Scottish COVID-19 Inquiry: Analysis of the public and stakeholders views on the approach to establishing the public inquiry

1. Section One - views on how the Inquiry could operate

It is important to clarify at the outset that not all of the views expressed are about matters that Ministers can decide. Section 17 of the Inquiries Act 2005, gives an Inquiry Chair alone, responsibility for deciding how an Inquiry should operate. This includes its approach to taking evidence and engaging with stakeholders. Nevertheless, these views on Inquiry operations could be the expectations or hopes of Ministers in establishing a public Inquiry.

The following section outlines themes extracted from the public and stakeholders’ responses relating to how the Inquiry could operate. In summary, a key priority for many respondents, was the assurance that human rights are respected, protected and fulfilled in the design, running and outcomes of the Inquiry. Further, that human rights are fulfilled in terms of the implementation of the Inquiry’s recommendations, and by ensuring that people know how to claim their rights.

This section of the report begins with an overview of the human rights based approach and then moves to views on the following topics:

• accessibility and inclusiveness
• support
• person centred approach
• equality
• appointing panel members and assessors
• Inquiry reporting and timing

1.1 Human rights based approach

This would involve ensuring the Inquiry itself operates in ways that are compatible with human rights. Also, that its investigations involve assessing evidence about pandemic decisions against a human rights framework to assess where human rights were or are being breached; to evaluate the reasons why and to learn lessons.

The area of digital communication and human rights provides an example of how this approach might be applied to the Inquiry’s investigations. This Inquiry may consider not just people’s access to digital devices in the pandemic, but also review the different ways that the move to digital (or phone communications) affected people’s human rights in other areas, for example, in changing how people access healthcare. The Inquiry could then make recommendations about digital services and communications in the future. ^[4]

For human rights to be at the heart of the Inquiry’s operations, some respondents suggested that the Inquiry adopts PANEL principles across the various stages of the Inquiry including the structure, process and outcomes. These are: Participation, Accountability, Non-Discrimination and Equality, Empowerment and Legality.

“Make it explicit in the Terms Of Reference that the Chair will act in accordance with human rights requirements in making decisions about the conduct and procedure of the Inquiry, and ensure that the PANEL principles are complied with in the running of the Inquiry.” (Scottish Parliamentary Corporate Body, email submission).

This will also involve applying legal frameworks, such as the European Convention on Human Rights (ECHR).

What a human rights based approach looks like

“It is imperative that the voices of those most affected by the pandemic, and those who support them, are heard in a meaningful way and their voices prioritised. Ensure people are at the centre of the Inquiry and everyone is heard.” (Third sector, email submission)

This next section captures some of the points that fell under this theme (human rights based approach) categorised into views about accessibility and inclusiveness, support for those participating, person centeredness and equality. For a summary, see Table 1 below:

Table 1: Human rights based approach

Principle - Accessibility and Inclusiveness

Summary

• practical accessibility of the environment (e.g. venues) where Inquiry hearings will take place
• maximising involvement in the Inquiry
• use of accessible approaches and methods to gather evidence and promote the Inquiry

Principle - Support

Summary

• help and support from the Chair for those participating in the Inquiry

Principle - Person-centred approach

Summary

• respecting the individual and their needs
• focus on lived-experience
• focus on intersectionality

Principle - Equality

Summary

• focus on those with protected characteristics
• investigate how existing and emerging policies are aligned to ensure that the long term impact of the pandemic does not deepen inequalities

1.2 Accessibility and Inclusiveness

Respondents suggested that the Inquiry could be accessible in order to ensure that no one is excluded from being able to engage. This will involve minimising any barriers to participation (e.g. practical, financial, geographical) in order to accommodate and respect the broad range of people and organisations who want to engage with the Inquiry. This includes providing evidence and accessing any information/outputs that are disseminated from the Inquiry.

