Transcript of Module 1 Public Hearing on 11 July 2023
(10.00 am)
Mr Keith: Good morning, my Lady.
Lady Hallett: Mr Keith.
Mr Keith: The first witness today is Baroness Foster, the former First Minister of Northern Ireland. Could she be sworn, please.
Baroness Arlene Foster
BARONESS ARLENE FOSTER (sworn).
Questions From Lead Counsel to the Inquiry
Mr Keith: Could you give the Inquiry your full name, please.
Baroness Arlene Foster: Yes, my name is Arlene Foster, otherwise Baroness Foster of Aghadrumsee.
Lead Inquiry: Lady Foster, thank you very much for the assistance you have already given to this Inquiry by way of the provision of a witness statement, INQ000205274, dated 18 April 2023. At page 13, I believe you will see your statement of truth and a signature.
Baroness Arlene Foster: That’s correct.
Lead Inquiry: Lady Foster, could I ask you to remember to keep your voice up so that we may clearly hear you, but also, and it’s proven to be quite hard, try to go as slowly as you can so that the demands on our stenographer do not become impossible.
You were, between 9 June 2008 and 11 May 2015, Minister for Enterprise, Trade and Investment in Northern Ireland; is that right?
Baroness Arlene Foster: That’s correct.
Lead Inquiry: Were you then Minister for Finance and Personnel between May 2015 and 12 January 2016?
Baroness Arlene Foster: Yes.
Lead Inquiry: In December 2015 had you by then become the leader of the Democratic Unionist Party, the DUP, in Northern Ireland?
Baroness Arlene Foster: Yes.
Lead Inquiry: A position which you held until your resignation in June of 2021?
Baroness Arlene Foster: That’s correct.
Lead Inquiry: Most importantly for our purposes, were you First Minister of Northern Ireland between 11 January 2016 and 10 January 2017, and then again, during, of course, the pandemic itself, between 11 January 2020 to 14 June 2021?
Baroness Arlene Foster: Yes, that’s correct.
Lead Inquiry: I would like to start, if I may, with asking you some questions about the constitutional and governance position in Northern Ireland and its unique arrangements.
Under the Good Friday Agreement of 1998, the devolved institutions in Northern Ireland are constituted under the Northern Ireland Act 1998 along with the Good Friday Agreement, and they comprise primarily the Northern Ireland Assembly and the body which is known as the Executive Committee of the Northern Ireland Assembly, or the Northern Ireland Executive for short. Is that correct?
Baroness Arlene Foster: Yes, that is correct.
Lead Inquiry: Voting in the Northern Ireland Assembly needn’t detain us, but there are special thresholds which apply to the voting structures in the Assembly, and in the Northern Ireland Executive, which is the committee of ministers that is the ultimate decision-making body in the Northern Ireland government, do the First Minister and the deputy First Minister occupy a particularly important or unique position?
Baroness Arlene Foster: They do. The First and deputy First Minister operate in what is known as a joint office, the now Executive Office, it used to be the Office of the First Minister and deputy First Minister. Neither, my Lady, of those ministers can act unilaterally, they have to act jointly, and therefore it is a unique situation that we have in Northern Ireland.
Lead Inquiry: Is that obligation to act jointly something which has come about by way of constitutional practice or is it mandated by the Northern Ireland Act 1998 Act itself?
Baroness Arlene Foster: It’s mandated by legislation.
Lead Inquiry: Do the functions of the Executive Office need to be taken by joint agreement as well, or is this a requirement that attaches only to the two persons holding the ministerial positions of First Minister and deputy First Minister?
Baroness Arlene Foster: So the officials of the Executive Office are the officials of the First Minister and the deputy First Minister, so they will act under the direction of both of those ministers. They cannot act unilaterally on the will of either the First Minister or the deputy First Minister, so documents will have to be signed off, and all of the officials are very much aware of that practice.
Lead Inquiry: Since 1998, has the Executive continued to exist throughout that period, or have there been times when the Executive and the ministerial positions within the Executive have not been able to function?
Baroness Arlene Foster: They haven’t functioned for, I think, it’s 40% of the time. So I think the longest period of an absence without ministers was between 2002 to 2007, obviously the period between 2017 and 2020, and again today Northern Ireland is without ministerial oversight.
Lead Inquiry: In general terms, what happens when there has been a suspension or collapse in the power-sharing agreement and the Executive is unable to form? How is rule over Northern Ireland or in Northern Ireland maintained?
Baroness Arlene Foster: My Lady, as you’re aware, we are in a devolved administration, and therefore the Westminster government still has sovereignty over the Northern Ireland region. However, Northern Ireland Office ministers do not intervene in a direct rule manner, they rarely take decisions that affect Northern Ireland, but there have been some occasions where they have intervened. The budget, for example, they intervene on that to make sure that there is money available to run Northern Ireland, and, perhaps controversially, they have intervened in other areas as well, such as in the area of women’s reproductive rights and, indeed, in the area of Irish language, culture. That, again, was something that was legislated for in Westminster.
Lead Inquiry: May we take it, then, that at the time that you first held the tenure of being First Minister for Northern Ireland from 11 January 2016, that the Executive had been reconstituted before you took office? So, I think in November 2015, was a fresh agreement reached, the Fresh Start Agreement, which allowed the Executive to re-form, which led to you then becoming First Minister in January of the following year?
Baroness Arlene Foster: The Executive had still been in place at that time, I think. The last time before that that we didn’t have an Executive was 2007. There had been different political talks, processes, to deal with issues that arose, and one of those was indeed in 2015, after an incident in August of that year.
That Fresh Start Agreement was put in place and then the then First Minister decided that he would retire from public office and the appointment took place of myself in January of 2016 – alongside the appointment of the deputy First Minister, because every time a deputy First Minister or a First Minister resigns, there has to be an appointment of the two offices again, you can’t just slot another First Minister or deputy First Minister into position, they both have to be reappointed.
Lead Inquiry: Did you take over, in effect, from Peter Robinson, and was the deputy First Minister who was appointed alongside you when you became First Minister in January of 2016 the late Martin McGuinness?
Baroness Arlene Foster: That’s correct.
Lead Inquiry: The Executive of which you were First Minister lasted until 16 January 2017, when Mr McGuinness resigned; is that correct?
Baroness Arlene Foster: Yes, that is correct.
Lead Inquiry: He resigned at the time of what became known as an issue concerning the Renewable Heat Incentive scheme. After that time in January 2017, do we take it from what you said earlier that the Executive did not then re-form until 11 January 2020, when your second tenure commenced?
Baroness Arlene Foster: Yes, that is correct, because if either the First Minister or the deputy First Minister resigns, then the other office holder is also out of office. Without a First Minister and deputy First Minister, the Executive Office – or the Executive meetings do not take place.
Lead Inquiry: In the Executive there are obviously a number of other ministries, so it’s not just the Executive Office, we believe there are eight other ministries and each minister heads up their own Northern Ireland department. One of those is obviously the Department of Health.
Baroness Arlene Foster: Correct.
Lead Inquiry: To what extent, Lady Foster, when you were First Minister between 2016 and 2017, were you engaged in the affairs of departments other than the Executive Office?
Baroness Arlene Foster: Well, because we’re in a unique situation, my Lady, of mandatory coalition, where we have five political parties in the government, the – although we are the First Minister and deputy First Minister, the so-called head of the Northern Ireland Executive, we certainly do not intervene in other departments and other ministries, because they may be held by someone from a different political party. And unlike the Westminster system, where there is Cabinet responsibility and you will not see ministers going out and criticising other ministers in relation to decisions that have been taken, unfortunately that doesn’t exist in Northern Ireland. There is no Cabinet responsibility. And so the five – sometimes you will see ministers from one particular party criticising a decision of another minister in a different political party.
So there is a difference, if you like, to the system in Northern Ireland.
Lead Inquiry: Therefore, in terms of oversight, as the First Minister, unless and until a minister in a particular department brings a matter to the attention of the Executive Office –
Baroness Arlene Foster: Yes.
Lead Inquiry: – and thereby the Executive and thereby the First Minister and deputy First Minister, you may not necessarily know what issues are engaging the time of that particular department?
Baroness Arlene Foster: I think that is absolutely the case, and it’s only matters of significance or matters that are cross-cutting across government that would be brought to the table of the Executive Committee, or indeed if a minister felt that he wanted to alert his colleagues to what was going on on a particular issue, we would not have an Executive paper on that matter.
Lead Inquiry: Therefore, does the decision to bring a cross cutting issue, for example, to the attention of the Executive Office and the First Minister and deputy First Minister depend very much on the individual position of the minister in the department as opposed to, for example, the civil servants who assist the Executive Office or who assist the ministerial departments?
Baroness Arlene Foster: So I think the Civil Service in a particular department will advise their minister as to whether a matter should come to the Executive table for discussion. That certainly was the case when I was in the Department of Enterprise, Trade and Investment. I would have received advice that this is something in terms of a decision that needs to get Executive authority as opposed to just the authority of myself. And I’m sure that was the case in other departments as well.
Lead Inquiry: Is one of the functions that the Executive Office itself is responsible for contingency planning arrangements in Northern Ireland generally?
Baroness Arlene Foster: Yes, the contingency planning and policy branch sits within the Executive Office.
Lead Inquiry: Is that to be distinguished from civil contingencies relating to, for example, health emergencies, where responsibility would be vested and is vested in the Department of Health?
Baroness Arlene Foster: So the Civil Contingencies Group, the actual operational group, my Lady, is headed up by the head of the Civil Service, he normally chairs those meetings. Depending on the type of incident or emergency that we’re speaking about, there will be a lead department allocated to deal with the incident or with the ongoing emergency. When I was in the Executive in those early days, 2010/2011, there would have been a number of flooding incidents in Northern Ireland and the lead department on those occasions would have been the Department of Agriculture, Environment and Rural Affairs or, indeed, the Department for Infrastructure, depending on whether there was something that needed to happen with those departments.
But in the incidence of the pandemic, it would have been the Department of Health.
Lead Inquiry: Did you therefore become familiar with the overarching arrangements for crisis management in Northern Ireland, namely the Northern Ireland Central Crisis Management Arrangements, NICCMA?
Baroness Arlene Foster: Yes, I was aware in my first day brief – the first day brief that has been shared with me through evidence is I think my first day brief from 2020, but something similar would have been shared with me back in 2016 as well.
Lead Inquiry: We may have had sight of the later briefing in your second tenure in January 2020. We’ve not, I think, seen a briefing document from 11 January 2016. Can you recall to what extent you were made aware of the civil contingencies arrangements in Northern Ireland? Was it a particularly specific briefing, do you recall, or were you just made aware of what arrangements exist in terms of policy and guidance for Northern Ireland?
Baroness Arlene Foster: So in the first day brief to the First Minister, my Lady, we’re made aware of the different areas under the Executive Office, and part of that would have been a general briefing in relation to civil contingencies policy which sits under the Executive Office.
Lead Inquiry: What would you have been told about the existence of the major or the greatest risks facing Northern Ireland, in particular what was then known as the very high risk of pandemic influenza? I say “very high” because in London, for the United Kingdom, it was described as a Tier 1 risk, but it had a different description in Northern Ireland.
Baroness Arlene Foster: I would have been aware – and I’m doing this from memory, my Lady – I would have been aware that the biggest risk would have been flu pandemic from a health point of view, and of course we were always kept up to date with security risks as well, which of course were of a different nature.
Lead Inquiry: Of course.
Would you have been jointly briefed with your deputy First Minister, Martin McGuinness, or were you separately briefed when you took office in January 2016?
Baroness Arlene Foster: He would have had exactly the same first day brief as I would have received.
Lead Inquiry: All right.
You would also, we presume, have been made aware then of the Civil Contingencies Group, Northern Ireland which is the overarching body within the Northern Ireland government for dealing with civil contingencies, and it’s often chaired by a senior official but it may also be chaired by, together, the First Minister and the deputy First Minister. Do you recall convening or having to convene that group during your first tenure?
Baroness Arlene Foster: No, I did not convene that group with the deputy First Minister during my first tenure.
Lead Inquiry: May we look, please, at INQ000086924.
This is the protocol for the Northern Ireland Central Crisis Management Arrangements, so the CCG(NI) protocol. If we could have page 3, paragraph 3:
“The First Minister and deputy First Minister or TEO [that’s the Executive Office] may activate NICCMA [those are the Northern Ireland Central Crisis Management Arrangements to which you have just referred] following a request to do so from the Executive; the Lead Government Department; a senior representative from the [Northern Ireland Office] Briefing Room … a senior member of the [Police Service of Northern Ireland] involved in the Police led multi-agency GOLD group; the local level co-ordinator; or in the absence of any such requests, whenever [the Executive Office] judges it appropriate to do so.”
Again, it’s obviously some time ago now, but do you recall during your first tenure the NICCMA arrangements being activated by the Executive Office as opposed to yourself or Mr McGuinness?
Baroness Arlene Foster: From memory I don’t think that the emergency structure was activated during that year.
Lead Inquiry: All right.
Page 8, paragraph 10, there is a reference to level 2 and level 3 emergencies.
As may appear obvious, Lady Foster, level 2 and 3 emergencies are the more serious emergencies within the categories of 1, 2 and 3, and they require direction, co-ordination and effective decision-making at government level.
May we presume that you would have been briefed that in the event of a level 2 or level 3 emergency, you would be expected, as the First Minister, to call for these arrangements to be triggered, to be activated, in order to be able to apply the requisite degree of governance?
Baroness Arlene Foster: I certainly would have expected to have been informed by the head of the Civil Service, who was the chair of the CCG(NI). I don’t recall any time during 2017 or, indeed, even during the pandemic, when the First Minister and deputy First Minister chaired the CCG group.
Lead Inquiry: Does it stand to reason – or maybe I can put it a different way: was there an expectation that, as First Minister, and as deputy First Minister, Mr McGuinness, you would be expected to take charge of a level 2 or level 3 emergency by virtue of the seniority of your post and, of course, the democratic accountability that you bring to bear as First Minister? Was there an expectation that level 2 and level 3 emergencies would effectively be operated by, be managed by the First and deputy First Ministers?
Baroness Arlene Foster: Yes, I think there was that expectation. From memory again, my Lady, I think that is what has happened during those flooding incidents that I’ve referred to. However, I think even during those incidents the head of the Civil Service continued to chair the CCG, but the First and deputy First Minister of the time would have been very much involved with the group.
Lead Inquiry: The reason I ask is – we will look in a moment at the impacts across the board of the collapse in the power-sharing agreement – but in the context particularly of the CCG Northern Ireland and the NICCMA arrangements, it must presumably have been a matter of real concern to you that, at the moment that you are unable to continue to discharge your ministerial functions because the agreement, the power-sharing agreement, has collapsed, you would necessarily be unable to take up the role, the important role, of leading the civil contingencies response in Northern Ireland; there could be no ministerial leadership of this group once the agreement had collapsed.
Baroness Arlene Foster: I think that is an accurate description. However, I will say that, on an operational basis, the head of the Civil Service was the chair of the group. I’m not diminishing the role of ministers at all. I think ministers had a very important role, particularly in emergencies, particularly around democratic accountability, as you’ve indicated. However, from an operational point of view, I think the group would have continued to operate, albeit without the ministerial leadership that you’ve referred to.
