Transcript of Module 2A Public Hearing on 18 January 2024

(10.00 am)

Lady Hallett: Mr Dawson.

Mr Dawson: Good morning, my Lady. The next witness this

morning is Professor Paul Cairney.

Professor Paul Cairney


Questions From Lead Counsel to the Inquiry for Module 2A

Mr Dawson: Good morning, Professor Cairney.

If I could ask you, when speaking, to try to speak

into the microphone, it should pick up your voice, but

you’re here for a couple of hours at least, I think, so

if you could try to do that so we can hear everything

you’re saying, I’d be very grateful.

Professor, you have produced an expert report for

the Inquiry, I think, which is dated 9 January of this

year. Is that right?

Professor Paul Cairney: That’s right.

Lead 2A: And that is under Inquiry reference INQ000274154. You

are familiar with the content of this report?

Professor Paul Cairney: Yes.

Lead 2A: It is your report?

Professor Paul Cairney: Yes.

Lead 2A: And your position is that this represents your opinion

in connection with matters upon which you were asked to

provide it?

Professor Paul Cairney: It does.

Lead 2A: Thank you.

I’d just like to ask you some questions about your professional background. You’re a professor of politics and public policy in the division of history, heritage and politics at the University of Stirling?

Professor Paul Cairney: Yes.

Lead 2A: And you specialise in research on UK and Scottish Government policy processes, including their public health policies and impact on inequalities; is that correct?

Professor Paul Cairney: That’s correct.

Lead 2A: You have written or co-written 14 books, 97 articles in international peer reviewed journals and 31 chapters in edited books; is that correct?

Professor Paul Cairney: Yes.

Lead 2A: You were a special adviser to the Scottish Parliament’s commission on parliamentary reform in 2017, I believe?

Professor Paul Cairney: Yes.

Lead 2A: And in 2023 you were a special adviser to the Scottish Parliament’s Finance and Public Administration Committee, where your role included producing a report and giving oral evidence to inform the committee’s thinking about effective Scottish Government decision-making; is that correct?

Professor Paul Cairney: That’s correct.

Lead 2A: You have also published reports, articles and papers

about the Scottish Government and/or the UK Government’s

response to the pandemic, all of which I think are

listed in your expert report; is that correct?

Professor Paul Cairney: That’s correct.

Lead 2A: I’d like to ask you a few broad questions about the

scope of your instruction in preparing your expert

report for us.

Broadly speaking is it correct to say that you were

asked to prepare a report which focused on Scottish

Government decision-making during the pandemic?

Professor Paul Cairney: Yes, very much so.

Lead 2A: When you prepared your report, you separated the topics

that you separated the issues that you were asked to

address into a number of different topics, I think?

Professor Paul Cairney: Yes.

Lead 2A: Broadly, you were asked, first of all, to look at

Scottish Government decision-making structures which

existed up to and at the time the pandemic started?

Professor Paul Cairney: Yeah.

Lead 2A: And you were asked to look at some of the issues that

arose as regards preparation for an emergency such as

the pandemic in Scotland?

Professor Paul Cairney: Yes.

Lead 2A: Broadly speaking, that ended up covering your topics 1 and 2?

Professor Paul Cairney: Yes.

Lead 2A: You were then also asked to look at the challenges that were posed by the Covid-19 pandemic; is that right?

Professor Paul Cairney: That’s right.

Lead 2A: And you were asked to look at a number of areas relating to processes that go into Scottish Government decision-making during the pandemic, broadly?

Professor Paul Cairney: Yes.

Lead 2A: And those included the role that devolution had played?

Professor Paul Cairney: Yes.

Lead 2A: It included looking at key individuals and bodies that made decisions?

Professor Paul Cairney: Yes.

Lead 2A: It included looking at key both administrative and medical advisory bodies, in broad terms?

Professor Paul Cairney: Yes.

Lead 2A: It included looking at the challenges posed by the scale of the pandemic in Scotland?

Professor Paul Cairney: Yes.

Lead 2A: It included looking at decision-making structures?

Professor Paul Cairney: Yes.

Lead 2A: And ultimately all of those many topics you brought together in your topics 3 and 4?

Professor Paul Cairney: Yes.

Lead 2A: You were also asked to look at the Scottish Government’s systems for communications, in particular its public communications strategy?

Professor Paul Cairney: Yes.

Lead 2A: And that became your topic 5, I think?

Professor Paul Cairney: Yes.

Lead 2A: You were asked to look at parliamentary processes by which primary and secondary legislation were enacted during the pandemic in Scotland?

Professor Paul Cairney: Yes.

Lead 2A: And that became your topic 6?

Professor Paul Cairney: Yes.

Lead 2A: You were asked also to look at the issue of, broadly speaking, how public life and public services are funded in Scotland?

Professor Paul Cairney: Yes.

Lead 2A: And you were asked specifically to look at how funding worked for Scotland during the pandemic?

Professor Paul Cairney: Yes.

Lead 2A: And those matters were brought together under your topic 7?

Professor Paul Cairney: Yes.

Lead 2A: You were also asked to look at, drawing all of these things together, whether you were to provide an opinion on successes and failures, with a view to providing suggested recommendations for the future?

Professor Paul Cairney: Yes.

Lead 2A: And that became your topic 8, as I understand it?

Professor Paul Cairney: Indeed.

Lead 2A: I’d like to ask you some questions about the methodology that you adopted in compiling your very long and detailed report. We won’t, this morning, I should say, cover the report in huge detail. We will try and focus on some of the key areas, but I am keen to try to understand, broadly, the methodology that you adopted in its preparation.

The Inquiry, as I understand it, provided you with copies of a number of witness statements which were received from the Scottish Government’s directorates, in the first instance.

Professor Paul Cairney: Yes.

Lead 2A: And subsequently you received additional directorate statements which were by way of addenda to the original statements.

Professor Paul Cairney: Yes.

Lead 2A: You also received some additional directorate statements on subjects that hadn’t been covered in the first bundle.

Professor Paul Cairney: Yes.

Lead 2A: And you also received copies of the individual witness statements of key decision-makers, former First Minister Nicola Sturgeon, and former Deputy First Minister John Swinney; is that correct?

Professor Paul Cairney: Yes.

Lead 2A: In your expert report at page 4, if we could just have a look at that, you list 25 such witness statements from the Scottish Government and these two key individuals, and you took these reports into account in the preparation of your report?

Professor Paul Cairney: I did.

Lead 2A: I think it’s also fair to say that, as one goes through your report, one can see that you had regard to certain other materials; is that correct?

Professor Paul Cairney: That’s correct.

Lead 2A: And those materials included materials relating to key strategies within the Scottish Government’s decision-making process; is that right?

Professor Paul Cairney: Yes.

Lead 2A: And that included things like the four harms framework from April 2020?

Professor Paul Cairney: Yes.

Lead 2A: It also included other things like the statement of the route map from May 2020?

Professor Paul Cairney: Yes.

Lead 2A: And it included another key document that we have referred to already in the Inquiry, which was the levels system, broadly speaking, which was set out in October 2020?

Professor Paul Cairney: Yes.

Lead 2A: I understand from your report that you also had regard to places where people have provided commentaries on those key documents?

Professor Paul Cairney: Yes.

Lead 2A: Which you also drew on to try to understand the Scottish Government’s strategy during the pandemic?

Professor Paul Cairney: Yes.

Lead 2A: And you discovered, I think, when preparing your report, in connection with these areas and on the basis of these materials, that there were in existence a broad range of other reports or literature connected to a number of aspects of the Covid-19 pandemic in Scotland?

Professor Paul Cairney: Yes.

Lead 2A: These came from a number of different areas, including, for example, epidemiology, care, vaccination strategy, and the like?

Professor Paul Cairney: Yes.

Lead 2A: And you, as I understand it, looked at these reports in order to inform yourself as to what other commentators in their specialist areas had identified as potential issues with the way in which the pandemic had been handled in Scotland?

Professor Paul Cairney: Yes. I was very academic about it.

Lead 2A: Right, and you make frequent reference to these and, in academic fashion, you reference all of these as you go through?

Professor Paul Cairney: I do.

Lead 2A: And they include, for example, the wide range of reports commissioned by the UNCOVER group for the Scottish Inquiry?

Professor Paul Cairney: Yes.

