Inquiry the Chair has indicated that she intends to adopt the same streamlined approach to both.

Where a Core Participant has appointed a qualified lawyer to act on their behalf, the Chair will normally designate that lawyer as that person’s recognised legal representative in respect of the Inquiry proceedings. However, where two or more Core Participants each seek to be legally represented and the Chair considers that:

  • their interests in the outcome of the Inquiry are similar;
  • the facts they are likely to rely on during the course of the Inquiry are similar; and
  • it is fair and proper for them to be jointly represented, in accordance with Rule 7(2) of the Inquiry Rules, the Chair will direct that those Core Participants shall be represented by a single recognised legal representative.

Where the Chair makes such a direction, Core Participants must agree the designation of a single legal representative. If they do not do so within a reasonable period, the Chair will designate an appropriate lawyer who she considers has sufficient knowledge and experience to act in that capacity.

Conclusions

In opening the Inquiry, the Chair has clearly expressed her determination to “run the Inquiry as thoroughly and as efficiently as possible” and “to undertake and conclude the work of this Inquiry as speedily as possible so that lessons are learned before another pandemic strikes.” While recognising the need for the inquiry process to be “rigorous and fair”, she has also made clear that with such a wide scope she will need to be “ruthless”. The Inquiry’s intended group approach to Core Participants and Legal Representation clearly reflects this, and is something that all potential applicants should bear in mind from the outset.