Covid Public Inquiry terms of reference – More wins than worries? 

There’s good news from the outcome of the Covid Inquiry terms of reference consultation – but there are also some serious concerns.

THE IMPORTANCE of the Covid-19 Inquiry to the future of this country is enormous. It has at its core a mission to learn the lessons of the Covid-19 response ‘for the future’ which includes not only possible pandemics to come but, to quote from its newly revised terms of reference, to:

“highlight where lessons identified from preparedness and the response to the pandemic may be applicable to other civil emergencies.”

As that shows, the scope of this Inquiry has grown so that it could determine whether lockdowns, controls on the media and much else are used again, not only for some new covid strain or future pandemic, but potentially for any challenge that the future may hold. 

We have just passed a key milestone in the process

The consultation on the draft terms of reference provided by the Prime Minister has concluded and the Inquiry’s Chair, Baroness Hallett, has provided a substantially revised version for approval by the Prime Minister. The new terms and the process it has created tell us a great deal about where the Inquiry is heading. 

First, the good news. Recovery’s own response to the consultation (available here) called for several areas to be included explicitly in the terms of reference. Top of the list were the way that lockdowns and restrictions affected children and young people, the impact on mental health, the use of behavioural psychology (nudge techniques) and controls on freedom of speech. There are some wins here.

Baroness Hallett has revised the draft terms to include more specific references to children and young people and to mental health. For example, the consultation report says:

“In light of the overwhelming weight of opinion during the consultation, Baroness Hallett agrees that the draft Terms of Reference should be amended to allow expressly for a wider consideration of the impact on children and young people. She therefore recommends the insertion of the following specific areas of consideration within the first aim of the Inquiry, in the Terms or Reference: 

● the impact on children and young people, including health, wellbeing and social care; 

● education and early years provision; and 

● antenatal and postnatal care.”

That’s a clear improvement – though the case for it was irresistible. Similarly, there is now a stronger expression of the need to consideration the impact on the mental health of the population as a whole:

“Baroness Hallett agrees that the Terms of Reference should specifically include a reference to the general consideration of the mental health impact of the pandemic and therefore recommends they are amended to include: 

● the impact on the mental health of the population, including but not limited to those who were harmed significantly by the pandemic;”

These were important areas that many of the 20,000 people and organisations who responded to the consultation highlighted – amongst them doubtless many Recovery supporters. Unfortunately, while the use of behavioural psychology was also noted in the summary of the consultation as of widespread concern it has not resulted in any changes to the draft terms.  

“Many respondents also wanted the Inquiry to consider the government’s use of behavioural science and ‘nudge’ techniques within its public messaging, with the perception that there was a negative impact on the mental health of the population by a communications approach based on fear… …These are all issues which we consider are adequately covered within the draft Terms of Reference, under the heading of ‘how decisions were made, communicated and implemented’.”

The key point here is that terms of reference set for the Inquiry mean that it can consider these issues – and Baroness Hallett clearly acknowledges the widespread demand it should do so. The fact the Baroness states behavioural science and ‘nudge’ techniques “are adequately covered under… how decisions were made, communicated and implemented” means that submissions, evidence and interrogation of evidence can now by her own comments follow-up this issue within the context of her framing. If we take the Baroness at her word her confirmation that the topic is admissible under the existing terms, then we should take that acceptance of its ability to be discussed as a positive. Nevertheless, the refusal to include any reference to behavioural science, despite the clear demand from the consultation, suggests she intends to give less weight to that issue than is required.

There is limited significance in the confirmation that behavioural science can be considered, since Baroness Hallett makes clear elsewhere that she may consider any issue at all, regardless of the terms of reference. Conversely, she has chosen to emphasise or reinforce issues which were already mentioned, most notably in taking the topic of inequality and putting it right at the front of the terms as a top priority. The inference is that issues like behavioural science which were highlighted in the consultation but have not been similarly treated are not seen as a priority.

What about freedom of speech and challenging prevailing narratives and modelling?

More concerning is the lack of any consideration being given to the revised terms of reference around freedom of speech. 

Our opinion polling revealed that 42% of adults wanted the use of behavioural science to be considered by the Inquiry and 40% wanted it to consider the impact of restrictions on freedom of speech – points we made in our submission to the consultation. We found that these were amongst the top areas of concern amongst the UK population, as the response to the consultation also suggests, and yet the Inquiry gives every indication of side-lining them.

The analysis of the responses was carried out by Alma Economics, whose involvement is itself a concern. It has provided a summary of consultation responses which notes, 

“The third most emphasised theme in responses was the view that the ToR should include the government’s communication with the public (including both the content shared and how communication was approached) and the role of the media.”

