26 October 2023

This week marks the start of the Scottish COVID-19 Inquiry’s evidential hearings on the health and social care impacts of the pandemic. The witnesses giving evidence at these hearings represent those most profoundly impacted by Covid-19 in Scotland and will include bereaved family members, care home relatives, individuals who required to shield because of underlying health conditions, sufferers of long Covid, and those unable to receive urgent medical treatment due to the pressures the NHS was under as a result of the pandemic.

The Inquiry commenced on Tuesday 24 October 2023 with inquiry counsel (Stuart Gale KC) describing it as “a significant milestone in the progression of this inquiry” and Lord Brailsford (Inquiry Chair) underscoring the Inquiry team’s commitment to, “providing a robust investigation without fear of favour.”

Core participants to the inquiry will have the opportunity to make opening statements before the evidential hearings commence on Friday 27 October.  These hearings will continue until 8 November with a hiatus until February 2024 to allow the UK Covid-19 Inquiry to hear evidence in Scotland in January 2024.  The Scottish Covid-19 Inquiry will then resume to hear evidence from key workers in front line health and social care.

So, what is the Scottish Inquiry looking into?

Public inquiries are governed by the Inquiries Act 2005, which provides the framework for inquiries set up by Ministers, together with the Inquiries Rules 2006, which deal more with the administrative procedure to be followed when conducting a public inquiry.

In terms of the 2005 Act, the Minister who establishes the inquiry is responsible for setting out the terms of reference, and in so doing the Minister is obliged to consult the chair of the inquiry.

Section 5(6) of the Inquiries Act 2006 defines what the terms of reference are as follows: “(a) the matters to which the inquiry relates; (b) any particular matters as to which the inquiry panel is to determine the facts; (d) whether the inquiry panel is to make recommendations; (d) any other matters relating to the scope of the inquiry that the Minister may specify.”

The Scottish COVID-19 Inquiry’s terms of reference is, “to establish the facts of, and learn lessons from, the strategic response to the COVID-19 pandemic in Scotland.”  In carrying out this exercise it will investigate the pandemic planning and exercises carried out by the Scottish Government, the decisions taken to lockdown and apply other restrictions, the design and delivery of a vaccination strategy, the supply, distribution and use of Personal Protective Equipment, the requirement for shielding, the care provided in nursing homes and transfer of residents to and from homes, the provision of healthcare services and social support, the delivery of end-of-life care, welfare assistance programmes, the delivery of education and certification and the financial support and guidance given to businesses.

Its scope is, therefore, considerably narrower than its UK counterpart given it will only consider devolved matters.  The UK Covid-19 Inquiry is considering both reserved and devolved matters throughout the United Kingdom, which also encompasses the decision making between the governments of the UK, the impact on housing and homelessness, prisons, the justice system, immigration and asylum, travel and borders and the safeguarding of public funds.

Despite the cross-over, the respective Inquiries seek to minimise duplication of work and, where possible, will not sit at the same time to avoid public confusion.  It will, therefore, be interesting to consider the extent to which there is duplication in the respective reports from the Scottish and UK Covid-19 Inquiry chairs in respect of their factual findings and the recommendations made based upon the evidence they have independently heard.  Whether these exercises result in us being “better prepared in the future” also remains to be seen.

Jill Harris, Senior Associate: jlh@bto.co.uk / 0131 222 2939