Lead 2A: Setting out a number of proposed issues and questions for that Inquiry to examine?

Professor Paul Cairney: Yes.

Lead 2A: Some of those reports relate to questions that are relevant to this module.

Professor Paul Cairney: Yes.

Lead 2A: In particular, reports relating to preparedness and Scottish decision-making?

Professor Paul Cairney: Indeed.

Lead 2A: And when you had analysed these reports and other sources, you developed a knowledge about issues which may exist and then addressed, within your own specialist expertise, yourself to the question as to whether political decision-making or structures may have played a part in these perceived issues with the pandemic?

Professor Paul Cairney: Yes.

Lead 2A: Could we go to page 122, please. This is annex 1 to your report where you list from page 122, going on for, I think, 17 pages, of – reports, papers, articles and books which you have considered as part of this instruction. Is that right?

Professor Paul Cairney: Yes.

Lead 2A: Are the materials listed here the basis upon which you completed your report, along with the documents I’ve already mentioned that you were provided with by the Inquiry?

Professor Paul Cairney: They are.

Lead 2A: Are there any other important sources of information which you have used which are not listed in the report?

Professor Paul Cairney: Only indirectly. Some of the sources I use as a proxy for a wide range of other sources. So, I mean, for example you will see quite some self-citation, and that is an efficient way to refer to a whole other body of other sources that I didn’t get into in detail.

Lead 2A: I see, so you’re referring to publications that you have authored yourself?

Professor Paul Cairney: Yes.

Lead 2A: But within them are included a lot of other sources that you looked at for that purpose –

Professor Paul Cairney: Yes.

Lead 2A: – which you are effectively telling us you may have taken into account for the purpose of this report as well?

Professor Paul Cairney: Yes.

Lead 2A: Thank you.

You have not had access to the Scottish Government’s Cabinet papers, have you?

Professor Paul Cairney: No.

Lead 2A: And you have not had access to its internal documents relating to decision-making processes, have you?

Professor Paul Cairney: No.

Lead 2A: But you explained to us earlier, I think, that you had had access to a number of key strategic documents which you have taken into account?

Professor Paul Cairney: Yes.

Lead 2A: Taking into account your areas of expertise, your own writings, the volume of material you have been provided to consider in the preparation of your report and the type of material you have not had access to, do you consider that you have sufficient knowledge of the facts to provide your professional opinions on the matters you were asked to address by this Inquiry?

Professor Paul Cairney: I do.

Lead 2A: Thank you very much.

If I could then move on to some of the substance – as I say, I don’t think we’ll touch on every area that’s costs order in your extremely extensive report, Professor, but we would like to focus on the ones that appear to us to be of most significance to the types of decisions that the Chair will ultimately have to face and make in this module.

Am I correct in saying, Professor, that one of the areas in which you have expertise and have an interest is generally the area of government policy?

Professor Paul Cairney: Yes.

Lead 2A: You define in your report in the context of the pandemic various policy problems which might be defined as the issue with which government is presented, to which it requires to come up with a broad strategy as to how to deal; is that right?

Professor Paul Cairney: Yes. I would say an issue is only a problem when a government pays attention to it and makes sense of it. So there’s quite a technical definition of problem definition in this field. It is how they pay attention, how they interpret what’s going and therefore what they think is feasible to do as a result.

Lead 2A: Right. As far as policy is concerned, as far as the area we are looking at, it really is predominantly to do with the strategy that was – the overall strategy that was adopted by the Scottish Government in the pandemic; would that be fair?

Professor Paul Cairney: Yes.

Lead 2A: And once one has developed a strategy, one has to work out a way as to how one implements that strategy –

Professor Paul Cairney: Yes.

Lead 2A: – to deal with what you have defined as the policy problems.

Professor Paul Cairney: Yes.

Lead 2A: In order to implement the policy, the government requires to take decisions about matters on a more granular level?

Professor Paul Cairney: Yes.

Lead 2A: It is normally thought to be good governance policy, is it not, Professor, that the policy, the strategy, will guide how those decisions are taken?

Professor Paul Cairney: Yes.

Lead 2A: The systems in place aim, broadly, to try to maximise the quality of the decisions when faced with problems in order to meet the aim of the policy?

Professor Paul Cairney: Yes.

Lead 2A: Would that be fair?

Professor Paul Cairney: Yes.

Lead 2A: So in order to assess whether there is good governance, would it be fair to say that you need to assess broadly, perhaps, three things: first of all, do you need to assess the quality of the policy which aims to provide better lives for the people of Scotland?

Professor Paul Cairney: Yes.

Lead 2A: You need to assess the quality of the more granular decisions which seek to put that policy into practice?

Professor Paul Cairney: Yes.

Lead 2A: And you need to analyse and address the quality of the systems which lead to the making of the decisions?

Professor Paul Cairney: Yes.

Lead 2A: I think, broadly speaking, if I’ve summarised it correctly, that’s what you’ve sought to do in your report, analyse all of these areas?

Professor Paul Cairney: Yes.

Lead 2A: You’ve looked at the quality of the policies?

Professor Paul Cairney: Yes.

Lead 2A: You’ve looked at the quality of the systems?

Professor Paul Cairney: I have.

Lead 2A: And you’ve looked at the quality of the decisions?

Professor Paul Cairney: Yes.

Lead 2A: Perhaps not at a granular level, but broadly?

Professor Paul Cairney: Yes.

Lead 2A: And you’ve tried to do so in order to assist the Inquiry with reaching its conclusions about whether any of these things played a role in affecting the outcome and quality of the decision-making?

Professor Paul Cairney: Yes.

Lead 2A: And your expertise helps us in that process?

Professor Paul Cairney: Good.

Lead 2A: Well, that’s a question.

Professor Paul Cairney: Yes, it should do.

Lead 2A: You say a number of things in your report. Very helpfully, you set out a very long section dealing with what you’ve defined as topics 1 and 2, the background, and we’ve already had Module 1 which – as you know, because you draw on some of the evidence that was heard in that module, which has looked in detail at UK-level preparedness, but has also looked at Scottish-level preparedness. So I don’t want to dwell too much other than as necessary to inform the key elements, topic 3 and onwards in your report, on that.

Professor Paul Cairney: Yes.

Lead 2A: However, we will come to that in due course as necessary.

You tell us something in your report about – at paragraph 1, if we could go to that. A number of bullet points which I think summarise aspects, I think, of your assessment of Scottish Government decision-making culture, I think it would be fair to say?

Professor Paul Cairney: Yes.

Lead 2A: And you say in paragraph 1 that:

“Devolution promised ‘new Scottish politics’ but delivered a Westminster-style system.”

If I could just also take you to paragraph 10 – thank you very much – and in that paragraph you talk about the Scottish Government using “aspirational ‘new politics’ language” to describe its culture of decision-making.

What are the characteristics of this story of a new Scottish policy style from the Scottish Government?

Professor Paul Cairney: So, I won’t dwell on this too much, but if I take you back to the 1990s, the push for Scottish devolution took place during a time of low faith in political institutions, so the language was very much that Scottish politics would be a very strong improvement on old Westminster politics, you know, which was too adversarial, too centralised, too “winner takes all” and suchlike. So the Scottish Government built on this idea that the Scottish Parliament would be more important, the culture of politics would be more consensual, and the Scottish Government would operate in that context.

So it used to tell a story from 1999 that compared to the UK Government it was more likely to consult with stakeholders and collaborate with a wide range of bodies, and it was less likely to try to subvert other forms of policy delivery, you know, like traditional local government. It was more likely to put faith in public bodies such as local government, and more likely to put faith in the traditional public sector professionals to deliver policy.

Lead 2A: Thank you, Professor. So just to set it in a broad context, the position before 1999, when devolution came into operation as a result of the Scotland Act 1998, was that there had been a certain amount of, I think, what used to be called administrative devolution –

Professor Paul Cairney: Yes.

Lead 2A: – in Scotland, and that a number of the areas that were subsequently devolved to the new Scottish Parliament after the 1998 Act had been administratively devolved within the Westminster government to the Secretary of State for Scotland; is that right?

Professor Paul Cairney: Yeah, essentially the Scottish Government from 1999 inherited the responsibilities of the Scottish Office before then.