The role of experts, advisers, science and data in informing the government’s pandemic response also featured strongly in the responses. As the summary of the consultation notes, 

“A significant theme from the consultation was the role of experts and advisers within the government’s decision-making, and the robustness of data and scientific evidence used. Respondents noted in particular the role of the Scientific Advisory Group for Emergencies (SAGE) and its subgroups, such as the Scientific Pandemic Influenza Group on Modelling (SPI-M).”

The eagle-eyed observer may spot a little sleight of hand in the way the response to the consultation is presented here. Alma Economics’ summary does not anywhere refer to SPI-M, but instead says,

“Respondents were most likely to reference the role and composition of advisory groups like the Scientific Advisory Group for Emergencies (SAGE)… …A significant number of respondents had similar concerns regarding the Scientific Pandemic Insights Group on Behaviours (SPI-B), with respondents suggesting that their role in the government’s decision making, especially regarding communications, should be investigated by the Inquiry.”

This suggests that the Inquiry is reluctant to acknowledge the serious concerns around the use of behavioural psychology to influence the public. 

Conflicts of interest?

It’s here too that the choice of Alma Economics as an advisor on the consultation raises questions. Baroness Hallett rightly says that the Inquiry must be seen to be fair and impartial in its approach. Alma Economics has, however, been an advisor on pandemic policy and in a blog post in April 2020, called for the Government to make greater use of data and nudge techniques during the pandemic, arguing. 

“We can also exploit automatically generated data to improve the measures in place. For instance, governments are using mobile phone location information to determine whether someone left their home and nudge them to go back to isolation.”

The post clearly suggests the Alma team would set aside normal constraints on the Government’s use of data and break the rules designed to protect the public’s privacy to tackle Covid, concluding,

“During normal times we would consider this more carefully. But these aren’t normal times: the COVID-19 pandemic is here and we need all the tools in our arsenal.”

  • Valentina Martina, blog post for Alma Economics ‘Test, test, test… or click, click, click?’ 7 April 2020

Views may have changed at Alma Economics since Spring 2020, which was after all a time when many were panicking. Yet views like this are still on its site today. This rather does suggest a conflict of interest that any lawyer would be expected to recuse from. Do economists have lower standards for recusal?

Another key theme to emerge from the consultation was the need for the Government to carry out a proper cost/benefit analysis of the case for lockdowns and restrictions before introducing them. The view that ‘these aren’t normal times’ so we can’t ‘consider this more carefully’ resembles the defence that the Government put forward for not carrying out any such analysis. Can a company that is on record with these views be considered impartial? 

There is reason to doubt it. Here is the extract from Alma’s report of the responses from the consultation under its ‘Theme Three; The government’s communication strategy and the role of the media’ (the third biggest area of concern):

“Respondents cited …perceived ‘fear messaging’. Furthermore, respondents suggested investigating the role of the Behavioural Insights Team in designing the government’s communications and policies around the use of language and imagery. The majority of responses mentioning this sub-theme argued that the perceived role of the media in spreading false information and conducting what was described as a “media fear campaign” should be investigated, with media outlets described as conveying “relentless bad news” instead of “balanced facts.”

Note the use of inverted commas and ‘perceived’ to distance the author from the views outlined – neither are used in the discussions around their themes one and two. Here is the quote they drew out as illustrative of these responses in their report: 

“‘I think specifically in relation to ‘Communication’ there should be a specific section looking at the role of funded Covid denying/minimising/anti-vax groups, the lobbying efforts of these Groups with politicians, TV/Radio media channels and social media and the harms they caused spreading false information. It should examine did the government look to challenge this misinformation, how did it do it and how it could do it better next time.’ (Online response)”

Overall, there is a clear suggestion that Theme Three is at odds with the views of the authors of the report and it is included through gritted teeth because the volume of responses meant it simply could not be ignored. 

It is reasonable to see Alma’s involvement at this early stage as indicative of the Inquiry’s likely direction. That presents a concern, and it is a concern that has to be stated now because it could grow in the proceedings of the inquiry. While there may be an aspiration to be fair and impartial on the part of Baroness Hallett, and there is the potential for important battles to be won, those who oppose harsh restrictions and believe in values like freedom of speech are clearly going to have to fight hard to be heard.  

If you appreciated this article please subscribe to our daily newsletter here, share and follow us on Twitter here – and like and comment on facebook here. Recovery is a ‘not for profit’ campaign (we make a loss!) and need your financial support to survive – if you can spare some of your hard-earned pounds you can donate here.

Jon Dobinson is a co-founder of Recovery and a former Secretary-General of the International Society for Human Rights (UK). Now CEO of Other Creative Ltd, the London-based creative business, his companies have raised millions for charities and causes including Freedom FromTorture, Amnesty International, Greenpeace and 38 Degrees.