‘A COVID-19 Inquiry for Scotland’: IPPO’s submission of evidence to the Scottish Government

• COVID inquiries

IPPO recently submitted this paper in response to the draft aims and principles of an independent public inquiry into the handling of the pandemic in Scotland. It is framed around 10 inter-related questions.
Lead author: Professor Matthew Flinders (University of Sheffield, IPPO Advisory Group). International advisor: Dr Alastair Stark (University of Queensland)

Introduction

The Scottish Government’s move to establish a public inquiry into the handling of COVID-19 pandemic is to be welcomed. It provides a timely opportunity to reflect upon:

• how decisions were taken and by whom;
• the information and assumptions on which those decisions were taken;
• whether institutional structures and co-ordinating processes were effective; and
• what evidence-based lessons can be learned in order to strengthen Scotland’s resilience towards similar challenges in the future.

The decision to launch a public consultation on the aims and principles of the public inquiry is also very welcome. Public inquiries are very often established with very little, if any, public discussion as to their aims, objectives, powers, resources and timescale. Adopting an open and engaged position vis-à-vis the inquiry is, however, likely to be crucial in terms of fostering and maintaining public confidence in the process and the reports and recommendations of the inquiry.

The aim of this submission is to harvest and present just a few of the main insights and themes emerging from the existing research base around the design and delivery of public inquiry processes. Many of these themes and issues dovetail with elements of the recently published consultation document, while others serve to challenge underpinning assumptions and reveal the existence of fresh options.

In order to offer a clear and succinct overview of the existing research base, this submission is framed around 10 inter-related questions:

1. What is the ultimate aim or ambition of the inquiry?
2. How has the inquiry been framed, and why does this matter?
3. What are the core or underpinning principles driving the inquiry?
4. Why has a specific model or approach been selected?
5. Why has a specific chairperson been selected?
6. What are the boundaries of the inquiry and how will they be maintained?
7. What administrative and support structures will underpin the public inquiry?
8. In what ways is the inquiry approaching the distinction between ‘outputs’ and ‘outcomes’?
9. How have ‘best practice’ or ‘what works’ insights from around the world been captured in the design and delivery of this inquiry?
10. Is this inquiry underpinned by a clear ‘theory of change’?

Three core threads or themes arguably bind these questions together: (a) a focus on the management of public expectations; (b) an acceptance that all public inquiries tend to be controversial; and (c) an awareness that even the neatest and best-planned inquiries take place in what is often a messy and highly politicised context.

The remainder of this submission explores each of these 10 questions in turn.

1. What is the ultimate aim or ambition of the inquiry?

The consultation paper outlines what the inquiry will do and sets out a number of aims and ambitions. What is lacking, however, is any core or primary ambition that can be used to orientate the inquiry process and to keep it focused. Put slightly differently, one of the biggest risks for any public inquiry is ‘mission creep’ whereby more and more factors and events, aims and ambitions are added to the terms of reference, either formally or informally. It might therefore be useful for the inquiry planning team to ask: ‘what would success (and failure) look like in relation to this inquiry?’

A focus on interpretations of success is also useful for the simple fact that irrespective of the formal terms of reference different stakeholders are likely to hold very different interpretations of what a successful inquiry will achieve. Central amongst these interpretations – and of critical significance to any planning process – is an early appreciation of the balance between the allocation of blame (past-focused, often political) as opposed to ‘lesson-learning’ (future-focused, often technical).

How to achieve a focus on the latter and control the existence of pressures towards the former dynamic is a key challenge for an inquiry process. This reflects the fact that inquiries very often take place within a highly emotive context. It is for exactly this reason that the Public Administration Select Committee’s 2005 report, Government By Inquiry, emphasised ‘catharsis or therapeutic exposure’ as one of the principal purposes of public inquiries. This emphasis on the emotional landscape within which inquiries take place leads to questions about the framing of inquiries.

