Meeting of the Parliament (Hybrid)

Meeting date: Thursday, June 9, 2022

Official Report 1098KB pdf

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Covid-19 Inquiry

The next item of business is a statement by John Swinney on the Scottish Covid-19 inquiry. The cabinet secretary will take questions at the end of the statement, so there should be no interventions or interruptions.

15:37  

In this statement, I will update Parliament about the establishment of the Scottish Covid-19 inquiry. In particular, I will announce amendments to the inquiry’s terms of reference.

Covid-19 has led to significant loss of life, resulting in heartache to all those who have lost loved ones. I begin this statement by repeating my condolences to the bereaved. I also repeat my conviction that the Covid-19 inquiry in Scotland should help to provide the answers for which those individuals search.

In its 2021 manifesto, the Government set out a commitment to establish a statutory public inquiry into the handling of the pandemic in Scotland. In fulfilling that commitment, the Government took time to meaningfully and openly engage with the public on draft aims and principles for the Scottish inquiry. That process involved inviting written submissions, meeting many stakeholders and having an online conversation. I met several stakeholders during that engagement phase, including bereaved families and equality and human rights groups. That work was the subject of a published analysis report and directly shaped the development of the inquiry’s terms of reference.

On 14 December 2021, I announced to Parliament the establishment of the Scottish Covid-19 inquiry and the appointment of the honourable Lady Poole to be its chair.

Since my statement to Parliament, the inquiry has been in an establishment phase, which has involved the inquiry recruiting to build its team and putting in place the systems and infrastructure that are necessary for it to carry out its investigatory functions. I am pleased to note from the inquiry’s recent public announcement that significant progress has been made.

There has been keen public interest in the progress of the inquiry. Ministers must be mindful at all times that operational matters in relation to the inquiry are for the chair, but I am pleased to note that the inquiry launched its website—covid19inquiry.scot—two weeks ago. The website is a useful source of information on how the inquiry team will carry out its investigations and how it intends to handle the information that it obtains, and it includes a section where the latest progress and developments will be detailed.

On the inquiry’s work to gather information and evidence, I confirm that the Scottish Government has already been responding to requests from the inquiry about information that the Government holds that is relevant to the inquiry’s terms of reference.

The inquiry operates independently of Government, which is key to its integrity, and within the legal regime under which it has been established—the Inquiries Act 2005. The 2005 act sets out a clear framework for the functioning of the inquiry and, critically, it gives the inquiry powers to compel the production of documents and evidence and to call witnesses.

The 2005 act requires that ministers set the terms of reference for any public inquiry that they establish. In my December statement, I therefore announced the terms of reference, setting out 12 strategic elements of the handling of the pandemic in Scotland.

In recent remarks, Lady Poole summarised the approach that the inquiry is taking to the terms of reference. She stated:

“The Terms of Reference do not attempt to present a definitive list of every issue or every person that the inquiry will consider. Instead, they specify areas of investigation, and the Inquiry will interpret them with flexibility to ensure particular groups or themes are not excluded. Human rights and equalities are important to the Inquiry and will be taken into account throughout its work.”

Throughout the development by the Scottish Government of the terms of reference, it has been very important to ensure that no groups or themes were being excluded from the inquiry’s remit.

The terms of reference have been generally well received since they were announced in December. However, as I made clear then, I agreed with Lady Poole that she would reflect on the terms of reference and, should she wish to, suggest amendments. That period of reflection was designed to ensure that Lady Poole had maximum flexibility in designing her independent investigations and to ensure that the terms of reference were clear in accomplishing the purpose of the inquiry.

Additionally, the Government has taken careful note of representations made to it about the terms of reference and has discussed those with Lady Poole. As a result, and after consultation with Lady Poole, I am making three amendments, which clarify the terms of reference. First, we have decided to expressly include social care and the experiences of unpaid carers in the terms of reference.

Covid-19 has had a profound impact on the Scottish health and social care sector. I am aware that there are a number of important and legitimate questions relating to social care throughout the pandemic that people want answered. Social care was always intended to be within scope for the inquiry to investigate, but I appreciate that that has not been clear enough. Therefore, we are now clarifying the terms of reference to put beyond any doubt that the inquiry can examine the functioning of any aspect of our social care system. To that end, paragraph 2(h) of the terms of reference, as amended, will now task the inquiry

“To investigate the strategic elements of the handling of the pandemic relating to ... 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”.