Lead 2A: Yes, but the way that things had been dealt with up to that point led to, as you’ve already described, a certain degree of dissatisfaction with that arrangement –

Professor Paul Cairney: Yes.

Lead 2A: – for some of the particular reasons that you’ve pointed out?

Professor Paul Cairney: Yes, and they were – they were always accentuated in Scotland. So, for example, you know, people in Scotland, they have a very long memory in terms of the Thatcher government onwards, and would – so if you see opposition to a Thatcher government in the UK, it has always been much more accentuated in devolved government, particularly in Scotland. And so a lot of the language was essentially to say “We need a Scottish political system that would protect us from the worst excesses of UK Government control and interference and suchlike”.

Lead 2A: Okay. You set out in paragraph 10 there on the screen some of the key characteristics of this Scottish policy style, which was put forward as characterising the Scottish Government’s approach to matters in the period after devolution; is that right?

Professor Paul Cairney: Yes.

Lead 2A: And you focus there in particular at paragraphs (a) and (b) on the style being characterised by “more consultation and collaboration”. You say that:

“Ministers and civil servants would meet routinely and frequently with stakeholders – including interest groups, professions and other public sector organisations – to help define policy problems and identify feasible solutions.”

So the reference to the policy problems we discussed a moment ago.

Professor Paul Cairney: Yes.

Lead 2A: You say at (b) that one of the other aspects of this was that there was “more faith in public bodies and public sector professions to deliver policy”, which you explain as meaning that:

“Ministers would place high trust in traditional ways to make and deliver policy – such as through collaboration with local government – and rely less on the top-down and remote performance management measures associated with the UK Government?

Professor Paul Cairney: Yes.

Lead 2A: So there are a number of aspects here that were part of this style which included greater commitment to collaboration; yes?

Professor Paul Cairney: Yes.

Lead 2A: With stakeholders in the first instance?

Professor Paul Cairney: Yes.

Lead 2A: But also by professionals and organisations that delivered government at an even further devolved level?

Professor Paul Cairney: Yes.

Lead 2A: And that there was a commitment not only to consultation with those types of groups and individuals and organisations, but to their genuine involvement in policymaking?

Professor Paul Cairney: Yes.

Lead 2A: And as we’ve said, policymaking would then underpin decision-making if it’s delivered correctly?

Professor Paul Cairney: Yes.

Lead 2A: Is it correct to say that this policy style has continued in different guises, at least at an aspirational level, to be the aim of the Scottish Government since that time?

Professor Paul Cairney: Yes. They changed the terminology a little bit. So “Scottish policy style” I think would be a phrase used by academics. You know, successive permanent secretaries to the Scottish Government have described a “Scottish model” or a “Scottish approach”.

Lead 2A: If we could go to paragraph 22, please, and we see in this paragraph that you’ve set out, I think, a number of principles, and the Scottish policy style, I think, over time, has crystallised itself in these principles, being the way in which the Scottish Government would report, to go about its business.

Professor Paul Cairney: Yes. This is slightly tricky to explain, this one. So the Parliament committee was examining effective Scottish Government decision-making – in fact, you know, not long ago, so it’s, you know, good timing. And they provided a list of things that they associated with effective Scottish Government decision-making from their perspective and that of the government, and turned that into seven common principles that you would associate with being effective.

Lead 2A: So these would be the sorts of things that the committee thought would be laudable principles and aims in trying to achieve good governance?

Professor Paul Cairney: Yes.

Lead 2A: And of course every government is trying to achieve good governance, or at least that’s what the people expect them to do?

Professor Paul Cairney: Yes.

Lead 2A: If I could just run through these, these include responsible and accountable government, and you mention there – it’s mentioned there that:

“There should be a direct link between the choices of elected governments and the citizens they serve.”

Professor Paul Cairney: Yes.

Lead 2A: You mention the fact that it’s important to have anticipatory or preventative policymaking?

Professor Paul Cairney: Yes.

Lead 2A: Might that include the need to try to predict when things will happen that will require decisions to be taken in the interests of the people?

Professor Paul Cairney: Yes, and also to deal with things that are – that can’t be dealt with immediately, such as, you know, long-term plans and outcomes. So that would come up with things like health inequalities.

Lead 2A: Yes. Indeed. We’ll probably return to health inequalities at some point, Professor. But this, just to understand the role of policy in this, what’s being suggested by that principle is that it’s important to have policies in place as a broad structure within which particular decisions might need to be taken in any given circumstance?

Professor Paul Cairney: Yes, yes, rather than dealing with crises when they happen.

Lead 2A: Thank you.

The third is power sharing and co-operation (sic), and we’ve seen – as well as (a), responsible and accountable government, we’ve seen power sharing and co-operation (sic) appear in the Scottish policy style definition you’ve already given, so those are repeated here; is that right?

Professor Paul Cairney: Yes, but they use this – again, a technical term – “co-production”, which is quite a vague term, but it’s supposed to give this idea that the government is not simply consulting with other people, it is producing something with them, and so that can either be producing policy-relevant knowledge or producing policy.

Lead 2A: That was, yes, that was relevant to the point we discussed earlier, which was that it’s not simply a matter of speaking to stakeholders but actually involving them in the creation of policy?

Professor Paul Cairney: Yes.

Lead 2A: And the next is policy coherence and policymaking integration. Could you just explain to us briefly what that is.

Professor Paul Cairney: So this is – I would describe this as a – just a very broad aspiration that if you produce – a mix of policy should be coherent in that governments produce lots of different instruments, they tax and spend, they regulate, they provide information, they add resources; they should all come together to produce something that makes sense. And a problem of government in general is that they produce lots of different policies that don’t match up, so policy coherence would be dealing with that problem.

Lead 2A: Right, thank you.

The others include evidence-informed policymaking, fostering equity, fairness – it says “or” justice but I assume it’s “and” justice”?

Professor Paul Cairney: Well, these terms tend to be used interchangeably or differently. So, yes, all of those, but often people use them as an alternative to each other when they describe them.

Lead 2A: Thank you, and the final one is delivering services well, so the operational side of the delivery of the policy?

Professor Paul Cairney: Yes.

Lead 2A: The broad proposition that you put forward, I think, at the top of paragraph 1, if we go back to that, please, the very first bullet point, was that “Devolution promised ‘new Scottish politics’ but delivered a Westminster-style system”. That’s a conclusion which I think you have come to or a proposition you are making. Is it correct to say that your summary here or your analysis here leads us to think that although at the start of devolution and since there is an aspiration that all of these various important principles should form part of the way that decisions are made, that many of the problems associated with the previous system, the Westminster system, have started to manifest themselves in Scottish decision-making?

Professor Paul Cairney: Yes. Could I expand on that a little bit.

Lead 2A: Of course, yes.

Professor Paul Cairney: So I think there are two aspects to that. So one is culture and one is structure. So if you look at what the – well, what we’d call the architects of devolution, what they actually produced, it was many of the same organisations and relationships that Westminster had. So, for example, there was not like a US-style division of powers between the executive and the legislature. You had the same expectation that the executive would be in a parliament, would likely have very strong influence over the parliamentary arithmetic, would be expected to govern, and the main form of accountability would be ministers to their citizens through national elections. So the same sort of sense of high stakes politics that would produce competition between parties rather than, you know, a much more proportional system where they were expected to co-operate more routinely.

Lead 2A: What were the sorts of things that had been contemplated as might – as possibly forming a more powerful part of the Scottish system that might have gravitated against that outcome, structurally speaking?

Professor Paul Cairney: Yeah. Well, the – one of the principles of the Scottish Parliament was to be this idea of power sharing between Parliament and government, but I think that was never really fully defined, and essentially it was the same relationship that you associate with Westminster: the government produces most legislation, the parliament scrutinises. So it’s a very traditional Westminster approach, and I think that was always the plan.

Lead 2A: Okay. You go on in your report to tell us, at paragraph 31 – if you could go there, please – about something called the National Performance Framework.

Could we just go to paragraph 31, please. If we could just have the page up on its own.

You’re telling us here broadly at this passage about what you call the NPF, which is the National Performance Framework. Could you just tell us broadly what that is and how that fits into the way in which decisions are made in the Scottish Government?