Respondents raised three main topics (all of which are the responsibility of the Chair). They were:

• the practical accessibility of the environment where Inquiry hearings will take place
• maximising involvement
• the use of accessible approaches, and methods to gather evidence

1.3 Environment

Some responses noted the importance of the provision of safe spaces for people to give evidence, with considerations given to privacy, comfort and confidentiality. This may include both physical and virtual environments. In the case of online access, there should be thought given to the provision (access and cost) for those who may find this difficult.

At the root of this, was the suggestion that the Inquiry should ‘meet people where they are’ (Third sector organisation, email submission). This would involve adopting a flexible approach to the process of gathering evidence and putting the requirements of the person, professional group and community first. These are principles which are embedded in the person centred approach as detailed below. For example, when thinking about venues for Inquiry evidence sessions, adult spaces may be a barrier for children and young people to participate. On the other hand, more ‘informal’ and culturally sensitive venues such as churches and community centres would be preferred by some. There are also geographic issues to consider to ensure that people from urban, rural and island communities have equal opportunities to participate.

1.4 Maximising involvement

Some respondents highlighted the need for the Inquiry to pro-actively search out and include the ‘seldom heard’. This term refers to underrepresented people who are less likely to be heard by agencies and decision makers.^[5] There are a range of intersecting factors that can contribute to someone being underrepresented including: disability, ethnicity, socioeconomic status, immigration status and homelessness. Of note, is that prior to the pandemic, a wide range of inequalities already existed across the Scottish population.^[6] The pandemic has exacerbated many inequalities and exposed groups to particular challenges. Therefore, respondents want the Inquiry to investigate these challenges and consider learning from any new ways of working across services and boundaries. For example, how feedback from communities can shape recovery and wider public service reform around understanding and reducing inequalities in partnership with those who experience them.

To help with this, it was suggested that the Inquiry could use community outreach techniques, working closely with community leaders, advocacy organisations and grassroots organisations. These organisations are likely to have higher levels of cultural competency and established trust with less visible and seldom heard groups.

“The Inquiry should build in ways to listen to smaller or less visible groups.” (Scottish Parliamentary Corporate Body, email submission)

“We need to hear from those who are the furthest away from power and opportunity. For example, minority groups.” (Non-governmental organization, email submission)

1.5 Approaches and methods to collect evidence

The respondents recommended a variety of ways in which people and organisations should be able to contribute to the Inquiry that align to the principles of accessibility and inclusivity. In summary, this will involve the use of multiple approaches and methods to collect evidence and promote the Inquiry. Respondents suggested the use of some of the following:

• animations
• audio
• video link
• radio and TV (for promotion)
• online, email, apps and messaging services
• face to face
• phone (Freephone)
• written correspondence

People could be permitted to give anonymous contributions, if they wish, particularly from those making a disclosure which may be deemed as ‘whistleblowing’. Some respondents emphasised the need to ensure that engagement in the Inquiry will not trigger adverse impacts to individuals or organisations who may have concerns about disrupting relationships across sectors.

Others suggested that any output should include the six principles of inclusive communication ^[7] which considers the support people may need with communication needs, such as, a British Sign Language interpreter and information in different formats such as audio, large print and braille. Events and resources could be co-produced between the public and the Inquiry Chair to ensure the needs of all participants are satisfied.

“Disabled and chronically ill people have been through a lot and we need to find ways to engage with people at different levels of production – whether its consultation or co-production, it should be a mixture of methods. For example, the 'long table’ technique removes power dynamics and ensures co-production and allows everyone to share their views.” (Third sector organisation, email submission)

1.6 Support

Respondents expressed that there should be help and support for those participating in the Inquiry, including financial support, legal support, time to participate and emotional support. This would ensure that no-one would be ‘worse off’ financially, personally or professionally for participating in the Inquiry. Others noted the need to ensure that participants should be protected from the media.^[8] However, there may be a tension with this suggestion from other people who suggested that the Inquiry would benefit from being a public, or live-streamed event.

