On 14 December 2021, Deputy First Minister John Swinney announced the appointment of Lady Poole, a Court of Session judge, as the chair of the Scottish inquiry into the COVID-19 pandemic. He also set out the inquiry's terms of reference.
Mr Swinney highlighted Lady Poole's expertise in administrative and human rights law, reiterating the Scottish Government's expectations that the inquiry should take a human rights based approach.
It will be for Lady Poole to decide whether to appoint any assessors to provide expertise on particular subjects during the course of the inquiry.
Terms of reference
The terms of reference, which regulate what the inquiry can investigate, have been published on the Scottish Government's website. These include the following 12 areas for investigation:
pandemic planning by the Scottish Government | in care and nursing homes: the transfer of residents to or from homes, treatment and care of residents, restrictions on visiting, infection prevention and control, and inspections |
the decision to lockdown and to apply other restrictions | the provision of healthcare services, including the management and support of staff |
the delivery of a system of testing, outbreak management and self isolation | the delivery of end of life care and the use of DNACPR (do not attempt resuscitation decisions) |
the design and delivery of a vaccination strategy | welfare assistance programmes, for example those relating to benefits or the provision of food, provided or supported by public agencies |
the supply, distribution and use of Personal Protective Equipment | the delivery of education and certification |
the requirement for shielding and associated assistance programmes, provided or supported by public agencies | financial support and guidance given to businesses and the self employed, including in relation to identification of keyworkers, by public agencies |
The inquiry will only investigate "Scottish matters" – so those that are within the devolved powers of the Scottish Parliament and Government. It will also "make reasonable efforts to minimise duplication" of work with the UK COVID-19 Inquiry and any inquiry established by the Welsh or Northern Ireland administrations.
Other than when considering the planning that was undertaken by the Scottish Government prior to the pandemic, the inquiry will be investigating the period between 1 January 2020 and 31 December 2022.
It is extremely novel for a public inquiry to be authorised to investigate events that have not yet occurred. Decisions and actions being taken now will fall within the scope of the inquiry. We have previously discussed the impact of this in our guide on how to prepare for the inquiry.
Investigation of the health and social care sectors will form a key part of the inquiry, with the experience of residents of care homes during the pandemic being a key public concern. The terms of reference provide for that issue to be fully investigated.
The inquiry's remit also allows it to investigate matters far beyond health and social care. For example:
- A key area will be the investigation of financial support given to businesses throughout the pandemic. The inquiry will need to hear evidence about whether such support was sufficient, timely and prioritised appropriately.
- When investigating the decisions to lockdown and apply other restrictions, the inquiry will need to engage with those in the travel, hospitality, leisure and retail sectors to identify the impact such decisions had on their businesses. Consideration will also have to be given to the varying impacts on local authorities when the Scottish Government's tier structure was put in place.
- Decisions on outbreak management and periods of self-isolation following contact with someone who was infected with COVID-19 will have had an impact on a wide range of sectors where workforce numbers were reduced as a result. Therefore, we expect the inquiry will want to hear evidence from sectors that were impacted in this way.
- The supply, delivery and distribution of PPE will also require consideration beyond the health and care sectors. For example, whether other essential workers, such as those involved in public facing roles or those involved with the collection and disposal of waste, were provided with adequate PPE.
- The inclusion of "the delivery of education and certification" as a term of reference will be of relevance to local authorities, independent schools and universities, whose policies and practices may be investigated by the inquiry.
- Groups representing the interests of children are also likely to be engaged in providing evidence in relation to education and the adequacy of welfare assistance programmes available during the pandemic, such as the provision of free meals to children while schools were closed.
There has been no timescale set for the inquiry yet, however, reports will be provided to the Scottish Government "as soon as practicable".
Next steps
Now that it has been formally established, the inquiry will function independently from the Scottish Government. The chair will have to appoint the inquiry's team including counsel and solicitor to the inquiry and decide how the process will run. The Inquiry Act 2005 and Inquiry (Scotland) Rules 2007 will provide the framework, but it is largely for the chair to determine how it operates.
The letter appointing Lady Poole as the chair notes that "the first period of the inquiry’s work will include reflection on the terms of reference" after which the chair will have the opportunity to discuss any adjustments that she considers should be made to the scope of the inquiry with Mr Swinney.
In light of the fact the inquiry has now been established, organisations that expect to be engaged with it will wish to ensure that their preparations for engaging in the process are underway.
For more information on participating in a public inquiry, please contact Christine O'Neill KC, Kirstyn Burke or your usual Brodies contact.
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