Covid inquiry may go without judge as chair to avoid participants ‘lawyering up’

Fears that leading players from Ireland’s Covid response may “lawyer up” could see plans to install a judge as chair of the pandemic inquiry dropped.

With terms of reference for the inquiry being finalised, some Coalition figures are concerned that appointing a judge to chair the inquiry – which will also include an expert panel – could set an overly legalistic tone, leading individuals to frame their engagement around advice from teams of lawyers.

Both serving and retired judges have chaired State inquiries and reviews in recent years, with the expectation being that one was to be appointed to lead the Covid review.

While the concerns are not universally held, and a figure from the judiciary could still take the role, two Coalition sources said it was possible a person from a non-legal background could be appointed.

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One source said that appointing a serving judge had already been ruled out, although a second person involved in discussions said no final decisions had been taken and that a judge could still take up the role if they accepted it. It is understood that discussions have not yet been held about the potential for a retired judge to take up the role.

Chairs from a judicial background are usually favoured due to the potential for adverse findings to be made by an inquiry, and the importance of adhering to fair procedure in formulating a report.

Ireland’s pandemic inquiry has lagged behind other countries’ efforts, with concerns at senior level that choosing the wrong model could see it become bogged down, drawn out and costly, while senior figures involved in the pandemic response have warned against “revisionism”. The level of scrutiny and media attention on the Covid inquiry is expected to be greater than that of other recent inquiries, with the potential for public sessions also likely to attract attention.

Taoiseach Leo Varadkar said at the weekend that “in many ways” the chair of the inquiry will determine whether the inquiry will be held in public, but he said there will be a public element, with people who want to give public evidence facilitated in so doing – as well as those who would prefer to do so in private or in written form.

“What it won’t be about is trying to ascribe blame to individuals or investigating individual decisions by people. We’re not going to go down that road,” he said.

He said the purpose would be to examine Ireland’s performance in the pandemic, most importantly what could be learned for facing future disease threats in the future.

[ Shape of Covid-19 inquiry begins to emerge – but will it satisfy Opposition and public? ]

Coalition figures believe it will be difficult to find someone to assume the responsibilities, with the work of the inquiry expected to take up to 18 months to complete its work.

Draft terms of reference for the inquiry are still being worked on and a plan will not be presented to Cabinet on Tuesday, although one is expected in the coming weeks.

The inquiry is expected to hear from frontline health workers and families who lost loved ones, but there may not be an entitlement to privilege if allegations against named individuals are made.

It is expected to look at the public health response, as well as the economic, social and educational aspects. It will also assess the situation in acute hospitals, in the wider community and in long-term residential care facilities such as nursing homes, which were hit especially hard by Covid. Opposition parties are expected to be consulted over the terms of reference.

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