Update on the Scottish Covid-19 Public Inquiry - new Chair appointed

The Scottish Covid-19 Inquiry is an independent inquiry, commissioned by the Scottish Ministers. Following Lady Poole’s departure as Chair of the Inquiry on 30 September 2022, Lord Brailsford has been appointed as the new Chair, taking up that role on Friday 28 October 2022.

Lord Brailsford has stated: “The public are rightly looking for answers and no more so than the loved ones of the nearly 16,000 people in Scotland who died during this pandemic. I am immensely aware of the enormous responsibility this places on me and the inquiry. I promise the families that, along with the inquiry team, I will work independently to establish the facts and ensure the inquiry thoroughly examines the decisions taken throughout the pandemic.”

What is the Inquiry about?

The Scottish Covid-19 Inquiry will look at various aspects of the Scottish devolved strategic response to the pandemic. Its investigation will be in the fields of health, education and support, more fully set out in the Inquiry’s Terms of Reference.

The Terms of Reference for the Inquiry have been shaped by public engagement and cover 12 areas of investigation. Each area focusses on an element of the handling of the pandemic, with a view to identifying lessons to be learnt and to make recommendations. The scope of the Inquiry is:

• Pandemic planning and exercises carried out by the Scottish Government;
• The decision to enter lockdown and apply other restrictions, and the impact of those restrictions;
• The delivery of a system of testing, outbreak management and self-isolation;
• The design and delivery of a vaccination strategy;
• The supply, distribution and use of PPE;
• The requirement for shielding and associated assistance programmes, provided or supported by public agencies;
• 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;
• 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;
• The delivery of end-of-life care and the use of DNACPR (do not attempt cardiopulmonary resuscitation);
• Welfare assistance programmes, for example, those relating to benefits or the provision of food, provided or supported by public agencies;
• The delivery of education and certification;
• Financial support and guidance given to businesses and the self-employed, including in relation to the identification of key workers, by public agencies.

The Inquiry is still in its early stages and during its initial establishment phase has focused on setting up the systems and infrastructure that will enable it to do its work.  The Inquiry has also commissioned introductory scoping research on aspects of the devolved strategic response to the pandemic and has begun the process of ingathering evidence.

The Inquiry has taken the important procedural step of calling for applications from those wishing to be designated as core participants to assist the Inquiry with its work.

What is a core participant? 

We have covered this in a previous Insight, but to summarise, the role of a core participant is more than giving an account of personal experiences or producing documents. People can do that without being a core participant. Becoming a core participant creates important rights and responsibilities for successful applicants. These include:

• Making statements (often through a legal representative) when the Inquiry holds public hearings;
• Proposing questions for Counsel to the Inquiry to ask witnesses and, if the Chair allows them to do so, asking questions of witnesses at a public hearing;
• Being provided with advance copies of the Inquiry’s reports relating to their interest before publication.

Any individual or body can make an application to become a core participant if they think they have played a direct and significant role in the matters the Inquiry is investigating, or have a significant interest in an important aspect of a matter the Inquiry is considering, or are likely to come under direct scrutiny or significant or particular criticism from the Inquiry.

Applications for those wishing to be designated as a core participant closed on Friday 16 September 2022. However, consideration of applications has been delayed due to the requirement to replace the Inquiry Chair, the decision on core participant status being one for the Chair, alone.

The Inquiry will publish later this year a list of those who have been successful. More information is available on the Inquiry website.

The Inquiry has indicated that it will welcome as core participants persons and bodies who are in a position to facilitate the better management of the Inquiry. The Inquiry has suggested the most helpful core participants will be those who can engage with the Inquiry on matters of practice and procedure, and assist it in fulfilling its terms of reference.

Anyone in Scotland will be able to follow the progress of the Inquiry through a variety of methods (for example, through a “Listening Project”, watching a live stream of hearings or reading witness statements on the Inquiry website).

How we can help

Harper Macleod’s public law team has developed significant experience in advising and representing individuals, public bodies and other organisations at public inquiries.  We have guided clients through Scotland’s biggest recent public inquiries, including the Edinburgh Trams Inquiry, the Scottish Hospitals Inquiry and the Scottish Child Abuse Inquiry.

If you wish to discuss obtaining advice and representation in relation to the Scottish Covid-19 Inquiry, contact Jennifer Jack, who leads our team of experienced lawyers in this specialist area.