Meeting of the Parliament

Meeting date: Thursday, October 27, 2022

Official Report 1125KB pdf

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Scottish Covid-19 Inquiry Chair

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

14:25  

In this statement, I will update Parliament on matters relating to the Scottish Covid-19 inquiry. In particular, I will announce a new chair and an amendment that will be made to the inquiry’s terms of reference.

I begin by repeating my condolences to those bereaved during the pandemic and repeat my conviction that the Scottish Covid-19 inquiry must help to provide the answers for which those individuals, and others affected by the pandemic, search.

In fulfilling our commitment to establish a public inquiry into the handling of the pandemic in Scotland, the Government took time to meaningfully and openly engage with the public on draft aims and principles for the Scottish inquiry. I again express my thanks to everyone who engaged with me and my officials during that important work on the design and scope of the inquiry.

On 14 December 2021, I announced to Parliament the establishment of the Scottish Covid-19 inquiry under the Inquiries Act 2005. Under that act, ministers have the power to establish an independent public inquiry, to set terms of reference and to appoint a chair and panel. In that December statement, I announced the terms of reference of the Scottish Covid-19 inquiry and the appointment of the Hon Lady Poole to be its chair.

On 9 June 2022, I announced to Parliament three amendments to those terms of reference. The amendments were designed to clarify the scope of the inquiry following a period of reflection. That statement was intended to be the final word from Government on the establishment of the inquiry. In particular, I expected that statement to be my last word on the terms of reference—thereafter they move over to the inquiry itself. Section 17 of the 2005 act gives an inquiry chair alone, rather than ministers, responsibility for deciding how an inquiry should operate. It was, and is, for the Scottish Covid-19 inquiry itself to comment on its work.

On 30 September, I was given notice by Lady Poole that she intended to step down from the role of chair of the Scottish Covid-19 inquiry for personal reasons. The Scottish Government was not given any indication before 30 September that Lady Poole had intended to resign. However, ministers fully respect Lady Poole’s decision and I accepted notice of her resignation. The Scottish Government is grateful to Lady Poole for the work that she has undertaken since the establishment of the inquiry; I thank Lady Poole for her work and wish her well.

The Scottish Government has always been clear that we want the inquiry to be delivered at speed and to address the range of questions that people—particularly the bereaved— have, so that we can learn and benefit from those lessons as early as possible. From recent discussions with the representatives of bereaved families, I am acutely aware how important it is that no delay to the inquiry should arise from Lady Poole’s resignation as chair. That is why arrangements for identifying a new inquiry chair have been taken forward as a matter of urgency, in order to ensure a swift and successful transition.

To that end, I have liaised with the Lord President regarding the appointment of a new judicial chair, in line with our previous commitment to having the Scottish inquiry led by a judge. I thank the Lord President for his engagement and co-operation on that matter. I have also benefited from the insights and reflections of bereaved family groups about what they would want to see from a new inquiry chair and I am especially grateful to them for their engagement at this time.

As a result of that work, I am pleased to be able to announce that the Hon Lord Brailsford, a sitting senator of the College of Justice of Scotland, will be the new chair of the Scottish Covid-19 inquiry and will assume that role tomorrow.

I am confident that Lord Brailsford will bring his extensive experience as a long-serving senator of the College of Justice to the role of chair of the inquiry and will approach its work in a way that properly addresses the need for answers to the questions posed by those who have suffered through the pandemic.

From my interactions with Lord Brailsford, I know that he is keenly aware of the need to ensure that the inquiry progresses and delivers at pace, in order that lessons can be learned in a timescale that will make them applicable and useful.

I am also assured that Lord Brailsford will undertake the role of chair in an inclusive way, with sensitivity, empathy and compassion. I am confident that Lord Brailsford will see that full scrutiny is applied in all the required directions to ensure that this inquiry provides the answers that it has been established to find.

I have asked Lord Brailsford to meet with bereaved families at the earliest opportunity, so that he may hear at first hand their perspective about the inquiry and its approach.

Lady Poole undertook in her resignation to support and assist with the transition to her successor. It will now be a matter for Lord Brailsford to determine how those handover arrangements will work in practice in order to best support continuity in the work of the inquiry.