Lead Inquiry: To what extent were you made familiar, Lady Foster, with the associated civil contingency documents and policy guidance? We have been shown a number of documents, for example, the Northern Ireland Civil Contingencies Framework from September 2011, a key document, a Guide to Risk Assessment in Northern Ireland dated from January 2010, A Guide to Plan Preparation from March 2002, and A Guide to Emergency Planning Arrangements in Northern Ireland, described again as key in the evidence, running to 200 pages but not updated since its refresh, to use a terrible word, in September of 2011.
Were you aware of the existence of those underlying documents which underpinned the approach to civil contingencies in Northern Ireland?
Baroness Arlene Foster: I think, my Lady, I would have been aware that there was a structure underlying the operation of the CCG and the Hub, as it became known, which was the operational structure that integrated all of the other departments into the centre. However, I don’t think I was aware of the specific nature of all of the documents, no.
Lead Inquiry: During the interregnum, ministerially, in 2019, it became apparent that these documents were significantly out of date and a review determined that they be updated. Do you recall between 2016 and 2017 any analogous body or group of civil servants recommending that this paperwork be updated?
Baroness Arlene Foster: I don’t believe I received any submission in that regard.
Lead Inquiry: May we take it from your earlier answer that the Northern Ireland central operations room, the Hub, was in existence during your first tenure, 2016/2017?
Baroness Arlene Foster: It wasn’t activated during 2017, as far as I’m aware. It was certainly activated when I was holding other ministerial office before then –
Lead Inquiry: But it – I’m sorry, but it existed –
Baroness Arlene Foster: Yes, it absolutely existed, yes.
Lead Inquiry: All right.
The Inquiry heard yesterday from Professor Sir Michael McBride, the current Chief Medical Officer in Northern Ireland, who sits at the apex of the CMO Group, within a particular directorate in the Department of Health. It’s apparent that the CMO in Northern Ireland discharges a very wide range of functions. Do you recall advice being given to the Executive Office by Professor Sir Michael McBride when you were First Minister?
Baroness Arlene Foster: I certainly remember his excellent work during the pandemic, but I do not believe that he was present at the Executive in the year of 2017. That must mean that there was no particular health issue that he came to the Executive on.
Lead Inquiry: The evidence may indicate that structurally in Northern Ireland there is a distinct divide between the functions of the Executive Office, which deal with civil contingencies in a general sense, and the role of the Department of Health, which deals with health emergencies, both in a policy sense and operationally, and also that there’s a divide between the Department of Health, which deals with policy and operation, and the Public Health Agency, which is concerned generally with operational matters only.
There is also quite a diffuse structure and a split between planning bodies, such as the elements of the Executive Office, the Department of Health and so on, and pandemic preparedness groups, and what are known as EPGs and SPGs, the response groups, the emergency preparedness groups and strategic co-ordination groups.
To what extent were you aware of the quite broad and diffuse nature of this structure when you were First Minister, or of the fact that there were these structural divides between the various entities in the Northern Irish government?
Baroness Arlene Foster: I would have been aware, my Lady, of the different structures and responsibilities between the Public Health Agency and the department. However, I would not have been aware of the very many different groupings that there were to advise the minister in relation to all of the different threats that may come towards Northern Ireland.
I found it difficult actually sometimes to follow all the acronyms that were in the papers that were furnished to me, so I wasn’t aware of all of those, no.
Lead Inquiry: All right.
Turning to look at the importance of ministerial leadership and the consequences of the collapse in the power-sharing agreement between 2017 and 2020.
The presence of ministers and the actions of ministers is of fundamental importance to the proper maintenance of government in Northern Ireland, is it not?
Baroness Arlene Foster: It is.
Lead Inquiry: Ministers give direction to the Northern Ireland Civil Service, they can set priorities, they drive the system onwards, they may make specific decisions about resourcing. When matters are concern are brought to their attention, they have the political authority to be to bring change about. Is that all broadly accurate?
Baroness Arlene Foster: I think that is broadly accurate, but bearing in mind that the Office of First Minister and deputy First Minister, then the Executive Office, is slightly different, insofar as agreement had to be sought between the two First Ministers, if you like.
Lead Inquiry: Indeed, but that is an internal issue, I suppose –
Baroness Arlene Foster: Yes.
Lead Inquiry: – because, from the outside world, you would be seen as a seamless part of the Northern Irish government.
The ministers also liaise, do they not, with the rest of the United Kingdom, and they liaise with the Republic of Ireland?
Baroness Arlene Foster: Yes.
Lead Inquiry: In terms of civil contingencies, are those important parts of the system?
Baroness Arlene Foster: Very important parts of the system, as was shown by the response to the pandemic, my Lady. I think – and I know we’re not going into this remit during this phase, but I think if you look back at all of the documents in relation to preparedness, you will see how much integrated Northern Ireland is into the United Kingdom system, for the provision of expertise, for the provision of resource, for the provision of training in terms of preparedness, so I think that is very important.
In terms of our links with the Republic of Ireland, we do have very strong co-operation that goes on on a day – a daily basis as well. There was a planning document from 2014, a cross-border management group was set up to deal with, if you can call it the border corridor area between Northern Ireland and the Republic of Ireland, and I’m sure that’s the sort of thing that happens across the world when there are two jurisdictions sitting beside each other in terms of how you deal with an emergency situation.
Lead Inquiry: Is that the Cross-border Emergency Management Group?
Baroness Arlene Foster: Yes.
Lead Inquiry: All right.
Then thirdly, in relation to the fundamental importance of ministers, they bring leadership to bear, do they not, not just in terms of democratic accountability, but they bring a visible face to leadership? So for the people of Northern Ireland, in a crisis it’s obviously of great concern that there are leaders in place who are accountable and who may be seen to be leading the charge on the part of its citizens?
Baroness Arlene Foster: I certainly hope that that was the case during the pandemic, but yes, I take your point in relation to visible leadership.
Lead Inquiry: The reason I ask, Lady Foster, is you’re aware that, from the evidence given to this Inquiry, there were a number of ways in which deleterious consequences flowed from the absence of ministerial leadership during the interregnum in your tenureship; would you agree?
Baroness Arlene Foster: Yes, I agree that ministers could and should have been in place during that period.
Lead Inquiry: The evidence from Sir David Sterling, who was formerly the Secretary to the Northern Ireland Executive, as you’ll no doubt recall, because I think he became head of the Northern Ireland Civil Service just at the end of your first tenureship, but he was in any event head of the Executive Office, he says in his witness statement that the three-year period left public services in a state of decay and stagnation, as well as making extraordinary demands of the Civil Service, who had to devote a very considerable bandwidth to governing Northern Ireland in the absence of ministers; would you agree with that?
Baroness Arlene Foster: Indeed, there were no ministers in place during that time, and I think, my Lady, when you look at the fact that the Northern Ireland Office took a policy decision not to intervene at that time but instead leave Northern Ireland without any ministerial cover is something that I feel I need to comment on as well. Because, of course, we are a devolved administration, the Westminster government is sovereign at all times, and if there is a deficiency in the Northern Ireland administration, then those people in Westminster with responsibility for Northern Ireland have a responsibility. That’s true whether it’s in relation to female reproductive rights or indeed resilience and emergency planning, and I would think that that was a gap that should have been dealt with at that time.
Lead Inquiry: In addition, had the Stormont House Agreement of 2014 committed the Executive to a spending programme which had involved reductions in public sector costs and pay bill costs and the like, and I think a reduction in the overall size of the Northern Ireland Civil Service?
Baroness Arlene Foster: Yes, that is correct. That was known as the voluntary exit scheme, which allowed civil servants to apply for redundancy, an enhanced redundancy package was available at that time, and that meant that the number of civil servants in Northern Ireland – and of course we have a small Civil Service to begin with – was actually further reduced.
Lead Inquiry: Was the impact or one of the impacts of the collapse in the power-sharing agreement that it was impossible after 2017 for that process to be reversed because civil servants, in the absence of ministers, had no powers to change or recalibrate those spending priorities?
Baroness Arlene Foster: That is correct, they would not have been able to increase recruitment as they did not have the resource to do so.
My Lady, if I may, I do think this points to a difficulty, a more – a wider difficulty with the Northern Ireland Civil Service, because we are a separate Civil Service to the Home Civil Service. If we had have been part of the Home Civil Service, then that could have been dealt with, and we could have had that interchange not only of resource and numbers but also skills, and I’ve no doubt we will come on to talk about preparedness in the context of a lack of resource. I think one of the ways that we should have been able to deal with this, and I have felt this for some time, is that the Northern Ireland Civil Service should be integrated into the Home Civil Service.
Lead Inquiry: So in essence, Lady Foster, the public sector spending patterns that were put in place as a result of the Stormont House Agreement of 2014 remained immutable after 2017?
Baroness Arlene Foster: And indeed the wider UK spending at that time, which of course had been reduced in the context of dealing with the worldwide recession –
Lead Inquiry: So is that –
Baroness Arlene Foster: – 2009.
Lead Inquiry: That’s a reference to the general so-called austerity –
Baroness Arlene Foster: It is.
Lead Inquiry: – programme?
Just dealing – just maintaining our focus on Northern Ireland, those spending cuts and the impact on the Northern Ireland Civil Service were the direct result, of course, of a pre-interregnum programme put into place in 2014 that civil servants were unable to alter. Why couldn’t, under direct rule, Westminster step in between 2017 and 2020 and recalibrate that spending programme?
Baroness Arlene Foster: That’s actually the point I’m making, my Lady, that they should have stepped in. If there was a difficulty with resourcing in Northern Ireland, particularly around the important issue of resilience and planning for emergencies, then there was a duty on the Westminster government to note that and indeed to take the appropriate action.
Lead Inquiry: In addition, Mr Swann in evidence and in his witness statement, a fellow former politician in Northern Ireland, speaks of how the lack of an Executive between 2017 and 2020 had an adverse effect on the preparedness of the health and social care system generally, because key decisions were not taken on resources and staffing levels. There was a gap between demand and health and social care capacity that civil servants were unable to fill, so the health and social care system became significantly more degraded during that period as well.
Would you agree?
Baroness Arlene Foster: I think, my Lady, we have to put that into the context of a recognition by the Executive before the collapse that there was a need to reform the health system widely in Northern Ireland. When I began my life as a minister I think the budget for health and social care was just over 40%. By this stage the budget was 52% of the block grant. So the health and social care budget was continuing to grow, but there continued to be difficulties within the system.
So that recognition led to the commissioning of a report and work carried forward for us by an eminent person in the field, Rafael Bengoa. He reported to the health minister in 2016, I think around October, might have been September of 2016. That was brought to the Executive. And all of the parties in the Executive, the five parties, agreed that it was not just a nice thing to do, it was an absolute necessity to reform the health service in Northern Ireland.
As a result of the Executive collapsing, in January of 2017, the leadership required to take those reforms forward was not present for three years, and then because of the pandemic again those reforms have not been able to be taken forward, and now we’re in a situation where we have a report from 2016 which hasn’t actually been implemented.
Lead Inquiry: Had Professor Rafael Bengoa recommended widespread systemic change? I mean, in his review paper of October 2016, was he making a general suggestion that there should be an increase in resources and the rooting out of inefficiency, or was he recommending wholesale transformation across the health and social care system?
Baroness Arlene Foster: He was recommending system change. He was recommending that we had a – more of a focus on primary care, that we move to elective centres for surgery, that we looked at Northern Ireland in the whole as opposed to our own little parts of Northern Ireland. I know this may sound strange, but those of us who live in Northern Ireland think it’s an incredibly large place, but I think for those who look into Northern Ireland it’s not that large, and I think he was recognising that there was a need for systems change, and, as I say, that was accepted by all of the parties at that particular time.
Lead Inquiry: In essence, as we’ve heard from Dr McBride, there was a mandate –
Baroness Arlene Foster: Yes.
Lead Inquiry: – I apologise, Professor Sir Michael McBride – there was a mandate to introduce the changes recommended by Professor Rafael Bengoa, but in the short period between October 2016 and the collapse of the Executive in January 2017 it was impossible to bring about any practical change?
Baroness Arlene Foster: Yes, there may have been preparatory work taken forward, but certainly by the time the Executive collapsed there was no meaningful change having taken place.
Lead Inquiry: Turning to a different angle of the collapse, with no ministers in place, presumably it wasn’t possible for the important North South Ministerial Council to meet.
What is that council? You have referred to the cross-border management arrangements, but this is something different, is it not?
Baroness Arlene Foster: It is entirely different. So the Belfast Agreement has three strands within it. We have the internal workings of Northern Ireland, and we’ve talked about the Assembly and the Northern Ireland Executive; that’s strand one. Strand two is north-south relationships, and that’s facilitated through the North South Ministerial Council, which meets in plenary, usually about twice a year, but there are other sectoral meetings that take place throughout the year, so the health sectoral, the agricultural sector, those will take place throughout the year, with the appropriate minister attending from Northern Ireland and from the Republic. Then strand three of the agreement is the east-west relationships, the British-Irish Council relationships.
Once an Executive breaks down, there is no minister from Northern Ireland to attend the North South Ministerial Council, therefore the ministerial meetings no longer take place. However, the officials, as I understand it, my Lady, continued to meet within the policy that was already set by their ministers during that time.
Lead Inquiry: I think there’s only a relatively few number of plenary meetings, maybe two a year, but –
Baroness Arlene Foster: Yes.
Lead Inquiry: – Dr McMahon, the permanent secretary in the Executive Office, calculated that:
“In terms of the North South Ministerial Council, a rough calculation on my part would have been that there were about 46 lost … Ministerial Council meetings …”
In total, because of course there is a number of meetings between individual ministers, not just plenary meetings.
So a very significant number of meetings simply did not take place?
Baroness Arlene Foster: Yes, so sectoral committee meetings would have been lost, to use Dr McMahon’s words.
Lead Inquiry: Yes. We of course presume that those meetings are envisaged under the Good Friday Agreement for good reason, for good purpose, they have enormous utility, and they bring about significant practical benefit, so their absence was obviously a matter of very real concern and regret, no doubt?
Baroness Arlene Foster: The actual North South Ministerial Council meetings can be quite formalised, my Lady. A lot of the work that goes on between the two administrations takes place on either side of the meetings, as often happens to be the case. The meetings themselves are of a formalised nature because of the arrangements that have been set up for those meetings. So not only does the minister of that particular department attend, he is usually accompanied by a minister. So if it’s a unionist minister, if I take the Department of Health, Minister Swann, he would have been accompanied by a nationalist minister, to make sure that, in the balance that is Northern Ireland, that things are kept in equilibrium. So there would have been two ministers from the Northern Ireland Executive and one minister from the Republic of Ireland.
Lead Inquiry: All right.
Turning now to look at the civil contingencies structure more specifically, in the context of the impact of the collapse, the evidence before my Lady shows that, in a number of letters from members of the Civil Contingencies Policy Branch, in particular its head, in a letter dated 22 January 2020, significant work on sector resilience, that’s to say making preparations for the ability of the health and social care structures in Northern Ireland to meet the demands of a prospective pandemic, effectively were unable to be completed because of the resourcing problems to which you’ve made reference, the demands of the necessary preparations for a no-deal EU exit. And the risk registers, both at the civil contingencies policy board level and in the Department of Health departmental level and in the civil contingencies policy board work programme documents, were flashing red for concerns being expressed about the civil contingencies system running behind on producing assessments, sector resilience, the problems from staffing shortages, the non-attendance at Cross-border Emergency Management Group meetings and so on.
