Could the government be sued for its Covid response?

The allegations made by Dominic Cummings have raised the possibility of criminal charges being brought against the government. 

One specific allegation in particular has raised the pressure: that Matt Hancock, the health secretary, lied to the Prime Minister and other colleagues. He said care home patients would be tested for Covid-19 before being discharged in the first wave. 

When asked about the claim in the Commons yesterday, Hancock repeated that Cummings’ allegations were “unsubstantiated”. But Labour MP Yasmin Querishi, a barrister, suggested the government should be investigated pending charges for “corporate manslaughter”.

Would such a charge stand? The Corporate Manslaughter and Homicide Act (2007) says that “a servant or agent of the Crown” – including the government – can be sued for failing to uphold “a relevant duty of care”. 

That includes a responsibility to those “for whose safety the organisation is responsible”. In this case, the Department of Health and Social Care could be held responsible for care home patients discharged without a test, since it was guiding policy on the issue.

Testing of care home residents discharged from hospital in England became mandatory on 15 April, by which point around 25,000 residents had already been discharged. Patients who left hospital with Covid-19 are likely to have been responsible for the outbreak of the virus in care homes, which claimed nearly a third of all fatalities during the pandemic.

But according to Francis Hoar, a public law barrister at Field Court Chambers, proving the actions of the government caused unnecessary deaths would be difficult. “It would be a challenging case to fight, because it would be difficult to establish causation”, he says.

The case could still be made so long as the following tests are met: there is a culpable organisation; there is an “act or omission” by senior management; and it can be proven that it led directly or indirectly to the deaths of those under a duty of care. But the government could try to claim that the pandemic was an “emergency situation” – a factor which limits its liability. 

Not all of those tests could be easily met, but individual ministers can still be charged with “gross negligence manslaughter”. This applies to those, including in official positions, who neglect their duty of care, such as doctors, but would not need proof that the organisation was criminally liable.

Would the alleged lie by Hancock matter in this case? Deliberate deceit could enhance the gravity of the charge if it can be proven to have led to a failure of policy. 

It could also lead to a charge of “misconduct in public office” in its own right – defined as when an official “wilfully neglects to perform his or her duty” in a way which constitutes “an abuse of the public’s trust in the office holder”. 

Hancock is due to appear before the Select Committee in June, when he is likely to refute the allegations made by Cummings. But it will be up to the Crown Prosecution Service to decide whether a criminal charge against any or all of the government would be helpful.

The results of a Crown Office inquest into care home deaths have already been published for Scotland, but it is not yet clear whether the courts will go ahead with a prosecution for criminal negligence.Labour has called for a public inquiry into the government’s handling of the pandemic to begin in June. 

A criminal case against a public body could begin privately, by a bereaved family, for example. The Covid-19 Bereaved Families for Justice Group has threatened legal action if calls for an inquiry are not met.