Meeting of the Parliament (Hybrid)

Meeting date: Tuesday, December 14, 2021

Official Report 1009KB pdf

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Covid-19 (Public Inquiry)

I remind members of the Covid-related measures that are in place. Face coverings should be worn when moving around the chamber and across the Holyrood campus.

The next item of business is a statement by John Swinney on a Covid-19 public inquiry.

17:03  

Today I am announcing to Parliament the establishment of a statutory inquiry under the Inquiries Act 2005 to examine the handling of the Covid-19 pandemic in Scotland. At the outset of this statement, I acknowledge that Covid-19 has had, and continues to have, an enormous and damaging impact on our society. Most painful of all, Covid-19 has led to significant loss of life, resulting in heartache for all those who have lost loved ones. We remember all those who have lost their lives, and I express my sympathy to those who mourn their loss. I hope that this inquiry will help to provide the answers for which those individuals search.

In the statement, I will outline the scope of the inquiry and I will inform Parliament about the appointment of a chair to lead it. To begin, I want to take a moment to recall why we are establishing a public inquiry. The emergence of the omicron variant is a stark reminder to us all that the pandemic continues to evolve and challenge us, but that does not mean that we can delay our efforts to learn from the past. Indeed, it underlines the importance and urgency of learning lessons from what has gone before.

The purpose of the inquiry is twofold. First, it is to provide scrutiny and answers to the questions that people have about how the pandemic has been handled in Scotland. Equally, it is to learn lessons, so that we can be as ready as possible to respond to future pandemics. It is in that spirit that the public inquiry is being established, and it is how we expect it to continue, to provide answers and help us to make improvements for the future.

At this point, I express my heartfelt thanks to everyone who has played a part in responding to the pandemic, whether on the front line in hospitals and care; in keeping shops and businesses going; at home, by finding new ways to work; or in taking the vaccine and helping to protect people around them. Responding to the pandemic has taken a lot from people across Scotland, and I thank every individual who has played their part.

In developing the terms of reference for the Covid-19 inquiry, it has been a key priority for the Scottish Government to listen to those who have been affected by the pandemic, and understand what they wish the inquiry to focus on, while recognising the need to establish the inquiry quickly. First and foremost, those affected include those who have endured the ultimate loss—bereaved families of partners, parents, children, sisters and brothers—as well as people who have lost friends and colleagues. Every life lost is one too many, and my condolences go to all those who have suffered losses and hardship. They also include wider groups of people who have been affected, whether carers or people working in health and social care, councils, businesses or community organisations. We have also taken care to listen to equality and human rights groups.

In the course of establishing the inquiry, we have taken more than 400 written submissions, and received more than 80 online ideas and nearly 200 comments through an online dialogue challenge. We have met more than 70 stakeholders from the third sector, private sector and public sector. The feedback that we have received has been considered carefully by the Scottish Government and captured in an engagement analysis report, which we are also publishing today.

The feedback from people affected by the pandemic has been key in developing the terms of reference that I am sharing with Parliament today. It includes, not least, strong public support for an inquiry with human rights at its heart. The matters that people raised have fed directly into the development of the scope of the inquiry. I thank everyone who has contributed their thoughts during the process—I know that, for many, that will not have been an easy thing to do.

The terms of reference for the inquiry set out 12 areas of investigation, each covering a strategic element of the handling of the pandemic. The areas are as follows: pandemic planning and exercises carried out by the Scottish Government; the decision to lock down and apply other restrictions; 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 changes to inspections; the provision of healthcare services, including the management and support of staff; the delivery of end-of-life care and the use of “Do not attempt cardiopulmonary resuscitation” decisions; welfare assistance programmes, such as those relating to benefits or the provision of food provided or supported by public agencies; the delivery of education and certification; and financial support and guidance given to businesses and the self-employed, including in relation to identification of key workers by public agencies.

In investigating those 12 strategic elements, the terms of reference further ask the chair to

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

and create a full

“factual record of the key strategic elements of the handling of the pandemic.”