Were you made aware of the parlous state into which that part of the system had descended when you took office again on 11 January 2020?
Baroness Arlene Foster: No, I was given the general briefing, which I think I’ve already indicated. I was aware that, in terms of civil contingencies, that there had been an Operation Yellowhammer to deal with a no-deal Brexit and that there had been a number of exercises carried out and training, and the TEO, the Executive Office, had taken on a leadership role in respect of that.
But to answer your question, and those number of issues that you’ve raised, I was not made aware when I came into office in January 2020 of that.
Lead Inquiry: Although it’s a matter for further debate in the context of Module 2C, plainly you had to deal with the system as you found it to be –
Baroness Arlene Foster: Sure.
Lead Inquiry: – on 11 January in the face of this terrible pandemic, so it must have been apparent to you that things were not as well as they perhaps ought or should have been?
Baroness Arlene Foster: Well, I have to say, my Lady, that when the pandemic hit Northern Ireland, whatever about planning, the determination of the Civil Service, and indeed the National Health Service in Northern Ireland, was quite amazing, they stood up in a way that I was very proud of, and whilst Mr Keith may say that it was in a parlous state, I think the response was, given that we hadn’t ministers for three years, quite an incredible response to what was coming towards us.
Lead Inquiry: On account largely of the remarkable efforts of the individual members –
Baroness Arlene Foster: Absolutely.
Lead Inquiry: – of the population of Northern Ireland?
Baroness Arlene Foster: Correct.
Lead Inquiry: Because the reality by January 2020 was that the Civil Service, to use the words of Sir David Sterling, had become stagnant, it had been denuded of leadership, direction and ministerial control, there was a general shortage of resources, the civil contingencies structure was described by an officer in its main constituent body, the policy branch, as being not fit for purpose, and the country generally was devoid or at least suffered from a lack of proper resilience, so that it was less able and less prepared to be able to meet the demands of a pandemic; would you agree with those general propositions?
Baroness Arlene Foster: I’m not sure I agree with all of those general propositions. When I now look back, my Lady, at the planning that there was and which at the time I was unaware of in terms of the Department of Health to deal with some of the issues that came towards them, I’m not sure any planning would have had us fit for purpose to deal with the Covid pandemic, in terms of the scale and nature of it, particularly when the number one risk on the risk register across the United Kingdom was for a flu pandemic and what came towards us was not a flu pandemic but a very transmittible disease in the community. Therefore, the need to scale up and have the capability to deal with that was something that we had to dig very deep into very quickly.
Lead Inquiry: That, of course, is a perfectly proper observation to make in relation to the operational response and the way in which the people of Northern Ireland responded to the crisis. But you agree, and you’ve agreed in the course of evidence, that there was, objectively, a reduced resilience in Northern Ireland as a result of the matters that we’ve discussed.
Baroness Arlene Foster: I think there was a reduced resilience, and as I’ve said, I believe that the Westminster politicians who were in charge of Northern Ireland ostensibly from a sovereignty point of view at that time should have been made aware of that difficulty and should have acted, because if there is a gap in resilience, my Lady, in part of the United Kingdom, surely that should concern the Government of the United Kingdom, in terms of where there are gaps, whether that’s in Wales, Scotland or indeed in Northern Ireland.
Lead Inquiry: Therefore you would agree, would you not, with this proposition: that all the politicians in Northern Ireland, and perhaps also in Westminster, must bear their share of the responsibility for leaving the people in Northern Ireland in that state?
Baroness Arlene Foster: Well, as the record knows, my Lady, I very much wanted to be in government during those years of 2017, 2018, 2019, to deal with the issues that Sir David Sterling has referred to, and indeed has been referred to by Denis McMahon. Unfortunately, because we have a mandatory coalition, I cannot go in alone, and therefore we were in a situation where we did not have ministerial cover.
And I don’t want to enter into the realms of politics, my Lady.
Lead Inquiry: Indeed not.
It seems self-evident, Lady Foster, that the demands and the benefits but the exigencies of the Good Friday Agreement and the constitutional structure in Northern Ireland are what they are. Nothing can be done about the fact that if there is a collapse in the power-sharing agreement there is no ministerial leadership or control or guidance.
Baroness Arlene Foster: I believe it’s what is called realpolitik, and indeed if there is difficulty in Northern Ireland then we are left without ministerial cover, and I really do believe, my Lady, that the United Kingdom Government needs to look at that, and when there is an absence of power-sharing, which of course has been voted on by the people of Northern Ireland, and that’s their system of government that they desire, then there is a responsibility on Westminster to step in.
Lead Inquiry: So that never again may it be said that politicians have derogated from their duties to the citizens of Northern Ireland in terms of making sure that the country is ready for whatever emergencies it may confront in the future?
Baroness Arlene Foster: The preparedness of the UK is something that this Inquiry is determined to look at, and indeed the response thereafter, and I think in terms of the preparedness the Westminster government should have been aware that there was a gap in Northern Ireland.
Lead Inquiry: To what extent were you updated, as the leader of the DUP, during the interregnum, the period of time in which you were not First Minister? Were the political parties in Northern Ireland kept informed of the position in terms of public sector resources, spending, the state of the Civil Service, the structural state of play, or was it very – was it … well, were you made privy to very little information about the state of play?
Baroness Arlene Foster: So as is the case now, from time to time parties will be invited in by the head of the Civil Service for briefings in relation to the state of play, usually to deal with the most pressing issue of the time. Health resourcing was one of those issues and of course Operation Yellowhammer was another issue that we would have been briefed on as well.
Lead Inquiry: So the political parties in Northern Ireland –
Baroness Arlene Foster: Yes.
Lead Inquiry: – were made aware of the general state of affairs –
Baroness Arlene Foster: Yes.
Lead Inquiry: – where the position had been reached in terms of resourcing and the impact of Operation Yellowhammer and so on?
Baroness Arlene Foster: In a very general way, yes.
Lead Inquiry: Were you aware, therefore, that there were problems or at least aware that there had been unwelcome and deleterious consequences or impacts upon the civil contingencies structure in Northern Ireland?
Baroness Arlene Foster: I don’t believe that that is something that was briefed to the parties during those three years.
Lead Inquiry: All right.
Could we now turn to the question of the issue concerning the broad alignment between Northern Ireland’s approach to pandemic planning and – together with that of the United Kingdom.
When you were First Minister in 2016 to 2017, how aware were you of the general alignment between Northern Ireland and the United Kingdom in terms of the strategy that would be adopted to any future pandemic?
Baroness Arlene Foster: Well, Northern Ireland is part of the United Kingdom, so we’re very much involved in the strategic view of what should happen in an emergency of whatever type. So, yes, I would have been very much aware of that, and the existence of COBR should the need arise.
Lead Inquiry: What about the 2011 strategy which underpinned the approach in Westminster and was the analogue of the 2013 document in Northern Ireland? Were you aware of the, what is now quite apparent, limitations of that strategy and of that pandemic influenza document?
Baroness Arlene Foster: I don’t think that that was briefed to me during my time in 2016. I probably became more aware of that document in the early days of the pandemic.
Lead Inquiry: Does it follow that you wouldn’t have, therefore, engaged in any debate about whether or not a plan for the United Kingdom generally was suitable for a particular part of the United Kingdom which happens to share, epidemiologically and geographically, an island with another country? Was that ever issue ever up for debate?
Baroness Arlene Foster: I don’t think the issue was ever up for debate because we’re part of the United Kingdom, therefore we work through the systems of the United Kingdom, Wales, Scotland, Northern Ireland, England. But we do of course, through other systems, recognise our nearest neighbour. We work very closely in terms of operational matters, we work through the North South Ministerial Council, and indeed, very shortly after the pandemic came to our shores, we took action to have those connections with our ministerial colleagues in the Republic of Ireland.
So sometimes I think there is a lot of emphasis on structure, but actually it’s the operational issues that matter to people on the ground, and I think we had a close working relationship with our colleagues.
Sometimes problems arise, we have a different legal system, we have a different structure, and that arose during the response phase, and I’m sure we’ll come back to that during those hearings.
Lead Inquiry: Your first period in post as First Minister ended on 10 January 2017. Shortly beforehand there had been an exercise for the United Kingdom called Exercise Cygnus. It took place over a number of days in October, and it had in fact its genesis in an earlier exercise which took place in Wales in 2014.
There hadn’t, I think, been a report on Exercise Cygnus in Northern Ireland by the time you left office in January 2017, but were you briefed orally on the outcome of that exercise, or were you made aware of the ways in which the pandemic planning or the health emergency systems in Northern Ireland required certain actions and lessons to be implemented?
Baroness Arlene Foster: Well, as I said, my Lady, in evidence, those would have been matters for the Department of Health and, given our very specific circumstances in Northern Ireland, I was not made aware of the outcome of Operation Cygnus, but I understand that the Department of Health were very much leading in that exercise.
Lead Inquiry: Coming forward to 2020, and deliberately not asking you questions about the reality of the operational responses that you were forced to make after the pandemic struck, but focusing on the structures that were in place as you found them to be, were you aware that there was no automatic Northern Ireland representation on SAGE?
Baroness Arlene Foster: I was not made – I was not aware of that immediately, but I became aware of that.
Lead Inquiry: Did you ensure, after no doubt an appropriate passage of time, that a Northern Ireland representative was to be on SAGE and had to be on SAGE?
Baroness Arlene Foster: It was a matter of concern. The Chief Medical Officer and Chief Scientific Adviser, however, assured us that they were very much in close contact with their colleagues in Whitehall, and, as I understand it, I think from March the Chief Scientific Adviser did attend most of the meetings in SAGE and then augmented that with other mechanisms, which we will discuss during the response phase no doubt.
Lead Inquiry: Did you have many dealings yourself when you were First Minister with Professor Young, one of the two departmental CSAs? There was a CSA in the Department of Health, Professor Young, and one in the Department of Agriculture, Environment and Rural Affairs, as you would have known from your previous ministerial position.
Baroness Arlene Foster: Yes.
Lead Inquiry: Was there an overarching governmental CSA, or were they the only two CSAs within the Northern Irish government?
Baroness Arlene Foster: They were the only two, my Lady, and I think that gap has now been identified in terms of having an overall Chief Scientific Adviser and is being actioned, as I understand it, now.
Lead Inquiry: Sir Michael, in the course of his evidence, observed that in April 2020 he’d had to establish a strategic intelligence group chaired by the CSA, Professor Young, and including members from a number of renowned academic institutions in Northern Ireland, as well as some others, because he believed that the scientific information that was available to Northern Ireland failed to pay due regard or sufficient regard to the specific circumstances of Northern Ireland. It needed – you needed – to have more Northern Ireland specific information.
Baroness Arlene Foster: I think what he indicated, and I had the opportunity to watch his evidence yesterday, my Lady, was that it was augmenting what was coming from Whitehall, and I think that that is absolutely the right thing to do in terms of making sure that we had the best available data, information and scientific advice given to us. So the setting up of that strategic intelligence group is something that I absolutely think was the right thing to do, and it allowed us to have the ability to pinpoint in this terrible disease the transmissibility in particular areas of Northern Ireland, and to do, indeed, Northern Ireland modelling as well. So that is something that I think is going to now be taken forward by the Public Health Agency and I very much welcome that.
Lead Inquiry: But the point is that it wasn’t until the pandemic struck –
Baroness Arlene Foster: Sure.
Lead Inquiry: – that it became apparent that there was this lacuna in the provision of scientific data and information and there was a need for a body to collate the information from London alongside the rest of the United Kingdom, but also from Northern Ireland, in order to put it into a form that was of the greatest practical utility to you in Belfast?
Baroness Arlene Foster: I think it’s one of the very important lessons from the pandemic that, as well as having the expertise and the ability to ask questions of some of the world’s top academics in London, that to have that Northern Ireland-specific part is something that was of benefit. So hopefully in any new plans we will have that available to us – or, indeed, not available to me but to the new ministers that are in position.
Lead Inquiry: May we presume that there were regular meetings and communications between yourself as First Minister and ministers in London?
Baroness Arlene Foster: Yes.
Lead Inquiry: You’re aware, of course, of the United Kingdom review of intergovernmental relations. I think a policy document for that review was published or at least made available during your second time in office, in 2020 to 2021. It states – or at least the UK review of intergovernmental relations states that ministers and civil servants across the United Kingdom are in touch on a daily basis across all areas of interest.
Was that the reality? Is that an accurate description of what you found to be the case?
Baroness Arlene Foster: Yes, because I had a particular background to engagement with ministers in the government. I had been involved in a confidence in supply arrangement with the government from 2017 to 2019, and that allowed me to get to know a number of ministers on a personal basis, which I think was very helpful during the pandemic, if I may say so.
But that intergovernmental relationships piece was really tested after the vote to leave the European Union, because Scotland, Wales and ourselves had particular issues that we needed to discuss with the Westminster government, and that’s the genesis, if you like, of that policy framework and policy document.
Lead Inquiry: Putting aside the ease and efficiency with which you conducted your communications with Westminster and with UK ministers, governmentally –
Baroness Arlene Foster: Yes.
Lead Inquiry: – would you say that the relationship ministerially between Northern Ireland and Westminster worked well? I ask because, as you know very well, your former colleague Michelle O’Neill describes meetings with the Chancellor of the Duchy of Lancaster and with the Prime Minister, the then Prime Minister, as being a last minute decision-making platform, which would perhaps tend to suggest that it was not the sort of bilateral communication device that we would all wish to aim for.
Baroness Arlene Foster: Indeed. And I certainly don’t want to enter into the realm of politics, but it is worth noting that the complexion of the government in London was completely different from Wales, Scotland and Northern Ireland, and therefore that in and of itself had its challenges, as we moved through sharing information, and I think that that is reflected in the deputy First Minister’s response.
Lead Inquiry: To the extent that you required to be linked in to COBR and to partake in its affairs, did you find that, practically, an efficient process?
Baroness Arlene Foster: I wouldn’t say it’s an efficient process, because by its very nature there are many people in the room, all trying to share information and speak, but I think it’s a very necessary part of the procedure, and something that initially the Health Minister was invited to in Northern Ireland, and then the First and deputy First Minister became involved in COBR at a slightly later stage.
Lead Inquiry: Turning, finally, to some of the lessons which you identify in your witness statement and some of the issues which have arisen out of the evidence concerning Northern Ireland in particular, Sir Michael McBride has said that he thought that there would be a significant benefit in conducting testing of emergency response plans and joint exercises on a north-south basis, which would be a development, of course, on the existing arrangements. Would you agree with that proposition?
Baroness Arlene Foster: Well, I think there’s already operational procedures and plans that take place on a north-south basis, if I think of some of the responses along the border corridor. For example, you will see health service workers, ambulances, moving across the border to help in particular incidents, which is absolutely right and should be the case. We have particular structures in place to deal with paediatric cardiac services, which I actually was involved with at the time. So I think there are some instances already taking place in terms of north-south operability and the need to work together.
But I also note that Sir Michael talked about the need to have that connection between not just north and south but actually the UK and Ireland, because we shouldn’t forget that these are two sovereign governments, and therefore there is a need for them to work together. And at the risk of moving into the response phase, you could see that on international travel, you could see the fact that we do share a common travel area between the UK and Ireland, and people move freely through the UK and Ireland, and that is probably why Sir Michael was referring to that five, if you like, nation approach as opposed to just north-south.