2. How has the inquiry been framed, and why does this matter?

A common trap that public inquiries fall into is becoming overly focused on the distribution of blame (hence their association with ‘scapegoating’, ‘sacrificial lambs’ and complex ‘blame-games’) to the detriment of a more future-focused emphasis on lesson-learning. A small but potentially crucial point to teasenout of the consultation document might focus on the use of language in general, and the emphasis on ‘harms’ in particular.

The aim of the inquiry is to ‘investigate the handling of the pandemic in Scotland’ – but in a sense, there is a need to prevent this investigation from becoming unbalanced or unnecessarily politicised. And yet it is possible to suggest that the consultation paper adopts what might be termed an explicit ‘failure focus’. This is reflected in the suggestion that it might focus on ‘the four harms of the pandemic in relation to Scotland’ – which are identified as direct health impacts, other health impacts, societal impacts, and economic impacts.

The simple point being made is that the inquiry might also usefully explore where things worked in relation to the pandemic response, and what might therefore be learnt from a focus of success as well as failure. This would possibly inject a sense of balance or proportionality into the inquiry from the outset which might, in turn, reduce the risk of an unhealthy focus on blame-avoidance or defensive forms of behaviour occurring. Exploring what Scotland got right and what it got wrong could establish an incredibly mature template that other countries around the world may well adopt.

3. What are the core or underpinning principles driving the inquiry?

The consultation document states that the inquiry will ‘take a person-centred, human rights based approach to ensure that every person and organisation taking part can meaningfully participate, be treated fairly and be empowered to take part in the inquiry’. This is an incredibly positive, ambitious and wide-ranging basis on which to base the inquiry.

Although we welcome this approach and applaud the sentiment, it is worth commenting on the tensions between these principles and the subsequent need for a range of innovative and different inquiry processes to achieve them. For example, there is often a tension between the principles and practices that are used to establish human rights and fair treatment in inquiries on the one hand, and the principles and practices used to encourage a person-centred approach that both empowers and brings lived experience to the fore on the other. Concerns about rights and equitable treatment encourage the pursuit of evidence through an inquiry room that is led by a judge, staffed by solicitors and bears the professional hallmarks of the court. This can deliver many benefits, but this means of generating evidence, on its own, will not deliver a person-centred public inquiry that empowers those who come before it.

To achieve that, alternative processes are required which generally exist beyond the skill set of the lawyer or judge. Communities must be engaged, and participatory practices utilised. Forms of policy analysis that leverage the toolkits of the social scientist are needed to develop evidence about lived experience. And in the inquiry room itself there is a need to use cross examination sparingly and to replace it with different types of hearing which not only question and interrogate but also memorialise, provide affected communities with the opportunity to use their voice without fear and encourage interactions between those who give evidence. Therefore, if an inquiry is to simultaneously deliver a person-centred approach while respecting the principles of natural justice, it will need to effectively synthesise several different processes.

These different processes are regularly used around the world in inquiries and IPPO researchers are familiar with them. For example:

• After the Black Saturday Bushfires of 2009, the Victorian Bushfires Royal Commission (VBRC) used a three-pronged strategy which generated evidence via participatory consultations in fire-affected communities, innovative courtroom processes that often-eschewed cross examination and expert policy analysis panels. The VBRC was implemented in its entirety.
• Ontario’s SARS Royal Commission offers a second international example. This Commission employed an Accident Investigation Board methodology to develop its evidence. This process trades anonymity for candour as it utilises private and confidential interviews to develop its evidence. The public courtroom was not, therefore, used for cross examination but rather as a public space which memorialised victims and allowed cathartic representations from nursing associations and unions who wished to speak about the trauma that their members had experienced.

By mixing methodologies in this way, and rejecting the exclusive use of a legal approach, these inquiries facilitated the kind of person-centred agenda being discussed in the consultation paper. With this in mind, it might be useful to consider very carefully the specific meaning and parameters of what ‘a person-centred, human rights based approach’ actually means, both in terms of the principles and the variety of processes required to action them. Possessing a sense of clarity and consistency from the outset in relation to the practical dimensions of principled claims is a way of closing down and controlling potential problems and challenges further down the inquiry process.

