Scottish COVID-19 public inquiry to be established by end of 2021

Scottish Ministers have announced that a public inquiry into the Scottish government’s handling of the COVID-19 pandemic will be established by the end of 2021. A consultation process has been launched, inviting views from the public and stakeholders on the aims and principles and suggested approach for the inquiry. The consultation is now live, with responses invited until 30 September 2021.

What has been announced?

With restrictions starting to ease and life beginning to return to the “old normal,” attention is turning to what has gone before – in particular, the decisions made in response to the global pandemic and the lessons that can be learned.

The Scottish government has announced that an independent public inquiry into the handling of the COVID-19 pandemic in Scotland will be established by the end of 2021. The purpose of the inquiry will be to scrutinise decisions made in the course of the pandemic so far, and identify lessons to be learned for future pandemics.

The Scottish government stated that the purpose of the public inquiry will be to:

• investigate events causing public concern – for example, the experience of COVID-19 in care homes;
• establish the facts in relation to such issues;
• determine the explanations for decisions taken, and causes of anything which may not have gone as expected;
• consider if and how different outcomes could have been achieved;
• establish any lessons to be learned from what has happened; and
• make any recommendations that the inquiry considers appropriate.

A consultation process has now been launched, seeking feedback on the draft aims and principles for the public inquiry and the approach to be taken. Responses are invited from the public, including bereaved families and other stakeholders (for example, businesses and care home operators).

The responses will be considered by the Scottish Ministers when determining the approach to be taken and in framing the terms of reference for the public inquiry. Once established, the inquiry will be independent of the Scottish Ministers; with a judge to be appointed to lead the inquiry. It will be a statutory inquiry, operated under the framework and controls of the Inquiries Act 2005.

Scotland is the first devolved nation in the UK to announce the commencement of the public inquiry process into the COVID-19 pandemic. The scope of the inquiry will be limited to consideration of devolved matters in relation to Scotland.

In May 2021, the UK government announced its intention to commence a public inquiry in Spring 2022. While the terms of reference for the UK inquiry are still to be announced, it was understood that all four devolved nations would participate in the inquiry. In announcing the public inquiry to be established, the Scottish government advised that “While all relevant matters will be in scope, consideration will be given to how duplication of investigations between the Scottish and UK wide inquiries can be avoided.” The expectation, therefore, is that Scotland will remain a participant of the UK COVID-19 public inquiry.

Scope of the public inquiry

In launching the consultation process, the Scottish government advised that the public inquiry will “take a person-centred, human rights-based approach with a focus on outcomes and timely reporting to identify lessons and recommendations.”

While the aims and approach of the public inquiry are to be confirmed, the Scottish government advised that the inquiry will pay particular consideration to the following “four harms” of the pandemic:

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

These are broad areas with wide application. Although the public inquiry will be limited to devolved matters, it can scarcely be imagined that anyone living in Scotland has not been affected by health, education and/or the economy during the COVID-19 pandemic.

No further guidance has been provided as to the scope of the four categories of harm to be considered.

However, with the express reference to COVID-19 cases and deaths in care homes, it is anticipated that this will be a key issue for consideration at the public inquiry.

In May 2020, the Crown Office COVID-19 Deaths Investigation Team was established to investigate all suspected or confirmed COVID-19 deaths in care homes, and the deaths of people who may have COVID-19 at their workplace. The Crown Office has been working with other agencies (including the Health and Safety Executive, local authorities and the Care Inspectorate) in respect of confirmed or presumed COVID-19 deaths in care homes in Scotland. In April 2021, it was reported that more than 3,400 such cases were being considered by the Crown Office.

With the Crown Office investigating deaths to determine whether to hold Fatal Accident Inquiries (or raise criminal proceedings), it is anticipated that the public inquiry will consider broader issues of wider application in respect of COVID-19 cases and deaths in care homes – for example, the Scottish government’s policies at stages throughout the pandemic, and practices implemented at a local level.

The scope of the other “harms” to be considered is less clear – for example, the breadth of “societal impacts” to be considered, and what “economic impacts” the inquiry will encompass.

Almost without exception, lockdown and ongoing restrictions have had a significant negative impact across all sectors and on the continued operation of businesses in Scotland – for example, hospitality, retail, construction and manufacturing. Even with the recent easing of restrictions, it has been widely reported that a number of businesses have experienced difficulties in reopening, with high numbers of staff shortages due to the requirements of track and trace – the “pingdemic.”