Lead Inquiry: Exercise Cygnus was obviously a UK exercise.
Baroness Arlene Foster: Yes.
Lead Inquiry: So, to the extent that you’ve expressed concern that there isn’t enough UK testing, there obviously is a process in place for cross-United Kingdom exercises.
But Sir Michael had in mind a formalised process of testing cross-border, so not systems concerned, and they do already exist, to deal with problems associated with obesity, food poverty, there’s a British-Irish Council workstream, as you know, on drugs and alcohol, suicide prevention, and that accident & emergency system which operates cross-border but only in relation to the land over either side of the border or the counties on either side of the border. Testing in the field of emergency response, civil contingency, EPRR, would be something novel and different?
Baroness Arlene Foster: That’s why I say I think it will be better with the two sovereign governments becoming involved, and we’ve already talked about resilience –
Lead Inquiry: All right, so your position is it has merit, it has a benefit, but it must be a matter for the politicians at Northern Ireland and Westminster level and the Republic of Ireland to debate between themselves?
Baroness Arlene Foster: Yes, because inevitably if you are to have a plan north-south, there will be elements that will be reserved to Westminster, and that is why there is a need for Westminster politicians to be involved as well.
Lead Inquiry: Much evidence has been given about – and you referred to it in your own witness statement, to embedded structural inefficiencies in Northern Ireland, in particular in the context of the healthcare system, which you say you believe can only be tackled by fundamental reform.
Is such fundamental reform a necessary part of reforming the system of civil contingencies? So putting it another way, can you have a properly operated system of civil contingencies without having a properly working system of healthcare and resilience?
Baroness Arlene Foster: I believe the reforms envisaged by Bengoa are necessary, and therefore if they’re necessary for the system, that must mean that they’re necessary for resilience overall, in terms of Northern Ireland response. Particularly in a health emergency, obviously less so in other sorts of emergencies. Mind you, it’s very difficult to envisage an emergency which doesn’t involve the health service, if I’m frank.
Lead Inquiry: Another point you make in your witness statement is that it’s vital next time to have better planning and advance consideration of the potential impacts, not just of –
Baroness Arlene Foster: Yes.
Lead Inquiry: – the emergency, the exigency, the pandemic, if that is what it is, but also of the governmental responses, so lockdowns or mandatory quarantines or countermeasures and so on.
It is obvious, isn’t it, from what you’ve said, that there was no consideration at all given to any of those features or the countermeasures or the potential consequences of the government’s response to Covid in advance of Covid striking?
Baroness Arlene Foster: I think certainly when Covid struck there was a great fear and a great panic that ensued, not just in Northern Ireland but right across the United Kingdom, and indeed other jurisdictions as well, and there – felt there was a need to lock down in a particular way. I do not think that enough consideration was given to the impact, the non-health impact, if I can put it like that – and indeed there were many health impacts as well that were not foreseen.
My Lady, if I may, I mean, the devastating impact that Covid had on so many families in Northern Ireland I think is – stays with me, because it was a devastating impact. Many people lost loved ones in devastating circumstances, which have been set out by the bereaved families’ statement, and I want to take this opportunity to give them my condolences and my sympathies, and indeed to note that there are many people still suffering today with long Covid, and indeed some people in hospital today with Covid.
Therefore, I really do hope that this Inquiry is able to bring an element of closure, but more importantly to learn the very important lessons for the future, because I think that is the critical point of this Inquiry.
Mr Keith: My Lady, those are all the questions that I have.
Lady Hallett: I think we’d better break here.
We take a break for the benefit of everybody, in particular our wonderful stenographer. So I shall return at 11.30.
Mr Keith: My Lady.
(11.15 am)
(A short break)
(11.30 am)
Lady Hallett: Just before – Mr Lavery, are you asking the questions? Just before you do, can I ask one question myself, and then of course – you have finished, Mr Keith?
Mr Keith: I have, my Lady, I was just standing up out of courtesy since you were asking the witness a question.
Lady Hallett: I see.
Then, Mr Lavery, if you would ask the questions that I’ve given you permission to ask.
Questions From the Chair
Lady Hallett: Lady Foster, can I ask, you mentioned several times that, in the absence of ministerial oversight, because the power-sharing agreement’s collapsed, if there are gaps, for example in resilience, then the Westminster government should step in.
Whose duty would it be to inform the Westminster government that they had discovered gaps in resilience or preparedness?
Baroness Arlene Foster: Well, firstly, the Civil Service in Northern Ireland does have a relationship with the Northern Ireland Office, of course, and they have ongoing conversations, so the civil servants in Northern Ireland could alert the NIO. Of course, and I know this is a subject of under consideration, if there was to be a wider resilience audit of the UK that identified gaps in whatever part of the United Kingdom, then that could be brought to the attention of central government, whether that was on an annual, biannual basis. So I think that’s maybe something to consider as well.
Lady Hallett: Thank you very much.
Mr Lavery.
Questions From Mr Lavery KC
Mr Lavery: Thank you, my Lady.
Lady Foster, my name is Lavery and I represent the Northern Ireland Covid-19 Bereaved Families for Justice, and her Ladyship has permitted me to ask you questions about a couple of themes.
The first thing I want to ask you about is the scientific advice that you were getting, and you said in your statement that the decisions you made during the pandemic, including those in relation to lockdowns and other non-pharmaceutical interventions – this is at paragraphs 32 and 38 – were based on a very high level of scientific advice which were, in turn, very well connected into SAGE and central government systems. That’s at paragraph 22.
Now, with the obvious assistance that you obtained from scientific advisers during the pandemic, and the fact that, as First Minister, you were responsible for civil contingencies, do you regret not seeking the advice of the Chief Scientific Adviser, Professor Young, in any of the five years of his appointment prior to the pandemic?
Baroness Arlene Foster: Well, of course prior to the pandemic the number one risk was the flu pandemic, and it was of a different nature, the pandemic that arrived with us in 2020. The route to the Chief Scientific Adviser was through the Department of Health, because he reports in to the Department of Health through their system, and I think it is a gap in the governance that we don’t have a governmental Chief Scientific Adviser, in other words one that sits in the Executive Office.
I think that that is – that has been identified, my Lady, and is something that is now being dealt with and is certainly one of the learnings from this terrible time.
Mr Lavery KC: So you do regret not receiving advice or seeking advice from him?
Baroness Arlene Foster: Well, as I say, I wasn’t in office during those years of 2017 to 2020, so it wouldn’t have been appropriate for me to seek advice at that time.
In 2017, the year I was First Minister, before the pandemic, I wasn’t aware that there was any issue of which I needed to seek advice at that time.
Mr Lavery KC: One of the issues that has arisen during the course of the Inquiry is the topic of horizon planning.
Baroness Arlene Foster: Yes.
Mr Lavery KC: Is that something that you’re aware of, in scientific terms, that scientific advisers should be conscious of the advice that they should proactively be giving?
Baroness Arlene Foster: Yes, I became aware of this phrase and the meaning behind it obviously in preparation for the hearing today, and it certainly seems to me, particularly in identifying risks, however likely or unlikely they are, the impact – and I go back to the evidence of Sir Oliver Letwin – I think the impact should be flagged up that if it does happen that this is the impact that it’s going to have on society, and I think certainly if there had have been horizon planning for this type of pandemic, it would have been very helpful to know what then we needed to put in place to deal with that type of pandemic.
Mr Lavery KC: Now, at paragraph 22 of your statement, you say that your impression was that the Northern Ireland scientific advisers had the same rights and access to central government scientific systems, and Mr Keith in your evidence earlier asked you about Northern Ireland’s membership of SAGE, and you said that that’s something that you weren’t aware of prior to the onset of the pandemic; is that right?
Baroness Arlene Foster: That’s correct, yes.
Mr Lavery KC: So that did come as a surprise to you, no doubt?
Baroness Arlene Foster: It did. I suppose that that’s something that, again, operates in our system of government, which you will be familiar with, Mr Lavery, that operates through the Department of Health, so I wasn’t aware that we weren’t sitting members, but then when I listened to Sir Chris Whitty giving his evidence, he was very clear that the only permanent position in SAGE is actually the Chief Scientific Adviser to the UK Government, and then they bring in whoever they need to bring in.
I absolutely think we should be there of right in SAGE when SAGE is stood up, and in terms of horizon planning that’s something that should happen across the UK on an ongoing basis, and again leads me back to the point I made to my Lady about resilience planning and the need to audit what’s going on across the UK in terms of preparedness for whatever may come our way.
Mr Lavery KC: In fact in your evidence earlier you suggested we should be more integrated into the UK system in terms of scientific expertise and resources.
Does this then come as a surprise to you or were you aware that the Chief Scientific Adviser, Professor Young, was denied membership of the Chief Scientific Adviser UK network?
Baroness Arlene Foster: Yes, well, that isn’t something that I would have been made aware of, because, as I say, his sponsor department is the Department of Health.
Mr Lavery KC: Did you know about that before I asked you, for instance?
Baroness Arlene Foster: No, I didn’t. No.
Mr Lavery KC: From what you said earlier, do you think that would have been a good thing for him to be involved in that?
Baroness Arlene Foster: Yes, absolutely.
Mr Lavery KC: Or essential?
Baroness Arlene Foster: I think it’s essential that we have as much opportunity to be involved in seeking information, seeking expertise, as we possibly can, and therefore I think – and I know, Mr Lavery, probably there is a need to keep some of these organisations small and agile, to make sure that they work properly, because if there’s too many people in the room it becomes a difficulty. However, I think from a Northern Ireland point of view, and I’m sure it’s the same for Scotland and Wales, it’s important that we are plugged in to the expertise that is there.
Mr Lavery KC: If you had been made aware of this, no doubt you would have talked to people and tried to make him a part of that?
Baroness Arlene Foster: I certainly would have spoken with the Minister of Health to have a discussion about his concerns around the provision of scientific advice. As we’ve already indicated, we don’t have a governmental chief scientific adviser. I think that is something that we need to deal with, and when that person is in post I would hope that that person would have access to all of the relevant meetings that he needs to attend.
Mr Lavery KC: Just lastly on this topic, did you know that the Senior Medical Officer for Northern Ireland only had observer status, with no speaking rights at the Joint Committee on Vaccination and Immunisation, and that Northern Ireland only had observer status at the Advisory Committee on Dangerous Pathogens meetings, the ACDP?
Baroness Arlene Foster: I think I became aware of that on reading the evidence before I came to this hearing.
Mr Lavery KC: Then I want to ask you about your role as minister responsible for civil contingencies.
At paragraph 27 of your statement, you said that Northern Ireland needs more “access to sufficient suitably qualified draftspeople”, and at paragraph 8 you said that during the period of collapse 2017 to 2020 that there was no Assembly present to – no Assembly there to pass legislation.
You’ll also be aware that large parts of the Civil Contingencies Act in 2004 do not apply to Northern Ireland, and those parts of the Act contain important statutory obligations on public authorities.
The reason that happened was that in 2005 there was an expectation on the part of the Secretary of State that equivalent devolved legislation would be introduced to Northern Ireland to ensure a similar level of protection as experienced elsewhere. In fact, Cygnus recommended that Northern Ireland should consider developing legislation on pandemic response.
Now, you may or may not be aware that Peter May, then, the former permanent secretary for the Department of Health, in his statement, paragraph 101, says that civil servants at the request of the Chief Medical Officer decided to divert resources away from the development of the Northern Ireland public health Bill to other areas, stalling the progress of that legislation.
Now, as minister responsible for civil contingencies during the relevant period, do you believe that Northern Ireland does deserve the same level of pandemic preparedness and civil contingency legislation protections as those in the rest of the UK?
Baroness Arlene Foster: So there’s quite a lot in that, Mr Lavery.
Mr Lavery KC: Yes.
Baroness Arlene Foster: But just to say that when Operation Cygnus reported, unfortunately the Executive had collapsed by that stage and, as you’ve indicated, the work began on pandemic flu preparedness in terms of legislation, but that was then stopped in order to deal with Operation Yellowhammer. When I came back into office, I wasn’t made aware of the fact that we hadn’t progressed the Pandemic Flu Bill, but I think by that stage it had actually begun again, and indeed that work had been paused right across the UK and not just in terms of Northern Ireland.
In terms of the statutory duties, as I understand it, there are only two organisations that are at a category 1, the Police Service of Northern Ireland and the maritime authority, but that the other authorities in category 2 do operate alongside those two bodies, and it is a moot question as to whether, if there were statutory duties attached to those people they would have done – or they would have engaged in different planning in preparation for an emergency. I’m not qualified to say whether they would or they wouldn’t. Perhaps someone from those organisations could indicate whether that was the case.
Mr Lavery KC: Well, Dr McMahon suggested that there were perhaps three, maybe four areas in which legislation imposing mandatory duties was necessary: one was that the duties would be clearly set out; secondly, that those duties would be properly resourced; and, thirdly, that during periods which are recurrent and do last for a long period of time where there is no Assembly, that public authorities would know exactly what they had to do.
Baroness Arlene Foster: Yes, I think there’s much merit in what Mr McMahon has said around that. And as I don’t have the recommendations from Operation Cygnus in front of me, I can’t really comment any further at this point.
Mr Lavery KC: Did you ever discuss the legislative changes and how these disadvantages should be addressed?
Baroness Arlene Foster: No, they were never brought to my attention.
Mr Lavery KC: Were you aware that the Northern Ireland public health Bill had been stalled?
Baroness Arlene Foster: Well, I wasn’t in office until January of 2020, so I wasn’t aware, when I came in – back into office in 2020, that it had been stalled, but I think by that stage it had begun the planning again, because Operation Yellowhammer obviously was behind us at that stage, having ended in December of 2019.
Mr Lavery KC: Do you agree that it was an inappropriate position for the Chief Medical Officer and civil servants to have to make the decision to stall that legislation in the absence of ministerial oversight?
Baroness Arlene Foster: Well, I think I’ve given evidence to my Lady about the fact that when there isn’t devolved ministers in office, that really United Kingdom Government ministers should take responsibility for something as important as resilience and emergency preparedness.
Mr Lavery KC: But just going back to your earlier response, you weren’t aware of this legislation or this lacuna, it wasn’t brought to your attention?
Baroness Arlene Foster: No, it wasn’t, no.
Mr Lavery KC: Do you think it should have been?
Baroness Arlene Foster: Yes.
Mr Lavery: Thank you, my Lady.
Lady Hallett: Thank you, Mr Lavery.
Mr Lavery: Thank you, Lady Foster.
The Witness: Thank you.
Mr Keith: My Lady, that concludes the evidence of Baroness Foster.
Lady Hallett: Thank you very much indeed for your help, Lady Foster, and as you have envisaged in your evidence we shall meet again for the response phase. Thank you.
The Witness: Thank you, my Lady.
(The witness withdrew)
Ms Blackwell: My Lady, the next witness is Richard Pengelly.
Mr Richard Pengelly
MR RICHARD PENGELLY (sworn).
Questions From Counsel to the Inquiry
Ms Blackwell: Is your name Richard Pengelly?
Mr Richard Pengelly: It is, yes.