On behalf of the Government, I pay tribute to everyone in our social care system who has worked tirelessly to deliver vital support during the pandemic and who continues to work to recover from the effects of the pandemic. That includes the distinct and invaluable role of unpaid carers.

The second change to the terms of reference has been called for by a number of organisations and is a clarification that I consider to be important to reassure stakeholders of the significance that we place on these matters. It builds on the statement in paragraph 6(b) of the terms of reference that, in the inquiry’s investigations, the chair is specifically asked to consider the impacts of the

“handling of the pandemic on the exercise of”

rights under the European convention on human rights. In its published statements, the inquiry has made it clear that, when it is considering findings about lessons learned, it will look at adverse effects on the exercise of human rights and equality issues, where relevant. In Lady Poole, the inquiry has a chair with direct and robust knowledge of and expertise in human rights and equalities.

We are now taking a further step, and are expressly highlighting the consideration of disparities in the terms of reference, which encompasses unequal impacts on people. Paragraph 6 of the terms of reference now includes the statement that

“the inquiry will, as the chair deems appropriate and necessary, consider any disparities in the strategic elements of handling of the pandemic, including unequal impacts on people.”

That clarification to the terms of reference reinforces the inquiry’s public statements on the importance of examining equality and other disparities as part of its assessment of each of the strategic elements of the handling of the pandemic.

The third amendment involves a clarification of the wording in terms of investigation of the decision to impose lockdown and other restrictions. As we all know, the imposition of lockdown and other restrictions had manifold impacts on all areas of our society. We wish to clarify the terms of reference to ensure that the impacts of the restrictions, including for those implementing them as well as those subject to them, are within the scope of the inquiry. Therefore, our amended paragraph 2(b) will task the inquiry

“to investigate the strategic elements of the handling of the pandemic related to the decisions to lockdown and to apply other restrictions and the impact of those restrictions.”

The full text of the terms of reference as adjusted will be available on the Scottish Government website.

Before concluding, I would like to inform the Parliament that, in all this activity, we have taken into account the remit of the United Kingdom-wide public inquiry into Covid-19 that the UK Government is setting up. Under the 2005 act, the Scottish Government is also a consultee on the UK inquiry draft terms of reference. I am pleased to note that the points that we raised with the UK Government have been adopted into the revised draft UK terms of reference that were consulted on by Baroness Hallett in April.

Following representations made to me by bodies such as Refugees for Justice, which we raised with the Prime Minister, I am particularly pleased to note the inclusion of immigration and asylum in the UK draft terms of reference. Legally, a Scottish public inquiry cannot examine reserved matters in Scotland. I am therefore pleased that vital issues that were identified during the pandemic, such as, for example, the Home Office’s treatment of asylum seekers in accommodation, can be scrutinised by an independent public inquiry.

We remain committed to working with the UK Government on the UK-wide inquiry and expect liaison between the inquiries, as indicated in the Scottish and UK inquiry terms of reference.

The Scottish Covid-19 inquiry has said that it will carry out a fair, open and thorough investigation to establish what lessons should be learned from the strategic response to the pandemic. That is no less than what is needed and I hope that the terms of reference amendments further equip the inquiry to achieve that objective.

I again pledge the Scottish Government’s full engagement to support Lady Poole, as I know that this Parliament and the people of Scotland will, in this vital task.

The cabinet secretary will now take questions on the issues raised in his statement. I intend to allow around 20 minutes for questions, after which we will move to the next item of business.

I welcome the statement on the inquiry into the handling of the Covid-19 pandemic, and I thank the Scottish Government for keeping to its commitment, unlike in Wales, where the Labour Government is refusing to carry out a similar inquiry.

National health service and social care staff played a vital and enduring role during the Covid-19 pandemic and, along with my colleagues, I reiterate my thanks for their efforts and continued resilience as we begin to rebuild from the pandemic. The inquiry in no way looks to undermine the valuable work that NHS and social care staff did during those dark days.

I echo the importance of finding answers about the handling of the pandemic, when so many of us were touched by the loss of loved ones. The scope and scale of the inquiry mean that it is probably the largest ever conducted and, although Lady Poole has the autonomy to make her own decisions, has the Scottish Government asked for indicative reporting milestones, because the public will want to know the timescales?

