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Details of the matter being challenged

2. Your client seeks to challenge the Secretary of State for not immediately launching an independent

public inquiry into the procurement and distribution of Personal Protective Equipment (“PPE”)1

within the NHS and wider social care sector prior to and during the current COVID-19 pandemic.

3. Your letter alleges that the Secretary of State has arguably breached Article 2 ECHR as a result of

various alleged failures to ensure the provision of adequate PPE to health and social care workers

(both the “systems duty” and the “operational duty”). You then allege that the Secretary of State is

obliged under Article 2 to commission an independent investigation into shortages of PPE; and that

this investigation is required to be commenced immediately, while the country is still in the grip of

the pandemic. Further, your case is that this investigation must take the form of an independent

public inquiry, such as under the Inquiries Act 2005 (“the 2005 Act”) or the Health and Safety at

Work Act 1974 (“the 1974 Act”).

4. It is to be emphasised at the outset that the Secretary of State recognises the fundamental

importance of taking all reasonable steps to seek to ensure the proper provision of PPE to those

working in the healthcare and social care settings. The Secretary of State is acutely aware that the

threat to NHS and social care staff arises as a result of their critical role in meeting the

unprecedented health crisis posed by the COVID-19 virus. Every death of a health or social care

worker is a tragedy.

5. The recognition of that importance has been at the heart of the Secretary of State’s, and more

broadly the Government’s, policies and work in response to the COVID-19 pandemic. Three points

are to be noted:

a. All steps taken in relation to PPE have been based on the most careful consideration of

the views of experts. The challenges thrown up by the COVID-19 pandemic have been

unprecedented and presented global challenges for procurement and manufacture.

However, everyone involved within Government has been working around the clock to

seek to find the best ways of dealing with those challenges – in particular, so as to

ensure that PPE and other equipment and support is delivered to the NHS and social

care sectors working on the frontline.

b. This collective effort involves continuous lesson-learning with independent input and

Parliamentary oversight. It is important to remember that COVID-19 is a new and

emerging disease, therefore the Government is reacting to changing evidence and advice

as more becomes known about the disease and is subsequently reviewing advice

regularly to ensure it is in line with the latest evidence. Parliament plays a central role in

this process, ensuring that policy can be scrutinised “in real time”. While the impacts of

the pandemic are unfolding at pace, the process of investigation and learning lessons

remains as agile and responsive as possible.

c. The Secretary of State sees organisations like your clients (and their members) as

partners in this lesson-learning process. He has no desire whatsoever to be engaged in

contentious litigation of this kind with them, particularly during this challenging time.

6. On your legal challenge, the Secretary of State’s position is that:

a. There is no arguable case that he has breached Article 2. Thus, no investigative duty has

arisen.

b. In any event, Article 2 is not as prescriptive as you suggest as to either the timing or the

type of investigation that might be needed. In the context of a national emergency and

pandemic of this kind, there are many ways in which the Government is properly held to

account, including in Parliament. Under the scheme of Article 2, in relation to issues of

the kind you raise, Government properly would have a wide discretion as to the form or

forms of any investigation into systemic and national issues. The same applies in relation

to timing – especially in circumstances in which (i) the Government is working flat out to

manage all of the issues which the pandemic has thrown up and (ii) no-one needs any

1 In this context, we adopt your definition of the scope of PPE at your footnote 1. That is “the full spectrum of items

that have been treated by the Secretary of State and the Government to mean protective equipment in use by

healthcare workers (including gowns, aprons, gloves, paper/surgical face masks, FFP1/FFP2/FFP3 respirator face

masks, scrubs, fluid-resistant overalls, plastic aprons, visors etc.)”.