Counsel Inquiry: Mr Pengelly, thank you for the assistance that you have given so far to the Inquiry. You have provided a witness statement which is at INQ000195848, and if we go to page 18 of the document – thank you – we can see that you signed it on 23 May of this year. Can you confirm that it’s true to the best of your knowledge and belief?
Mr Richard Pengelly: I can indeed.
Counsel Inquiry: Thank you very much. We can take that down.
You currently hold the position of permanent secretary at the Department of Justice in Northern Ireland, but you previously held the position of permanent secretary at the Department of Health between July of 2014 and April of 2022.
Prior to that, you had been permanent secretary of the Department for Regional Development, but it’s right to say that prior to 2014 you had no experience of working in the area of health and social care?
Mr Richard Pengelly: That’s right, I was largely working in public expenditure in the Department of Finance.
Counsel Inquiry: Thank you.
My Lady, I’m conscious that you have already heard a significant amount of evidence about health matters in Northern Ireland, but I will begin, if I may, by establishing with Mr Pengelly an overview of the Department of Health in Northern Ireland.
Mr Pengelly, in 2016, there was departmental restructuring which led to the Department of Health, Social Services and Public Safety becoming the Department of Health; is that right?
Mr Richard Pengelly: That’s right, yes.
Counsel Inquiry: The Department of Health, as my Lady has heard, is one of nine Northern Irish governmental departments.
The department’s statutory responsibilities under the Health and Social Care (Reform) Act (Northern Ireland) 2009 are to promote an integrated system of health and social care, designed to secure an improvement in the physical and mental health of the people of Northern Ireland, the prevention and diagnosis and treatment of illness, and the social well – and well-being of people in Northern Ireland; is that right?
Mr Richard Pengelly: That’s right, yes.
Counsel Inquiry: Thank you.
Does the top management group and departmental board have the responsibility for the overall corporate governance of the department?
Mr Richard Pengelly: It does indeed. The overall responsibility sits largely with myself as permanent secretary and accounting officer, and I’m supported in that by the top management group, who would typically meet weekly, and the departmental board, who would meet less frequently.
Counsel Inquiry: Thank you.
Does the department discharge its responsibilities by direct departmental action and also through its arm’s length bodies?
Mr Richard Pengelly: Yes, essentially the department focused on the policy agenda and the operational delivery of services, was through 17 arm’s length bodies of the department.
Counsel Inquiry: So as permanent secretary, what is the variety of roles that you held in the Department of Health?
Mr Richard Pengelly: The permanent secretary role in the Department of Health is unique in the Northern Ireland context because there’s a dual job title: it’s permanent secretary of the department and chief executive of the health service. It’s a slightly strange title because there is no legal entity of the health service in Northern Ireland; there are, as I mentioned, 17 arm’s length bodies. The operational responsibilities sit with those individual bodies. So my discharge of the permanent secretary responsibilities was through the department and the top management group. I saw very much the chief executive role as one of trying to consolidate system behaviour as opposed to having the operational responsibility for the provision of care, for example.
Counsel Inquiry: My Lady heard yesterday from Professor Sir Michael McBride, who explained the role of Chief Medical Officer and, indeed, the Chief Medical Officers group, because the Chief Medical Officer holds overall policy responsibility for emergency planning, preparedness and response, does he not?
Mr Richard Pengelly: He does, yes.
Counsel Inquiry: In terms of multiple levels of delegation and how that fits within emergency planning and preparedness, does the level of delegation go from the Department of Health to the Chief Medical Officer, and from the Chief Medical Officer then to the Deputy Chief Medical Officer, and also the director of Population Health directorate?
Mr Richard Pengelly: It does, although I’m just wary of emphasising the delegation nature too much, because sometimes that can be erroneously interpreted as an abdication of responsibilities.
Sir Michael took a very, very close involvement in emergency planning but the day-to-day work would have been delegated down to the emergency planning branch, who – that would have been the sole focus of their responsibilities, and obviously Sir Michael would have had a broader range.
Counsel Inquiry: So what systems were in place to ensure efficient collaboration and engagement of those that needed to focus on emergency planning?
Mr Richard Pengelly: The main approach was one of the provision of assurance statements, so rather than, for example, either Sir Michael or the Deputy Chief Medical Officer completely – the phrase we use is “marking the homework” of their direct reports, it would have been set a broad range of objectives and then seek assurance at various touchpoints in the year that those objectives were being delivered or were on track for delivery, with any issues or concerns being escalated upwards, in the first instance to the Deputy Chief Medical Officer, if necessary to Sir Michael, and then to myself if they were of a significant nature.
Counsel Inquiry: During your time as permanent secretary of the Department of Health, did you have any concerns about the efficacy of that system?
Mr Richard Pengelly: No concerns – and, sorry, just to complete. There would be the upward escalation of concerns. The main way that my own involvement – and Michael and his peers, the leader of the various groups across the department – I would have had stock takes with them, normally every three to four weeks, and it would have been an hour spent together just talking through issues. From time to time we’d have touched on emergency planning, and Michael might have mentioned, you know, there’s an issue about – we have lost a member of staff, we need to bring someone in, but the sense I got was this was a very well managed and well organised area of the department, with no concerns coming to me on a formal basis.
Counsel Inquiry: My Lady has heard evidence about other relevant structures in terms of emergency planning within the Department of Health, the Northern Ireland Pandemic Flu Oversight Group, a Task and Finish Group, Health Emergency Planning Forum, Critical Threats Preparedness Steering Group, Joint Emergency Planning Board, and Joint Emergency Planning Team.
I’m going to ask you a question that’s been put to other witnesses: do you think that there was too complex an arrangement so far as emergency planning was concerned, and also I’d like you to consider: was there any risk of duplication and overlap between those various bodies?
Mr Richard Pengelly: I think the short answer has to be it is a complex landscape, and with complexity there is always the risk of duplication or overlap.
The point I would make in favour of the structures is that, in my experience, and for many years as a senior civil servant, one of the issues that causes us greatest concern is organisations retreating into their silos, and the silo mentality. We strive for cross-departmental and cross-organisational working. The delivery of effective emergency preparation work cuts across the responsibilities of a number of organisations. In Health alone we have a department and 17 arm’s length bodies –
Counsel Inquiry: Could I ask you to slow down your evidence a little for the stenographer.
Mr Richard Pengelly: The work also cuts across other sectors, so at times to bring those diverse range of organisations together effectively and to get them to work collaboratively towards a unified purpose requires the establishment of groups.
It does look complex, and it’s something we should always be alive to and seek to minimise that complexity, but I think it’s a necessary approach where responsibilities cut across organisational structures.
Counsel Inquiry: The Department of Health is the lead government department in respect of pandemic preparedness, is it not?
Mr Richard Pengelly: It is.
Counsel Inquiry: The department is therefore required to maintain a state of readiness and build resilience to allow it to effectively lead the response to such health emergencies where they occur, and part of the way in which the government department sought to carry out its responsibilities in that regard was in terms of the development of response plans. So I want to turn now to look at the arrangements that were in place over the course of time.
I don’t want us to look at this document, but can you confirm, please, Mr Pengelly, that A Guide to Emergency Planning Arrangements in Northern Ireland, which was published by the Executive Office, a guide which runs to over 200 pages, required the Department of Health to maintain and review and update its own emergency response plan?
Mr Richard Pengelly: That’s correct, yes.
Counsel Inquiry: The emergency planning branch in the department’s Population Health directorate, until January of this year, was responsible for maintaining, reviewing and updating this plan; is that right?
Mr Richard Pengelly: That’s right, yes.
Counsel Inquiry: Versions of the plan were published by the department between 2009 and 2013, but the plan that was in place at the time that Covid hit was the 2019 version; is that right?
Mr Richard Pengelly: That’s right.
Counsel Inquiry: How often was the plan reviewed?
Mr Richard Pengelly: The plan would have been reviewed after any exercise which tested it or whether the plan had actually been commissioned in response to an issue, so there was an ongoing programme of review throughout that period.
Counsel Inquiry: Was it reviewed between 2013 and 2019?
Mr Richard Pengelly: It was, I think it was reviewed certainly as a consequence of Exercise Cygnus, the departmental plan was reviewed.
Counsel Inquiry: Was the departmental emergency response plan tested in Exercise Cygnus?
Mr Richard Pengelly: It wasn’t specifically tested because of the nature of Cygnus, but colleagues in the emergency planning team who would have been involved in that say it would – it’s an ongoing programme of constant evaluation and review of that plan.
Counsel Inquiry: The plan is said to be modular in structure and therefore flexible, scalable and capable of escalation and de-escalation, and it claims to set out how the department would carry out the responsibilities and functions associated with its role as lead government department.
So let’s take a look at it, please, it’s at INQ000184662. This is the 2019 version of the plan, as we can see from the red text at the bottom, and it’s version 4.
It we go to pages 4 and 5, please, and have a look at the contents. Now, we can see there is an introduction. There are then set out, in part 2, areas of responsibility in terms of emergency response. Part 3 covers activation procedures. Part 4, the detail of an emergency response. Part 5, a long-term response. If we can go over the page, please, part 6, training, Part 7, validation and review. Then a series of annexes, including the health Gold command templates and action cards.
Could we go to page 6, please, where I think we can see that the plan has been signed by both yourself and also Dr McBride, as he then was.
If we turn to page 11 – thank you – we can see at paragraph 1.9 the “Principles for activation”, that:
“The Department will deploy and operate an effective and resilient response and recovery for any emergency with which it is designated the [lead government department] arising from an emergency in the following scenarios …”
If we look to the third bullet there, it covers:
“- human infectious diseases (including pandemic influenza, avian influenza and smallpox …) …”
Thank you.
Could we turn to page 13, please, to look at what is said in terms of scalability. Could you explain to us, please, what the “Activation Protocol Summary” table shows us.
Mr Richard Pengelly: That’s showing moving from a local area, which is essentially an issue which would be contained to one health trust, one small geographical area, and then once we’re into levels 1, 2 and 3 there’s an escalating scale of impact.
Bronze essentially means a response by one individual health and social care trust. Silver are the arrangements where what was the Health and Social Care Board, the Public Health Agency, would come together to lead a regional response at a significant level. Then if it comes to level 2 or level 3 it would escalate it up to a Northern Ireland-wide issue and up to the catastrophic level.
Counsel Inquiry: Thank you.
Could we have a look, please, at annex G at page 63, which I think will show us the “Health Gold Command Support to Infectious Disease Outbreaks”. It says this:
“In response to any infectious disease outbreak, [the Department of Health] can provide strategic health and social care advice and direction in addition to HSC Silver arrangements (as detailed in their Joint Response Emergency Plan and other Critical Care and Acute Escalation Plans).”
Then there are a series of four bullet points which set out specific roles, responsibilities and actions that the department may take, which include:
“- Establishing a Department Reporting Rhythm …
“- Early identification and communication of the lead Policy Branch and contact details;
“- For isolated cases in [Northern Ireland], notification to other [United Kingdom]/[Republic of Ireland] health departments …”
Then, finally:
“- Identification of a Press … point of contact.”
There is reference at the bottom of this annex to:
“The Northern Ireland Infectious Disease Outbreak Plan [of] 2018 developed by the Public Health Agency in liaison with the [Department of Health] …”
And saying that it’s:
“… based on the most up-to-date guidance available on leading and managing an incident or outbreak …”
Just pausing there, does this mean, Mr Pengelly, that, in addition to the document that we’re looking at, in the situation of an outbreak of pandemic influenza, or indeed any similar disease, then this document needs to be considered in conjunction with the Public Health Agency outbreak plan?
Mr Richard Pengelly: Yes, the Public Health Agency would have had primacy in terms of the infectious disease work, so this was their plan. My understanding is that that work was predicated on an infectious disease outbreak which didn’t reach pandemic level. It was more an outbreak, as opposed to a pandemic, that they would have led on.
Counsel Inquiry: So how serious would the outbreak have to be to move from the Public Health Agency infectious disease outbreak plan to the plan that we’re looking at now?
Mr Richard Pengelly: Well, it would be along that escalation pathway where –
Counsel Inquiry: That we’ve just looked at?
Mr Richard Pengelly: Yeah, where it reached a sort of critical or catastrophic level, and that’s always assessed, in terms of impact, at Northern Ireland level.
Counsel Inquiry: Was that transition from one plan to another well understood within your department?
Mr Richard Pengelly: I’m … I’m not sure that it had ever been thought about in those terms as a transition from one to another, because Covid essentially didn’t come down the outbreak pathway and be treated under one plan and then migrate to the escalation, so I think most infectious disease outbreaks would have been contained within the PHA outbreak plan and that would have covered the response by PHA colleagues.
Counsel Inquiry: Would it be more efficient to simply have one plan rather than the need to move from one to the other?
Mr Richard Pengelly: But if the second plan we’re talking about is dealing with a catastrophic level, the infectious disease outbreak plan is dealing specifically with those infectious disease issues, and very much led by our clinical and medical colleagues in PHA, as opposed to the more administrative response of the ERP.
Counsel Inquiry: The ERP was underpinned by the United Kingdom risk assessment process, wasn’t it?
Mr Richard Pengelly: It was.
Counsel Inquiry: My Lady has heard about the National Security Risk Assessment and the National Risk Register. You may have been following the evidence that the Inquiry has heard so far about the limitations and drawbacks of the system and the 2011 strategy, the United Kingdom pandemic strategy.
So without going into the detail of those drawbacks again, do you accept that if there were drawbacks to the system of risk assessment and the United Kingdom 2011 strategy, then those drawbacks would have fed in to this ERP document?
Mr Richard Pengelly: If I follow your question correctly, if we accept the premise that there were drawbacks in a UK-wide 2011 strategy, our 2013 HSC strategy was very much piggybacking that strategy –
Counsel Inquiry: Yes.
Mr Richard Pengelly: – so it would have been a natural flow through.
Counsel Inquiry: Let’s take a look at the 2013 strategy, please.
It’s at INQ000183431. Thank you. That’s the first page. Can we go to the contents page, please, which is at page 2.
You can see there there’s an executive summary, then health and social care preparedness and response. Part 3 is the pandemic phase. At part 4, pandemic countermeasures. Part 5, summary of actions required by the HSC organisations for a pandemic. Then acronyms and glossary at the end.
You may be aware that Professor Sir Michael McBride was asked about his view of this guidance document yesterday, and he told my Lady that, in his view, it was not an effective basis for responding to the Covid pandemic because there was a need for a more generic plan that could be scaled up, but at the same time be specific enough to be tailored to a particular pathogen.
Do you agree with his view on this document?
Mr Richard Pengelly: Yes, absolutely.
Counsel Inquiry: The purpose of the guidance was to provide guidance for the healthcare system should a pandemic hit, and as we’ve established it’s closely aligned to the 2011 United Kingdom strategy. You may also be aware that Professor Sir Michael McBride was asked about the similarity between the Northern Ireland document and that of Wales, and that in some regards it is word perfect one with the other. We know that, so far as the Wales version is concerned, the version of the document was first published, I think, in March of 2010. Are you able to shed any light on whether or not the Northern Ireland document copied certain parts of the Welsh document or vice versa?
Mr Richard Pengelly: I can’t – the development of the document pre-dated my arrival in the department – other than, I think, the point Sir Michael made yesterday, it would be very common for us to share documents back and forward with colleagues across the devolved administrations and colleagues in England.