Professor Paul Cairney: Yes, so that really began in 2007, but it was supposed to be the manifestation of all these things we talked about, about, you know, more consultive, more coherent government. So the National Performance Framework had a single core purpose, and I couldn’t tell you the exact wording but it was – it was, you know, sustainable economic growth, and then it had a series of other ancillary purposes associated with that, you know, to do with health, education and suchlike, and the idea was that instead of individual ministers or departments being responsible for each part, all of the government and the public sector would be responsible for turning this vision into reality.

Lead 2A: Right. Does the National Performance Framework continue to play that role, has it continued since that time to play that role, is it updated and adapted?

Professor Paul Cairney: I think it does. I mean, it’s not something that many people know about outside of government, but my impression is that if you’re in the Scottish Government, you’re very aware of it and you’re very aware of the need to pay reference to it.

Lead 2A: I think it is referred to in some of the high-level strategic documents that you’ve looked at, Professor Cairney, is that right, including things like the four harms type documents which informed the approach to the pandemic?

Professor Paul Cairney: Yes.

Lead 2A: So it seems that it did continue to play a role, as in guiding policy and then into decision-making, within the Scottish Government?

Professor Paul Cairney: Yes.

Lead 2A: You say at paragraph 31 that:

“… the NPF does not feature strongly in civil contingencies or pandemic preparation. It represents Scottish Government agendas and aspirations, not a specific decision-making tool.”

Professor Paul Cairney: Yes.

Lead 2A: Could you explain what you mean by that?

Professor Paul Cairney: My impression is that civil servants are expected to know about the NPF, they’re expected to use the language of the NPF when they produced other strategy documents, in a general sense, you know, it’s – you know, key reference points that they all use, but it is not something that is detailed enough to inform detailed decision-making. It doesn’t – it’s not a blueprint that tells you what to do. It’s a set of principles that you would use to inform your work.

Lead 2A: So your impression of government decision-making is that the NPF has a laudable set of principles contained within it –

Professor Paul Cairney: Yes.

Lead 2A: – but that when it comes to the application of those principles to actual on the ground real decisions, because it lacks a mechanism to transport, to transfer those principles into results –

Professor Paul Cairney: Yes.

Lead 2A: – that is, perhaps, a problem with the system?

Professor Paul Cairney: Well, I would say it’s a problem with any system in that a lot of the aspirations they have are in practice contradictory, so even the phrase that they used to use, “sustainable economic development”, there’s a contradiction there in terms of the things they have to pursue. For some that would mean prioritise economic development, often at the expense of the environment. For some people, the word “sustainable” would suggest that we need to change the way we pursue economic growth. But the NPF itself does not resolve those matters. It presents the phraseology to use.

Lead 2A: Thank you.

Another aspect I think of what you say at paragraph 31 is that the NPF is not something which features strongly in civil contingencies or pandemic preparation; is that the impression you’ve gained from the materials you’ve looked at?

Professor Paul Cairney: Yes, to me, when I looked at – I looked at a lot of preparation documents, I don’t remember seeing the NPF language. I think the closest thing you could get is the same sense of collectivism in the language of the documents, but they do not refer to each other in any meaningful way.

Lead 2A: One might say that if the NPF is part of an attempt – a laudable attempt, I think we’ve said – to try to define principles that will assist with good decision-making ultimately –

Professor Paul Cairney: Yeah.

Lead 2A: – that in situations of emergency, one might wish to have a means by which those principles can be operationalised quickly and effectively –

Professor Paul Cairney: Yes.

Lead 2A: – is that right?

Professor Paul Cairney: Yes.

Lead 2A: One of the strategies that you looked at, and we’ve mentioned already, which is we’ve heard a lot about already in the first few days of hearings, which was actually implemented, which was put in place by the Scottish Government, was the Scottish four harms framework, which I know you’ve looked at.

Professor Paul Cairney: Yes.

Lead 2A: Just by way of reminder, this was a framework which was published originally in April 2020; is that right?

Professor Paul Cairney: Yes.

Lead 2A: And it set out a framework which required explicit comparison and balancing between four different areas where harm was perceived to be caused by the pandemic?

Professor Paul Cairney: Yes.

Lead 2A: And that those harms were: the direct harm of Covid-19 itself, other health harm caused by the pandemic, societal harm, and economic harm; is that right?

Professor Paul Cairney: Yes.

Lead 2A: There are repeated references to the four harms framework in the witness statements of the Scottish Government; is that not right?

Professor Paul Cairney: Yes.

Lead 2A: The ones that we provided you with from the directorates.

Professor Paul Cairney: Indeed.

Lead 2A: Can we go to paragraph 163, please.

Here is it correct that you tell us that because of the high uncertainty about how to deal with the pandemic and the likely impact of various decisions, this meant that the four harms framework was, much like the National Performance Framework, an important reference point to general principles rather than a detailed guide to decision-making during the pandemic?

Professor Paul Cairney: Yes.

Lead 2A: You explain again, as you had with the National Performance Framework, I think, that the four harms was not itself a decision-making tool in the pandemic or specific decision-making tool; is that right?

Professor Paul Cairney: Yes, my impression is that it is mostly a statement of the problem, it’s not a statement of the solution.

So it essentially says there are four main harms that we need to take into account, and there will always be trade-offs between trying to reduce one harm in relation to the other. So the classic was a lockdown would reduce Covid-19 harm, but it would also have a knock-on effect for the other three. There would be less access to the NHS, there would be more social isolation, there would be a problem of, you know, economic activity. So it was essentially a way to describe the four key harms that they wanted to pay attention to at any one time.

Lead 2A: Does this mean that it’s perhaps, again, a laudable statement of intent or approach, but it doesn’t set out any means by which ultimate decisions should be made in a scientific or evidence-based way?

Professor Paul Cairney: That’s right. I think it’s just a very general way of focusing the mind on, you know, four key objectives.

Lead 2A: And it would mean that, I think you say here, it would require still a significant degree of judgement, perhaps subjective judgement, to be applied when it comes to actually making decisions?

Professor Paul Cairney: I would say profoundly so. You know, I think there’s no framework like this that could tell a minister when to lock down or not, who to favour – you know, to favour economic growth or Covid-19 reduction in harm. It does not – I don’t think it was ever really designed to guide decision-making in that way, apart from just to, you know, give people the things that they – you know, remind them of the trade-offs, remind them of the principles that they signed up to.

Lead 2A: So I think, if I heard you correctly, your position was that it helped define the problem but didn’t help with the solution?

Professor Paul Cairney: Yes.

Lead 2A: Thank you.

You give some attention to this in your report, very helpfully, I won’t go through every aspect of it, but I think that you suggest that it is – it was perhaps, on your assessment, not a strong feature of decisions as regards certainly the first lockdown, because it didn’t exist at that time –

Professor Paul Cairney: Yes.

Lead 2A: – but subsequent decision-making including, for example, the decision to have the second lockdown?

Professor Paul Cairney: Yes. I think the only thing that stood out was one document said that – so, I mean, in Scotland everything is compared with the UK Government and the one document stated “we used this framework more purposefully than the UK Government”. So what I took that to mean is all ministers, UK and devolved, are trying to make this judgement between reducing Covid-19 and dealing with social and economic harm, and I think their statement is they have a document and a way of working that makes that – that focuses the mind on that trade-off. But that doesn’t mean that other governments are not engaged with the same trade-offs and decisions.

Lead 2A: Okay, thank you.

We’ve talked about a number of things which might be described as setting the scene or aspirational; would that be right, characteristic of the various things we’ve looked at so far?

Professor Paul Cairney: Yes.

Lead 2A: And you’ve also drawn us to your – the first bullet point conclusion in paragraph 1 that there has been a characteristic of Scottish Government decision-making over years that it aspires to be different from the Westminster system but often fails in that aspiration; is that correct?

Professor Paul Cairney: Yes.

Lead 2A: Is it your evidence that the decision-making structures within the Scottish Government, as far as you could glean – relating to the pandemic – in the paperwork with which you were provided, which emanated predominantly from the Scottish Government, shared some of the features that were criticised, I suppose, in the UK Government decision-making structures, such as it being centralised and top-down?

Professor Paul Cairney: Yes. I hesitated there. I would say there’s – given the system they have, there’s an almost in-built tendency towards top-down policymaking. It’s a Scottish version, and it may be less top-down, more consensual, but the thing that I always had in mind is the comparison with the UK is often unhelpful, because to say that something is better does not make it good, and to say that it’s less top-down does not make it not top-down.

