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Blog: What Scotland’s COVID-19 inquiry means for the proposed UK-wide inquiry

17 Sep 2021

As we approach two years since Covid-19’s outbreak, civil litigation associate Ellie Cornish has written a blog examining how Scotland’s proposed public inquiry may influence a UK-wide inquiry.

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Over the past 18 months, we have seen first-hand how a country’s ability to withstand the devastation wrought by COVID-19 is, in large part, determined by its government’s preparedness, policy and appetite for risk.

Now, as the initial phase of the global pandemic recedes, political leaders across the world face calls for inquiries into their handling of the pandemic – and also for accountability for those whose decisions are found lacking.

In May this year, the Prime Minister declared his intention to establish a public inquiry into the handling of the COVID-19 pandemic by “the Spring of 2022”. Mr Johnson would not be drawn into discussing the details, but said the UK Government would “work closely with the devolved administrations, as we have done throughout our pandemic response”.

He went on:

“Every part of our United Kingdom has suffered the ravages of this virus, and every part of the state has pulled together to do battle against it. If we are to recover as one Team UK, as we must, then we should also learn lessons together in the same spirit. We will consult the devolved Administrations before finalising the scope and detailed arrangements, so that this inquiry can consider all key aspects of the UK response.”

The Prime Minister is required to liaise with leaders in Scotland, Wales and Northern Ireland on the proposed UK-wide inquiry. Section 27 of the Inquiries Act 2005 requires the UK Minister in question to consult with devolved administrations before any UK-wide inquiry can include in its Terms of Reference anything which would require it to find facts or make recommendations on any matter which is wholly or primarily a devolved matter.

However, in August this year the Scottish Government confirmed its intention to establish an inquiry into the handling of the COVID-19 pandemic in Scotland. This Scotland-specific inquiry is planned to start before 2021 is out.

What might a Scotland-specific Inquiry look like?

Under section 28 of the Inquiries Act 2005, the Terms of Reference for an inquiry for which Scottish Ministers are responsible cannot deal with any fact or recommendation which is not wholly or primarily a Scottish matter.

The scope of Scotland’s inquiry would therefore be necessarily confined to devolved matters. Given the subject matter, this gives Scotland’s inquiry the ability to consider the impact of COVID-19 on its health, social care, education and justice sectors.

Scotland’s Ministers announced that particular consideration would be given to what they termed “the four harms” of the pandemic, which they identified as being:

  •              Direct health impacts of COVID-19, including cases and deaths in care homes
  •              Other non-COVID health impacts
  •              Societal impacts, including education
  •              Economic impacts

Differences in Approach

The Scottish Government has said its COVID-19 inquiry will “take a person-centred, human rights based approach”. Bereaved families in Scotland will, it seems, be actively and specifically encouraged to feed into the formulation of the inquiry’s Terms of Reference.

In contrast to this, Mr Johnson has said that in his UK-wide inquiry bereaved families would be consulted on the Terms of Reference, but that this would be “along with many other groups”. The UK Government, Mr Johnson said, would make sure its inquiry has “the widest possible consultation and engagement”.

Admittedly, this is all rather opaque. But there is a clear difference in focus, and one that may prove significant.

In any event, there is a relatively short amount of time before these inquiries are due to start. It may be appropriate to ask how meaningful any public consultation carried out in this context can be.

Scotland drives the agenda

If it has the head start currently intended, Scotland’s inquiry will inevitably inform and influence the scope and shape of any subsequent investigation (including any as yet unannounced investigations to be carried out in Northern Ireland and Wales).

It is hoped that the Scottish COVID-19 inquiry will deliver on its promise to take a person-centred approach, putting those bereaved by the pandemic at the fore, and, by doing so, it may compel the UK-wide inquiry to do the same. Its commitment to focus on the “four harms” (which, though very broadly defined, are plainly priorities for the public) may yet bring pressure to bear on the UK Government to ensure its inquiry’s scope is not unduly constrained.

We, as human rights practitioners, are mindful of the need to guard against the risk that the areas of the pandemic response which have been particularly acute in England will become lost in an overly fragmented UK-wide inquiry, in which devolved matters are examined within the separate nation-specific investigations, leaving England-specific decisions and failures to fall between cracks and avoid proper and effective scrutiny.

If properly established, a UK-wide public inquiry could provide the opportunity to meaningfully compare and contrast the decisions of Ministers and policymakers, alongside public health data, across the four nations. That way, lessons can be learned from both the strengths and weaknesses of the various responses, and these can inform the recommendations which will follow so as to benefit the UK population as a whole.


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