To ensure that workers can participate, it may be important that people can be released from their working hours to give evidence and pay for loss of wages and expenses. Some may also require support with childcare and/or caring commitments alongside travel and accommodation for participants. The Inquiry could also consider the pressures on, for example, professionals (across all sectors) to be able to collate and give evidence due to time and resource capabilities.

Related to the point about setting up ‘safe spaces’, some participants may be dealing with levels of trauma, fatigue and burnout. It may be necessary to consider using a trauma informed approach toward their participation, for example involving grief/bereavement counselling and a support line. This is particularly important as the pandemic is still ongoing. Therefore, in recognition that the harm may also be ongoing, the remit could include continuing support. This approach also extends to staff who are working on the Inquiry, including the panel members and the Chair.

Some respondents suggested that the Inquiry should draw on pre-existing material, where possible, to avoid re-traumatising people and to prevent asking people to re-tell their story multiple times. This may help to offset some of the challenges involved in asking people to give evidence of such an emotive nature.

From a legal perspective, refugees/asylum seekers who participate may require legal protection and health professionals may require access to independent medical legal advice. The ability of legal representatives to directly question witnesses was also highlighted.

1.7 Person centred approach and intersectionality

A person-centred approach encompasses a range of principles and activities. It is about respecting the individual and their needs and understanding their experiences. This should apply to the experiences of people, communities, professional groups and organisations.

Respondents provided a range of views on how the Inquiry can demonstrate a person-centred approach. Some of these have been discussed above, in terms of making sure that people who engage with the Inquiry are respected, comfortable and safe and that they have access to emotional support, if they wish.

Some respondents noted the amplifying effect that the pandemic may have had on people who were marginalised in some form, and recommended that the Inquiry consider having a specific intersectional focus. Intersectionality refers to the interconnected nature of categories such as age, sex and ethnicity to reflect the combinations of complex identities that affect people’s experiences.^[9] This approach would allow greater scope for considering the multiple ways that people may have been affected through their complex experiences.

1.8 Equality

Respondents expressed that the Inquiry could consider equality in terms of:

• the legal obligation to consider inequality and advance equality under the Equality Act 2010
• the rights of different groups (namely those with protected characteristics) ^[10]
• how the Scottish Government and the broader public sector considered equality in their decision making over the course of the pandemic
• the use of equality impact assessments
• the impact of the pandemic and mitigating actions on equality
• how existing and emerging policies can be aligned to ensure that existing inequalities are not deepened

Relevant to most of these points, is the Scottish Government and other public bodies’ collection, use and analysis of disaggregated data. Particularly with respect to groups sharing protected characteristics. There may be data gaps due to a general lack of robust data, poor granularity of data or a lack of gender sensitive data. It was raised that ‘irrational’ categories in the census for ethnicity may have negative implications for understanding experiences and the needs of different groups. For example, the use of, ‘BAME’ (Black, Asian and minority ethnic) to assume a common experience was critiqued.

“Scotland does not have enough information for minority groups, and communication was a challenge. There was no specific information for them, we need to think about communication to communities.” (Equality Stakeholder, online session).

The Scottish Government has recognised the fact that the pandemic has exacerbated pre-existing inequalities in Scotland.^[11] As such, respondents want the Inquiry to focus on how and why the effects have been felt more acutely for some groups, including challenges such as:

• reduced access to health services
• digital exclusion
• access to food and medicine
• loss of paid work
• insecure housing
• adverse impacts on mental health and wellbeing

The hope is that learning from experience will strengthen preparedness of future responses.

1.9 Support to the Chair of the Inquiry

The Chair is responsible for leading the Inquiry, deciding its procedures and making sure it addresses all parts of its Terms of Reference. There are also a number of arrangements that can be put in place to support the Chair. Under the 2005 Act, before an Inquiry is set up Scottish Ministers can appoint panel members and assessors. Once an Inquiry has been set up, the Chair can appoint assessors.

Respondents suggested that panel members and/or assessors would be beneficial as this provides an opportunity to have input from a range of expertise and experiences. However, it should be noted that respondents did not seem to be aware of the distinction between panel members and assessors in relation to the Inquiry Act. Nevertheless, panel members were referred to more frequently.