With the exception of the investigation of pandemic planning, the period that will be covered by the inquiry is from 1 January 2020 to 31 December 2022. The chair is asked

“To identify lessons and implications for the future, and provide recommendations”,

and

“To provide reports to the Scottish Ministers as soon as practicable.”

As I stand here, I am keenly aware of the fundamental challenge of striking the right balance between, on the one hand, addressing the wide range of questions that so many people have and, on the other, making sure that the inquiry can be delivered at speed, so that we can learn and benefit from lessons as early as possible.

To that effect, I have agreed with the chair that, as they begin their work, they will reflect on the terms of reference and suggest adjustments, should they wish to. If ministers then agree any changes to the terms of reference, I will undertake to inform Parliament as soon as possible. That includes adjustments to take into account the remit of the United Kingdom-wide public inquiry that the UK Government has undertaken to establish, as well as any issues arising in the on-going pandemic that the inquiry judges to be important to investigate. We remain committed to working with the UK Government to develop the approach to the UK-wide inquiry and expect the chair of the Scottish public inquiry to co-ordinate with the chair of the UK-wide inquiry.

The full text of the terms of reference is available on the Scottish Government website as of now.

Over the past months, ministers have been in discussions with the Lord President of the Court of Session to find a suitable chair for the inquiry, in line with our commitment to have the inquiry led by a judge. I would like to express my thanks to the Lord President for his co-operation on the matter.

Today, I am pleased to announce to Parliament that the Hon Lady Poole has agreed to chair the Scottish Covid-19 inquiry. Lady Poole is a sitting senator of the College of Justice of Scotland and has also sat as a judge in the Upper Tribunal of the United Kingdom. From my own and the First Minister’s interactions with her, I am left with no doubt that Lady Poole is highly qualified for the demanding task that has been put in front of her. I believe that she will bring pace and energy to the work of the inquiry, as well as a cool, calm head, and that she will approach experiences of the pandemic sensitively and sympathetically.

I am satisfied that Lady Poole possesses the leadership skills, integrity and deep technical knowledge needed to undertake the inquiry. I note in particular Lady Poole’s high degree of expertise in administrative law and human rights law, which is of crucial importance and is exactly in line with our expectations that the inquiry should take a human rights-based approach. I should say that Lady Poole has made clear to the First Minister and to me her conviction that human rights and equalities should be addressed as part of the inquiry and in the way it is run. I am convinced that Lady Poole will approach the inquiry in such a manner as to do justice to those who have suffered through this pandemic and to make sure that we learn the lessons that we need to learn so that Scotland is prepared for the next one.

No panel members will be appointed today. It will be for the chair to decide whether to appoint any assessors to provide expertise on particular subjects or any other assistance to the inquiry. 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. Once set up, the inquiry will make announcements about its approach and progress as the chair sees fit.

I extend my thanks to Lady Poole for being prepared to take on this most important challenge on behalf of the people of Scotland. We all need the inquiry to explore the handling of the pandemic and to identify the lessons that we all need to learn. I pledge that the Scottish Government will engage, as I know that this Parliament and everyone in Scotland will, to support Lady Poole in this most important task, which she now takes forward on behalf of us all.

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. It would be helpful if members who wish to ask a question were to press their request-to-speak buttons now.

I thank the cabinet secretary for providing advance sight of his statement. I welcome the establishment of the inquiry that has been announced today, which will be particularly welcomed by the relatives of those in care homes who tragically lost their lives to Covid, who have been waiting patiently for the process to begin. I also welcome the appointment of Lady Poole as inquiry chair, with her focus on human rights and equalities.

I have two questions to ask the Deputy First Minister. First, those who lost loved ones want answers as to what went wrong, and they want to know when they are likely to get them. The Deputy First Minister said that the process would be conducted at speed. I appreciate that this may not be an easy question for him to answer, but it would be helpful if he could give us an indication of when we might expect Lady Poole to report on her findings. I think that the relatives would welcome that.

