As we await the publication of the terms of reference for the UK wide Covid-19 Inquiry, in this blog I consider the key features of the recently published terms of reference for the Scottish Inquiry into the Covid-19 pandemic.

The Scottish Covid-19 Inquiry

The Scottish government has established its own independent statutory inquiry into the Covid-19 pandemic (the “Scottish Inquiry”). This inquiry can only consider “Scottish matters” as defined in section 28(5) of the Inquiries Act 2005 (the “Act”), these being matters which relate to Scotland and that are not reserved matters within the meaning of the Scotland Act 1998 for which Parliament retains the exclusive power to legislate. However, under the devolved settlement the Scottish government has a wide legislative mandate over public policy, all of which may be subject to a Scottish inquiry established under the Act.

On 14 December 2021 there was the dual announcement by the Deputy First Minister to the Scottish Parliament, John Swinney, of both the Chair of the Scottish Inquiry and its terms of reference. The terms of reference are of great importance to any inquiry and are defined at the outset. They should provide for the remit and scope of the inquiry, and indicate whether a report of recommendations will be produced at its conclusion.

The Terms of Reference

The terms of reference for the Scottish Inquiry (the “Terms of Reference”) have been prepared by the Scottish government following a public consultation, running from 24 August to 30 September 2021, on a document of draft aims and principles for the inquiry. This document provided that one of the inquiry’s aims should be to give particular consideration to the ‘four harms’ of the pandemic, which were identified as the following:

  • direct health impacts of COVID-19, including cases and deaths in care homes;
  • other health impacts;
  • societal impacts, including education; and
  • economic impacts.

The Terms of Reference themselves provide that the aim of the Scottish Inquiry is “to establish the facts of, and learn lessons from, the strategic response to the COVID-19 pandemic in Scotland” and outline 12 areas for investigation, which each cover a strategic element of the handling of the pandemic. These 12 areas are as follows:

  1. pandemic planning and exercises carried out by the Scottish Government;
  2. the decision to lockdown and to apply other restrictions;
  3. the delivery of a system of testing, outbreak management and self-isolation;
  4. the design and delivery of a vaccination strategy;
  5. the supply, distribution and use of Personal Protective Equipment;
  6. the requirement for shielding and associated assistance programmes, provided or supported by public agencies;
  7. 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, changes to inspections;
  8. the provision of healthcare services, including the management and support of staff;
  9. the delivery of end of life care and the use of DNACPR (do not attempt cardiopulmonary resuscitation decisions);
  10. welfare assistance programmes, for example those relating to benefits or the provision of food, provided or supported by public agencies;
  11. the delivery of education and certification; and
  12. financial support and guidance given to businesses and the self-employed, including in relation to identification of key workers, by public agencies.

The Scottish Inquiry will cover the period from 1 January 2020 to 31 December 2022, save for point (1) regarding pandemic planning which will necessarily entail looking at decisions and actions taken before this date range.

In addition to these 12 areas of investigation, the Terms of Reference make specific provision for the inquiry to “consider the impacts of the strategic elements of handling of the pandemic on the exercise of Convention rights (as defined in Section 1 of the Human Rights Act 1998).” This area of focus is also emphasised in the letter from the Scottish Ministers to the newly appointed Chair of the Scottish Inquiry, Lady Poole, which stresses the importance of human rights considerations to the inquiry’s work, “including the right to not be discriminated against”.

In terms of its reporting requirements, the Terms of Reference provide that the Scottish Inquiry will be tasked:

  • To create a factual record of the key strategic elements of the handling of the pandemic
  • To identify lessons and implications for the future, and provide recommendations
  • To provide reports to the Scottish Ministers as soon as practicable.

Following their publication, the Chair to the Scottish Inquiry will now reflect on the Terms of Reference and will be able to make any recommendations for adjustments to the Scottish Ministers. Any such adjustments may be in light of new issues which arise in relation to the pandemic in the coming months or to take into account any overlap with the terms of reference to the UK wide Covid-19 Inquiry (the “UK Inquiry”), or any other inquiries set up by the devolved administrations, once they are published. The Scottish government has made clear that it intends to work with the UK government in developing its approach to the UK Inquiry. Lady Poole has likewise stated that she intends to liaise with her counterpart for the UK Inquiry, Baroness Hallett.

The various topics to be investigated by the Scottish Inquiry give a fair indication of the likely areas which will be covered by the UK Inquiry. The Scottish Inquiry’s remit is necessarily narrower than that of the UK Inquiry, given its limited jurisdiction to focus exclusively on “Scottish matters”. However, the unique challenges faced by the Scottish government in responding to the pandemic, which required a significant amount of government activity, mean that there could still be an abundance of executive action which will fall within the scope of the Scottish Inquiry.

Whilst the Terms of Reference mandate investigation into a wide range of decisions and actions taken by the Scottish government, the scope of the Scottish Inquiry is potentially restricted by its core aim to focus on the “strategic” response to and handling of the pandemic. It is not entirely clear what is meant by the term “strategic”, but this may be taken to mean high level decision making only.

As highlighted above, a key feature of the Terms of Reference is a focus on human rights. Whilst it is not immediately clear, with reference to the Terms of Reference alone, how consideration of human rights might play out in respect of the Inquiry’s work, the report on the public consultation about the approach to establishing the Scottish Inquiry does offer some clues. The report makes clear that a “human rights based approach” requires the Inquiry to be operated in ways compatible with human rights and on principles of accessibility and inclusivity, support for participants and equality. The report further notes that this approach would involve “assessing evidence about pandemic decisions against a human rights framework to assess where human rights were or are being breached”. Using the example of human rights and digital communications, the report explains that the Inquiry may consider how the move to digital communications, and people’s access to digital devices in the pandemic, affected people’s human rights in other areas such as access to healthcare. It remains to be seen whether the UK Inquiry will adopt a similar human rights dimension in its terms of reference.

The Terms of Reference provide that the period of time within scope of the Scottish Inquiry runs until 31 December 2022. This presents the interesting question of whether the on-going inquiry will exert additional pressure on the Scottish government, given that its decisions and actions may be analysed in close to real time against the established framework of the Terms of Reference. It may be that this dynamic introduces some new constraints on governmental decision making.

In his recent blog, Stephen Parkinson highlighted the difficulty of fulfilling a broad remit for the UK Inquiry within a sensible timescale. Whilst the Terms of Reference provide that the backstop date for the Scottish Inquiry is 31 December 2022, this will undoubtedly be followed by a further period of examination and reflection beyond the end of the year. This means that the Scottish Inquiry will likely last at least 18 months until June 2023 or beyond. How much longer it will take for the Inquiry to conclude its work will depend on the depth of scrutiny of decisions.