The Scottish Government, in its role as sponsor of the inquiry, will provide operational support, as the chair considers necessary and appropriate, in order to enable the inquiry to continue its independent work and ensure that the progress that the inquiry has made so far is maintained.

I can also announce today that the terms of reference for the inquiry will be supplemented in one important respect. That amendment has been discussed with Lord Brailsford, and is designed to provide absolute clarity of the Government’s desire that the inquiry be taken forward in a way that supports our commitments to a person-centred and human rights-based approach.

The terms of reference for the inquiry currently set out 12 areas of investigation, each covering a strategic element of the handling of the pandemic. In investigating those 12 strategic elements, the terms of reference ask the chair to

“consider the impacts of ... handling of the pandemic on the exercise of Convention rights”

as they see appropriate, and to create a factual record of the key strategic elements of the handling of the pandemic.

In my June statement, I noted that we amended the terms of reference, including to expressly highlight the consideration of disparities by way of amendment to the terms of reference, which encompasses “unequal impacts on people”.

Today, I confirm that we will make one further addition to the reporting requirements in the terms of reference, which will be effective from the formal appointment of Lord Brailsford as inquiry chair. Specifically, that change will require the inquiry

“to demonstrate how a human rights-based approach by the inquiry has contributed to the inquiry’s findings in fact and recommendations.”

That requirement will co-exist with current references in the terms of reference to “Convention rights” and to considering “unequal impacts on people”.

The operation in practice of a human rights-based approach will, and must, still lie in the hands of the inquiry chair. However, that amendment reflects a joint commitment between Scottish ministers and the new chair that the inquiry take a person-centred, human rights-based approach to ensure that every person and organisation taking part can meaningfully participate, be treated fairly and be empowered to take part in the inquiry.

I am grateful to Lord Brailsford for supporting that amendment, the announcement of which, I hope, gives confidence to bereaved families and others about the future direction of the inquiry.

The inquiry operates independently of Government, which is a key to its integrity, and in the legal regime under which it has been established. The Inquiries Act 2005 sets out a clear framework for the independent functioning of the inquiry. This statement fulfils my duties under the act to inform Parliament of my intention to appoint a new chair.

I have also set out today my intention to change the inquiry’s terms of reference, and set out how that will be done. An inspired parliamentary question, to be answered tomorrow, will fulfil the duty under the act to

“set out the terms of reference”

as amended, and confirm that they have taken effect.

I should also note that no panel members will be appointed today, and that it will be for Lord Brailsford to consider whether to appoint any assessors to provide expertise on particular subjects or any other assistance to the inquiry.

From my own and the First Minister’s interactions with Lord Brailsford, I am left with no doubt that he is fully qualified for the demanding task put in front of him, and I express my gratitude and that of the First Minister to Lord Brailsford for his agreement to take on this important role on behalf of the people of Scotland.

I reiterate that the Scottish Government undertakes to engage fully to support Lord Brailsford and the inquiry in the vital task before them.

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

I would be grateful if members who wish to ask a question, and who have not already done so, were to press their request-to-speak buttons now or as soon as possible.

In the public gallery is Caroline Macdonald, who is a sufferer of long Covid and who is here at personal cost to her health and her wellbeing tomorrow. Long Covid has devastated her life and the lives of more than 200,000 other Scots. All long Covid sufferers—and everyone else in Scotland—will be dismayed by the resignation of Lady Poole, and there are still many unanswered questions regarding her resignation. I hope that the cabinet secretary will answer those in due course.

I welcome the appointment of Lord Brailsford. In the past, the tram and hospitals inquiries have been beset with delays. Given the resignation of Lady Poole, can the cabinet secretary guarantee that that will not happen again, and will he commit to the inclusion of long Covid in the inquiry?

First, I express my good wishes to Caroline Macdonald. I understand and fully appreciate the impact of long Covid—actually, I cannot fully appreciate the impact, because I have not experienced it, but I understand the suffering of individuals and the endurance that is involved. The Government is entirely focused on ensuring that we address the clinical needs of individuals who experience long Covid.

On the conduct of the inquiry, as Dr Gulhane will know, inquiries by their nature—in particular, those that are set up under the Inquiries Act 2005—must operate independently of Government. The operation of the inquiry is therefore a matter entirely for its chair.

As I have indicated to the Parliament, I very much regret the fact that Lady Poole felt it necessary to tender her resignation. She did so and I respect her reasons, and that is the end of the matter.

