Taoiseach Leo Varadkar has recently stated that a government inquiry “will be established this year to examine how the pandemic was handled in Ireland.” Head of our Public, Regulatory & Investigations team, Catherine Allen examines the form this is likely to take and the impact it may have for affected parties in the public sector.

The upcoming inquiry is reported to intend to investigate the handling of the pandemic in healthcare settings such as hospitals and nursing homes. The scope of the inquiry is also intended to review public health advice at that time, such as:

• Mask wearing
• Antigen testing, and
• The economic response to the implementation of this advice

The Government have not yet published a proposed Terms of Reference outlining the scope of the inquiry. In addition ,the appointment of members to the inquiry are yet to be made.

It is understood that the inquiry will be a fact-finding mission to inform future responses to public health emergencies and it will not seek to apportion blame or praise to individuals or organisations.

It is currently speculated that the inquiry will include a review into the management of care settings such as nursing homes during the pandemic. However, some have called for a separate inquiry designated solely to the issue.

Taoiseach Leo Varadkar has stated that the inquiry will take the form of a full public inquiry; however, whether it will be by way of a commission of investigation or a tribunal of inquiry has yet to be decided. An inquiry is established with powers to investigate specific matters and are typically led by judges or senior lawyers. Upon completion, the tribunal of inquiry or commission of investigation would submit a report to the Oireachtas, or a particular Minister, which may make certain recommendations.

The primary difference in a commission of investigation and a tribunal of inquiry is the way evidence is given. During a tribunal of inquiry, evidence is given in public, and witnesses have a right to legal representation. This can make this type of inquiry costly and can take a long time to complete.

A commission of investigation is considered a quicker and less expensive method of investigation which is established by government order that has been approved by the Dáil and Seanad. The terms of reference are set by the Government, or an individual Minister and evidence is typically given to the commission privately. The commission will make a final report on its findings to a particular Minister. The report will typically be anonymised, to protect the identities of those who have given evidence.

Concerns have been reported over the potential delays associated with a full public inquiry. There are also reportedly concerns that bodies engaging with the inquiry may face complexities in respect of confidential information.

Recently, advocacy groups have voiced their concerns with an inquiry that is not fully public. More than 10 groups have submitted a letter to the Irish Human Rights and Equality Commission (IHREC) calling for a human rights-based public inquiry into the management of care settings during the pandemic.

Under Section 35 of the Irish Human Rights and Equality Commission Act 2014, the IHREC can establish an inquiry in circumstances where there is evidence of serious violations of human rights or equality of treatment obligations. The signatories of the letter allege they possess ‘clear evidence’ of such violations concerning people living in residential care, their families, and staff carers during the pandemic.

It is unclear whether the information provided will satisfy the burden of proof to require a public inquiry. A spokesperson for the IHREC has noted that the request is under consideration.

Conclusion

Many aspects of the inquiry have yet to be established and we must await further details to understand what it may entail. It may be the case that the inquiry will be held privately which will result in a more streamlined operation as there will be less data privacy conflicts. However, this option may come under significant scrutiny as many are calling for the transparency of a full public inquiry.

For more information on the implications of the proposed inquiry, contact a member of our Public, Regulatory & Investigations team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.