The Covid-19 pandemic impacted every area of public life in Scotland and around the world. The decisions made by Governments everywhere had profound consequences for their citizens and societies. Learning from those decisions can, if done well, enable better planning for future pandemics and inform future decision making. Here in Scotland the Scottish Government has set up the Scottish Covid-19 Inquiry as part of that exercise. Gilson Gray Associate, Catherine McGarrell is one of the solicitors representing clients in the Scottish Covid-19 Inquiry. In this blog she discusses its aims and workings.
Terms of Reference:
All Public Inquiries in Scotland have Terms of Reference set by the Government, which determine the matters to be investigated. The Aim of the Scottish Covid-19 Inquiry is:-
“To establish the facts of, and learn lessons from, the strategic response to the COVID-19 pandemic in Scotland.”
Its Scope is:
To investigate the strategic elements of the handling of the pandemic relating to:
- a) pandemic planning and exercises carried out by the Scottish Government;
- b) the decisions to lockdown and to apply other restrictions and the impact of those restrictions;
- c) the delivery of a system of testing, outbreak management and self-isolation;
- d) the design and delivery of a vaccination strategy;
- e) the supply, distribution and use of personal protective equipment;
- f) the requirement for shielding and associated assistance programmes, provided or supported by public agencies;
- g) 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;
- h) the provision of healthcare services and social care support, including the management and support of staff and the recognition, involvement and support of unpaid carers;
- i) the delivery of end of life care and the use of DNACPR (do not attempt cardiopulmonary resuscitation decisions);
- j) welfare assistance programmes, for example those relating to benefits or the provision of food, provided or supported by public agencies;
- k) the delivery of education and certification; and
- l) financial support and guidance given to businesses and the self-employed, including in relation to identification of keyworkers, by public agencies.
In its Reporting it will:
- 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 demonstrate how a human rights based approach by the inquiry has contributed to the inquiry’s findings in facts and recommendations.
- To provide reports to the Scottish Ministers as soon as practicable.
In practical terms, it will set out the blueprint for future pandemics based on lessons learned and guidance from experts in their field. The Inquiry’s investigations will cover the period between 1 January 2020 and 31 December 2022.
The Inquiry will take a trauma-informed, human rights-based approach. It will consider whether the handling of the pandemic had any adverse effects on the exercise of human rights. It will consider any disparities in the strategic elements of handling of the pandemic, including unequal impacts. This will include consideration of the inequalities and unequal impact on certain groups in society.
Structure of investigations/hearings
The Scottish COVID-19 Inquiry has adopted a thematic approach to its investigations and hearings, splitting its work into sectoral themes. There are 3 themes defined currently with a 4th to be defined:
- health and social care
- education and young people
- finance, business and welfare
- We expect this will catch areas not caught in the first 3 themes, such as some public sector (administration of justice), and third sector
In relation to each theme, the Inquiry will look at (i) impact of the pandemic, (ii) implementation of measures, and (iii) key decision-making.
The impact on health and social care hearings ran from October 2023 until May 2024 and are now complete. Following a break over the summer, the Inquiry will start to look at impact on education and young people & impact on finance, business, and welfare hearings, these hearings are scheduled to commence 5th November 2024.
Evidence in the Scottish COVID-19 Inquiry
There are multiple ways for people to provide evidence to the Inquiry. These include:
- Let’s be Heard. This is the Inquiry’s listening project open to the public to set out how they were impacted/affected by the pandemic and the Scottish Government’s response to it. Let’s be Heard is how the vast majority of the public will engage, and there will be no difference between this and full witness statements; all carry equal evidential weight.
- Formal witness statements – the Inquiry will identify the persons from whom it will take formal witness statements. This will include a representative sample of the key issues raised or identified through Let’s Be Heard. It will also include organisational statements from Core Participants, and some individual statements from members of Core Participants.
- Oral Evidence – the Inquiry will identify the persons from whom it will seek to hear oral evidence in the evidential hearings. This is likely to be a very small proportion of those who have given formal witness statements.
- Documents. These can accompany formal witness statements, be sent as part of Rule 8 or Rule 21 requests, or submitted at any time throughout the Inquiry.
The Inquiry can request evidence by way of Rule 8 (voluntary) or Rule 21 request (mandatory).
Whilst the Inquiry will ultimately decide the persons from whom it wants to take formal witness statements, Core Participants and their representatives can signpost those they think would provide particularly key or compelling evidence.
Publication of Evidence
As a general principle all relevant information, evidence, documentation and witness statements will be made available to the public. The Chair retains control over publication. Applications can be made for redaction and for anonymity in very rare circumstances.
Let’s Be Heard will allow those contributing to remain anonymous. Those contributing can choose to give their name and contact details if they are happy for the Inquiry to contact them for further input. The Inquiry have confirmed that Let’s Be Heard submissions will not be published, but the submission form provides that the person consents to excerpts to be published (in an anonymised way) without the requirement of the Inquiry to approach them for further consent.
The Role of Solicitors
Solicitors representing Core Participants in the Inquiry play a crucial role in supporting their clients’ aims and objectives. They attend evidential hearings, witness statements, expert report reviews, and provide guidance and support to their client in the process.
Report
One of the key outputs of an Inquiry is the production of a report. We do not yet know if the Scottish Covid-19 Inquiry will issue one report at the end, or issue interim reports and recommendations.
An Inquiry will continually communicate how it intends to conduct matters. The Scottish Covid-19 Inquiry produces information, guidance, and protocols on their website: www.covid19inquiry.scot which allows those interested to follow matters.
Conclusions
We all hope never to go through another pandemic event but, if we do, the insights learned from a review of decision making in 2020 and 2021 may prove invaluable in meeting that future challenge. Some of the voices heard in the first set of hearings have helped to shine a light on the brutality of families not able to see one another, and how little key workers were protected by way of inadequate or non-existent PPE. It is hoped that similar lessons can be learned from subsequent hearings and that the recommendations may help future politicians navigate critical decisions in the heat and uncertainty of a pandemic. As such this Inquiry is extremely important to our legal and democratic process.
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| Catherine McGarrell Associate | ||
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