Scotland's First Minister, Nicola Sturgeon, has announced that a Scottish public inquiry into the handling of the pandemic will be established before the end of 2021.

What we know so far

The inquiry will be set up under the Inquiries Act 2005, meaning it will have the power to compel organisations and individuals to produce documents and give evidence under oath. The default position under the 2005 Act is that hearings should be held in public.

The Scottish Government intends the inquiry to be chaired by a judge and discussions are underway in relation to this appointment.

The First Minister has confirmed that the inquiry will look at all matters that are within Scotland's devolved competence and has expressly stated that this will include matters relating to care homes.

The inquiry will "take a person-centred, human rights-based approach" and the Scottish Government has published draft aims and principles for the inquiry. These will be developed into the terms of reference for the inquiry following public consultation. The aims include scrutiny of decisions and actions taken during the pandemic, with particular focus on what the Scottish Government identifies as the "four harms" of the pandemic:

  • direct health impacts of COVID-19
  • other health impacts;
  • societal impacts, including education; and
  • economic impacts.

It is clear that the inquiry will have a broad scope and we expect it to gather evidence from a large number of individuals and public, private and third sector organisations.

The inquiry will focus on learning lessons that can be applied to the handling of future pandemics.

Relationship with UK-wide inquiry

Once established, the Scottish inquiry and the UK-wide inquiry will be independent of each other and of the respective governments.

Under the 2005 Act, an inquiry established by the Scottish Government must not be asked to deal with issues that are not "wholly or primarily concerned with a Scottish matter" and a Scottish inquiry cannot force the UK Government to produce documents or give evidence.

However, an inquiry that is established by the UK Government can look into matters which are both reserved and devolved, albeit only after consultation with the devolved governments.

In setting up the Scottish inquiry, the Scottish Government will consider "how duplication of investigations between the Scottish and UK-wide inquiry can be avoided". The remit of the UK-wide inquiry has yet to be announced and the Scottish Government will continue to liaise with the UK Government in relation to its terms of reference.

What about other parts of the UK?

Earlier this month, Wales' First Minister, Mark Drakeford, rejected calls to establish a Wales-only inquiry. He stated that he has agreed to be part of a UK-wide inquiry on the condition that there will be "a specific focus" on the actions taken in Wales.

Mr Drakeford considers that, without a single inquiry looking at decisions in each of the four nations and the relationship between these decisions and those of the UK Government, there will not be a "proper understanding" of events.

It is therefore expected that the UK-wide inquiry will consider devolved matters in relation to Wales, despite continued calls for a Wales-only inquiry to be established.

Earlier this year, Northern Ireland's former First Minister Arlene Foster, suggested that there would be a public inquiry involving the Northern Ireland Assembly and Executive. However, there has been no confirmation as to whether a Northern-Ireland inquiry will be established.

Next steps

The Scottish Government has invited comments on its proposed approach by 30 September 2021. This provides an opportunity for individuals and organisations to help shape the inquiry's terms of reference. Those that wish particular aspects of the response to the handling of the pandemic to be investigated by the Scottish inquiry should consider how to most effectively make such representations.

In light of the fact the inquiry will be established by the end of the year, organisations will also wish to ensure that their preparations for engaging in the inquiry are underway.

For more information on participating in a public inquiry, please sign up for our webinar or contact Christine O'Neill, Kirstyn Burke or your usual Brodies contact.


Kirstyn Burke

Senior Associate

Christine O'Neill KC

Chair & Partner