So I think that the reference point is useful, but it can also distract us from what, you know, governments actually do.

Lead 2A: One of the things you refer to from a structural perspective in your report, very helpfully, and about which there is an enormous amount of very complex information, which I think I have to try to present in due course, is the directorate structure of the Scottish Government.

Is this a structure which has come in, broadly speaking, since the governments have become SNP-dominated or either exclusively SNP-led administrations since 2007?

Professor Paul Cairney: Yes, I should say that the way the former permanent secretary at the time described this meeting of minds between the Scottish Government and the SNP government, they had the same idea about what to do, and the idea was you would have fewer ministers and you would have a departmental system that became a directorate system, that was designed to be much more joined-up – relating to the NPF – and much less subject to the problems associated with Westminster, which were that departments were much more built based on sectors and they existed in silos without talking to each other.

So they both had this idea that they could have a coherent group of ministers and a coherent collection of directorates that could then talk to each other in a much more meaningful way.

Lead 2A: So you said there – I think that you described a meeting of minds between the Scottish Government and the SNP government?

Professor Paul Cairney: Ah, sorry. Okay, so I should say –

Lead 2A: Did you mean the Scottish civil service or did you mean the UK Government being the first one?

Professor Paul Cairney: Ah, okay. So I should – okay, there’s – I’ve taken for granted things.

In my mind, the Scottish Government describes the organisation that contains ministers and civil servants, so then I was describing the Scottish Government as largely the civil servants, so that would be John Elvidge and colleagues.

Lead 2A: Yes.

Professor Paul Cairney: And –

Lead 2A: Hence you were discussing the prominent civil servant having given some commentary on what had happened over that period, I think?

Professor Paul Cairney: Yes, yes.

Lead 2A: And you go into more detail about this in the report, and that there had been, I think – please correct me if I’m wrong about this – an impetus or a desire on the part of the new SNP administration to try to achieve this directorate structure, broadly for the reasons that you’ve outlined, that it was thought that it would work better than the rigid departmental structure which had been and is characteristic perhaps of the UK Government and had been characteristic of the Scottish Government up till that point?

Professor Paul Cairney: Yes, and I think it needed that meeting of minds between ministers and civil servants because it was a substantial reform, you know, essentially abolishing what they called departments, introducing a far larger number of directorates. It required support from both sides.

Lead 2A: So there was – I suppose, the policy, if you like, was to try to introduce a new system, but there needed to be buy-in from those who would be part of that system, and that was the position at 2007?

Professor Paul Cairney: Yes.

Lead 2A: The directorate system had these goals, and in particular you referred to the fact that it seeks to minimise rigidity and departments working in silos; is that correct?

Professor Paul Cairney: Yes.

Lead 2A: And one sees sometimes a phrase which we rather use in the Inquiry as well, I’m afraid, a degree of trying to minimise cross-cutting problems that would arise in different areas and try to work together to solve them; is that right?

Professor Paul Cairney: Yes, and I would say almost every problem is cross-cutting in some way. So this is an approach that makes sense.

Lead 2A: In your evidence at paragraph 89.2 – if we could go to that – this is in the section where you are still talking about some of the Module 1 evidence and the background structures which existed to try to deal with emergency situations in the Scottish system, you referred in particular to some evidence on this subject that was given by Gillian Russell.

Could you explain the role that she played and why it was that you thought that the description that she gave of the system was of interest as far as whether this directorate system functioned well or not?

Professor Paul Cairney: Yeah, so this is a little bit simplistic, but, as I understand it, all serving Scottish Government civil servants make reference to this kind of language, about being joined-up and about having a good directorate system. So you would expect this kind of testimony where there was very much an emphasis on doing things in a Scottish way, a Scottish Government way, with reference to a wider culture and set of expectations, and you’d normally expect there to be a story that this works well.

Lead 2A: And as far as you are concerned, did you see in the materials with which you were provided evidence of this aspirational approach to the directorate structure achieving the aims which it set out to achieve?

Professor Paul Cairney: Yeah, I would say that on paper, or if you were to listen to someone describing what they do, it would look like it made sense. It’s very difficult to relate that to what actually happens.

Lead 2A: Okay, and that would apply – obviously the paperwork I’m referring to is paperwork related to the way that decisions were made in the pandemic?

Professor Paul Cairney: Yes.

Lead 2A: So is your position, is your evidence that this is an example, again, I think, of a structure which seeks to try to have a positive aim, but of which there is little evidence that it actually has a positive effect?

Professor Paul Cairney: Yes. I mean, I’m keen to stress – you know this phrase “evidence of absence is not absence of evidence”, or – either/or. So what I’m struck by is, when I read Scottish Government documents or accounts, they very much emphasise their aspirations, their structures, their strategies, and they do not really emphasise the more fine grain decisions or their impacts. It’s very much a kind of genal story about how this is supposed to work.

Lead 2A: Just to be clear, in case there is any doubt about it, the documents that I’m referring to upon which you have undertaken this analysis, these are the corporate statements and a couple of individual statements which have emanated from the Inquiry’s investigation into how decisions were taken?

Professor Paul Cairney: Yes.

Lead 2A: So it would be fair to say that if there were examples which you have suggested are absent of the way in which this directorate structure did achieve the aim which it set out to achieve, one might expect them to appear within that very large corporate body of evidence?

Professor Paul Cairney: Yeah. I wouldn’t expect the Scottish Government to be sitting on, you know, a secret stash of documents exhibiting their success.

Lead 2A: You refer in your report also to a number of organisational changes which took place during the course of the pandemic.

If we go to paragraph 141 – yes, in paragraph 142, under the heading “The reorganisation of Directorates to co-ordinate a Scottish Government response to Covid-19”, we’ve touched on some of this in the opening statement and we’ll address some of the detail with some other witnesses in due course, but you set out there that, broadly speaking, there was a reorganisation based on the materials that you were given where, within the directorate structure, a number of new directorate bodies were created to deal with the pandemic at various different times and in various different places?

Professor Paul Cairney: Yes.

Lead 2A: Just to be clear, and in the hope that I understand this, there are, I think, what are called “directorates general”, which are overarching bodies that within them contain a number of sub-directorates that are called “directorates”?

Professor Paul Cairney: Yeah. It is a confusing language, and I think that the Scottish Government uses the language of “families of directorates”. So I think a family – I mean, a well-working family, I think, that was what they’re trying to project, and that this is a collection of directorates which interact with each other. They are separate organisationally, but they interact with each other in – as part of a wider directorate general, led by a director general.

Lead 2A: We see there at 142.1, for example, the “Directorate General for Constitution and External Affairs”, that would be one of the family definitions, and within that there would be a number of members in the family that would be directorates underneath that?

Professor Paul Cairney: Yes.

Lead 2A: And I think you point in particular to the fact that within that directorate general, which I think it fair to say was certainly one of, if not the lead directorate general in relation to the pandemic, there were a number of new bodies and directorates and structures created while the pandemic was actually happening?

Professor Paul Cairney: Yes. I should say that I would express uncertainty. It’s very difficult to know the extent of the reorganisation. My sense is the documents that I read that we referred to provide a lot of detail on various name changes to directorates, and they list the director in each case. It’s very difficult to know if the name change represents or symbolises a functional change or if they’re simply re-branding what they do with different names.

Lead 2A: We can explore that factual matter, and no doubt we will have to with other witnesses in due course, Professor Cairney, but within that particular directorate general and also another one, which was the Health and Social Care Directorate General, there appeared to be a number of new bodies, new advisory structures created; is that broadly your understanding?

Professor Paul Cairney: Yes, and I think in some other cases the role is much clearer because the directorate is new and the topic is new, so I think, for example, a directorate for, you know – well, I should remember them all, but say a directorate for testing and tracing or something like that, it’s clearly been established to do something new.

Lead 2A: Yes.

Professor Paul Cairney: Where some of them have been re-branded to repurpose what they do.

Lead 2A: Yes.

Can we look at paragraph 141, please. Again, your position was, I think, there, around about halfway through, you say:

“However, the Scottish Government provides limited evidence that this system of decision-making was more effective during its response to Covid-19 (partly because the Inquiry did not ask it to do so explicitly).”