Scottish inquiries are notoriously slow to get started—the Edinburgh tram inquiry is now in its eighth year. That could be because of a lack of infrastructure, including not having an initial building, website or information technology infrastructure. What support will the Scottish Government give Lady Poole for the fundamentals to get the inquiry off the ground?

Finally, is there a mechanism in place that will allow Lady Poole to request additional resources if, in due course, she requires them?

If Dr Gulhane will forgive me, and with due respect to the fact that the Labour Party does not like me to talk about Wales, I will not talk about Wales.

On the substantive issues that Dr Gulhane has raised with me, I associate myself with all that he said about the contribution of health and social care staff during the pandemic.

While all of us appreciate and value everything that was done, the purpose of the inquiry is to learn lessons. If that involves us having to explore and examine what was done well and what could have been done better, that is what we will do, because that is the purpose of the inquiry and we should be open to such scrutiny.

On the practical issues that Dr Gulhane raised to do with reporting timescales and resources, accommodation and support for the inquiry, those are all operational matters for Lady Poole. It would be inappropriate of me to specify reporting timescales, other than to say that I have made it clear to Lady Poole that the Government is anxious to hear the conclusions of her inquiry at the earliest possible opportunity. We must respect her independence and the approach that she intends to take to pursue the terms of reference and to report accordingly.

I point out that different approaches to reporting have been taken in the range of inquiries that we have established. With some inquiries, the decision has been taken to report at the conclusion of their proceedings but, with others, such as the Scottish child abuse inquiry, reports on case studies have been provided on an interim basis. It is for Lady Poole to decide on the most appropriate reporting structures. Indeed, it is an essential part of her independence that she is able to do so.

I echo John Swinney’s comments and send my condolences to all those people who have lost loved ones during the pandemic.

I very much welcome the inclusion in the terms of reference of social care and unpaid carers, which many people have called for. Social care has undoubtedly shared the burden of the pandemic, as have unpaid carers, who, in caring for relatives and loved ones without much support, are unsung heroes.

I met Lady Poole yesterday, and I very much welcome the approach that she is taking. In particular, I welcome her providing an opportunity for people to share their experience in a listening exercise as the first stage of the inquiry. I am encouraged that Lady Poole recognises the importance of ensuring that the voices of everyone who has been affected are heard.

I note that the inquiry has the power to compel witnesses and to compel the provision of information, and that is the point that I want to focus on. Unfortunately, the Scottish Government has form here. It is not known for its openness and transparency. Indeed, it is one thing to withhold information from a parliamentary committee, but to withhold it from the Court of Session is quite another.

Therefore, can the Deputy First Minister guarantee to the Parliament and—much more important—to all those families who have lost loved ones that every piece of information that Lady Poole requires to do her job will be provided?

I am pleased—but not surprised—to hear that Jackie Baillie had a constructive meeting with Lady Poole, and I very much welcome her reflection that what she took from that conversation is the importance that Lady Poole attaches to hearing the voices of people who have been affected. That was the feeling that I got in my conversations with Lady Poole. I hope that the mechanisms that she is developing to enable that to be the case will help to assist with the process of healing, of which the inquiry must be part.

Jackie Baillie asked about the supply of information. The Government will comply fully with all requests for information from Lady Poole and the inquiry. We have started to do that already—we have had some requests, to which we have responded, and more requests will come in. We will reply to the fullest extent that we can.

As the Deputy First Minister said, we all want to learn lessons about the future from the inquiry. Can he say anything about how such lessons will be incorporated into future policy making so that we are well prepared for future pandemics?

We will have to wait for the conclusions that come from Lady Poole’s inquiry but, once that material is available, the Government is committed to considering and assessing it, building it into our Covid recovery strategy and looking at other approaches that we can take, especially in the resilience planning space. We want to ensure that, if there are steps that it is recommended that we take in order to be equipped to deal with any future pandemics, we can assess those recommendations thoroughly and properly and apply them where it is appropriate for us to do so.

The Scottish public will not expect silence from the inquiry during its long investigation. Regular updates, communications and perhaps even interim reports will be required, as has been the case with other public inquiries and as the cabinet secretary has just acknowledged.

Given that that will be the case, will the Scottish Government be given early access to, or sign-off on, any such updates, communications or interim reports? Will the Scottish Government be able to redact any material or evidence released by the inquiry or any of the evidence that it will itself provide to Lady Poole during the course of her investigations?