Respondents suggested that wider support to the Chair would be beneficial. The breadth and complexity of topics likely to be covered in the Inquiry means that the Chair will require expert insight and advice across a wide range of areas. It was noted that transparency about who is providing such insight will be important for the credibility of the approach taken. Noted criticisms of a single Chair approach included that it is an inefficient method within an Inquiry, and that it would be a considerable burden for only one person to handle. It was also proposed that a panel of Chairs could be considered.

Respondents proposed that the panel could be appointed impartially. That is, it should not be appointed by Scottish Government and also that the ‘four harms’ approach could underpin the way a panel is formed. This means there would be knowledge and experience on the panel from across different health, society and economic sectors.

The Chair may also require support for the task of taking forward a person-centred, human rights based approach, potentially with input from equalities experts and members with experience of inequality who were disproportionately impacted by the pandemic. Respondents suggested that the appointment of the panel should reflect values of impartiality, independence, transparency and fairness. In terms of transparency, it may be helpful to have clarity on how the Chair will access independent experts from within government or their advisers.

“There needs to be meaningful public engagement around who to appoint and how to select them, what expertise should be held by the panel. Panel with diverse experience, reflective of those most impacted by the pandemic.” (Third Sector, email submission)

In terms of the Ministers wish for the Chair to be a judge, some respondents welcomed a judge led Inquiry, noting that it signified independence and legitimacy. Some suggested that it is vital that the Chair has public recognition and credibility. It was also proposed that the Chair should not be a Scottish judge.

However, other respondents questioned the use of a judge to chair the Inquiry, as there are aspects of this Inquiry that are not legal, and a judge may not have sufficient human rights based approach expertise to lead the Inquiry in this way. Additionally, it was suggested that the perceptions of a judge may be intimidating and off-putting for some participants. Such as, participants will need to feel that they have been listened to and understood to a level that may not commonly be experienced in a courtroom (if Inquiry hearings are held in a courtroom). As such, there was also a suggestion that consideration be given to the appointment of a judge with experience beyond the legal system.

1.10 Timing and reporting

Moving on to issues of timing and reporting, most respondents agreed that interim reports by an Inquiry are useful for updating on progress. Particularly where issues are still live and changes can be implemented before the conclusion of the Inquiry. It was expressed that interim reports will facilitate ongoing engagement and allow for stakeholder scrutiny of Inquiry process. They may also make outcomes more accessible and potentially make recommendations easier to operationalise. It was also raised that those who are critically ill should be able to see the Inquiry progress as they may not live to hear the findings.

There were mixed views on the timing and content of the reports. It was proposed that interim reports could be subject based. An example provided was that one could cover social care support, including early years, wider adult social care and the experiences of staff working across the sector.

“Interim reports should cover the activity of the Inquiry over the preceding three months, what impact this has had or is expected to have and the plans for the following quarter. Consideration should be given to the merits of prioritisation of the areas to be covered.” (Third sector organisation, email submission)

Other suggestions for themes included education and emergency planning. But it was emphasised that there should be a clear rationale for how and why certain areas should be prioritised, such as issues that concern a ‘threat to life’ or ‘dignity’. It was suggested that interim reports could also include whether/how previous report recommendations have been implemented.

Some critiques and cautions are that interim reports could dilute the final report and lengthen the Inquiry process. Another was that interim reports do not allow organisations sufficient time to prepare or follow recommendations.

There were varied opinions on the appropriate timescale of the Inquiry. To accommodate the ongoing nature of the pandemic, respondents emphasised the value of interim findings that can be implemented with immediate effect. Some respondents cautioned against a prolonged Inquiry, wishing the ‘final report [to be] no later than three years’ from the commission of the Inquiry (individual, email submission).

Others stressed that expedience was less important than making sure all evidence is heard and considered, which ‘should take as long as necessary’ (Trade union, email submission).