4. Why has a specific model or approach been selected?

The Scottish COVID-19 inquiry is, the consultation document suggests, to be established under the Inquiries Act 2005. The principal advantages of statutory inquiries are that they provide legal powers to compel witnesses to give evidence, provide legal safeguards, and can set limits upon the Government’s discretionary control of an inquiry. An inquiry established by a devolved administration may have more constrained powers than one set up by the UK government (potentially when it comes to compelling witnesses from beyond Scotland to give evidence).

A more basic question, however, relates to the selection of a traditional public inquiry model in the first place. Around 30 public inquiries have been established under the 2005 legislation (which replaced the Tribunal Of Inquiry (Evidence) Act 1921), so there is precedent and procedure that can be followed in terms of due process. However, international research about inquiries that use the traditional model suggests that their recommendations are very often not implemented, either because their adversarial proceedings have alienated key stakeholders or simply because the recommendations are unworkable when judged against the procrustean realities of public life.

There are, however, far more innovative, flexible and person-centred inquiry models that could be considered; many of which combine the best features of the traditional model with more innovative mechanisms that can maintain the support of key groups while also recognising that inquiries do not exist in a vacuum. Consider as an example, the Pitt Review into England’s summer 2007 floods. This was an inquiry that was run without a judge, lawyer or courtroom proceedings. Instead, the inquiry used a combination of town hall meetings, expert policy analysis, contract research (focused on lived experience) and a scientific and engineering panel of experts to produce its recommendations.

This was another inquiry which was widely implemented and has had substantive effects, which have been attributed to the decision to reject the blaming that emerges through the legal model and to pursue lesson-learning through alternative means. The point is that the Scottish COVID-19 inquiry does not have to follow a traditional model, and an opportunity exists for radical experimentation beyond the current Inquiries (Scotland) Rules 2007. Indeed, an innovative model would be more in keeping with the founding principles of the Scottish political system.

5. Why has a specific chairperson been selected?

According to the consultation paper, ‘discussions are [also] underway with the Lord President to identify and appoint a judge to chair the inquiry’. According to the Institute for Government’s 2017 report, How Public Inquiries Can Lead to Change, 44 out of 60 public inquiries held since 1990 had been chaired by a judge.

The rationale for judicial appointments is relatively clear: levels of public trust and confidence in members of the judiciary remains high, and their professional experience arguably provides them with the capacity to review and assess large amounts of complex information and competing claims as to why certain decisions were (or were not taken).

Add to this the political neutrality and perceived legitimacy that members of the judiciary possess and the rationale for their appointment becomes obvious. It is, however, worth pausing to reflect upon the automatic appointment of a judge in the case of this inquiry. There is no statutory requirement for an inquiry to be chaired by a judge, and a wealth of research and data underlines the manner in which members of the judiciary are drawn from a relatively narrow social strata. Judges are also professionally trained and experienced in working within a generally adversarial context in which there are ‘winners’ and ‘losers’.

Public inquiries arguably tend to be far more complex – operating through the analysis of shades of grey rather than blacks or whites – and the process is often as important as the output. This is a critical point. Affected parties need to feel they have been listened to and understood to a level not commonly found in the courtroom.

The simple point being made is that leading an inquiry is a role that can be fulfilled from beyond a narrow talent pool of judges. Public inquiries have been led successfully by a range of individuals. At the very least consideration should be given to a judge or former judge who has a track-record that includes experience beyond the legal system because the journey from solicitor to judge can encourage narrow thinking about essential inquiry functions.

There is also no reason why the inquiry must have a single chairperson. There are many international examples of successful inquiries that have been chaired by three-person panels in which a judge is complemented by someone who has public sector experience and a third who has subject specific experience. The aforementioned VBRC is one such example, which was chaired by a judge alongside a former public sector commissioner and a retired ombudsman. While the judge brough the gravitas and symbolism of the bench, the commissioner brought a participatory dynamic and a capacity to make recommendations implementable and the ombudsman delivered forensic forms of policy analysis.