I have moved swiftly to replace Lady Poole with the eminent judicial leadership of Lord Brailsford, who will tomorrow be able to start his activities in leading the inquiry. I am very grateful to the Lord President and to Lord Brailsford for the substantial amount of reorganisation that has been involved in enabling that to be the case.

All the issues that Dr Gulhane raised about long Covid are legitimate to be raised as part of the inquiry. However, beyond the setting of the terms of reference, it would be wrong for me to prescribe what should be discussed in the inquiry. That is a matter for Lord Brailsford to determine within the scope of the remit.

I thank the Deputy First Minister for the advance sight of his statement. I welcome the news of the appointment of Lord Brailsford as the new chair and wish him well as he undertakes that incredibly important work. It is essential that there are no delays to the work of the inquiry, in order to retain the confidence of those who have lost loved ones to Covid.

I note, however, that the Deputy First Minister made no mention of the appointment of new senior counsel. Given the resignation of those at the same time as that of Lady Poole, can he advise of the likely timescale in which the chair will take that forward? When I raised the matter earlier this month, the Deputy First Minister was keen to quote at me section 17 of the Inquiries Act 2005, as an attempt, I think, to avoid comment on the resignation of senior counsel. However, other sections in that act permit him to engage with organisational matters. Let us be clear: he must not interfere with the evidence-finding activities of the inquiry, but he has a responsibility and indeed a duty to support the chair and ensure that the inquiry can function well.

As such, will he tell me what delay there will be to the work of the inquiry? Will he ensure that the chair has all the necessary resources that are required and that the chair can, should he wish, appoint people to staff the inquiry who are entirely independent of Government? Finally, to follow up my colleague Sandesh Gulhane’s question, will he confirm that consideration of the impact of long Covid is within the scope of the terms of reference of the inquiry?

There is a lot in there, but I shall endeavour to work my way through it.

First, I welcome Jackie Baillie’s comments on Lord Brailsford’s appointment. When I spoke with him on Tuesday to advise him of my intention to appoint him, he indicated to me that he believed it to be an honour to be invited to lead the inquiry, and he said that in his public statement this afternoon. That speaks for what Lord Brailsford will bring to the inquiry. He realises its significance.

As I said in my statement, I have also asked Lord Brailsford to engage with bereaved families, which he has agreed to do as an early priority. I totally accept the importance of ensuring continued confidence; indeed, just before I came into Parliament this afternoon, I had three separate discussions with bereaved families groups to advise them of the contents of the statement.

In relation to the conduct of the inquiry and the appointment of senior counsel, the point about section 17 is not pedantic. There are very good reasons why the Government is not, and should not be, close to these matters. Those are questions for Lord Brailsford; he is engaged on those questions, and will be engaged on them tomorrow, when he assumes his formal responsibilities. I unreservedly give the commitment that the Government will provide whatever support Lord Brailsford considers necessary, and I have made that offer to him.

In relation to the delay to the inquiry, I reassure Jackie Baillie that, since Lady Poole’s resignation, she and staff have remained engaged and the work of the inquiry has continued. The Government is undertaking work to support the inquiry in relation to requests for information that have been asked of us. That is all under way.

On resources, as I think I have said publicly before, the inquiry already has more than 60 members of staff, so there are resources there. If more resources are required, Lord Brailsford will advise me of the requirements. The Government—subject to ensuring that we can protect the independence of the inquiry—will give all operational support. However, Lord Brailsford will be the judge of that, as he is the custodian of the independence of the inquiry. I am very confident that he will exercise that judgment.

In relation to the previous two questions, I welcome the Deputy First Minister’s commitment to the long Covid issue, as that is an issue that has been raised with me.

It is right that bereaved families should be at the forefront of all our minds as the inquiry progresses. How will the Scottish Government ensure that their voices are kept central to the inquiry’s work and that their testimonies are handled with sensitivity and respect?

I apologise to Jackie Baillie that I omitted to deal with the point about long Covid. I am not in any way avoiding the question, but we have set out the scope of the terms of reference and, in my judgment, long Covid issues are certainly within the scope of the terms of reference. Fundamentally, though, it is a matter for Lord Brailsford to determine as he leads the evidence in the inquiry. I hope that that addresses Mr MacGregor’s first point.

