The Scottish Government has announced that Lady Poole has been appointed as the Chair of the Scottish Covid-19 Inquiry and has published the Inquiry’s Terms of Reference.

The Terms of Reference provide new detail, and a different emphasis, than the previously broad “four harms ”.

The Scottish Government had announced its intention to launch an independent judge-led public inquiry into the handling of the COVID-19 pandemic before the end of 2021. This proposed timeline brings the launch of the Scottish COVID-19 inquiry ahead of the planned Spring 2022 launch of the UK-wide statutory inquiry, which will be of particular interest to entities with cross-border interests.  The UK Chair has also been announced as Baroness Hallett.

Chair

Lady Poole is currently a sitting judge at the Court of Session, with previous experience serving as a judge in the UK Upper Tribunal.

Lady Poole has already indicated that, while it would be premature to determine the details of procedure, evidence will be taken both orally and in writing, and a dedicated Inquiry website will be launched soon.  Work is also underway to identify and appoint the appropriate team members to support the work of the Inquiry.

Importantly, Lady Poole has also referred to the intra-nation collaboration that will be required and, with the timing of the announcement of the UK Chair, this will be an important consideration for both inquiries.

Terms of reference

The Scottish Government had previously identified the ‘four harms’ of the pandemic to be examined:

• direct health impacts of COVID-19, including cases and deaths in care homes;
• other non COVID health impacts;
• societal impacts, including education; and
• economic impacts.

It is clear that the Inquiry in Scotland is intended to address all the major areas impacted by the pandemic; which is to say almost every facet of society and industry. Each of the harms covers a significant pool, including: public bodies, front-line services, economic operators, higher education providers, representative bodies and individuals.

The Terms of Reference now published address twelve different areas to be examined, ranging from pandemic planning to education decisions. Reporting aims are to create a factual record, and identify lessons for the future, with recommendations.  Recent inquiries have struggled to meet assigned reporting deadlines. The Scottish Inquiry’s Terms of Reference simply state the intention to “provide reports to the Scottish Ministers as soon as practicable”.

Interestingly, the Inquiry will cover events from 1 January 2020 to 31 December 2022. This means that current developments, particularly in relation to the Omicron variant, will be within scope.

Responses to Consultation

The Scottish Government Analysis of the responses to the public consultation held in September 2021 have also been published and are understood to have informed the Terms of Reference. They will continue to be relevant for the Inquiry as it sets procedure and process.

The announcement of the Chair and the Terms of Reference is the first step in formally launching the work of the Inquiry. Whilst there is much still to be done before work can begin, interested parties and stakeholders should be taking steps now to prepare for potential inquiry involvement.

Burness Paull has one of the strongest, dedicated teams of lawyers who focus purely on matters relating to government, the public sector and their relationship to business and society, working regularly across high profile and highly sensitive issues within public inquiries and judicial reviews.  We’ll be keeping a close watch on the Consultation as it progresses, and would be happy to talk to you about how your organisation might be impacted.

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