Terms of Reference

Introduction to the Inquiry’s Terms of Reference

The Inquiry is given Terms of Reference issued by Scottish Ministers. Terms of Reference set out the areas the Inquiry is empowered to investigate.

The Terms of Reference of the Scottish COVID-19 Inquiry list 12 areas the Inquiry will look at, in order to establish lessons to be learned and make recommendations for the future. The 12 areas cover aspects of health, education and support.

Before setting up the Scottish COVID-19 Inquiry, Scottish Ministers consulted on the Terms of Reference. The Scottish Government’s consultation report can be found here. The Terms of Reference were informed by the consultation. 

The Scottish Ministers issued the Inquiry’s Terms of Reference on 14 December 2021. There was then a period of reflection. On 9 June 2022 the Scottish Ministers, having consulted with the Chair of the Inquiry, announced in the Scottish Parliament some additions to the original Terms of Reference.

On 28 October 2022, following the appointment of The Hon. Lord Brailsford as Chair to the Inquiry, the Terms of Reference were amended to make reference to a human rights-based approach.

The Inquiry will investigate the areas in the updated Terms of Reference of 28 October 2022, which are set out at the bottom of this page. 

Approach to the Terms of Reference

COVID-19 affected everybody in Scotland.  Because the response to the COVID-19 pandemic raises so many issues, and so many people are affected, the Terms of Reference do not attempt to present a definitive list of every issue or every person that the inquiry will consider. Instead, the Terms of Reference specify areas of investigation. The Inquiry will interpret them flexibly. The Inquiry will investigate issues which are within one or more of the broad areas set out in the Terms of Reference. The fact that the Terms of Reference do not list particular groups does not mean that they are excluded. 

There are some legal restrictions on what the Scottish COVID-19 Inquiry can investigate. These include that the Inquiry can consider only “Scottish matters”. This restriction reflects the division of power under Scotland’s devolution settlement. The Scottish COVID-19 Inquiry is investigating the devolved response to the pandemic in Scotland. It is not entitled to investigate areas which were reserved in the Scotland Act 1998 – those are for the UK Covid-19 Inquiry. The Terms of Reference are drafted to reflect this position. However, if questions arise about whether something is a Scottish matter or not, the Scottish COVID-19 Inquiry will look at the effect of the measure in all the circumstances. Aspects of the response to the pandemic in Scotland which are wholly or primarily concerned with devolved matters, such as health, and not reserved matters, are likely to be within the scope of the Scottish COVID-19 Inquiry’s investigation.    

These are the Scottish COVID-19 Inquiry’s Terms of Reference:

Aim

  1. The aim of this inquiry is to establish the facts of, and learn lessons from, the strategic response to the COVID-19 pandemic in Scotland.

Scope

  1. To investigate the strategic elements of the handling of the pandemic relating to:
    1. ​​​​​​pandemic planning and exercises carried out by the Scottish Government;
    2. the decisions to lockdown and to apply other restrictions and the impact of those restrictions;
    3. the delivery of a system of testing, outbreak management and self isolation;
    4. the design and delivery of a vaccination strategy;
    5. the supply, distribution and use of Personal Protective Equipment;
    6. the 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. the provision of healthcare services and social care support, including the management and support of staff and the recognition, involvement and support of unpaid carers;
    9. the 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. the delivery of education and certification; and
    12. financial support and guidance given to businesses and the self employed, including in relation to identification of keyworkers, by public agencies.

Reporting

  1. To create a factual record of the key strategic elements of the handling of the pandemic
  2. To identify lessons and implications for the future, and provide recommendations
  3. To demonstrate how a human rights-based approach by the inquiry has contributed to the inquiry's findings in facts and recommendations 
  4. To provide reports to the Scottish Ministers as soon as practicable

Interpretation

  1. When interpreting and applying these terms of reference:
    1. in relation to points 2(b) to 2(l), investigations will cover the period between 1 January 2020 and 31 December 2022
    2. the inquiry will, as the chair deems appropriate and necessary, 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)
    3. the inquiry will, as the chair deems appropriate and necessary, consider any disparities in the strategic elements of handling of the pandemic, including unequal impacts on people
    4. the inquiry can consider only “Scottish matters” as defined in section 28(5) of the Inquiries Act 2005
    5. the inquiry respects the independent role of the Lord Advocate in relation to the prosecution of crime and the investigation of deaths in Scotland
    6. the inquiry must make reasonable efforts to minimise duplication of investigation, evidence gathering and reporting with any other public inquiry established under the Inquiries Act 2005

Translations

Please find translations of our Terms of Reference below.