On the bereaved families, I cannot stress to Parliament more the importance that I attach to the voices of bereaved families being heard in the inquiry. I have asked a number of things of Lord Brailsford, including to chair the inquiry and to follow the terms of reference, but I have also asked him specifically to meet the bereaved families groupings as an early priority, because I think that that is important. As I said to the families, I have done my best to convey to Lord Brailsford what they have said to me about how they feel about the inquiry. It is critical that Lord Brailsford hears that from the families, and he has given me the undertaking that he will do so.

Were any of the four counsel who resigned from the inquiry required to sign a non-disclosure agreement? If so, was there any payment associated with that?

I do not know the answer to that question and it is not appropriate for me to know the answer to it, because those are operational matters for the inquiry. If Mr Fraser wishes to pursue that issue, he could raise it with the secretary to the inquiry.

Nobody’s life has been untouched by the pandemic, and people from all areas of society will rightly be invested in the inquiry. With that in mind, how will the Scottish Government ensure public confidence in the inquiry and its new team?

There has to be very active engagement with those who have an interest in the inquiry, and the inquiry needs to make progress at an early stage to ensure that we address those questions. Covid has not disappeared from our lives—unfortunately, it is still part of the fabric of our society. As we go into a very challenging winter, there are many decisions that will have to be taken that will be affected by the presence of Covid. Understanding and learning the lessons as quickly as possible is a critical part of the work that we must undertake to ensure that the inquiry fulfils its purpose and has an impact on public policy in Scotland in relation to Covid.

The Deputy First Minister will be aware that Scottish Labour, Amnesty International and other civil society organisations pressed for a human rights-based Covid inquiry. As per their letter, we and they were concerned that the terms of reference relied on the chair’s professional experience in equality and human rights and personal commitment to look at rights breaches. We were unconvinced then that the chair’s professional experience should substitute for human rights being embedded in the inquiry’s terms of reference, so I am pleased to hear the commitment to that today.

A human rights-based approach needs participation and accountability; disabled people felt left out of the response to Covid and must be included in the inquiry. Can the Deputy First Minister set out whether he would agree to commit to supporting their active participation in the inquiry and signal that their and others’ involvement is key? In order to do so, the terms of reference need to be explicit about what human rights mean and give explicit reference to a panel approach.

I welcome Pam Duncan-Glancy’s comments and her recognition of the step that I have taken today. What she invites me to do now is to prescribe—to a degree that was not envisaged in the Inquiries Act 2005—how the inquiry should operate. I have to have a legal basis for all the actions that I take as a minister. Section 17 of the 2005 act, as I read it, gives sole responsibility to the chair to decide how an inquiry should operate. If I did what Pam Duncan-Glancy invites me to do, I would be acting inappropriately under that section of the act.

Of course, Pam Duncan-Glancy has put her comments on the record. I am certain that Lord Brailsford will study the Official Report of today’s proceedings and I am sure that he will be interested to read the particular proposition that Pam Duncan-Glancy has fairly put on the record today.

I noted in the cabinet secretary’s statement that he used the words “at speed”, but I sometimes wonder whether what “at speed” means to the legal profession is slightly different from what it means to the rest of us. Can he assure families that this inquiry will not drag on as, I am afraid, the Edinburgh trams one has done?

I assure Mr Mason that the issues of Covid remain very present in our society. Indeed, as a member of the COVID-19 Committee, Mr Mason is engaged in all those questions. Therefore, the inquiry and Lord Brailsford strike me as being entirely seized of the importance of that point.

Other inquiries have taken a different approach from that of the trams inquiry. I have cited before the Scottish child abuse inquiry, in which Lady Smith has taken a modular approach and has reported on—I think—at least six modules. Therefore, the findings of the inquiry are already in the public domain, with evidence having been heard and further evidence taken. That approach has also been taken by Baroness Hallett in the United Kingdom inquiry. There are ways of making sure that the issues of concern in this debate can be heard early and swiftly. The point that Mr Mason raises can be satisfactorily addressed by the conduct and structure of the inquiry.

I congratulate the Deputy First Minister on the swift turnaround of the appointment of Lord Brailsford, who carries with him the good wishes of the chamber. I am also gratified to hear that, in Mr Swinney’s judgment, the inquiry could look into long Covid, which affects 200,000 Scots. Although all of Scotland wants to know how we handled our nation’s response to Covid, we also need to know how we handled our response to what Covid can become.

