COVID-19 inquiry launches in Scotland: implications for participants and stakeholders

The Scottish COVID-19 inquiry formally opened on 25 May 2022, with the launch of a new website. In this article, we consider the next steps including which sectors and organisations could play an active role in the inquiry and the impact this may have on insurers.

Background to the Scottish inquiry

The Scottish COVID-19 inquiry, chaired by Lady Poole, is distinct from its UK counterpart. Its aim is “to establish the facts of, and learn lessons from, the strategic response” to the pandemic in Scotland.

In contrast to the UK inquiry, the Scottish inquiry will focus on devolved matters that fall within the remit of the Scottish Parliament and Government.

The terms of reference for the UK inquiry have yet to be finalised, but the Scottish inquiry will focus on 12 areas:

Pandemic planning and exercises carried out by the Scottish Government.

The decision to lockdown and apply other restrictions.

The delivery of systems of testing, outbreak management and self-isolation.

The design and delivery of vaccination strategy.

The supply, distribution and use of PPE.

Requirements for shielding and other assistance programmes.

The transfer, treatment and care of residents in care homes.

The provision of healthcare services, including the management and support of staff.

The delivery of end of life care and the use of DNACPR.

Welfare assistance programmes.

The delivery of education and certification.

Financial support and guidance given to businesses and the self-employed.

Alongside these 12 areas, the inquiry will consider the impacts of the strategic elements of handling of the pandemic on the exercise of Convention rights".

Who will be involved?

The areas for investigation span practically all of Scottish society, and the inquiry has the potential to impact a huge number of businesses, public bodies and individuals.

But the inquiry will be of particular relevance in some quarters, including:

  1. For organisations that might be subjected to scrutiny as part of the inquiry’s investigations. This group could include the Scottish Government, local authorities, NHS boards, private schools, universities, care providers, PPE suppliers and distributers, and many other organisations.
  2. For businesses of all kinds, given the focus on financial support extended to businesses throughout the pandemic. This group will include insurers, given the prevalence of business interruption claims throughout the pandemic.
  3. For those working in the sectors most affected by lockdowns and other restrictions, including hospitality, retail, travel and tourism.

These groups could all play an active role in the inquiry as core participants, and insurers should anticipate that some of them may seek funding for their participation under their policies of insurance (particularly where their involvement relates to matters that could later become the subject of damages claims).

Any prospective core participants should take steps now to prepare for the inquiry. In particular, they should consider what role they may be called on to play in the inquiry and how they intend to resource their involvement. They should be careful to identify and compile any relevant information and evidence they may be called on to disclose to the inquiry. Where appropriate, witness evidence should be preserved, including by the preparation of written statements (especially where key individuals are leaving organisations).

Lastly, careful consideration should be given to the economic and reputational implications of becoming involved in the inquiry (which may happen whether or not an organisation volunteers for it).

What difference will it make?

Lady Poole’s statement on the launch of the inquiry stressed it will undertake a fair, open and thorough investigation, with a view to answering legitimate questions” about the handling of the pandemic in Scotland. Given that goal, we can expect the inquiry to be an invaluable fact-finding exercise and an opportunity to reflect deeply on lessons learned.

However, it is likely to be some time before the inquiry reaches any final conclusions or makes recommendations of its own. For reference, the Edinburgh Tram Inquiry and the Scottish Child Abuse Inquiry are both in their sixth year, despite being much narrower in remit. The COVID-19 inquiries may progress more quickly, given the level of public interest in their findings, but it is difficult to see them concluding any time soon.

Whatever findings are ultimately made by the inquiry, they will not give rise to any direct criminal or civil liability, and no awards of compensation or damages can be made by the inquiry. Evidence recovered by the inquiry can, however, be used in the context of criminal or civil proceedings in the future. In fact, some civil proceedings may run concurrently with the inquiry.

Interested parties (not just core participants) should therefore take advice sooner rather than later about the potential issues arising from the inquiry’s investigations, and insurers should discuss with policyholders how the inquiry might affect them in the months and years ahead.

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