As far as that is concerned, where does that second comment emanate from, the one in brackets?

Professor Paul Cairney: Yeah, I’m smiling a bit here. So I – I produced four drafts of my report, the final draft was the fourth draft. The second draft was in response to the Inquiry team comments – very constructive and helpful. The final draft was produced after detailed comment from core participants, primarily from Scottish Government participants. I sort of – I joked to the team that it was like they were marking my homework, and that was often very good, because they pointed out some inaccuracies. But this one, I think, summed up for me the problem the Inquiry has in getting information from the Scottish Government, because my impression is: it is only providing answers to the questions posed and it’s never going any further than that. And so I think that was a – that was feedback from one person in response to a comment that I’d made in a previous draft, which was “The Scottish Government doesn’t provide much evidence on X, Y and Z”, the response from them was “Well, you didn’t ask us to give that evidence”.

Lead 2A: So that comment, to be clear, came from the Scottish Government; is that right?

Professor Paul Cairney: Yes.

Lead 2A: And the Scottish Government’s comment was that the reason why the Scottish Government documentation had provided limited evidence that this system of decision-making was more effective during its response to Covid-19 was because the Inquiry hadn’t asked it to do so?

Professor Paul Cairney: Yes.

Lead 2A: As far as the second part is concerned, based on what you have seen, and putting aside for the moment the question of whether they had been asked that or not, your assessment was, I think:

“… most of its relevant written evidence (to which I have had access) describes organisational changes rather than their effectiveness.”

Professor Paul Cairney: Yes.

Lead 2A: So your impression was that, although there was a lot about how things had been moved around and re-branded, there wasn’t an awful lot of discussion about how that had helped the people of Scotland ultimately?

Professor Paul Cairney: Indeed.

Lead 2A: Broadly speaking, based on your experience of the way in which governments are structured, policies formulated and implemented to try to maximise the effectiveness of decisions, would you – and bearing in mind, of course, that you have conducted a very extensive analysis of the pre-pandemic situation in Scotland in that regard – would you generally think it is a good idea to reinvent systems so much in the heat of the fire, rather than before the fire starts?

Professor Paul Cairney: That’s a good question. I certainly think – it’s well known in government and the study of government that major formal reorganisations are expensive in terms of the time it takes to do, the time it takes for civil servants to become proficient in their new role, and the time it takes for people to understand what their roles are in relation to other people. So I think any government would pause before having a major formal reorganisation.

So I think what I would say is the reorganisation in 2007 was the profound one. This one I think it’s more difficult to say how big it was. So I think a good example is when some of the Scottish Government documents essentially say “We had a directorate working on Brexit, and we re-purposed that directorate to deal with Covid-19”, so in some senses that seems – I think that would seem odd to people that they would do that, but it makes sense in that what that directorate was trying to do was to co-ordinate a response across government on a complex issue. So it made sense for people experienced in that very broad task of co-ordination to be involved in the directorate.

So I think some things do make sense. I wouldn’t want to give the impression that I think this is a lot of sort of needless moving the deck chairs around. It’s just difficult to know in detail what the purpose was of each directorate, because the documents focus on the formalisation of their roles.

Lead 2A: My question I think was a little bit more specific than that. You go on at various stages in your report to discuss, for example, in the context of advisory structures –

Professor Paul Cairney: Yeah.

Lead 2A: – but also decision-making structures – this is in the context of the devolution and intergovernmental section of your report – you refer to the fact that there were systems for achieving medical advice from experts via, for example, SAGE –

Professor Paul Cairney: Yes.

Lead 2A: – and its various subgroups?

Professor Paul Cairney: Yes.

Lead 2A: And there were existing decision-making bodies such as COBR, for example?

Professor Paul Cairney: Yes.

Lead 2A: And that you question, I think – you pose the question, at least, as to whether more effort could have been made to try to use those existing structures developed for the purpose of an emergency?

Professor Paul Cairney: Yes.

Lead 2A: And you question, therefore, by extension, as I understand it, whether the development of these new more Scottish-based systems, I think broadly one can say, was necessarily a good idea in the circumstances?

Professor Paul Cairney: To be honest, I’m not sure. It’s difficult to tell from the evidence available. I can say in general terms some of these things make sense. So it makes sense to have a family of directorates that try to co-ordinate policy across government. I think maybe it makes sense to give them names that relate to the tasks, and maybe that’s the advantage of the directorate system.

It’s difficult – the thing that I would be less sure about would be, for example, the – I mean, a lot of directorate functionality comes down to the people who lead them and their experience and suchlike. I don’t have enough detail on their experience in, you know, relevant things or if they were put into new roles or this was an extension of their old role. So it’s difficult to tell. I think it would be difficult for anyone on the outside to tell how these things work, and presumably very difficult for the Scottish Government to explain how they work to, you know, a typical citizen.

Lead 2A: I wonder if I could give a comparison about which you’ve already heard some evidence. Although it’s not the area you have been asked to look at, you’ll be aware of the fact that there was a body called Public Health Scotland that played a predominant role in the pandemic response?

Professor Paul Cairney: Yes.

Lead 2A: It was the case that the Scottish Government, as I think you note in your report, was keen to try to develop a new and better system for dealing with Scotland’s considerable health inequalities.

Professor Paul Cairney: Yes.

Lead 2A: And part of that plan was the development of a body to co-ordinate the public health response, which was Public Health Scotland.

Professor Paul Cairney: Yes.

Lead 2A: And it became operational in April of 2020.

Professor Paul Cairney: Yes.

Lead 2A: And although that had been pre-planned, that was a difficult – we’ve heard some evidence that that was a difficult time, obviously –

Professor Paul Cairney: Yeah.

Lead 2A: – for that to happen.

It’s been accepted on their behalf that when one creates new structures like that, it’s inevitable that there will be a degree of practical and cultural and organisational change and reorganisation that will be necessary.

Professor Paul Cairney: Yes.

Lead 2A: I understand it to be their position that they would accept that that was not ideal in the middle of a pandemic, but there was no choice, because that had been pre-planned.

Professor Paul Cairney: Yeah, so I know –

Lead 2A: My ultimate goal here is not to get into that, sorry, Professor.

Professor Paul Cairney: Okay.

Lead 2A: I just wanted to draw a comparison to say: do these same concerns apply in your area of expertise in regard to organisational change within government in – as I’ve said, in the heat of the fire?

Professor Paul Cairney: I think those – they’re comparable, but different. I would say that the introduction of Public Health Scotland was much more like the introduction of directorates in 2007, in that that had been years in the planning, and that had been a long-term attempt to co-ordinate health and other issues between, you know, Scottish Government public health bodies and local government.

So that – I mean, in some senses I would describe what they had done, say, from the mid-2010s onwards as good practice in long-term planning. So that is different from the reorganisation of directorates, which took place much more quickly. My impression is some of this was much more overnight. You know, so there is a difference in terms of the work that goes in. So I think Public Health Scotland would be the example of long-term planning organisation, whereas the directorates would be this short-term crisis response.

Lead 2A: Thank you very much.

Could we go to paragraph 125, please. This is, I think, where you’re expressing your opinion in relation to topic 1, which is technically the preparedness topic, although I think you, quite helpfully, use these opinion sections to try to tell us a bit about how this feeds into our core function here, which is to look at the actual decision-making.

I think in this paragraph you say that:

“[The] focus on … being better prepared over time to make effective decisions, based on a commitment to continuous policy learning and … being increasingly better prepared for an unfolding pandemic, is a strong feature of Scottish Government oral testimony for Module 1 and written testimony for Module 2A, as follows. First, a general focus on the Scottish Government being a learning organisation is a key feature of the Scottish Government’s ‘Scottish approach’ narrative on decision-making … Second, multiple witness statements describe continuous learning to respond to an emerging problem more effectively: preparedness for future phases of Covid-19 would be improved because the Scottish Government had far more information about the nature and spread of the virus, and its ability to respond. Third, this preparedness would be bolstered by new arrangements, including (a) the establishment of a Scottish Government advisory system, based on the Scottish Government’s realisation that it should be less reliant on UK science advice mechanisms … and (b) new specialist Directorates better able to respond to the immediate Covid-19 threat then prepare properly for another …”

So I think there what you’re helpfully doing, Professor, is you’re bringing together the importance, which we learned from Module 1, of being well prepared and learning lessons, and you’re applying that also to the fact that we’re not dealing here with a single incident that happened on one day, but something that went on for a period of years, and I think your assertion is that it is – well, the assertion in the documents, the Scottish Government’s assertion is that they learned lessons as things went on, and therefore, I assume, assert that they improved their response; is that correct?