Counsel Inquiry: The Northern Ireland document was not updated between 2013 and 2020, was it?
Mr Richard Pengelly: No, it wasn’t.
Counsel Inquiry: Do you think it should have been?
Mr Richard Pengelly: It – there was a desire to do so, and I think it was one of the lessons emerging from Exercise Cygnus, but the 2013 document hung off the back of the 2011 UK document, so the approach was we were awaiting an update of the UK document to do the refresh of the Northern Ireland-specific document.
Counsel Inquiry: As was the case with other parts of the United Kingdom, none of the Department of Health for Northern Ireland plans set out how planning might need to be adapted for a pandemic in terms of a pandemic that had significantly higher rates of transmission, or a longer or shorter incubation period, whether or not it was an asymptomatic or symptomatic spread, or indeed had much focus on the prevention of transmission of the spread of a pandemic, did it?
Mr Richard Pengelly: It didn’t, no, and I think that’s a point that’s been touched on. The reason, as I understand it, this document was reflecting what at the time was assessed as the most likely threat that was faced, which was an influenza pandemic, which wouldn’t have those characteristics that you have mentioned.
Counsel Inquiry: Indeed, none of the plans deal in any sufficient way, I’m going to suggest, with mass diagnostic testing or infrastructure of mass contact tracing or mandatory quarantine or the possibility of mass self-isolation, do they?
Mr Richard Pengelly: They don’t, but, again to emphasise, the purpose of the document was to address what was assessed by the scientific and clinical assessment of the most likely risk. We didn’t set out to prepare a document that would be of use in every possible scenario that we might face. So it was aimed at the number one threat.
Counsel Inquiry: Yes, but not just every scenario that you might face, there was no level of scalability or adaptability, was there?
Mr Richard Pengelly: Not in the terms you apply. I mean, there was reference that the – some of that repeats(?) of the plan could be used for a non-influenza pandemic. But, to be fair, I don’t think it went into much more granular detail than that.
Counsel Inquiry: No, and do you see the sense in the plans going forward containing details of different transmission situations and also plans to deal with the manner in which the population may need to be controlled in the event of a outbreak?
Mr Richard Pengelly: I think in the light of experience that would be a hugely sensible approach.
Counsel Inquiry: I’d like to move now to look at the department risk register, which again my Lady heard some evidence about yesterday.
It’s at INQ000185379. Thank you.
We can see that this is the risk register for 2018/2019, which is indeed the one that was in place at the time –
Mr Richard Pengelly: Yes.
Counsel Inquiry: – of the outbreak, wasn’t it?
If we can look at page 6, please, and go to row DR6, we can see that:
“The health and social care sector [this is the risk that’s being identified] may be unable to respond to the health and social care consequences of any emergency (including those for which the [Department of Health] is the Lead Government Department) due to inadequate planning and preparedness which could impact on the health and well-being of the population.”
Tell us, Mr Pengelly, what oversight you would have had to the creation of the departmental risk register, and indeed, specifically, the risk which is identified here as risk 6?
Mr Richard Pengelly: There’s a rolling programme of work that would be undertaken throughout the year. It starts with the articulation of the department’s broad strategic objectives and – that would be set out in our annual business plan. Once we have established the strategic objectives, the risk register is then designed to identify what are the risks that may prevent us from achieving the objectives, as we’ve articulated them.
So the first stage in the cycle would be to identify the risks, as has been done here.
Counsel Inquiry: Yes.
Mr Richard Pengelly: The next stage then is to assess and, I’m sure we’ll come on to it, the likelihood and impact: the likelihood of that risk crystallising and, if it were to crystallise, the impact it would have.
Then we develop mitigating measures. So that, in a sense, is the planning cycle. It’s: identify the risks against the strategic objectives, assess the impact of the risk and what steps can we take to mitigate the risk. Then the rest of the reporting cycle is: are we delivering the mitigating actions that are necessary? And that would happen then.
There would be – it would come on a quarterly basis. We mentioned earlier the department’s top management group. It would come on a quarterly basis to that. It would also go on the departmental board agenda and the department’s audit and risk committee would specifically look at the risk register and provide some assurance.
Counsel Inquiry: Let’s look at pages 24 and 25, please, for more details on risk DR6. My Lady was taken through this yesterday during the evidence of Professor Sir Michael McBride, and we can see that under the second column, the risk(sic) and social care sector risk is set out again in full.
In the eighth column we can see the action that was planned with target dates and owners, and my Lady has been taken through that.
But I want to ask you the same question that was asked of Robin Swann and also Professor Sir Michael McBride: why column 9 is empty, were there any actions completed, and if so what was the completion date?
Mr Richard Pengelly: Yeah. The – my – forgive me, maybe this is speculation on my part. When I was describing the process, I was separating, there’s the planning stage and then there’s the reporting stage. My sense is that the version before us now is the document at an early stage in the year, at the completion of the planning process, when the risks had been identified and what the planned mitigating measures are. I certainly have a copy of this document that has column 9 completed and I think colleagues are providing that.
Counsel Inquiry: That hasn’t so far been provided to the Inquiry.
Mr Richard Pengelly: No, but I think steps are in place to do so, my Lady. That will be – so there is a version – a version of this document would have been made available to myself and colleagues in the top management team throughout the year to monitor progress against the column 8 actions.
Counsel Inquiry: Right. Are you able to explain to the Inquiry why that fuller version has not been provided so far?
Mr Richard Pengelly: I don’t honestly know. I think this was provided as part of the corporate statement from the department, which – you know, given that now I’ve left the department, I’m not sure about the methodology that supported that.
Lady Hallett: Forgive my interrupting, I thought you told me or Mr Keith told me that, parts of this document, that column had been completed.
Ms Blackwell: Certainly so far as the column 8 is concerned. If we can go over on to page 25 –
Mr Richard Pengelly: I think this version for some of the other risks that have been identified, it has been completed. It’s an omission just for this specific risk.
Ms Blackwell: Yes. Yes. Not for any of the risks that are set out and the action that’s planned in column 8 here for this risk, my Lady, but in relation to some of the other risks – this is department risk 6 – for some of the other risks the ninth column is completed, but not for this one.
Lady Hallett: That’s what I understood.
Ms Blackwell: Yes.
Lady Hallett: The reason for my question is: how could this be a document at an early stage of planning if other risks have got column 9 –
Ms Blackwell: Completed?
Mr Richard Pengelly: Forgive me, my Lady, as I said at the start, it was – there was a touch of speculation on my part. The bottom line is there should be a version with you that has column 9 completed. That does exist. And it’s an oversight on the part of the department that that isn’t in your possession.
Ms Blackwell: Right, we will await its arrival with great interest, thank you.
Elsewhere in this document there is what I’m going to describe as a crucial warning that the health and social care sector may be unable to respond because of difficulties anticipated in terms of resources.
Now, Professor Sir Michael McBride yesterday told my Lady that, in his view, the resources for the Department of Health around about this time and in the run-up to the pandemic were not enough to meet the demands of the department and that the issue persisted.
Is that something with which you agree, first of all, in terms of the level of funding that the department was receiving?
Mr Richard Pengelly: Yes, but could I, forgive me, firstly, just – in terms of terminology, and forgive me if I’m dancing on a pin here – the risk here isn’t an ominous warning.
Counsel Inquiry: No.
Mr Richard Pengelly: It is the identification of a risk that may or may not crystallise, in the specific context of resources.
Counsel Inquiry: Yes.
Mr Richard Pengelly: The common view certainly that I held, my top management team held, and, you know, across the health and social care sector, was that the resource position was a huge and material challenge to us, and we didn’t have sufficient resources to help us meet our strategic objectives.
Counsel Inquiry: Are you able to expand upon that and explain to my Lady in what way was the department receiving a shortfall of funding and what was suffering as a result of that?
Mr Richard Pengelly: In high level terms, and I can’t recall the exact figure, but the figure that Sir Michael used yesterday certainly resonates with me from my memory, that on an annual basis typically inflation, in terms of delivering health and social care, runs at about 6% per annum. Now, that would have been the figure before we’ve gone into the current period of high inflation.
Counsel Inquiry: Yes.
Mr Richard Pengelly: So the period in particular we’re looking at here, 2018/2019. So to run the same health service in year 2 as you did in year 1 you need a 6% increase. Typically throughout the period our budget was increasing by something in the region of 2% to 3%. So that meant year on year there was 3 percentage points of a squeeze in terms of the availability of resources.
Counsel Inquiry: I would like to ask a follow-up question about resources as well, please, and could we go back to page 14 in this document – thank you – and have a look at column 2, which sets out the detail of risk number 1:
“That available financial resources are insufficient and are not deployed effectively to ensure that essential services are maintained and the strategic objectives for the HSC and Public Safety are progressed …”
Again, you have explained that that is the identification of a risk rather than a warning, but were there concerns, certainly whilst you were in position as permanent secretary of the department, about the way in which resources were managed and the direction in which resources were focused within the department?
Mr Richard Pengelly: Yes, it wasn’t so much a concern about the way resources were managed, it was just the total quantum of resources that were available. If I go back, when I arrived in the department in 2014 the waiting list position was in a reasonable state. We didn’t have the very long waits that we currently see. The reason for that was that the resource position of the Executive had allowed additional money to be made available to the health service each year for what’s called the waiting list initiative, where there is a special initiative to try and increase activity.
As we moved past 2014 and the financial environment tightened, that additional funding for waiting list initiative disappeared. That meant – so the real manifestation of the financial crisis was that waiting lists started to escalate, and they escalated year on year up to the period we now face where it’s commonly reported Northern Ireland has the longest waiting lists across the United Kingdom.
Counsel Inquiry: Was there a concern within the department, though, that resources were not being deployed effectively?
Mr Richard Pengelly: Yes, the view within the department would be the reason we needed additional money to run a waiting list initiative was because the health and social care system wasn’t structured enough, wasn’t structured in the right way that we could meet the demands upon it.
The language we used was there was a mismatch between demand and capacity, and any transformation strategy, and I’m sure we’ll come on to talk about that, is fundamentally aimed to try to align capacity and demand. But for as long as the system faces more demand than it has the capacity to meet, waiting lists will be the obvious manifestation of that.
Counsel Inquiry: Well, I want to come on and deal with the Bengoa report, because, as my Lady heard yesterday, in November of 2015 the then Minister for Health, Simon Hamilton, announced that, in response to the recommendation in The Right Time, The Right Place report by Sir Liam Donaldson, he would appoint an expert clinically-led panel to have an informed debate and prepare a report on the best configuration of health and social care services in Northern Ireland.
Is that right?
Mr Richard Pengelly: That’s right, yes.
Counsel Inquiry: That was a review, as my Lady has heard, led by Professor Rafael Bengoa, who reported in October, I think, of 2016?
Mr Richard Pengelly: That’s right, round about.
Counsel Inquiry: Now, the resultant report covered a myriad of areas: inequalities, an ageing population, recommendations for an overhaul, really, of primary care and hospital services, a look at workforce. And recommendation 1 was that the triple aim of improving patient experience, the health of the population, and creating a system with better value, should be very forefront of the health and social care system; is that right?
Mr Richard Pengelly: That’s right.
Counsel Inquiry: My Lady has heard this morning from Baroness Foster that the absence of ministerial oversight and input into the recommendations of the Bengoa report meant that unfortunately, at the collapse of the power-sharing agreement in January of 2017, the recommendations had not been implemented and, as far as she was aware, had not been implemented at the time that Covid hit.
Do you agree with that assessment?
Mr Richard Pengelly: I think I would take a slightly different journey to reach – I think the broad conclusion there is that the necessary transformative work hadn’t taken place in terms of the Northern Ireland health and social care system. I would absolutely agree with that. But if I can explain –
Counsel Inquiry: Yes, please.
Mr Richard Pengelly: – the journey was a little different.
Counsel Inquiry: I should also say, to put the full picture, that when questioned about this before my Lady yesterday, Professor Sir Michael McBride described that what had happened was a mandate had been agreed and building blocks had been set up, but that no further work had been done thereafter. So I tell you that just to put it in its full context.
Mr Richard Pengelly: Okay. The … I think the point has been made previously that one thing we’re not short of in the Northern Ireland health and social care system is reviews about how we improve. The traditional issue has been the implementation and delivery of those reviews.
Counsel Inquiry: Yes.
Mr Richard Pengelly: At the point I arrived in the department the live piece of work at that time was a document called Transforming Your Care, which had been a previous attempt at transformation. I think, from memory, there was something in the region of 70 plus recommendations, about half of which had been implemented at that stage. The Liam Donaldson work was commissioned by the then health minister in response to a specific set of circumstances that we don’t need to labour. But it meant then we had two live documents, each of which were trying to chart a pathway towards transformation.
The then minister, Simon Hamilton, thought it would be useful to commission a clinically-led piece of work that Rafael Bengoa had chaired, and there was input from, you know, a consultant surgeon on our system, a general practitioner, a former chief executive of one of the trusts. But the Bengoa report was never designed to be the transformation strategy that would be implemented. It was an input to the then health minister.
Now, by the time Rafa reported the health minister had changed and Michelle O’Neill was in post. But what we did towards – in the autumn of 2016 was we effectively took the outstanding recommendations from Transforming Your Care, the live recommendations from the Liam Donaldson piece of work and the Bengoa recommendations, and we developed the Delivering Together transformation strategy, which became the health minister’s blueprint for transformation.
That was presented to the Executive and agreed in October 2016.
Counsel Inquiry: So just to interrupt you, if I may, that piece of work and the presentation of that to the ministers therefore must have taken place a very short time after Sir Rafael Bengoa produced his report?
Mr Richard Pengelly: Yes. It was a very short time after the formal receipt of his report, but we had been working very closely with Professor Bengoa in the run-up to the formal delivery of the report and he had shared with us in detail the direction of travel that he was making in terms of recommendations. So we had a good line of sight on that.
Counsel Inquiry: I’m sorry I interrupted your flow.
Mr Richard Pengelly: The key point in terms of where I have a slightly different perspective on the journey, the Delivering Together transformation strategy was a ten-year transformation journey. It included, at the point of agreement, 18 actions that would be undertaken in the early stage of that ten-year journey.
Counsel Inquiry: When did the ten-year journey begin?
Mr Richard Pengelly: 2016, so it was –
Counsel Inquiry: I see.
Mr Richard Pengelly: – Delivering Together 2026 was the full title of it.
Counsel Inquiry: Yes?
Mr Richard Pengelly: Those 18 actions – the department, if I roll forward to May 2019, so well into the period where there was no Executive in place, a progress report was published, all 18 of those actions that were in the original document were marked as completed and achieved. So a huge amount of preparatory work had taken place in the period with no ministers. The important point is – but in a ten-year transformation journey, the first couple of years are putting the building blocks in place and not the big strategic decisions which would follow.
So those actions were delivered, but they alone were not delivering the strategic transformation of the service. So I think I end up in the same place but albeit a slightly different journey to it.
Counsel Inquiry: Professor Sir Michael McBride said this yesterday:
“… we put together the building blocks, we did some very good work in terms of what we would need to do, but there were clearly elements of this that required ministerial decision, and those areas that required a ministerial decision … were not possible [and so] it was not possible for us to progress.”
Speaking, as he was asked to do, about the time period between January of 2017 and 2020 and the lack of any ministerial oversight.