The Canterbury Earthquakes Royal Commission (CERC) also employed a three-person system with a judge and two engineers, and the current Disability Royal Commission in Australia uses a six person panel which includes former judges, commissioners with disabilities and Indigenous commissioners.

Given the multiple principles that are stipulated in the consultation document and the need to balance rights and fairness with a people-centred approach (and above all the need to produce effective reports that create change), a panel of chairs should be considered. It is also worth mentioning that it is not uncommon for the inquiry chair to be appointed before the terms of reference are formally agreed which, in turn, can facilitate public engagement from the outset. (For example, Sir Martin-Moore Bick, Chair of the Grenfell Tower Inquiry, held three consultation meetings with residents and survivors and for other interested groups in July 2017.)

6. What are the boundaries of the inquiry, and how will they be maintained?

The design thinking that takes place during the preparatory phases of a public inquiry is rarely revealed for public review and discussion. This makes the publication of the Scottish government’s consultation paper so welcome and innovative.

In the past, the existence of assumptions and conventional ways of doing things were kept firmly within a black box of internal policy making. And yet the inevitable weakness of any planning process is that they tend to adopt a very rational, bounded and linear approach which often struggles when tested against the more procrustean realities of practical politics.

It is therefore arguably worth thinking about how the Scottish COVID-19 inquiry will work both within and across boundaries. Put slightly differently, ‘to investigate the handling of the pandemic in Scotland’ might appear to set some clear boundaries but the embedded nature of Scottish/UK relationships will inevitably demand some complex unravelling of structures and processes. The consultation document’s statement that ‘A Scottish inquiry can only look into devolved matters in relation to Scotland’ is therefore completely understandable, but will by definition demand that the inquiry ranges beyond Scotland.

Other boundary matters also exist. How exactly will the Scottish inquiry dovetail with and not duplicate the planned four-nation inquiry? How will the practical and psychological needs of witnesses or affected participants be catered for? How will the Scottish inquiry utilise the vast amount of COVID-related scrutiny that has already taken place within and beyond Scotland? How will it position itself against ongoing COVID-related criminal investigations in Scotland? What role is the Scottish parliament expected to play, if any, in the inquiry process?

In short, how will the Scottish inquiry avoid contributing to the well-known, post-incident bureaucratic pathology of ‘going MAD’ (i.e. multiple accountabilities disorder)?

7. In what ways is the inquiry approaching the distinction between ‘outputs’ and ‘outcomes’?

The theme of maintaining boundaries flows into a discussion about ‘outputs’ and ‘outcomes’, which in itself links into broader issues concerning aims, ambitions and ultimately public confidence in the overall process. Stripping the consultation down to its core essence, the proposed inquiry will explore what went right and what went wrong in relation to COVID-19 in Scotland, it will explore the lessons that can be learnt from the experience and it will reflect upon ‘whether it is required to make recommendations’.

Evidence suggests that it would be very unlikely that a major public inquiry would consider a topic, especially one as significant and complex as COVID, and not make at least some formal recommendations. This leads to a distinction between the ‘output’ of the inquiry and the broader ‘outcomes’, which deserves at least some consideration.

The output of the inquiry is likely to be a fairly lengthy formal report (although more engaging and creative ways of promoting the conclusions of that report should also be used). The bigger issue, however, does not arguably concern the final report but what actually happens as a result of that document (i.e. the outcome of the whole process). This output/outcome distinction simply focuses attention on basic questions concerning the post-inquiry process and who (or through what processes) any decisions in relation to the findings of the inquiry are made. To whom will the public inquiry report: the Scottish Government, Scottish Parliament, or some broader conception of the Scottish public? Will any provision be made for ‘post-inquiry’ review, assessment or follow-up (i.e. as to whether any recommendations were actually implemented)?

8. What administrative and support structures will underpin the public inquiry?

This distinction between outputs and outcomes is also useful due to the way in which it encourages some thought and reflection beyond the formal visible inquiry process. In this regard a second dimension that might usefully be explicitly considered relates to the underpinning administrative structures and sources of expertise that are likely to provide for an effective and efficient inquiry.