Throughout the pandemic, the Scottish government has issued a series of publications to businesses in the form of advice and guidance, regulations, directives and orders. Some, but not all of which, had legal effect. It may be anticipated that the public inquiry will follow the chronology of these publications, and consider the approach taken and the resultant economic impact on businesses.

Another significant economic impact has been the allocation of financial support to businesses and individuals throughout the pandemic – for example, in the form of grant funding, loans and furlough. It may be likely that the level of support, qualifying criteria and distribution of the grant of awards will be reviewed at the inquiry. However, with an overlap in certain policies, it is not clear at this time whether any of these issues will be reserved to the UK inquiry.

How to respond

The Scottish government has invited feedback to the consultation from members of the public and stakeholders by 30 September 2021. Responses should be submitted by email.

Beyond the consultation

The public inquiry will be conducted under the Inquiries Act 2005, by reference to the terms of reference produced by the Scottish Ministers following the consultation process. The Scottish Ministers are presently in consultation with the Lord President regarding the individual Judge to be appointed as the chairman of the inquiry. It is not known if any other people will be also be appointed to form an inquiry panel.

While it has been announced that the inquiry will be established by the end of the year, the other timescales are less certain. Once established, there are no time periods prescribed in the Act – for example, for the hearing stage to commence, or for the report of the inquiry to be issued. However, with the nature and potential scope of the issues to be considered, it is anticipated that the inquiry process will be lengthy.

In terms of the Act, subject to certain restrictions, the Judge will have broad discretion to direct the procedure and conduct of the inquiry. For example, to require the production of documents, and to compel the attendance of witnesses to give evidence under oath. It is considered that a statutory inquiry brings greater transparency, and is more likely to discharge the requirements under the European Convention on Human Rights. Notably, the Act requires that reasonable steps be taken to secure public access to the inquiry (in person or by simultaneous transmission of the proceedings), and to obtain or view a record of the evidence and documents produced to the inquiry. The judge will also have the power to make awards in respect of the cost of legal representation at the inquiry.

There are also notable limitations and protections afforded to participants of the inquiry. In particular, in terms of the Act the inquiry is not to rule on (and has no power to determine) any person’s civil or criminal liability. However, the recommendations of the inquiry may give rise to such inferences, with the result that further proceedings (civil or criminal) may be raised at a later date.

Following consideration of all of the evidence, the judge is required to deliver a report to the Scottish Ministers setting out the facts determined by the inquiry and its recommendations. Subject to certain limitations, the report will also be published in full.

Comment

Despite the easing of restrictions, COVID-19 continues to affect lives around the world. In Scotland, this can be seen in the rise in COVID-19 cases and hospitalisations in recent weeks.

In announcing the public inquiry and consultation process, the Scottish government stated that “The proposed inquiry would be established by the end of the year, to scrutinise decisions taken in the course of this pandemic, and learn lessons for future pandemics.”

The timing for establishing an inquiry into the COVID-19 pandemic is complex. Undoubtedly, there is a need to have an independent review of the Scottish government’s response to the pandemic and identify valuable lessons for the future.

However, with the ongoing impact of COVID-19, it may be considered whether now is the time to look back and assess the decisions made in response to the pandemic and lessons to be learned. New issues are also continuing to emerge as variants of the virus emerge and restrictions are eased. There will also inevitably be aspects of the pandemic that cannot be considered in full at this time. For example, the data required to properly analyse the full impact of COVID-19 on the deaths of residents in care homes and people living in the community may not be available for several years. Any benefit of delaying scrutiny of decisions at an inquiry must, however, be contrasted with the potential for evidence to be lost or diminish over time.

Depending on the duration of the public inquiry, it may be that the resultant recommendations will be limited to interim findings, with a further review of certain matters to take place at a later date. The inquiry could, however, make valuable interim recommendations that can be used to inform policy and practice as we continue to navigate the COVID-19 pandemic.

With the public inquiry due to be established be the end of 2021, it is anticipated that in the coming weeks and months the Scottish government will provide greater clarity as to the scope of the issues to be considered and approach to be taken at the inquiry.