Fiona Killen

A Human Rights Based Approach

The Scottish government has emphasised that the inquiry will adopt a ‘human rights based approach’ to its work, with human rights considerations integral to the way the inquiry operates to facilitate participation at all stages, as well as assisting in defining and interpreting the inquiry’s terms of reference. The inquiry will consider how the handling of the pandemic has impacted on rights protected under the European Convention on Human Rights with findings shaping the inquiry’s recommendations and outcomes. A more detailed consideration of what might be entailed in a human rights based approach to the inquiry is provided in a detailed briefing paper prepared for the Scotland Branch of the Covid-19 Bereaved Families for Justice UK by the Centre for the Study of Human Rights at the University of Strathclyde: A ‘Human Rights-Based Approach’ to the Scottish COVID-19 public inquiry.

Inquiry Terms of Reference

Following a government consultation exercise and stakeholder engagement during the course of Autumn 2021, the Scottish government announced the full terms of reference for the inquiry in December 2021 in the form of 12 strategic areas;

1. pandemic planning and exercises carried out by the Scottish government
2. decision to lockdown and to apply other restrictions
3. delivery of a system of testing, outbreak management and self isolation
4. design and delivery of a vaccination strategy
5. supply, distribution and use of Personal Protective Equipment
6. requirement for shielding and associated assistance programmes, provided or supported by public agencies
7. 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 inspections
8. provision of healthcare services, including the management and support of staff
9. delivery of end of life care and the use of DNACPR (do not attempt cardiopulmonary resuscitation decisions)
10. welfare assistance programmes, for example those relating to benefits or the provision of food, provided or supported by public agencies
11. delivery of education and certification
12. financial support and guidance given to businesses and the self employed, including in relation to identification of keyworkers, by public agencies.

The Delivery of Education and Certification

The strategic area encompassing the delivery of education and certification is incredibly broad in scope. All those delivering and receiving education and certification in different education sectors, whether in schools, colleges, universities or other educational bodies, will have their own experiences of how the Covid-19 pandemic impacted upon them. Interested parties will need to consider the extent to which they wish to be involved in the inquiry, at an individual level, an institutional level, or through representative or other stakeholder bodies in the education sector, including staff and student unions. Although the exact details of the procedure and stages of the inquiry are still to be announced, the chair has already confirmed that the inquiry will take both written and oral evidence.

Those involved in the higher education sector should be giving early consideration to what role they might play in the inquiry and the issues they would like the inquiry to address in the strategic area of education. These might be ongoing harms to the education system where greater scrutiny now could provide evidence of where further assistance is needed in the future, as well as harm that has been done, for example, in relation to students who have been unable to commence or complete courses, with lessons to be learned about what else might be done in the future to assist students in difficulty.

Other key issues for the higher education sector identified in evidence given earlier in the pandemic to the Scottish Parliament were staffing issues arising from Covid-19 including health and safety of staff members, practical issues in the delivery of courses, providing support to students experiencing a range of difficulties, delays in receiving updated guidance from government with an impact on planning for education delivery and examinations, the challenges of completing submissions to the Research Excellence Framework during a pandemic and the broader impact on fees and financial support for HE as a whole.

The impact on HE students, many of whom are young people, has also been significant, including on the physical and mental health of some students being locked down in student accommodation in the early part of the pandemic, uncertainty around the application of guidance and the ongoing challenges of online learning and assessment.

Some of these impacts will vary across a diverse HE sector and individual institutions may wish to provide their own input to the inquiry on certain matters, taking into account the particular impact on their own institution. Other issues may lend themselves to sector-wide representation, for example, in relation to fees, funding and financial sustainability.

How to Participate in the inquiry

A key question for parties with an interest in or experience of the impact of Covid-19 on the delivery of education and certification, who feel that they do have something to contribute to the inquiry, is whether they wish to give evidence to the inquiry as a witness, or whether they should have greater involvement and seek to become a ‘core participant’. The Inquiry (Scotland) Rules 2007 provide for a ‘core participant’ in a public inquiry to have a recognised status, with certain rights flowing from that status. These rights may include the opportunity to make an opening and/or closing statement to the inquiry, to be able to gain access to written evidence before it is published and to provide questions that may be put to witnesses at an inquiry hearing; and also include a right to be given an advance copy of reports of the inquiry before they are published.

Rule 4 of the 2007 Rules sets out the procedure for becoming a ‘core participant’ – by designation as such by the inquiry chair, either following an application to the inquiry that is accepted or by invitation from the inquiry. The chair will consider a number of factors in deciding whether a person should be included as a ‘core participant’. Rule 4(2) notes that the chair should place particular emphasis on the following factors in reaching a decision on core participants, based on whether a person:

• played, or may have played, a direct and significant role in relation to the matters to which the inquiry relates;
• has a significant interest in an important aspect of the matters to which the inquiry relates; or
• might be subject to significant or explicit criticism either during the course of proceedings at the Inquiry, or in the report (or any interim report) to be delivered under section 24 of the Act (submission of reports).

A person can be designated by the chair as a core participant at any time during the inquiry, but the chair can also specify in writing that a person ceases to be a core participant before the end of the inquiry. Witnesses and core participants can be legally represented at the inquiry.

Inquiry Reporting

It is understood that the inquiry chair has been asked to report the inquiry findings, to identify lessons and to make recommendations to the Scottish ministers ‘as soon as practicable’, but with no deadline fixed at present. The process of appointing staff to the inquiry is now underway, so that it can commence its work. A dedicated website for the inquiry is not yet live, but further developments will be reported on the Scottish government website.

Fiona Killen is a partner at Burness Paull