Secondly, the Deputy First Minister will be aware of concerns that we expressed about the fact that the report by Public Health Scotland on Covid deaths in care homes up to February was not published as scheduled because of the Holyrood elections in May. Will the Deputy First Minister give an assurance that the Scottish Government will co-operate fully with the inquiry and make all necessary information available to it as quickly as possible?

Mr Fraser is right that his first question is difficult for me to answer. There are different ways in which public inquiries can take forward their reporting responsibilities and it will be for Lady Poole to determine how she does that. I can give Mr Fraser an example. In the historical child abuse inquiry, Lady Smith has published a series of case study findings in the course of her work. Those have been helpful in giving answers to individuals who have experienced abuse in those circumstances.

I hope that the way in which we have structured the remit of the inquiry on Covid will give Lady Poole the opportunity to consider whether she could perhaps publish an interim set of conclusions on a similar case study basis. However, that is me intruding on the design of the inquiry, which I am not entitled to do. We obviously want to receive a report, or findings, as quickly as possible, but there has to be adequate time to undertake the tasks. I am sure that Lady Poole will make clear her approach to that point in due course.

In relation to Mr Fraser’s second question, I dispute the narrative that he sets out, but I assure him that the Scottish Government will co-operate fully with the inquiry. I have given a pledge to do so, and the Government will do that in every way that is required of it.

I thank the Deputy First Minister for providing an advance copy of his statement. I, too, welcome the announcement that the Hon Lady Poole will preside over the public inquiry.

It is important that we do not wait to learn lessons from the initial decisions that were taken on the pandemic, to inform our thinking as quickly as possible. On that basis, will the Deputy First Minister indicate when the inquiry will start?

The previous Cabinet Secretary for Health and Social Care set out the four harms that would be considered by the public inquiry, and I am pleased to see that those are reflected in the remit. It is right that some of the focus will be on deaths in care homes, which were at the very epicentre of the pandemic, and on decisions by Scottish ministers to discharge people from hospital without testing.

The inquiry will also examine the non-Covid health impacts. Today, National Records of Scotland told us that the number of deaths for non-Covid reasons has increased. The number of deaths was higher in each of quarters 1, 2 and 3 than the previous five-year average, and it was up by 15 per cent in the last quarter alone. Cancer deaths are up, coronary heart disease deaths are up, and deaths from dementia and Alzheimer’s are also up.

Will the Deputy First Minister confirm that item h) of the remit, on the provision of healthcare services, will encompass full consideration of whether decisions to cancel cancer screening programmes, delays in diagnosis and the cancellation of operations perhaps contributed to that higher-than-normal death toll among the population?

The formal process of establishing the inquiry requires a setting-up date to be established, which will be as early in the new year as we can arrange. That is a matter of negotiation between the Government and Lady Poole, with Lady Poole being very much in the driving seat in determining that moment. We will get the inquiry established so that it can begin its proceedings. We have taken a very significant step in getting to the appointment of a chair and the setting of terms of reference. Interim staff are in place to support Lady Poole and she will be able to take steps to establish the inquiry. I know that she wishes to proceed at pace.

In relation to the wider questions, many of the issues that Jackie Baillie raised are matters for the inquiry to consider. The four harms framework has been at the heart of the handling of Covid. I led that policy development within Government to recognise the fact that there are no easy choices to be made in handling the Covid pandemic. I acknowledge that there have been significant implications for other health services as a consequence of the prioritisation of Covid care. Sadly, that is what happens when a global pandemic comes upon us.

The inquiry will be able to consider and reflect all that thinking under the broad remit that has been given to it. Obviously, Lady Poole will be able to reflect on all those questions.

I extend my condolences to all those people who have lost loved ones to Covid-19. My thoughts are also with people who are living with long Covid.

I, too, thank the Deputy First Minister for providing sight of his statement. I am pleased to hear of and welcome the appointment of Lady Poole as chair of the public inquiry, and I welcome its human rights-based approach. It is important that the actions that have been taken by Government during the pandemic are examined so that lessons are learned, both good and bad.

