The Covid Inquiry is an Embarrassment to the English Legal System

Of all the crass misappropriations of scientific principles during the pandemic, none did more harm than the corruption of the ‘precautionary principle’ — the notion that an action or an intervention is justified only once one is clear that the benefits exceed the harms and that, as one sociologist put it, “you have looked very hard for the harms”.

That principle came to be almost wholly inverted in the context of the pandemic: an intervention seemingly could be justified on the ‘precautionary’ basis that if it might have any beneficial effect in slowing the course of the pandemic, it would be worthwhile. This justified indiscriminate measures ranging from universal masking, mass testing (including of young children), 14-day isolated quarantines and even lockdown itself for entire healthy populations, on the basis that even though the evidence base was often weak or non-existent, the intervention just might achieve something, and opened the door to a slew of harms impacting almost all cohorts of the British population.

It was to be hoped that a core task for the Covid Inquiry in this key Module 2 would have been a dispassionate objective assessment of whether the costs (financial costs, direct harms, probable indirect harms, risk of unquantified future harms) of the Government’s population-wide interventions outweighed possible benefits. So, it was deeply disappointing last week to see not only key witnesses but the inquiry Chair herself repeat the same dangerous misconception of the precautionary principle.  

In one of the most jaw-dropping interjections of the inquiry to date, Baroness Hallett revealed a prejudgement that if masking people could have had even the slightest of benefits, and seemingly without even contemplating that risks and known harms might need to be weighed too, she pressed Sir Peter Horby, an esteemed epidemiologist at Oxford University, who had indicated that he believed universal masking was not a straightforward decision: “I’m sorry, I’m not following, Sir Peter. If there’s a possible benefit, what’s the downside?”

Coming from the independent Chair of a public inquiry, this is an astonishing comment. It betrays a presumption, or at the very least a predisposition, to accept that it was better to act than not to act — the reverse of the precautionary principle. When a comment such as this, from the Chair of the Inquiry, goes unchallenged, it risks anchoring the entire frame of reference for the inquiry’s interrogation of this critical topic. In our view it was a surprising and serious error of judgement for an experienced Court of Appeal judge.

What made Baroness Hallett feel this to be an appropriate thing to think, let alone say out loud? We suggest the issue lies in the fact that the Chair and the official counsel to the inquiry seem already to have the storyline of the pandemic wrapped up.

The inquiry’s counsel has been at pains to paint a picture of the country facing an almost existential threat from the virus. From the outset, counsel has framed his questioning on the basis that it was indisputable a “highly dangerous fatal viral outbreak was surely coming”, and “by February this viral, severe pandemic, this viral pathogenic outbreak is coming, and it can’t be stopped”. Even hardened lawyers and epidemiologists, it has seemed, were bunkering down because “the virus was coming, it was a fatal pathogenic disease”.

And, with the precautionary principle inverted in the collective mind of this inquiry, almost anything the Government then did against that backdrop was justified.

With preference…

Worse still, it is now starkly evident that the witnesses whose opinions and perspectives support that proposition are being overtly praised and pedestaled, while those whose opinions and perspectives might cast doubt are treated with prejudice and hostility. 

For those witnesses who were part of the ‘home team’ — Government-appointed advisers, and those who have already publicly ascribed to the inquiry’s apparently favoured storyline — impeccable credentials and impartiality have been assumed.

Sir Jeremy Farrar, for example, former Director of the Wellcome Trust, member of SAGE and currently Chief Scientist at the WHO gave oral evidence to the inquiry in June. One can almost picture counsel for the inquiry scattering rose petals as he sums up Farrar’s illustrious credentials:

You trained, I believe, in medicine, with postgraduate training in London, Chichester, Edinburgh, Melbourne, Oxford and San Francisco. You have a DPhil PhD from the University of Oxford. You were a director of the Oxford University Clinical Research Institute at the Hospital for Tropical Diseases in Ho Chi Minh City in Vietnam from 1996 to 2013. From 2013 you were Director of the Wellcome Trust, and from May 2023 have you been the Chief Scientist at the World Health Organisation? Have you throughout your professional career served as a chair on a multitude of advisory bodies, for governments and global organisations? Have you received a plethora of honours from a number of governments, institutes and entities?

Farrar is then treated to counsel’s softest underarm bowls and allowed to give unchallenged testimony in favour of an intervention-heavy approach to pandemic management: “when you have the countermeasures you’re talking about, diagnostic tests, treatment and vaccines, together they create a Swiss cheese model of what our public health is”.

Professor Neil Ferguson of Imperial College London, and chief architect of the dramatic scientific modelling on which the global lockdown response was predicated, was warmly welcomed to the witness box by counsel last week “as a world leading specialist in this field”, and was later thanked profusely for his hard work by Baroness Hallett: “Thank you very much for all the work that you did during the pandemic.”

Gushing perhaps, but nothing compared to the farewell given to SAGE modeller Professor John Edmunds, who had been affirmed upfront by counsel as, “a de facto expert in epidemiology”, and one of “a number of brilliant scientists and advisers who assisted the Government and the country in the remarkable way that you did”.  At the end of his evidence, Baroness Hallett delivered the eulogy:

Thank you very much indeed. If I may say so, professor, I think you were unduly harsh on yourself this morning. You had a job, and you described it yourself, your job was to provide expert advice to the policy and decision-makers, and if the system is working properly that advice is relayed to them, then they consider advice coming from other quarters about economics and social consequences and the like. I’m not sure you could have done more than you did, consistent with your role at the time, but you obviously did as much as you felt was appropriate. So I’m really grateful to you, I’m sure we all are.