We know that inquiries, such as the Iraq, Penrose or trams inquiries, can take many years. Given the length of time that this inquiry might take, although he cannot direct the inquiry, does he share my desire to see some kind of interim report to at least answer some questions as we get the answers to them?

First, I welcome Mr Cole-Hamilton’s points, which are encouraging in relation to the conduct of the inquiry. The terms of reference are deliberately designed to enable Lord Brailsford to take a modular approach. There are 12 different sections of the inquiry remit and they are all reasonably compartmentalised. Therefore, it would be possible to do exactly what Mr Cole-Hamilton says and, as I have reflected in my answer to Mr Mason, I think that the experience of Lady Smith’s inquiry is a good example of being able to give people timely conclusions, based on the hearing of evidence, rather than waiting some time—sometimes, a very long time—for some conclusions to materialise.

Again, I think that Mr Cole-Hamilton’s points are valid ones; the operation of the inquiry is for Lord Brailsford, but he will hear the points that have been raised and will understand the seriousness with which they have been put forward.

With the listening project still scheduled to go ahead later this year, does the Deputy First Minister feel confident that the inquiry team has the capacity to conduct that activity properly, unimpacted by recent staff changes?

I think that it is possible and the point that Jackie Dunbar raises with me is a good example of how the inquiry has been proceeding with its activities while we have had the issue around its leadership. I pay tribute to the staff of the inquiry, who have continued with that good work. It gives a basis on which we can ensure that members of the public can engage with the inquiry through the listening project and their contributions can begin to be reflected in the conduct of the inquiry.

I welcome the decision to put human rights into the terms of reference. I appreciate that the inquiry is independent but, given the public interest in any outcomes of the inquiry, how will the Scottish Government ensure that the conclusions of the inquiry, including any interim conclusions if appropriate, are in accessible formats in order to provide all families who have lost a loved one with the answers that they deserve?

I have placed a requirement on the inquiry

“To demonstrate how a human rights-based approach by the inquiry has contributed to the inquiry’s findings”.

Also, in the recommendations, we place that very obligation on the inquiry—to ensure that it reports and it engages at all times in an appropriate and accessible way so that the needs of all interested parties are properly and adequately met as a consequence.

I have a point of clarification for the cabinet secretary. Are Scottish Government civil servants directly involved with the inquiry? If they are, would he not recognise that that might be a significant conflict of interest?

There are civil servants who have been seconded to the inquiry. That is a standard practice for public inquiries, because civil servants bring with them a great deal of expertise. However, it is critical that those civil servants exercise their professional responsibility, which, in my experience of the civil service, is an absolutely consistently delivered proposition.

When I entered Government in 2007, I had spent many years as a political activist, as a member of Parliament and as an observer of politics being told that civil servants could one day support an Administration of one colour and then, the next day, the self-same people could whole-heartedly support an Administration of another political colour. I wondered whether that was correct—I had no experience of such a situation before early May 2007—and, on day 1, I found out that it was correct, because those civil servants operate in an entirely professional manner, acting in line with their remit and accountabilities. That is part of their professional contribution and I am grateful to them for that.

First, I apologise for coming late to the chamber.

I have listened carefully to what the Deputy First Minister has said and I hope that Lord Brailsford is listening today to the genuine concerns about the long Covid situation that a lot of our constituents keep coming to us with.

It is unfortunate that the inquiry has been delayed because of the resignations, but I am sure that, once the new appointments have been made and finalised, the work will resume quickly. Regardless of the loss of time, how will the Scottish Government ensure that no corners will be cut in order to complete the inquiry and that the work will continue to be thorough and of a high standard?

As briefly as possible, please, cabinet secretary.

Lord Brailsford will bring his experience of many years in the Court of Session to bear in leading the inquiry. We have had a period when leadership of the inquiry has required to be changed. As colleagues across the chamber have recognised, I have addressed that as swiftly as humanly could have been the case. I am grateful to the Lord President and to Lord Brailsford for their engagement on this question, and I am very confident that the inquiry will proceed in a professional manner to address what are issues of vital importance to members of the public and members of the Parliament.