Further detail emerges on the Scotland-only COVID-19 public inquiry and on Scottish Government’s developing response to the Omicron variant 

In a statement to the Scottish Parliament on 14 December 2021, John Swinney MSP, Deputy First Minister (link here) announced the appointment of a Scottish Judge, Lady Poole, as the chair of a Scotland-only COVID-19 public inquiry and the publication of terms of reference for this inquiry (link here). This inquiry is being established under the Inquiries Act 2005.

Though noting that “the emergence of the Omicron variant is a stark reminder to us all that this pandemic continues to evolve and challenge us”, Mr Swinney did not consider that the emergence of Omicron should “delay our efforts to learn from the past” but should rather be considered as underlining “the importance and urgency of learning lessons from what has gone before.”

The terms of reference as now published may develop over time for at least two reasons:

  1. As the inquiry begins its work, Mr Swinney anticipates that “they will reflect on the terms of reference and suggest adjustments, should they wish to” with changes to the terms possible with the agreement of Scottish Ministers.
  2. The Scottish inquiry is being encouraged to coordinate with the anticipated UK-wide inquiry and the Scottish inquiry may suggest adjustments to the terms of reference to take account of the remit and work of the UK-wide inquiry.

On the current terms of reference for the Scottish inquiry:

  • the overall aim of the inquiry is “to establish the facts of, and learn lessons from, the strategic response to the COVID-19 pandemic in Scotland.” The inquiry is to “create a factual record of the key strategic elements of the handling of the pandemic” and to “identify lessons and implications for the future, and provide recommendations”.
  • the scope of the inquiry is to investigate “the strategic elements of the handling of the pandemic relating to”:
    • pandemic planning and exercises carried out by the Scottish Government
    • the decision to lockdown and to apply other restrictions (during the period 1 January 2020 and 31 December 2022)
    • 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 Personal Protective Equipment
    • 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, including the management and support of staff
    • the delivery of end of life care and the use of DNACPR (do not attempt cardiopulmonary resuscitation decisions)
    • 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 identification of keyworkers, by public agencies (during the period 1 January 2020 and 31 December 2022)
  • No deadline is set for the completion of the inquiry’s work, with it to provide reports to Scottish Ministers “as soon as practicable”.

No panel members have yet been appointed to assist Lady Poole in conducting the inquiry. Mr Swinney explained that  “in the coming period, the chair of the inquiry will make necessary preparations on operational matters, including the appointment of the inquiry’s key staff”, also adding that “Once set up, the inquiry will make announcements about its approach and progress as the chair sees fit.”

In a separate statement to the Scottish Parliament, also of 14 December 2021, on Scottish Government’s continuing response to COVID-19, Nicola Sturgeon MSP, First Minister (link here) announced two legal changes that impact all business and other employers. She explained that the Scottish Government intends to amend regulations “to put a legal requirement on those running businesses or providing services to take measures which are reasonably practicable to minimise the risk of transmission” and also that “For employers more generally, the guidance will make clear that enabling staff who were working from home at the start of the pandemic to do so again is now a legal duty.” No indication was given on when these changes may be reviewed though it was indicated in an earlier statement that the general “work from home” guidance was to last until at least mid-January 2022.

Zoe McDonnell, partner and head of regulatory at BLM in Scotland, and Andrew Gilmour, partner
zoe.mcdonnell@blmlaw.com, andrew.gilmour@blmlaw.com

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