This is a far departure from the rigorous testing of credentials and potential conflicts that one could expect as an expert witness in any court proceedings, and of the studious impartiality of the presiding judge. It is certainly far short of what the public should rightly expect for an exercise set to spend over £55m on lawyers alone.

None of these witnesses were asked whether their senior positions within organisations that rely on very valuable relationships with global pharmaceutical groups and private pharma-focused organisations could have had any bearing on their advice at the time or their evidence to the inquiry now.  

Farrar was director of the Wellcome Trust throughout the pandemic. The Wellcome Trust is one of the institutions behind CEPI, a global vaccine development fund created in 2015 which partners with vaccine manufacturers, including Moderna. During the pandemic Farrar frequently and vocally promoted his view that vaccines would be the means for us to exit the pandemic. He is plainly someone whose professional success and credibility has become indelibly attached to the pharmaceutical industry and in particular the use of pharmaceutical interventions in public health, yet counsel and the inquiry Chair seemed uninterested in that colouring of Farrar’s evidence.

Likewise, Ferguson, of Imperial College London was not asked a single question about potential conflicts or risk of bias. Again, the inquiry seemed unaware, or at least uninterested, that a month after Ferguson’s seismic March 2020 paper had concluded that “epidemic suppression is the only viable strategy at the current time” and that “the major challenge of suppression is that this type of intensive intervention package – or something equivalently effective at reducing transmission – will need to be maintained until a vaccine becomes available”, it was reported that Imperial College had received £22.5 million in funding from the U.K. Government for vaccine research and development; and that in that same year, 2020, Imperial received at least $108 million in funding from the Bill and Melinda Gates Foundation (BMGF).

BMGF is a private philanthropic organisation which has been open about its ideological commitment to vaccine-based solutions for global health issues and which itself has very significant financial ties to the pharmaceutical industry.

…and with prejudice 

For witnesses such as Professor Carl Heneghan, Professor of Evidence-Based Medicine at Oxford University, but not a member of SAGE, and (unhelpfully for the inquiry) not an enthusiastic supporter of lockdowns, the inquiry appeared to have made somewhat less glowing presumptions:

You are a professor of evidence-based medicine at Oxford University. Could you explain what that discipline entails?

Heneghan’s explanation was swiftly followed with a presumptive conclusion as to the strength of his credentials:

As you know, because I think you have been following the inquiry, we have heard this week from a series of academics who have spent, in the main, their professional careers researching, analysing the spread of infectious diseases, developing models, to analyse how such diseases are spread and how they can be controlled, and considering large-scale public health issues relating to pandemic preparedness and so on. You don’t have a comparable type of expertise in this area, do you?

Not satisfied with having attempted his own disparagement of the man, counsel took the opportunity while having Heneghan in the witness box to ask for his perspective on two ‘home team’ scientists having described him in a private discussion as a “fuckwit” (Dame Angela McLean and Professor Edmunds) — to what ends, other than to rattle, rile or embarrass, was not clear. It was the cheapest shot of the inquiry so far.

During Heneghan’s evidence session, and having seemingly felt entirely comfortable to rely on the expert opinions of Farrar, Ferguson, Edmunds et al. — the ‘good guy’ home team scientists — Baroness Hallett gives short shrift to the notion that Professor Heneghan’s opinion might be relied upon. When talking about the broad scope of evidence-based medicine Heneghan explains that “even my opinion” amounts to evidence, Baroness Hallett retorted dismissively: “Not in my world it doesn’t, I’m afraid.”

Spoiler alert

Here’s what the inquiry is going to conclude, after three to seven years and perhaps £200 million: the Government and its official scientific advisers mostly did their best in the face of what they rightly and fairly believed to be the most devastating viral threat the world had ever seen; those scientists gave the best advice they could, and were entitled to assume that the Government was taking account of other factors; if it hadn’t been for Brexit, we would have been better prepared; the Government perhaps could have thought a bit more about the impact of lockdowns on the economy, but ultimately lockdowns were unavoidable; if it had all been done faster and harder, the U.K. might have come out in a better place, clinically and economically; the sacrifices imposed on children, the isolated and those who missed diagnoses and treatments, were regrettable but had to be done (the ‘precautionary principle’); if we could have saved one more person who died of Covid we should have done; the NHS did a superb job in difficult circumstances. Oh, and COVID-19 vaccines saved us so we should devote more public funds to partnerships with heroic pharmaceutical groups and irreproachable public scientists such as Jeremy Farrar at the WHO.

The inquiry is now hopelessly compromised by the partisan and presumptive words of its own Chair and leading lawyers which are setting us up for a doom-loop of catastrophic errors we cannot afford to repeat. It has become an embarrassment to the legal profession and is jeopardising the reputation of the English legal system. Its exorbitant costs already cannot be justified, and there is only worse to come. It should be abandoned.

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