A royal compromise: why the Government edged out the Covid inquiry chair

Professor Tony Blakely, an epidemiologist at the University of Melbourne, will resign as chair of the New Zealand Royal Commission of Inquiry into Covid-19 in November.

ANALYSIS

Make no mistake, a Royal Commission of Inquiry with two successive sets of commissioners, each with distinct terms of reference, and each to generate its own final reports is extraordinary.

We’ve seen nothing remotely like it, certainly since the introduction of the Inquiries Act of 2013, and possibly ever.

It will cost us another $14 million, at least (on top of the earlier budget of $19m), and several more years of inquiry.

It appears to be a compromise agreed between the responsible minister, the Act Party’s Brooke van Velden, and the inquiry’s two sitting commissioners, chair Tony Blakely and John Whitehead, who are legally obliged to vacate their roles only if the commission is terminated altogether – a cost van Velden was not prepared to foot.

Coalition Government partners National and New Zealand First have also had their say. The latter said it agreed to disagree on parts of van Velden’s solution.

Van Velden announced yesterday the Covid-19 inquiry will now have two parts. The existing inquiry, set up by the previous Government and focused on drawing lessons for future pandemics, will make a final report in November.

A successor inquiry, or “second phase” as van Velden put it, will begin with a new chair and commissioners, to be confirmed in August.

Its work will focus on many of the matters previously excluded for consideration by the inquiry, or not emphasised, including the use of vaccines and mandates, extended lockdowns, and the social and economic disruption of pandemic policies.

It is not unusual for a government to change or expand a Royal Commission’s terms of reference. What is novel is to persuade its commissioners to resign, which is what Blakely and Whitehead have agreed to do come November.

Protesters against the Covid-19 response, which will now be the subject of two successive inquiries, on Parliament grounds in 2022. Photo / Mike Scott

It is an inelegant solution to an untenable problem: namely Blakely, whose chairmanship was signed off by the Government of then Prime Minister Dame Jacinda Ardern in late 2022 and whose advice had helped, at times, to shape that Government’s pandemic response.

There was disquiet at the time, because Blakely, a professor at the University of Melbourne and esteemed in his field, was also closely linked to key players in the New Zealand Government’s elimination response to the pandemic, including public health physicians Michael Baker and Nick Wilson of the University of Otago.

The choice of Blakely as chair, along with the inquiry’s closely-drawn terms of reference, was enough for minor coalition partner NZ First to promise a new inquiry entirely in its election campaign last year.

But the unease about Blakely, as chair especially, was always broader than one small political party and its voters. That concern deepened this year when the Department of Internal Affairs published his disclosure of interests, made at the time of his appointment to the inquiry.

The disclosure made clear Blakely provided “direct advice” to key policymakers and advisers in the New Zealand pandemic response, including Dr Ashley Bloomfield, then director-general of health, and Sir Prof David Skegg, chair of the Strategic Covid-19 Public Health Advisory Group.

Through the Royal Commission’s secretariat, Blakely also told the Herald he was friends with Bloomfield, to whom he provided advice in “informal phone conversations” on “approximately three occasions” between the start of the pandemic and mid-2022.

In one example from November 2021, Blakely advised Bloomfield against bringing forward a loosening of the managed isolation and quarantine (MIQ) system, despite the relatively wide circulation of the virus in Auckland at the time.

Tony Blakely advised Ashley Bloomfield, pictured, against bringing forward a loosening of the managed isolation and quarantine (MIQ) system. Photo / Mark Mitchell

Crown Law recently released to the Herald two affidavits, sworn by then Covid-19 minister Chris Hipkins and by Bloomfield, both of which cited the advice provided by Blakely – the affidavits were submissions in a judicial review of elements of the MIQ system brought by the group Grounded Kiwis.

Observers including Deborah Chambers, KC and Roger Partridge, chairman and a co-founder of The New Zealand Initiative, have argued Blakely’s role in the pandemic as it unfolded makes him the wrong person to consider its compromises and trade-offs.

But within the terms of the existing inquiry, Blakely’s advice, especially on MIQ, did not appear to trouble many legal specialists.

Andrew Geddis, professor in the Faculty of Law at the University of Otago, told the Herald: “On the point that Dr Blakely provided peer review advice to the NZ Government on a specific application of general policy, I don’t see how that would be disqualifying [as chair of the Royal Commission]. Note that the current terms of reference specifically rule out looking at such individual decisions.”

However, the expanded terms of reference, as yet unspecified in full, might have proved problematic.

It is also worth noting the details of other instances wherein Blakely helped steer the pandemic response are not known publicly, including the other two instances in which he provided advice to Bloomfield.

In addition, Crown Law and the Ministry of Health (MoH) have so far failed to release emails that constitute at least part of the 2021 advice Blakely gave to Bloomfield on MIQ.

The ministry declined to release the documents in 2022, and last month it extended into July an OIA deadline for providing them; it cited the need to further consult affected parties.

It’s also noteworthy that in July 2021, on a visit from Australia, Blakely held a Covid-19 modelling workshop for New Zealand Government officials and others working on the pandemic response.

The workshop was organised by Baker. Invitations were extended to officials from a range of departments and also included the likes of Shaun Hendy and members of the University of Auckland’s Te Pūnaha Matatini (TPM) group, who provided modelling work to the Government, according to email communications released to the Herald by the MoH.

Blakely’s advice may well have been valuable. That’s not at issue. The question is whether anyone involved in pandemic events and decisions as they unfolded, and in the Government’s gut-wrenching trade-offs, is well placed to weigh them now and provide sober second thought.

Kate MacNamara is a South Island-based journalist with a focus on policy, public spending and investigations. She spent a decade at the Canadian Broadcasting Corporation before moving to New Zealand. She joined the Herald in 2020.