In many ways the inquiry chairperson, evidence sessions, visits and the final report can be seen as the visible ‘on-stage’ elements of the inquiry process, but the ‘off-stage’ elements are arguably just as important in terms of ensuring that inquiry is equipped with the resources required to undertake a credible review of the evidence. The complexity and scale of the COVID pandemic will make the role of support structures absolutely critical, especially if ‘every person and organisation taking part can meaningfully participate, be treated fairly and be empowered to take part in the inquiry’. (It is worth noting that delays and cost increases in relation to the current Edinburgh Tram Inquiry have been linked to the need to store and synthesise over 3 million documents on the inquiry database.)

This participatory ambition will inevitably have significant resource implications that need to be acknowledged from the outset. Key questions therefore include: How many staff will the inquiry have at its disposal? How will the inquiry commission or access specialist research or data? What provision will be made for the publication of rapid interim reports and how will the Scottish COVID inquiry follow best practice by commissioning research and systematic reviews? What timescales with the inquiry be expected to work to? What provision will be put in place for the consideration of additional resource requests, and to whom should these requests be made? Where will the inquiry be physically based and how will off-line and on-line access be facilitated? Will the chairperson work alone or alongside a panel of inquiry members? Will specialist advisors or ‘assessors’ be appointed?

The potential value of an independent implementation monitor should also be considered here. In many post-crisis inquiries around the world, these monitors have been established not just to ensure that specific recommendations are implemented but to play a broader social healing role so that affected communities feel the inquiry has a clear legacy. For example, in Australia the Equine Influenza Inquiry and the Victorian Bushfires Royal Commission utilised an independent monitor system. Both inquiries were implemented in their entirety.

9. How have ‘best practice’ or ‘what works’ insights from around the world been captured in the design and delivery of this inquiry?

With these questions about administrative and support structures in mind, one interesting omission from the consultation – and one area where IPPO may be able to offer significant support – is in relation to international ‘best practice’ and evidence of ‘what works?’ There is a rich research literature on the governance and management of public inquiries around the world that could offer valuable insights to those planning COVID-related inquiries.

Central amongst these insights are perspectives on managing the potential tension between the emergence of ‘blame games’ as opposed to a focus on practical lesson-learning and future preparedness. Collecting and analysing the views of those individuals who have led or supported inquiries would also deliver major insights into the process and presentation of activities, and – not least – what’s missing from the current inquiry planning discussion.

It is also worth noting that a significant number of COVID-focused public inquiries are being established in a range of countries and being aware of these processes and feeding in relevant insights and perspectives could offer a valuable process-based dimension to the Scottish inquiry. This, in turn, raises critical questions of collective learning and positive ripple-effects – how will the insights and lessons from Scotland be promoted at the international level to maximise positive public insights?

10. Is this inquiry underpinned by a clear ‘theory of change’?

This submission of evidence has examined a broad range of issues and themes. It has done this with reference to a set of interlinked questions which all in their own ways focus down onto one final topic: the theory of change. What are the implicit assumptions that those involved in designing the inquiry are making about the causal links between formal processes and broader social change?

Inquiry processes are often seen in terms of being linear when in fact that tend to involve a series of formal and informal feedback loops that need to be understood and acknowledged within the design model. Having a clear theory of change is particularly important in terms of maintaining a clear focus not solely on the attribution of blame and responsibility but also on positive lesson learning and the identification of ‘best practice’ insights that may contribute to future resilience. If pushed to think beyond a statement of principles and values, how would the Scottish COVID inquiry respond if asked to set out its basic theory of change?

Authors’ note

This submission of evidence has attempted to support the development of the Scottish COVID-19 inquiry by raising a number of issues and themes that warrant early consideration, that resonate with topics raised in the consultation paper, and where there is an existing and relevant research base that can be utilised. IPPO exists as a proactive boundary-spanning platform to ensure that policymakers can access and learn from the existing research base in an agile and responsive manner. With this in mind, IPPO would be delighted to provide more detailed briefings on any specific topic or element of this submission.