Member Article

In a statement to Parliament on 14 December 2021, John Swinney, the Deputy First Minister, confirmed the appointment of Court of Session judge Lady Poole as the chair of the Scottish inquiry into the COVID-19 pandemic. The Scottish Government also announced the terms of reference for the public inquiry on the same date, with the inquiry investigating the period between 1 January 2020 and 31 December 2022. You can read the full ministerial statement here.

The terms of reference

The terms of reference set out 12 areas for investigation, each of which is intended to cover a strategic element (both in establishing facts and learning lessons) of the handling of the pandemic in Scotland (and it should be stressed that the inquiry will only consider “Scottish matters”):

1. pandemic planning and exercises carried out by the Scottish Government;
2. the decision to lock down 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, and 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 keyworkers, by public agencies.

Although the terms of reference have been published, it was also made clear in the Letter to the inquiry Chair that the first period of the inquiry’s work will include “reflection” on the terms noted above, which may be the subject of adjustment by the inquiry Chair.

A key element of the inquiry will be investigating the experience of coronavirus in care homes, which is a matter of significant public concern – why were certain decisions taken at particular points in time, and could different outcomes have been achieved? However, the inquiry is not concerned solely with the direct health impacts of coronavirus, it will also consider societal and economic impacts. For example, lockdown, restrictions and outbreak management affected businesses and workers, most notably in the hospitality and retail sectors. The reference to education delivery is relevant to primary, secondary, and tertiary education providers.

Next steps

Organisations that may wish to engage with the inquiry should ensure they have retained relevant documents, in particular those explaining or justifying certain decision-making processes. 

Even if organisations are not expecting to engage with the inquiry, it is advisable that they continue to update risk assessments and health and safety policies to take into account lessons learned throughout the pandemic and changing legislation and guidance.

If you would like to discuss any of the above, please get in touch with Kevin Clancy, Natasha Durkin, John Grady, or your usual Shepherd and Wedderburn contact.