Jenny Dickson

Both the Scottish and the UK governments have established public inquiries to examine the handling of the Covid-19 pandemic. The inquiries are underway, both considering a wide range of aspects of the pandemic, as set out in their Terms of Reference.

Last year, the Scottish government appointed a new chair to the Scottish Covid-19 Inquiry, Lord Brailsford. In doing so, they took the opportunity to re-emphasise the importance of the inquiry taking a human rights based approach. The Terms of Reference were amended, and the Scottish government referred to “reflecting the commitment that the inquiry take a person-centred, human rights based approach”.

What is meant by a “human rights based approach”? There are likely two aspects to this approach: the what and the how.

What will the Scottish inquiry consider?

The terms of reference are wide. The Scottish inquiry will consider many aspects of the handling of the pandemic, including planning in advance, lockdowns, vaccination strategy, PPE provision, care in nursing homes, education and financial support. It will “consider the impacts of the strategic elements of handling of the pandemic on the exercise of Convention rights (as defined in section 1 of the Human Rights Act 1998)”.

What the Scottish inquiry considers within these categories is likely to touch on human rights. Article 2 of the European Convention of Human Rights (ECHR) provides for the right to life. The inquiry will likely wish to consider whether decisions taken by the state and public bodies breached Article 2. For example, this may be considered in the context of decisions regarding the discharge of patients with Covid-19 from hospitals to care homes.

How will the Scottish inquiry be run?

A human rights based approach will also impact how the Scottish inquiry is run. An easy way of understanding how the Scottish inquiry might be impacted is to consider previous Inquiries. The Equality and Human Rights Commission (EHRC) made legal submissions to the Grenfell inquiry. They have also published a number of papers about that inquiry, which assist with the public’s understanding of the inquiry process and its impact on equality and human rights.

The EHRC commented on a number of practical and procedural aspects of the Grenfell inquiry, raising concerns about some aspects of the handling of the inquiry. Like Covid-19, at the Grenfell inquiry there were bereaved families who wished to participate in the process. The EHRC commented that bereaved families should be able to take an active role in any inquiry. This includes having a chance to contribute to the scope of the inquiry, access to the venue in which the evidence is being heard, and an opportunity to question witnesses and participants. It goes further than simply being heard. This may be an indication of some of the ways in which the Scottish inquiry will deliver a human rights based approach through the processes it applies. However, ensuring that the bereaved families are involved poses quite different challenges for both Covid-19 Inquiries than it has done for previous public Inquiries. The number of families is vast, and they come from a range of groups with different experiences. It will be challenging for both Covid-19 Inquiries to interact effectively with the bereaved relatives, and it will be of vital importance to the success of the Inquiries that this is done well.

To the extent that the Scottish inquiry considers the circumstances in which many individuals died during the pandemic, it could be said that the inquiry itself is based on human rights law. Part of the Article 2 right to life is the procedural obligation on the State to carry out an effective investigation into alleged breaches of its substantive limb, i.e. to review where actions of the State may have led to lives being lost. This was considered in the case of Armani da Silva v the United Kingdom [2016] 63 E.H.R.R. 12. The Judgment set out, “those responsible for carrying out the investigation must be independent from those implicated in the events; the investigation must be “adequate”; its conclusions must be based on thorough, objective and impartial analysis of all relevant elements; it must be sufficiently accessible to the victim’s family and open to public scrutiny; and it must be carried out promptly and with reasonable expedition.”

When setting out how it will operate, the UK Covid-19 inquiry does not refer explicitly to taking a human rights based approach but all indications are that it will do so. It will listen to the experiences of bereaved families, and will produce its reports in a timely manner.

Equality Act 2010

Both Covid-19 Inquiries will consider the impact of the pandemic on all society. Early evidence indicates that it was disproportionately detrimental to the vulnerable, including those in poverty, the elderly and those with disabilities. The Equality Act 2010 legally protects people from discrimination in the workplace and in wider society. The Inquiries will need to ensure they prioritise non-discrimination and consider the impact on different groups. The Terms of Reference for the UK Covid-19 inquiry refer specifically to considering those with protected characteristics under the Equality Act 2010, as well as other categories of people.

Should human rights be considered at all public inquiries?

Public inquiries are convened by a government body to look into matters of public concern. Given that definition, many public inquiries consider the circumstances of multiple fatalities - the Grenfell fire, Manchester Arena bombing, treatment of patients under the Mid Staffordshire NHS Foundation Trust. They consider the treatment of individuals, which by their nature engage consideration of human rights. As can be seen from the EHRC’s comments on the Grenfell inquiry, often more can be done to achieve a true human rights based approach - both in terms of the subject matter considered by public inquiries and the process they follow.

We watch with interest to see how the Scottish Covid-19 inquiry delivers on its commitment to taking a human rights based approach.

Jenny Dickson is a partner at Morton Fraser. This article first appeared in the firm’s Litigation in Scotland Update 2023 Report.