There are a number of complex issues in there and I may have to follow up my answer with the letter to give Mr Fraser absolute clarity. I can say that there will be no question of the Government signing off Lady Poole’s report and that it would be completely inappropriate for that to be the case. Whatever report is produced by the inquiry will be the work and conclusions of Lady Poole, and the Government will have no prior sign-off on the detail of that.

On the issue of redaction, certain legal and general data protection regulation issues may have to be considered. We will, of course, explain that to Lady Poole in the submission of evidence to her. For example, I can envisage a situation in which certain advice might be offered openly and in its full form to Lady Poole by the Government, but in which we might say to her that there might be legal or GDPR considerations regarding referring to or publishing that advice.

I will reflect on the response that I have given to Mr Fraser and, if I need to write to him to set that out in more detail or more specifically, I will do so. I think that that is the fairest way to respond to his question.

What will be the practical consequences of having a human rights-based approach to the inquiry, and how will that approach ensure that the voices of bereaved families are meaningfully heard?

The human rights-based approach is important to the inquiry, because the voices and experiences of individuals, and the impact that the pandemic has had on them, will be at the heart of the inquiry’s reflections.

In the amendments that I have made today to the terms of reference, and particularly in paragraph 6(c), there is very explicit wording about the necessity to

“consider any disparities in the strategic elements of handling of the pandemic, including unequal impacts on people.”

That is the manifestation of the human rights foundation of the inquiry.

We are fortunate that, in Lady Poole, we have an internationally renowned advocate on human rights and equalities issues who brings enormous experience to the inquiry. The changes that I have made to the terms of reference provide an opportunity to fulfil that. As I said in my response to Jackie Baillie, I know that Lady Poole is constructing an approach whereby she and the inquiry can hear the experiences of individuals as part of the evidence-gathering process.

I very much welcome what the Deputy First Minister has said today. Like Jackie Baillie, I will home in on what has been said about social care.

The most profound impact of the pandemic was the one on care homes, where the greatest grief, hardship and heartache were felt. Does the Deputy First Minister agree that families must get answers and be able to understand what happened and what the pressures were on staff and families? That is not in order to seek blame, but to understand, so that that can never happen again.

I felt that I made adequate provision in the original draft of the inquiry to address the issues that Mr Rowley raises. It is interesting to reflect that what one puts into a particular draft may not be what other people read from it. That is an important reflection.

At paragraph 2(g) of the inquiry terms of reference, there is explicit mention of “care and nursing homes”. I felt that that was adequate to address the issues that Mr Rowley has raised with me, but the feedback from individuals and groups was that we needed to be more explicit about social care. That is why additional terminology has been added on social care in paragraph 2(h), to ensure that the points that Mr Rowley properly raises with me are fully considered by the inquiry and there is no dubiety about that in the public mind.

Finally, I return to and reinforce a point that I made in my response to Jackie Baillie. I very much agree with Mr Rowley on this point. This is not about blaming people who were doing their best; it is about trying to help us to understand what could have been done better, and it is also about helping a process of healing for individuals who are experiencing grief and loss as a consequence of what they experienced. I hope that the inquiry can help in that endeavour.

My understanding is that the Scottish inquiry into the handling of the pandemic can look only into devolved matters in relation to Scotland. Is the Scottish Government confident that that will allow an accurate representation of the handling of the pandemic in Scotland, given the interplay of reserved and devolved issues?

To give a full answer to Mr McMillan’s question, I would have to say that the conclusions of both the Scottish and UK inquiries will give—we hope—a complete picture, because there will be issues that the Scottish inquiry is prevented from looking at because of the terms of the Inquiries Act 2005. Having said that, on the issues that we have raised with the United Kingdom Government as ones that we have been keen to see referenced in the UK terms of reference, there has been a positive response from Baroness Hallett. I very much welcome that.

I think that the best way for me to answer Mr McMillan’s point is to acknowledge that, although I am very confident that the Scottish inquiry will be able to undertake a comprehensive assessment of the decision making in Scotland, to an extent, the UK inquiry will provide input to the oversight of decision making in a United Kingdom context, which inevitably had an impact on some of the handling in Scotland.