Mr Richard Pengelly: Yes.
Counsel Inquiry: So what could have been done in that time period, had there been ministerial oversight, that couldn’t be done?
Mr Richard Pengelly: Just to be clear, I’m not contradicting or disagreeing with what – the evidence Sir Michael gave yesterday. I think the point I’m getting at, and forgive me if it’s rather precious of me, but at a point in time when I was the chief executive of health and social care in Northern Ireland, I think it’s really important to acknowledge that, despite the absence of ministers, a huge amount of energy and work went in by colleagues across the system to achieve transformation. And I say that to rebut the notion that nothing happened in the absence of ministers. Lots of things happened, but the next stage of that would have been when we had done the preparatory work, and we’d delivered – and some of those 18 actions were reviewing the configuration of particular services – when we had done the preparatory work to undertake the review and develop what a refreshed and reformed service might look like, that required ministerial agreement to make those changes.
So I’m trying just to differentiate, preparatory work was happening, but the strategic change still required ministers and that couldn’t happen. But it wasn’t that we weren’t moving.
Counsel Inquiry: It needed ministerial input, for instance, to arrange and to ensure that there was significant additional investment or legislative changes or structural changes within the department, didn’t it?
Mr Richard Pengelly: Yes, and – or a combination of all those.
Counsel Inquiry: Yes.
Mr Richard Pengelly: A lot of the actions were things like developing a new workforce strategy, because having an effective and – a workforce of the right size is critical to the delivery of care, but when you have the workforce strategy and you know how to get the workforce in place, it requires ministerial input to get the resources in place to be able to afford that workforce with the right skillset.
Counsel Inquiry: Yes. Recommendation 2 in Professor Bengoa’s report is that the health and social care department should formally invest, empower and build capacity in networks of existing health and social care providers.
I mean, that was something, looking at it starkly, and the words that I’ve just read out, that would have required the input of ministers to take it forwards, wouldn’t it?
Mr Richard Pengelly: There’s a continuum there. Building the network – and at one level it’s a network of clinicians across the health and social care sector in Northern Ireland. The end point of building a network is the network has to give effect to change. One of the issues, and it’s shorthand in terms of the public debate, is that there are too many hospitals in Northern Ireland. I think that’s shorthand for: we have too many places where we have small units delivering care. And if there was a strategic approach to that, that would be the end point of the development of those clinical networks. That end point absolutely would require ministerial endorsement and without it we couldn’t progress. But the level of engagement leading up to that could happen. So it’s not that nothing could happen, but you can’t reach the end point without ministers and that could never happen.
Counsel Inquiry: No, I’m not suggesting for a moment that nothing did happen. But what I’m asking you, I go back to my previous question, is: was there, in relation to any of the 18 recommendations that you’ve identified, a period of time during January of 2017 and January of 2020 when the preparatory work had been completed or was ready for ministerial input but the lack of ministerial oversight, given the collapse of the power-sharing agreement, meant that that couldn’t happen?
Mr Richard Pengelly: Yes, we reached some issues, and one of the issues that I can remember specifically is the reconfiguration of stroke services, for example. We reached the point that we had to hold that until ministers returned because we couldn’t – and there was the opportunity for a quantum increase in the effectiveness of the provision of stroke care with some restructuring, but a very contested issue that required ministerial input.
Counsel Inquiry: All right, thank you.
Just before we break, I want to develop your evidence on this issue of a lack of ministerial oversight during the Executive’s suspension, because what you tell us in your witness statement, Mr Pengelly, is that your general views on the systems, processes and structures for pandemic preparedness in Northern Ireland were that they were robust and appropriate and that you couldn’t identify any respect in which they could be improved.
Do you still stand by that?
Mr Richard Pengelly: Yes. The point I was making there, in terms of the system structures, that it’s predicated, as we’re a constitutional part of the UK, on a UK model, that flows through all regions. We’re heavily linked into that. We have a mechanistic and structural approach to it which we follow. So, in terms of that, the logistics and the mechanics of that, absolutely.
Counsel Inquiry: And that you are not aware of any issues that would have gone to either ministers or an Executive had they been in place between 2017 and 2020, and that in that context it couldn’t be asserted that the political hiatus had any direct impact on planning and preparedness. Do you still stand by that?
Mr Richard Pengelly: But just to be clear, if my language wasn’t completely clear, that’s in the context of emergency planning, it’s not the broader transformation piece that we’ve touched on. In that three-year period there were no issues about the work that we were doing in the department as regards the development of our emergency response plan or emergency preparation that, had a minister been in place, they would’ve landed on the minister’s desk.
Ms Blackwell: My Lady, that’s slightly earlier than normal but I’m about to move on to a different topic.
Lady Hallett: Certainly.
Can I just ask one question before we break, Mr Pengelly. I don’t know if you heard Baroness Foster’s evidence about when you have a collapse in the power-sharing agreement and experts in the field discover that there’s a gap in resilience or preparedness, that that should be relayed to Westminster or Westminster should know about it and therefore intervene.
What would happen, in your experience, if, as permanent secretary at the Department of Health, as you then were, that you discovered such a gap, how would you go about making sure the Westminster government knew about it?
Mr Richard Pengelly: My Lady, if we’re talking about a gap that we felt was outwith our powers, because it would require a minister, and if it was such a critical nature, we would routinely be engaged with colleagues in the Northern Ireland Office. And even if in the current climate, where there are issues of a critical nature that we feel, as permanent secretaries, we don’t have the power to take decisions on them, we would engage with the NIO with a view to either asking the Secretary of State to take the appropriate legislative power to make that decision or to find an alternative way to deal with it. So it would be through that dialogue.
Lady Hallett: Were you aware of anybody in the department or the Chief Medical Officer or anyone engaging with the Northern Ireland Office about any possible gaps in resilience or preparedness?
Mr Richard Pengelly: I wasn’t, but I would assume that, to the extent that such a conversation was needed, it would be between colleagues in the Executive Office and the Northern Ireland Office rather than the Department of Health. I think it would more be the civil contingencies planning work that sits with TEO rather than the departmental activity.
Lady Hallett: Right.
Thank you very much, I shall return at 1.45.
(12.42 pm)
(The short adjournment)
(1.45 pm)
Lady Hallett: Ms Blackwell.
Ms Blackwell: Thank you, my Lady.
Mr Pengelly, I’m going to ask you to keep your voice up a little bit, you’re very softly spoken and a request has come in for you to perhaps move a little closer, as you have done, to the microphone. Thank you very much.
The Inquiry has heard that Robin Swann took up his role as Minister for the Department of Health on 11 January 2020, and he told my Lady last week that pandemic readiness was referenced in his first day briefing, which I would like to bring up on screen, please. INQ000188802.
This is the first page, and in fact I think the document only runs to two paragraphs.
“Under the NI Civil Contingencies Framework … the Department has been identified as the Lead Government Department for responding to the health and social care consequences of emergencies arising from …”
Then we see the third bullet:
“- Human infectious diseases, eg Pandemic Influenza …”
3.2:
“This requires the Department to not only develop and maintain appropriate emergency plans and response arrangements to manage its own response to an emergency, and that of its associated agencies and NDPBs, but also to co-ordinate the inter agency aspect of civil protection for those emergencies for which it has been designated lead. In such circumstances the Minister would be required to lead, direct and co-ordinate the response for [Northern Ireland], reporting as necessary to the Executive under the Northern Ireland Central Crisis Management Arrangements …”
Let’s just go down to check if there’s any more. We can see that there is another paragraph on this page:
“EU Exit”:
“9.1. The primary focus for [the Department of Health] has been to ensure the Health and Social Care Sector in Northern Ireland was prepared for EU Exit so that patient care was paramount. Preparedness was progressed across three workstreams …”
Including emergency planning.
And:
“9.2. The Department worked closely with the Executive Office, the Department of Health and Social Care in England … and the other Devolved Administrations as part of these preparations.”
So if we can zoom out, please, two sections of the first day briefing, emergency planning and EU exit, Mr Swann confirmed to my Lady, last week, that this briefing was not accompanied by any other documentation or guidance to expand what we see on this one sheet.
Can you explain to us, please, Mr Pengelly, how this briefing was created? Did you have a hand in it?
Mr Richard Pengelly: The briefing would have originated really on a bottom-up basis and we touched earlier on the structure of the department and the number of groups led by the likes of Sir Michael and his peers across the department.
It would have been prepared, that would have been the building blocks for it at group level, where they would have had transparency on the live issues that warranted just being aired with the minister on his or her arrival into the department. So it would have been prepared.
Given the pace that it was prepared, I cannot recall whether it came to me to approve before it went to the minister or it came to me in parallel with going to the minister because, you know, things happened quite quickly in terms of restoration back in January 2020.
Counsel Inquiry: If it had come across your desk would you have noted that it’s quite sparse in the detail?
Mr Richard Pengelly: I would have noted that, but I wouldn’t have been critical of that, because the purpose of the first day brief is just to sight the minister, it’s not a document in which we convey a request for any decisions, and the first day brief is really a pack that will be given to the minister on appointment, basically as their homework to read before they arrive in the department, at which point a series of meetings with individual to go into a bit more detail on some of the areas will be discussed.
Counsel Inquiry: Well, this isn’t a pack, is it, it’s a sheet of paper, and Mr Swann has confirmed that this was all that he received, certainly in terms of emergency planning.
And where on the document does it direct Mr Swann to engage in additional reading in order to bring himself up to speed with what the emergency planning issues are?
Mr Richard Pengelly: Well, this is one sheet which is an extract from the first day brief. The first day brief was not one piece of paper.
Counsel Inquiry: But the first day brief didn’t contain anything else in terms of emergency planning, did it?
Mr Richard Pengelly: No, but it contained a lot of detail on other areas, and it was just a sighting document, and – and I don’t have access to it now, but I imagine the cover sheet that went with the first day brief would have made reference to it being supplemented and followed up with discussions and dialogue across the department, which would be the routine practice.
Counsel Inquiry: Not only did Mr Swann tell the Inquiry that this document was all that he received by way of emergency planning information, but also that during his time in office he was not made aware of the department risk register. So that appears to be something that isn’t contained within the first day briefing and, according to Mr Swann, wasn’t brought to his attention at all during his time in office. Do you find that surprising?
Mr Richard Pengelly: Not necessarily, because – I mean, if we think back to January 2020, when Minister Swann took up post, at that stage the immediate crisis that an incoming health minister was dealing with was the industrial action, and all energy had to be focused on that. So there is an issue just about pure bandwidth and how much information you can bombard an incoming minister with.
So it’s always a balance between trying to get something that’s proportionate but sufficiently detailed.
In terms of the risk register, that’s an issue that is dealt with at a corporate level by myself, and it was my responsibility as an accounting officer. I didn’t feel the need to escalate that to the minister. Again, that’s an issue just about trying to manage, you know, a very, very demanding workload and the volume of paper that routinely goes to the minister.
Lady Hallett: Could I just intervene here? I’m afraid I didn’t understand your answer about who would have prepared the briefing, Mr Pengelly, and I’ve looked at the transcript and I’m afraid I still don’t follow.
You were the permanent secretary of the department and you had an incoming minister. Wouldn’t you have had overall charge of making sure the briefing was adequate?
Mr Richard Pengelly: Yes, I would have had overall responsibility, but – I can’t recall, my Lady, the exact timeline, but in the run-up to the restoration, within each department we would commission first day brief from what we called each “business area”, but the nature of the first day brief is to sight the minister on the nuances and particulars of that business area, so that’s where the knowledge base resides. That is pulled together and then it would come to the permanent secretary for overall approval.
I’m just – you know, I want to avoid erroneously misleading you in this. I can’t recall specifically whether this iteration of the document came to me to formally approve before it went to the minister or, given that it was a document for information rather than decision-making, given the pressing time constraints, it might have been compiled and sent to me in parallel with going to the minister, on the basis that I read it at the same time as him and if there were any issues in it I noted I could raise directly with the minister, in terms of clarification.
Lady Hallett: But if you read that as a new minister, you would think, forgive the expression, everything was hunky-dory. It wouldn’t have alerted the minister to any potential problems, would it, or risks?
Mr Richard Pengelly: In terms of just focusing on emergency planning? But this section of the document was just citing the fact about the departmental responsibilities. The emerging issue at that stage about the evolving position in Covid, I think at this stage, in January, it was so fast-moving that it was captured through dialogue with the minister, because anything that was written down and sent would have been out of date by the time it had arrived with the minister.
Lady Hallett: Sorry for interrupting.
Ms Blackwell: Not at all, my Lady.
As my Lady has observed, it doesn’t indicate that there are any difficulties perceived in the area of emergency planning. There’s nothing on this document about the National Risk Register or the National Security Risk Assessment. There’s nothing about the PFRB workstreams which had been set up but then paused for 12 months because of Operation Yellowhammer. There’s nothing about any previous learning or identification of recommendations such as that that came out of Exercise Cygnus. And there’s nothing at all about the existence of a departmental risk register.
Is your evidence, Mr Pengelly, that those matters would have been brought to Mr Swann’s attention in subsequent conversations?
Mr Richard Pengelly: To the extent that they needed to be, but if we take – this is, I presume, section 8. I mean, the numbering seems to have gone a bit awry on this document, because EU exit is section 9, whereas this is section 3 –
Counsel Inquiry: Yes. This is the document that we’ve received from your department, your old department, the Department of Health, and we have been led to understand that there was nothing else in the briefing on emergency planning apart from these two paragraphs.
Mr Richard Pengelly: My point is that I don’t think that’s unreasonable, because the purpose of a first day brief is to sight the minister. The reason I’m making the specific reference to the numbering is, if I assume that this is section 9, if the emergency planning section had been unpacked with all that granular detail in the way you suggest, that would have had to happen – I mean, a similar approach would – could be taken under that approach for every other section, and a short, high-level document that is meant just to sight an incoming minister would become an unmanageable, unwieldy and virtually unreadable document in which any important issues could be lost.
Counsel Inquiry: Accepted, but this does not telegraph Mr Swann to other documentation, to other pieces of guidance or pandemic planning, in order for him to inform himself as to the position that was in place at the time that he came into the role of Minister for Health?
Mr Richard Pengelly: I accept this document doesn’t do that, no.
Counsel Inquiry: Is it your evidence, Mr Pengelly, that you personally briefed Mr Swann on the matters which we’ve agreed were not in this document?
Mr Richard Pengelly: No, I didn’t personally brief him. The point is that an incoming minister would have access and would read the first day brief, which is the very high level overview. That would be followed up with the detailed engagement with the group heads and they would make a judgement call about the extent to which they needed to go into the detail of the sorts of issues that you have referred to.
So that – there would have been a supplementary briefing, because, as came out yesterday, this is an area that was in Sir Michael’s directorate. Sir Michael then would have had a more detailed briefing with him, and I don’t know that – you know, sitting here, to what extent he would have unpacked these issues.
Counsel Inquiry: Does the lack of detail in the briefing and what I’m going to describe as a subsequent failure from the permanent secretary to verbally brief the incoming minister on these matters indicate that there was an expectation that the department could be run without the involvement of ministers?
