Public inquiries have their own mixed history in Scotland. The Cullen Inquiry into the Piper Alpha disaster concluded within two years, made 106 recommendations and led to the Offshore Safety Act. The Edinburgh Trams Inquiry, in contrast, commenced in 2015 and is yet to report. What hopes, then, for the Covid-19 Inquiry?
The Scottish Government wants the Inquiry to be judge-led and operational by the year end. The purpose is ‘scrutinising decisions taken in the course of this pandemic so far, and learning lessons for future pandemics’. It should give particular consideration to the ‘four harms of the pandemic in relation to Scotland’: direct health impacts, including in care homes; other health impacts; societal impacts, including education; and economic impacts. Views on this suggested approach are invited by September 30.
The government's announcement has been warmly welcomed, not least by bereaved families' groups. But there is much still to be clarified.
First, will this be a blame game or a learning opportunity? The political response to the announcement focussed on ‘major errors’ by the SNP government, ‘dither and delay’ and ‘accountability and responsibility’ (from the Conservatives, Labour and Liberal Democrats respectively). However important that may be, if the Inquiry is to meet the aim of learning lessons for future pandemics, then its worth will lie not in who did what, but in specific responses which can be applied in similar situations.
Allied to that, how will the Inquiry dovetail with other investigations? Care homes in particular may be facing fatal accident inquiries and civil claims – and, conceivably, criminal prosecutions. Although the findings will not be admissible in another forum, evidence to the Inquiry may be. Potential participants will no doubt be considering how to ensure they assist the Inquiry without prejudicing what's yet to come.
What about the scope of the Inquiry? The ‘four harms’ include other health impacts, but what will that cover? Will it be wide enough to encompass the public health consequences of the pandemic response? How will it address mental health impacts, hospital waiting lists and restrictions on civil liberties?
No mention is made of the judicial system. During the last lockdown, the number of criminal trials dropped by 75 per cent. The backlog is significant. Prisons became Covid-19 hotspots; how will that be avoided in future? The Scottish Civil Justice Council has just announced a consultation on draft rules covering the mode of attendance at court hearings. The rules, if adopted, would be a wholesale and radical recasting of civil justice in Scotland, with all bar most family actions being conducted remotely save in exceptional circumstances. What role for the Inquiry in addressing significant societal impacts such as this?
And finally, when will the Inquiry report? The tram inquiry is in its sixth year, the Scottish Child Abuse Inquiry in its fifth. The government's Aims and principles paper states it should be ‘identifying lessons throughout its work with timely reporting, including recommendations’. But that gives little comfort. for example, to care homes approaching winter with apprehension.
Any organisation which reasonably anticipates that it could be involved in the Inquiry should be ensuring it is identifying and archiving any relevant documents and data trails. Institutional memory can be quickly lost, particularly when it is the memory of decisions made under pressure and on the hoof. They should be considering how that information can be captured now, so that it is available to the Inquiry and presents a coherent narrative of who did what, when and – most importantly – why.
If the Inquiry does focus on lessons to apply in another pandemic; if it does go beyond the narrow confines of the health and care system; and if it can report in a timely manner, then perhaps we will learn from our recent history and not be doomed to repeat it.
Graeme Watson is a Partner at Clyde & Co