I was very gratified to meet Lady Poole yesterday, and I think that we can all have justifiable confidence in her ability to perform this work. The listening exercise that she is about to embark on will provide catharsis for many of the 15,000 families who are grieving lost loved ones and the many more families of care home residents, but there will be so many stories in that listening exercise that only a tiny fraction will make it into her overall report. I ask the Deputy First Minister what consideration his Government might give to creating something like a national book of remembrance for those stories that cannot be captured in Lady Poole’s final report, which might give those families that ultimate closure.

I think that there is a lot of merit in exploring the point that Mr Cole-Hamilton has put to me. Discussion is being undertaken about the appropriate commemoration of the suffering in the pandemic. Indeed, just a couple of weeks ago, I attended the inauguration of a memorial in Pollok park in Glasgow, which is a beautifully designed set of wooden memorial sculptures. It has been drawn together at the instigation of the Herald newspaper. Alec Finlay, who is the artist behind the venture, gave a compelling account of its development. That is welcome, and it is a place where some healing can be undertaken by people.

However, I think that Mr Cole-Hamilton’s point is somewhat different, because it concerns having a national reference point where the suffering of individuals can be recorded. I will consider the point that he has raised. I think that it is a valuable suggestion. The Government is interested—and we hope that the inquiry will be part of this process—in assisting individuals in our country who are suffering to find some form of reconciliation through this process.

It is important to remember that, as a public inquiry, the Covid inquiry will proceed independently of Government. However, does the Deputy First Minister agree that it is vital to ensure that organisations and members of the public have every opportunity to have their say, and will he set out the steps that the Scottish Government has taken to facilitate that?

I agree very much with Collette Stevenson’s point. When it comes to the Government’s support, our part is to make sure that the terms of reference enable the inquiry to fulfil our expectations. I expect this to be my last word on the terms of reference; thereafter, they move over to Lady Poole, so that she can pursue the inquiry.

The Government will provide the resources that are required to support the inquiry and its full collaboration, as I indicated to Jackie Baillie. It will be up to the inquiry to conduct its proceedings.

As a number of colleagues have put on record, it is crucial that members of the public are able to express their contributions to the inquiry, and I know that Lady Poole is keen to receive those.

I welcome the decision to specifically include disparities in how the handling of the pandemic impacted on certain groups, as it has been well documented that Covid-19 has not affected everyone equally. Given the public interest in any outcomes of the Scottish inquiry, how will the Scottish Government ensure that its conclusions—including interim conclusions, if appropriate—are in accessible formats, in order to provide to all families who have lost someone the answers that they deserve?

That is an operational question for Lady Poole in her inquiry. However, because of her perspective and experience, and the foundations of her professional reputation in all such areas, I am confident that all the issues that Gillian Mackay has put will be fully taken into account in how the inquiry communicates its work to the wider public.

We all agree, I think, that the additions to the inquiry’s scope that were announced today are welcome.

The Law Society of Scotland suggested that consideration should also be given to Covid-19 in prisons and legal custody, in order to learn lessons for the future. Will the Deputy First Minister indicate whether that, along with the early release of prisoners as a result of the pandemic, will fall within the remit of the inquiry?

The best way to answer that question is to refer to the quote from Lady Poole that I read out:

“The Terms of Reference do not attempt to present a definitive list of every issue or every person that the inquiry will consider. Instead, they specify areas of investigation, and the Inquiry will interpret them with flexibility to ensure particular groups or themes are not excluded.”

I encourage members to reflect that the inquiry’s terms of reference have been written to be broad but that they should not be looked at as a checklist. The fact that a particular term is not in them does not mean that it is off limits to the inquiry. I hope that that reassures Tess White that the intention behind the writing of the terms of reference has been to keep the inquiry as broad as possible.

I appreciate that the inquiry will operate entirely independently and that it would therefore not be appropriate for the Deputy First Minister to give a timeframe for the report of its findings. However, is he in a position to inform the Parliament whether there will be any updates in the interim?

That will be for Lady Poole to determine. We aired some of those issues at the COVID-19 Recovery Committee this morning. It is important that, at the earliest possible opportunity, there is an identification of lessons learned, so that we can assess those issues as we plan our future approaches, given the fact that, although we would love to avoid such a situation, we cannot rule out another pandemic.

That concludes the ministerial statement on the Covid-19 inquiry. There will be a brief pause before the next item of business.