Mr Richard Pengelly: No, not at all. It was an issue about prioritisation and focus, because there was a huge work programme for an – an incoming minister to a department that accounts for over 50% of the public expenditure in Northern Ireland that had been without a minister for three years, so it was a question about prioritisation and ensuring the ministerial focus on the key areas, and, as I’ve mentioned, in the context of health at that time the number one issue which consumed a huge amount of time for the incoming minister was trying to settle the industrial dispute, which was really crippling at that stage to the health service.
Counsel Inquiry: All right.
I want to ask you about exercises, please, and whilst appreciating that an exercise that my Lady heard about yesterday, Goliath, took place in 2003, so well before your involvement as permanent secretary in the department, nevertheless it was a Department of Health and Health Protection Agency exercise to explore the Northern Ireland response to SARS in order to identify the potential for improvements and amendments.
Professor Sir Michael McBride told my Lady yesterday that although he had not, by that time, been appointed as the Chief Medical Officer, in actual fact he was involved in the exercise in another capacity.
The lessons identified from Exercise Goliath included the following: that operational contact tracing mechanisms with the potential for scaling up needed to be developed, that hospital surge arrangements needed to be developed, that PPE had not been distributed according to plan, and that there had been little discussion heard during the course of the exercise on primary prevention to avoid further spread of the disease.
These problems were identified 17 years prior to Covid-19 hitting, and were perhaps prescient of the matters which will come to the Inquiry’s attention in Module 2.
But does the fact that – I think, if asked, you will say that this exercise wasn’t brought to your attention at all, was it?
Mr Richard Pengelly: No, that’s right.
Counsel Inquiry: No. Does the fact that you didn’t know about any of these matters during the time that you held the role of permanent secretary in the department reflect the fact that there is a problem with corporate memory?
Mr Richard Pengelly: I can fully understand the premise of the question. I’d be reluctant to jump to that conclusion, because two of the issues in particular that you mentioned – the development of contact tracing capability, there was a contract – contact tracing capability in the Public Health Agency at the time of the Covid pandemic. The issue was the scale that was subsequently needed. So I don’t understand the – you know, the link between the point that was made, so clearly something was done about developing contact tracing.
Separately, surge plans, now there’s a separate issue, which was touched on yesterday and we may come to, about some of the surge planning work that had been parked because of EU exit preparations, but surge planning – surge planning work had been taken forward.
So without seeing the detail I couldn’t conclude the extent to which corporate memory had sufficiently and adequately addressed Exercise Goliath.
Counsel Inquiry: But it’s a simple issue: this exercise had taken place prior to you coming into the role of permanent secretary, you knew nothing about it, so whether or not certain workstreams had been taken forwards or not, does the fact that this exercise and its recommendations had not been identified to you in your role as permanent secretary indicate that perhaps there is a disconnect, that something should be in place by way of a procedure to ensure that these lessons learned and recommendations are captured and passed on to people who need to know about –
Mr Richard Pengelly: And I’m not trying in any way to be unhelpful, but if I offer the scenario that – I think it was 2003 this exercise took place.
Counsel Inquiry: Yes.
Mr Richard Pengelly: If the assessment was that those particular issues about developing surge capacity and looking at contact tracing, for example, by 2010 they had been addressed, I don’t think that a new permanent secretary four years after that would necessarily be briefed on that. If something had arisen, been considered and the assessment was that it had been adequately dealt with, because this was 11 years before I took up post, and if, you know, everything– taking it to a ludicrous extreme, if everything that had happened in that 11-year period was the subject of briefing an incoming permanent secretary, the here and now issues might risk being squeezed out.
Counsel Inquiry: So is your answer that it was too far in the past for you to expect to be knowledgeable about it?
Mr Richard Pengelly: No, no, sorry. Forgive me if I’ve … my answer would be: if there had been important and critical recommendations in 2003 that hadn’t adequately and sufficiently been acted upon by 2014, that is an issue that could and should have been put on my desk. What I’m saying is that recommendations in 2003, if the assessment is in the intervening period they had been adequately dealt with, there would be no need to put them on my desk in 2014. And I don’t, sitting – I don’t know the answer as to how well or not they were addressed.
Counsel Inquiry: Well, were you briefed about the report that was published into the swine flu pandemic which happened in November of 2010, which was four years before you coming into post?
Mr Richard Pengelly: I cannot recall if I received a specific briefing on it. I was aware, possibly aware, because in 2009, although not in the health service, I was working in public expenditure and was working closely in terms of the financial package that was being made available to the Department of Health to respond to the H1N1 issue. So I – coming into health, I had an awareness, but I would need to go back and look at the record in terms of the exact nature of any briefing that was given to me.
Counsel Inquiry: Given your evidence on this subject, if there were outstanding actions that needed to be taken forwards from that report and from the Northern Ireland-specific recommendations that were contained within the report, and that you hadn’t had those brought to your attention, would that be concerning?
Mr Richard Pengelly: Sorry, not to throw another caveat. It’s the extent, the significance. If recommendations had been made and not adequately implemented, if work was ongoing, it mightn’t have reached the stage of escalation to the permanent secretary at that stage. It certainly should have been a live issue in the department, with monitoring and reporting about the progress of it. But if we follow the position, it was said earlier that there’s a hierarchy and the escalation – there needs to be a filter mechanism – whether they’d have reached that threshold at that stage in terms of the work, ultimately yes, but just at the point of arrival I’m not sure.
Counsel Inquiry: Certainly you were in post at the time that Exercise Cygnus took place, weren’t you?
Mr Richard Pengelly: Yes.
Counsel Inquiry: 2016, and the Department of Health participated in the exercise that took place in October of that year, and the Inquiry has heard evidence that as of June 2020 there were 14 of the 22 recommendations that came out of Exercise Cygnus which had not been fully implemented. Is that a figure that you recognise?
Mr Richard Pengelly: The figure I recognised for Exercise Cygnus is ten recommendations, of which six were implemented.
Counsel Inquiry: For Northern Ireland specifically?
Mr Richard Pengelly: Yes.
Counsel Inquiry: Well, can we look at the Department of Health Exercise Cygnus lessons learned report.
Thank you, it’s at INQ000188775.
This is a specific Department of Health document and I want to look specifically, please, at page 2. We can see there that the contents of the report include an introduction, regional health command centre strategic cell analysis and recommendations, emergency operations centre analysis and recommendations, evaluator analysis and recommendations, Exercise Cygnus planning team comments, and feedback on exercise organisation and outcomes.
Can we go to page 3, please. Thank you.
Now, we can see that the objectives at 1.2, the UK objectives were initially agreed with the four UK countries as follows:
“To exercise organisational pandemic influenza plans at local and national levels in the [UK].
“To exercise co-ordination of messaging to the public.
“To exercise strategic decision-making processes around managing the wider consequences and cross-government issues at both local and national levels …
“To exercise the provision of scientific advice, including SAGE …”
Then the following additional objectives were added by England in 2016 but these were not being tested by the devolved administrations, and if we can go over the page, please:
“To explore the social care policy implications during a pandemic.
“To explore the use of the 3rd sector to support the response.
“To exercise the co-ordination of resources to cope with excess deaths in the community.
“To identify issues raised around the impact of flu in the prison population.”
Are you able to explain to the Inquiry, Mr Pengelly, why the issues at numbers 5, 6 and 7 on this document were not taken forwards by the devolved administrations?
Mr Richard Pengelly: I – in terms of item 5, I suspect that because the structure for social care is so radically different between Northern Ireland and England – this was predominantly an English-led exercise – I cannot recall and I certainly haven’t read anything in preparing for today that gives me the specific detail of why items 6 and 7 weren’t taken forward.
The excess deaths I know was an issue more for the Department of Justice than the Department of Health, which may be a partial explanation. But, sorry, I can’t add any more than that.
Counsel Inquiry: All right.
Can we replace this document, please, with INQ000006210, which is an undated document, but it appears to be the record of a roundtable discussion with devolved administrations coming out of Exercise Cygnus.
If we look at the background to the exercise itself, those details are familiar. The third bullet point underneath the heading “Background” is:
“The DAs [devolved administrations] participated throughout the exercise, and were comprehensively involved in the planning.”
There is then a paragraph dealing with the exercise itself. If we can move down the document, please, we can see DA feedback, and the penultimate bullet point under this paragraph reads that:
“Although the [devolved administrations] were complimentary of the planning on clinical management, some felt it was at the cost of social care.”
Can you explain, Mr Pengelly, what was meant by those concerns?
Mr Richard Pengelly: I can’t, and I don’t know whether “DAs” is used there just as a generic term or, given that the previous point about – the items that you read on social care – whether that is all the DAs or some that could be specific to Scotland, Wales. But, sorry, I’m not familiar with the detail behind that point.
Counsel Inquiry: Do you remember ever reading this document?
Mr Richard Pengelly: I can’t specifically remember, sitting – this document. But, you know, re-reading in preparation for today, there was clearly a familiarity about it. But you will appreciate the volume of documents that land on the desk, particularly going back seven years.
Counsel Inquiry: At the time of this exercise and at the time that this document was prepared – because although, as I said, it’s undated, it must have come in a relatively short period of time after the exercise itself – there was a health minister in role in Northern Ireland, wasn’t there? Michelle O’Neill was in place from May 2016 to March 2017.
Mr Richard Pengelly: That’s right.
Counsel Inquiry: And as principal adviser to the minister of health, do you accept that it would have been your role, your duty to bring to her attention the lessons learned and recommendations from Exercise Cygnus?
Mr Richard Pengelly: Well, it would have been a responsibility that I carried, but it doesn’t necessarily mean that I discharge each of those responsibilities personally. And with the other point that, if this is undated, I’m not sure whether this was available pre or post Michelle O’Neill’s departure from the department.
Counsel Inquiry: Do you remember ever discussing Exercise Cygnus with Ms O’Neill?
Mr Richard Pengelly: I don’t recall discussing it in detail with her, I suspect it was mentioned in terms of some broader issues. But, again, this was a specific responsibility within the Chief Medical Officer’s group where the granularity, and the colleagues who had actually participated in the exercise, so any briefing would have more come from that source.
Counsel Inquiry: If you didn’t become involved yourself in the briefing, would you accept this, Mr Pengelly: that, given the matters that were discussed and the lessons that were identified to be learned from Exercise Cygnus, it would have been important to have brought Ms O’Neill into a certain level of knowledge about the exercise itself and the report?
Mr Richard Pengelly: Oh yes. Yes, absolutely.
Counsel Inquiry: All right, thank you. We can take that down now.
I’d like to seek your views on evidence that was provided to my Lady from Professor Sir Michael McBride in terms of the island of Ireland being a single epidemiological unit, and the fact that he said there would be significant benefit in conducting testing of emergency response plans and exercises on a north-south basis involving respective Northern Ireland and Republic of Ireland health departments.
Do you agree with that?
Mr Richard Pengelly: I would absolutely agree with it, although I would have some concerns about the practical out-working of that, because at the moment if we plan and prepare on a separate jurisdictional basis, that there’s a suite of UK preparations and a suite of Irish preparations, if they were fundamentally different in nature, I just wonder about coming together to test them in practical terms, how that would happen and how beneficial. But the principal point about greater collaboration and working together I think the point was well made by Michael.
Counsel Inquiry: Thank you.
Then finally I’d like to take you to two draft reports. The first is a draft report from the Department of Health emergency planning branch which we have at INQ000188797, and it’s titled “A review of health gold command response to SARS-CoV-2 or Covid-19”.
We can see that this is a document that’s dated 11 November of 2021, so outwith our period, but what I would like you to consider, please, is what we had at page 6 of this report, and to take this into consideration in terms of planning and preparation for a pandemic.
Thank you. If we look at the top of the page, we can see in relation to what didn’t go so well. There is a reference to the release of PIPP stock:
“There was a sense of panic across the HSC and independent sector in relation to PPE and an expectation that [the Department of Health] would release its entire emergency stockpile … to BSO without appropriate justification, including items already in good stock across trusts.”
If we go down to recommendation 2:
“Recommendation … that roles and responsibilities for managing PPE during a pandemic, including when and how the emergency stockpile is used, need to be established and embedded in emergency plans.”
Does that recommendation and what lies before it and behind it suggest that the emergency plans in relation to the establishment and embedding of PPE were not sufficient?
Mr Richard Pengelly: This isn’t an issue, because it comes after the end of the module. I accept its relevance, but just to say that I haven’t gone back and, in preparation for today, refreshed myself fully on this. My sense of – that this recommendation is much more about clarifying the position to stop the sense of panic that was referred to, as opposed to there not being a mechanistic and sensible approach to actually management of the PIPP stock.
Counsel Inquiry: Well, that might be what created the necessity for a recommendation to be made, but the recommendation, with respect, is clear, that roles and responsibilities need to be established and embedded in emergency plans. My question is: does that suggest that they hadn’t been sufficiently established and embedded in emergency plans?
Mr Richard Pengelly: I – forgive me, but I would need to go back and refresh the document. My clear sense is that roles and responsibilities for managing that stock were very clear, so I don’t know whether this recommendation is saying – is trying to suggest there was a lack of clarity about those roles and responsibilities, which I would push back against, or whether it’s simply saying that those roles and responsibilities, although clear, need to be better articulated in emergency plans. I’m just not sure of what – the exact point that’s being made there.
Counsel Inquiry: All right.
Well, this was the review of the gold command response, and perhaps we don’t need to put up the document, but there was also a debrief in terms of the silver response, which also has a similar – I’m going to suggest – recommendation in that at page 2 it says:
“It is strongly recommended that a review is undertaken on how the emergency stockpile is controlled and managed regionally.”
Did you, in your role as permanent secretary, ever consider whether or not there was sufficient planning and clarity in terms of the level of PPE, where it was kept, and whether or not it was easily available in the event of a pandemic?
Mr Richard Pengelly: If I could separate the issue. There’s issues about PPE during the pandemic, which I suspect we’ll want to leave –
Counsel Inquiry: Yes.
Mr Richard Pengelly: – and come back to in future modules. In terms of the preparedness work –
Counsel Inquiry: Yes.
Mr Richard Pengelly: – there was no issues that I was ever drawn into about any lack of clarity about roles and responsibilities and where oversight and management of that stock lay. That was a clear responsibility of the CMO group and, as far as I was aware, there was clarity throughout the department and the business service organisation about where that responsibility lay and what the approach to applying for and securing any release of that stock, what those mechanisms were.
Counsel Inquiry: So if those were concerns held by members of your department, that was certainly never brought to your attention?
Mr Richard Pengelly: Not at the planning and –
Counsel Inquiry: Prior to –
Mr Richard Pengelly: – stage, no.
Ms Blackwell: – the onset of Covid. Thank you.
My Lady, that concludes my questioning and, as I understand it, there are no questions suggested by any of the other core participants, and so that concludes Mr Pengelly’s evidence.
Lady Hallett: Thank you very much indeed, Ms Blackwell.
Thank you, Mr Pengelly. See you in the next phase.
The Witness: Thank you.
(The witness withdrew)
Ms Blackwell: My Lady, that concludes the evidence for today, although I should say although we’re having an early day, we have a lot of evidence to get through tomorrow, so we will be working hard behind the scenes.
Lady Hallett: Well, even the best laid plans can sometimes have a gap, so I’m sure that a lot of people will be grateful for a slightly early day.
10 o’clock tomorrow morning.
Ms Blackwell: Thank you very much.
Lady Hallett: Thank you very much.
(2.22 pm)
(The hearing adjourned until 10am on Wednesday, 12 July 2023)