Professor Paul Cairney: Yes. Could I expand on that?

Lead 2A: Of course. I’d very much like you to.

Professor Paul Cairney: So I would say that if you were to distill down all of the evidence from the Scottish Government, you could turn it into a very simple convincing story, which is: we are a well co-ordinated learning organisation, we may not have been prepared for this new pandemic in spring 2020 but we are an effective organisation to the extent that we can learn and respond to subsequent pandemics much more effectively.

I think that is the Scottish position, the Scottish Government position.

I think also there is witness statements from the former First Minister and Deputy First Minister that encapsulate that assertion of learning. So the First Minister says “I told the Scottish Cabinet in December 2020 that essentially we have learned that you cannot wait for this problem to become a crisis, you have to act quickly. We learned that from the first lockdown”. The Deputy First Minister says “We’ve learned that in key cases sometimes only a major lockdown will do, you know, these other measures are not going to work and we need to do it”.

So they both talk about learning from the previous experience in the sense that it would inform their future decisions, and, you know, that is a good learning organisation.

But what I can’t then do is reconcile that with the fact that they appear to have made exactly the same mistakes twice. The first one was understandable because the virus was novel. Lockdown in March was something that was profoundly different from what anyone had been used to. They clearly were not sure what would happen, how much people would adhere to the guidelines and suchlike. But they state time and time again in the documents, “We learned a lot from what happened during that lockdown and we have learned a lot about what this virus is”, and yet they appear to have produced the same delays in response for the second lockdown as the first.

So in my mind that does not exhibit pandemic preparedness in relation to continuously learning.

So I’ve been reflect – this is slightly speculative, but what I would like clarity on from the Scottish Government is, in a nutshell, do they think that the virus in 2020, by the end, was so different that they could not prepare for it and therefore it’s very difficult to prepare ever for a novel virus? Or is there some other explanation for the fact that they learned so much and yet acted, you know, so late?

Lead 2A: You, I think, have confined your comments there to what happened during 2020, but the Inquiry has heard evidence from statisticians, the government statistician and the PHS statistician, about there being significantly high levels of cases, higher than other places in the United Kingdom, later in the pandemic, but still in the period we’re interested in, in particular from around August 2021. We have heard that those high rates obviously went up and down but they continued and there continued to be a high mortality rate resulting from what were known as the Delta and Omicron variants from that point into 2022. We have heard evidence that there were significant issues with hospitals becoming overwhelmed in 2021, which required the military to be drafted in to assist. We’ve heard evidence of this situation being described as a perfect storm.

Professor Paul Cairney: Mm.

Lead 2A: We’ve heard evidence from particular impacted organisations that their voice continued not to be heard during the pandemic, and that members of their communities continued to suffer, including oral testimony to that effect yesterday.

Are these features of the evidence – and of course we keep our mind open to what the evidence may be – are these features of the evidence consistent with your – what I understand to be your general proposition that the evidence doesn’t seem to suggest, that you’ve seen, that lessons were learned during the pandemic such as to combat further waves and further devastation?

Professor Paul Cairney: Yes, I think that the Scottish Government documents talk much more about learning than they demonstrate learning feeding into action.

I should say I made this point more strongly in the third draft of my report. I did get a response from the Scottish Government which was essentially a list of the ways in which they were learning, and I put that list in my fourth report. But my sense is that essentially that’s what it is, it’s a list of activity in different parts of the Scottish Government. It is not a coherent narrative of how they learn effectively during a crisis. And I think that’s one of the sort of unresolved issues here about the extent to which there’s a rhetoric of learning that does not match reality.

I suppose the other thing I should note is, in my mind the Scottish Government, much like the UK Government, have described Inquiries as the place to learn. In fact, when the now Deputy First Minister gave evidence to the committee – or was it – the inquiry that was involved in effective government decision-making, I believe she said that “We will learn lessons during the inquiries”. And that struck me as quite odd, given that the focus so much in these documents is about continuous learning.

Now, maybe they’re talking about two different kinds. Maybe there’s a difference between trial and error, learning on a daily basis, and there is evidence of that, for example, when the former Health Secretary talks about learning how to deal with, you know, PPE problems. Maybe that’s what they meant. But I don’t see evidence of this longer-term learning that will then produce something that will inform the next pandemic.

I think, you know, there was a – one of the committees they have talks about Disease X, you know, this disease – we don’t know anything about it, but we know it’s coming. I don’t see anything from Scottish Government documents that says “This is what we have learned that will inform how we deal with Disease X”.

Lady Hallett: So are you saying it’s translating the words into actions?

Professor Paul Cairney: Yes. I think the – I’ll be careful in how I say this, but the Scottish Government produces beautiful strategy documents, it has a wonderful language to describe how it wants to be. It does not have the same effective language for describing how it is.

Mr Dawson: My Lady, if that’s a convenient point?

Lady Hallett: It is, certainly, thank you. I shall return at 11.30.

(11.15 am)

(A short break)

(11.30 am)

Lady Hallett: Mr Dawson.

Mr Dawson: Thank you, my Lady.

Professor Cairney, I’d just like to move on to a slightly different though connected area, which is the Scottish Government’s commitment to human rights and equality, which is something we’re interested in in this module.

If you could have page 5 up, paragraph 1 again, you say in the fifth paragraph there that:

“The aspirational … ‘model’ [this is of the Scottish approach] involves establishing a ‘national performance framework’ (NPF) with a ‘core purpose’ replacing sectoral government departments with cross-sectoral directorates, co-producing public sector commitments to deliver the NPF and focusing on long-term aims – such as to reduce inequalities – rather than short-term targets based on a fixation with national elections.”

So the commitment to the reduction of inequalities is something that is part of this aspirational principles to be applied to the way that decisions are made?

Professor Paul Cairney: Yes.

Lead 2A: And in paragraph 14, you refer to:

“From 2015, the Scottish Government used its revision of the NPF ten year plan to: …”

Amongst other things, at bullet point 2:

“identify priorities in relation to addressing poverty and reducing inequalities (then First Minister Nicola Sturgeon made strong commitments to reduce education and health inequalities).”

Professor Paul Cairney: Yes.

Lead 2A: Could we look at paragraph 113, please. Again, this is in the section where you were looking at some of the evidence that was available in relation to the Scottish Government from Module 1, and in that paragraph, as part of your analysis of the context of the pandemic, you say that:

“… health outcomes do not reflect the successful application of [these] new policies.”

Citing, amongst other materials, the Bambra and Marmot report commissioned by this Inquiry. Is that right?

Professor Paul Cairney: Yes.

Lead 2A: Could we look at paragraph 115, please. Do you say in this paragraph that in the field of health inequalities you state this is an example of where there were aspirations not put into practice?

Professor Paul Cairney: Yes.

Lead 2A: Again, I think it’s fair to say that commitments to inequalities, including health inequalities, and human rights in a more general sense, feature aspirationally, if you like, in some of the key structural documents, including the four harms approach?

Professor Paul Cairney: Yes, and – so other scholars know much more about human rights approaches than I, but my impression is the reference to a human rights approach is now the Scottish Government’s thing, it’s – I mean, I don’t mean that in a negative sense. It is very committed to adopting that kind of language throughout government. And I think my impression is it’s the same kind of aspiration – it’s a very general term, it’s very difficult to – you know, very difficult to oppose, who wouldn’t want a human rights approach? But the detail of how they make sense of it and the choices they make, I think that’s the thing that is less visible.

Lead 2A: So when you say “the choices they make”, ultimately what that means is whether the decisions they make actually put that aspiration into practice?

Professor Paul Cairney: Yes, and how they define human rights and whose human rights, and the balance between human rights and – I mean, so lockdown was really about removing human rights, so if they were to talk about a human rights approach to something like that, it would be very difficult to make sense of without more detail.

