Chamber and committees

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.

Following the devolution of tax and social security powers to Scotland, the Scottish Government set up the independent Scottish Fiscal Commission, which has provided credible independent forecasts to Parliament and the Scottish Government since 2017. The Scottish Fiscal Commission Act 2016 requires the commission to produce at least two forecasts each financial year, containing its five-year forecasts of the economy, demand-led social security benefits and receipts from the devolved taxes, non-domestic rates, income tax attributable to a Scottish rate resolution and assigned VAT receipts. The Scottish Government will always respect the commission’s role and our budgets will always be accompanied by its independent forecasts.

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.

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.

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 UK Government did not engage with the Scottish Government on the most recent changes in fiscal policy for our budget. We face the prospect of further reductions as it tries to manage the damage caused by the Conservative mini-budget some weeks ago. Indeed, the Chancellor of the Exchequer himself has warned about “decisions of eye-watering difficulty”.

I have just completed a call with the new Chief Secretary to the Treasury, who has assured me that there will be dialogue with the Scottish Government in advance of the UK Government’s autumn statement on 17 November. I welcome that assurance. With inflation eroding the real-terms value of our budget by £1.7 billion since it was introduced in December, the UK Government needs to use the autumn statement to set out how it will protect public services, households and businesses from inflation and the cost crisis, and rule out a return to austerity.

The Scottish Government wants the inquiry to be delivered at speed and to address the range of questions that people have—the bereaved, in particular—so that we can learn and benefit from those lessons as early as possible. That is why arrangements for appointing a new judicial chair for the inquiry have been taken forward urgently to ensure a successful transition.

The Scottish Government remains committed to the vital work of the inquiry, as does the independent inquiry team, and Lady Poole will continue as chair during her notice period of up to three months. A further update will be provided to Parliament at the earliest possible opportunity.

The first point to make is that the Inquiries Act 2005 requires that the inquiry is independent of the Government. That is the law; I must obey the law and I am following the law. Under the 2005 act, ministers have the power to establish an independent public inquiry, to set its terms of reference, and to appoint a chair and a panel. Section 17 of the 2005 act gives an inquiry chair alone, rather than ministers, responsibility for deciding how an inquiry should operate. That includes the approach to taking evidence and engaging with stakeholders. That is the legal position that I must follow.

I considered carefully what information I should share with members of Parliament when I telephoned them on Monday evening, because I was mindful of my legal obligation to respect the independence of the inquiry. The staffing matters of the inquiry are exclusively a matter for the chair of the inquiry. At no stage have I tried to conceal information; I have simply respected the legal framework under which I must operate.

In relation to the sequence of events, Lady Poole emailed my office on Friday morning. I spoke to her within minutes of the email being received and Lady Poole intimated to me her decision to step down for personal reasons. In the course of that call, she indicated to me that four members of counsel had resigned from the inquiry the previous day. That was news to me, as were the circumstances that led to Lady Poole’s resignation, when I heard it on Friday morning.

I do not know where to start with that question, to be honest, because I simply stood up in Parliament and made it clear that I am following the law, which requires me to respect the independence of the inquiry. If I was to go around nit-picking about the inquiry, which is what Mr Cole-Hamilton invites me to do, Mr Fraser would be on his feet accusing me of interference. Can we please respect the fact that it is an independent inquiry?

The Government has done its bit, which was to appoint a chair and to consult on and agree terms of reference. As far as I am aware from any of the representations that I have had from across the chamber, those terms of reference are judged to be absolutely appropriate. Everybody across the chamber also took the view that Lady Poole was an appropriate appointment.

The two things that the Government is allowed by law to do—to appoint a chair to the inquiry and to establish terms of reference—have been broadly supported across the chamber. Lady Poole has decided to resign and it is not for me to interfere in the running of the inquiry.

My job now is to ask the Lord President to provide me with nominees for replacement judicial leadership, which I have done. I will resolve the leadership of the inquiry as quickly as I possibly can. I want to minimise any disruption and any interruption to the proceedings. There are many staff already in the inquiry. Lady Poole will manage the transition and we will continue to advance, to ensure that the bereaved families and others are able to air the issues that they wish to have aired in the public inquiry.

I hope that it was clear from my last answer to Jackie Baillie that the consideration of the bereaved families is absolutely central to the inquiry. If there is any group of people in our country who must secure answers in the Covid inquiry, it must be the bereaved families. I hope that that provides reassurance for Mr Fraser to share with his constituent.

In relation to the reasons for Lady Poole’s resignation, she indicated to me that, for personal reasons, she wished to step down from the inquiry. Those were her words to me and it is not incumbent on me to explore or examine the rationale for her statements to me.

Murdo Fraser’s final point is, to be frank, one to which I take the greatest of exception because I have judiciously followed the contents of the Inquiries Act 2005, particularly section 17, which guarantees the independence of the inquiry. For the record, there has been absolutely no political interference in the inquiry.