It is therefore important that the public inquiry does not take years and years to report, with the moment to learn being lost. In the time that an inquiry can take, memories fade, contemporary evidence is lost and any hope of accountability withers. Will the Deputy First Minister provide assurance that the voices of all those who have been impacted across health and care, education and the wider community will be at the root of the inquiry? I impress on the Deputy First Minister the need to clarify a timetable so that we do not have another Penrose or Chilcot inquiry.

In the timetable of an inquiry, there is always a challenge between the need to provide adequate examination of all the issues that are involved and the speed of reporting. I know that Lady Poole feels that issue very acutely. She has made it clear to me that she does not want to spend the remainder of her judicial career leading this inquiry, and I very much agree with that sentiment.

I think that Lady Poole will be determined to ensure that the inquiry covers the ground that it must cover, but that it does so efficiently and promptly so that we can learn lessons and there can be the understanding and accountability that Beatrice Wishart has rightly talked about.

I cannot at this stage prescribe the timescale, but I give the Parliament the assurance that Lady Poole is keen to make as swift progress as she can and that the Government is very happy to support her in that endeavour.

I welcome the inquiry. As the Deputy First Minister said, the pandemic is clearly still evolving, and some people might think that it is too early to have a public inquiry, because we cannot look back at the whole thing. How would he respond to such people?

Mr Mason is absolutely correct. We have just had a statement that has dominated this afternoon’s session of Parliament, which has reflected on omicron—the latest challenge that we have had thrown at us. Three weeks ago, the Cabinet had a discussion that could, in general, be summed up as us feeling that the pandemic was in a relatively stable place. We found ourselves taking a dramatically different view 48 hours later because of the emergence of omicron.

Mr Mason makes a fair point, but the Government must acknowledge that the public have a desire to ensure that while we are dealing with this difficult situation, we are learning lessons to influence policy making in the future. That is what the Government is committed to ensuring is the case. We will co-operate with the inquiry but, at the same time, we must give attentive focus on ensuring that we manage the pandemic that we currently face. I am happy to give that assurance to Parliament today.

I only stood for election because I felt that there was poor communication between the Scottish Government and the national health service during the pandemic. I therefore welcome the inquiry. Will the cabinet secretary give an assurance that we can look at long Covid and how we have gone about treating patients who suffer from that debilitating condition?

I think that the Parliament will recognise that I have endeavoured to ensure that we have the broadest possible remit for the inquiry. Judging the treatment mechanisms for long Covid feels to me like a clinical matter that is perhaps beyond the scope of Lady Poole’s inquiry. There are plenty of clinical advisers who can consider the treatment of long Covid. Lady Poole is free to explore any questions that are relevant to the terms of reference. If issues arise in relation to long Covid, I am sure that we will hear about them.

I welcome the public inquiry and hope that it will be thorough. How will the Scottish Government ensure that all viewpoints and voices are heard during the inquiry, including, specifically, the voices of our asylum seeker and refugee population?

I have two points to make. First, the inquiry is embarking on its work with a human rights-based approach. It is important that the interests, perspectives and experiences of different groups in our society are fully considered and are at the heart of the inquiry. I am certain that the remit enables that to be the case.

My second point is a slightly more constrained one, which is that the inquiry is required by law to examine only Scottish matters. The implications of Scottish policy decisions on the asylum seeker community would be relevant and could be considered, but some questions about asylum policy are reserved issues for the United Kingdom Government. The inquiry would, by law, be unable to explore some of those questions.

During the pandemic, social care services stopped overnight for some people. Disabled people were left without help to wash and lived in their beds for weeks. That had a significant impact on their human rights and also meant that approximately 400,000 more people have taken on unpaid care, of whom 70 per cent have not had a break and most are women. On average, women spent four and a half hours per day on unpaid work, and the United Nations has said that women’s rights could be set back by 25 years.

The impact that decisions about social care had on disabled people, unpaid carers and women does not appear specifically in the remit for the inquiry, nor does the unequal impact that those decisions had on specific groups. Can the Deputy First Minister confirm that those issues are within the remit and work of the inquiry?

In the remit for the inquiry, we have tried to set out the range of issues in order to define the broadest possible scope in which they can be considered. In the notes on interpretation, we set out the basis of our doing so, which is about the application of convention rights as defined in the Human Rights Act 1998. We are trying to place a human rights-based approach at the heart of the inquiry. That involves an assessment of decision making in relation to questions such as discrimination and decisions that may be discriminatory in nature or have implications that are discriminatory in nature. All those factors are legitimate issues to be considered within the scope of the inquiry.

Will the Deputy First Minister provide an assurance that the public inquiry will engage with and speak to people from every constituency, with an initial focus on those areas that have suffered most greatly from the pandemic?

I am not sure whether Mr McMillan is using the term “constituency” in a parliamentary sense or to describe a grouping within society. It is important that the inquiry reflects the experience of every part of the country. As Mr McMillan will know from the community that he represents, some communities have had much harsher impacts as a consequence of some of the underlying issues of inequality that exist in those areas. Those issues—from across the country—will be considered and reflected on to ensure that we do adequate justice to the different experiences of different parts of the country.

We are still very much in the middle of the pandemic, following the development of the omicron variant. The inquiry cannot wait any longer. Will the cabinet secretary explain whether the inquiry will provide interim reports to inform scrutiny and how it will examine the on-going response to omicron?

In relation to the last part of Gillian Mackay’s question, I note that, as the period within the inquiry’s scope will go up to 31 December 2022, there will be an opportunity to reflect on the experiences in relation to omicron.

In relation to the reporting questions, I refer to the examples that I gave in my response to Murdo Fraser. There will be an opportunity, should the inquiry decide to do so, to do case study reporting or produce a series of interim reports. Those are choices that Lady Poole will be able to make, and I am quite sure that she will consider the representations that are made in the course of our discussion on this parliamentary statement and elsewhere about how matters can best be taken forward.

I welcome the inquiry, which will quite rightly be extensive and in depth. I note that there are 12 heads but that, as the Deputy First Minister said in his statement, the chair is asked

“To identify lessons and implications for the future, and provide recommendations”,

and

“To provide reports”—

that word is plural—

“to the Scottish Ministers as soon as practicable.”

Am I correct to assume that the chair is being asked to identify under the specific heads which matters to report on “as soon as practicable”, so there will be interim reports rather than just a fully fledged report for the entire inquiry? That will be a matter for the chair.

Yes. The chair has the scope to consider how best to address the 12 areas of investigation at the heart of the inquiry’s terms of reference. It will be up to Lady Poole to determine how best to hear and to structure evidence to enable that, and then to report accordingly. In my statement, I perhaps suggested some matters in more detail than I should have done, but it will be for Lady Poole to determine the issues independently of Government. I stress that she will operate absolutely independently of Government.

In the light of what the Deputy First Minister has just said, will the inquiry be allowed to examine the way in which the Scottish Government reported to the Scottish Parliament and the way in which the Scottish Parliament was permitted to scrutinise Scottish Government decisions?

The terms of reference are there. I think that my judgment is that Lady Poole might think that the way in which Parliament scrutinises the Government is a matter for members of Parliament. Members of the judiciary tend not to reflect on the processes of Parliament. However, I have no opinion on whether that issue should be considered. For the record, I note that there has been a voluminous amount of parliamentary scrutiny, not least in my Thursday morning meetings with Mr Whittle and his colleagues.

As well as the tragic health impacts of Covid and, given the necessary protections, the evident economic impact, there will be effects that we are yet to feel. Can the Deputy First Minister outline how the inquiry chair will work to identify those areas so that all possible lessons are learned for future pandemics?

By defining a time period that extends to 31 December 2022, we expressly acknowledge the point that Mr Fairlie makes. We are in an evolving situation. That was also reflected in the question that Mr Mason put to me a few moments ago. We must recognise that there may well be changes and developments ahead of us. The inquiry will have the opportunity to consider and reflect on those issues and to make recommendations accordingly, and it will be for the inquiry to determine how best to do that. It would be inappropriate for ministers to prescribe that.

That concludes questions on the statement. Before the next item of business, there will be a short pause to allow front benchers to move seats safely.