Lead 2A: Your report as regards the period before the pandemic, drawing, as I say, amongst other things, on the Bambra and Marmot report but other sources, suggests that although this approach to inequalities, in particular health inequalities, had been an aspirational part of Scottish Government decision-making for some time, updated and reinforced in 2015, as we saw –

Professor Paul Cairney: Yeah.

Lead 2A: – that health inequalities and inequalities in general remained a significant problem with Scottish society at the time the pandemic started; is that correct?

Professor Paul Cairney: Yes.

Lead 2A: And this Inquiry has heard significant evidence relating to this module that those inequalities and health inequalities were exacerbated by the way the pandemic was managed. Would it surprise you to hear that it has heard that evidence?

Professor Paul Cairney: No. I think that the experience of Covid-19 policy symbolises a lot of the problems with inequalities that we saw before 2020.

Lead 2A: Thank you.

I’d now like to move to a different area which you have also very helpfully covered in some detail in your report. The area is devolution and the interplay between the UK Government and the Scottish Government.

We have heard in the Inquiry a substantial body of evidence, generally speaking, about the devolution settlements across the UK, not least in the expert opinion from Professor Ailsa Henderson, which I know that you have been able to look at.

Professor Paul Cairney: Yes.

Lead 2A: So it may be that the ground that we cover here can be a bit more focused, because we have some general context, but I would like to ask you some questions about that.

I think you say in your report that because of the devolution settlement which attributes certain policy areas to the Scottish Government but reserves certain other policy areas to the UK Government, that both the UK Government and the Scottish Government share overall responsibility for policy decisions that impact Scotland?

Professor Paul Cairney: Yes.

Lead 2A: You say in your report at paragraph 56 – we’ll go to that – that in this context the – I think you use the word “blurry” to describe the boundary between UK and Scottish Government responsibilities. I think at this stage you’re referring to the period before the pandemic. There was blurriness about the lines of responsibility. Broadly speaking, is that right?

Professor Paul Cairney: I would say there’s always a blurry boundary in this kind of system.

Lead 2A: Yes. And would it be fair to say that when a disaster comes along like the pandemic, which affects all areas of society and life, and therefore all policy areas, that this blurriness starts to become a bit of a problem?

Professor Paul Cairney: Yes.

Lead 2A: Because in response to a pandemic, one needs clarity, not blurriness?

Professor Paul Cairney: Yes.

Lead 2A: Clarity as to whose responsibility each element of society it is?

Professor Paul Cairney: Yes.

Lead 2A: The Inquiry has heard evidence that there were systems in place, I think as far back as the Scotland Act but certainly from more recent years, including a memorandum of understanding and supplementary agreements last updated in 2013, that were designed, amongst other things, to encourage activity within, amongst other bodies, a Joint Ministerial Committee, to try to deal with this very issue of what you’ve described as the blurriness.

Professor Paul Cairney: Yeah.

Lead 2A: Would that be fair?

Professor Paul Cairney: Yes.

Lead 2A: It is Professor Henderson’s evidence that there had been relatively little activity in that regard in the years preceding the pandemic; is that your understanding?

Professor Paul Cairney: Yes.

Lead 2A: And that in fact the Joint Ministerial Committee had met only 11 times in relation to Scotland between 2007 and 2019?

Professor Paul Cairney: Yes.

Lead 2A: And it hadn’t met after 2019 and before the pandemic, so during 2019?

Professor Paul Cairney: Yes.

Lead 2A: And in 2007, the 2007 date is the time that the SNP became the controlling party of the Scottish Government?

Professor Paul Cairney: Yes.

Lead 2A: Do you think that it is the case that our constitutional settlement required that there ought to be fora in which these boundaries should have been rendered less blurry, such as to make a pandemic response involving both policymaking agencies more effective?

Professor Paul Cairney: Yes.

Lead 2A: Another aspect which you touch upon in this regard in your report is the suggestion that the existence of these blurry lines may also make it easier for decision-makers in the Scottish Government to attribute blame for bad policy outcomes to the UK Government and vice versa, thereby potentially creating an accountability deficit in Scotland?

Professor Paul Cairney: Yes.

Lead 2A: Could you explain a little bit more about what you mean by that concept?

Professor Paul Cairney: Well … this would take us back to the topic that we began with about, you know, new Scottish politics or old Westminster. I think a characteristic of a Westminster system is high stakes accountability for problems. It is – parties contest elections based on who should take the credit, who should take the blame for decisions, and that is reflected in relationships between UK and devolved governments, particularly when they’re of a different party. So I would say that the way that the parties narrate the relationships relates profoundly strongly to the way that they campaign. So I would say that, on both sides, the UK Government leadership and the SNP government, to criticise each other in key cases is a key part of the way in which they present themselves to the electorate.

Lead 2A: To turn, then, to the outcomes of this as far as the pandemic was concerned, you explain very helpfully in your report – which hopefully I can summarise, but please correct me if I’m going wrong – that there would in these circumstances have been two ways in which, from a legal and constitutional perspective, the pandemic could have been managed.

I think you highlight, about which evidence has been heard in Module 2 as well, that the pandemic could have been governed by the Civil Contingencies Act route or it could have been governed the way it was, via what I think you describe as the public health route.

Professor Paul Cairney: Yes.

Lead 2A: And that these two routes have different legal and constitutional outcomes in terms of responsibility for the management of the pandemic; is that right?

Professor Paul Cairney: I think so.

Lead 2A: Yes, and I think that the evidence we’ve heard in Module 2 already, and please tell me if you disagree with this, is that had the Civil Contingencies Act route been used, that would have resulted in a greater degree of responsibility being vested in the UK Government for matters pertaining to Scotland than actually happened; is that correct?

Professor Paul Cairney: That is what I – I’m relying on more expert people than I –

Lead 2A: Yes.

Professor Paul Cairney: – but that’s my understanding.

Lead 2A: Yes, I understand, you’re not a legal expert, Professor Cairney, it’s very important to point that out, but in your report you have summarised evidence available from other sources –

Professor Paul Cairney: Yes.

Lead 2A: – which lead you to believe that that is the case, and certainly my understanding is that’s consistent with the evidence the Inquiry has already heard in that regard.

In the end of the day what happened was there was the Coronavirus Act 2020 which, amongst its schedules, accorded certain powers to the Scottish Government to do things like impose legal restrictions on members of Scottish society. Is that your understanding?

Professor Paul Cairney: Yes.

Lead 2A: That operated within the devolution arrangements, subject to any extra powers that were included in the 2020 Act?

Professor Paul Cairney: Yes.

Lead 2A: Would it be fair to say at an overall level, without getting into any legal detail, that that resulted in a situation whereby the blurry lines became something of an issue, because the pandemic strategy in Scotland required input in certain areas from the UK Government, but accorded overall control to the Scottish Government?

Professor Paul Cairney: Yes.

Lead 2A: For example, you highlight in your report at least one major area, but possibly other areas, that would technically fall within the reserved powers of the UK Government. The major one is funding –

Professor Paul Cairney: Yes.

Lead 2A: – to which we will return. The UK Treasury remains a reserved matter. There are other, there are perhaps multiple matters, but another one which is of some significance to this module is the question of borders.

Professor Paul Cairney: Yes.

Lead 2A: Because border control generally is a reserved matter.

Professor Paul Cairney: Yes.

Lead 2A: Therefore, is it fair to say that your assessment is that there required, given that that route was selected, to be a significant degree of co-ordination and co-operation between the governments, given the all encompassing nature of the pandemic and its effects?

Professor Paul Cairney: Very much so.

Lead 2A: And given that requirement, the blurry lines caused a significant problem?

Professor Paul Cairney: I think so, yes.

Lead 2A: You also, in your report, in the very helpful lengthy section about pandemic preparedness, talk about a lot of systems which existed and about which the Inquiry has heard in detail in Module 1 to do with resilience partnerships and that sort of thing. Given that – is it your understanding that the systems which existed pre-pandemic as far as Scotland’s preparedness was concerned were based on a civil contingencies type outcome in terms of the way a pandemic or any other emergency might be managed?

Professor Paul Cairney: My impression is that they had – they had two different systems running on parallel tracks, so one of them was civil contingencies and the legislation that required the Scottish Government to prepare for an emergency.

Lead 2A: Yes. But the systems that we were talking about were systems that would be employed in a civil contingencies type scenario, the scenario that wasn’t actually followed through; is that right?

Professor Paul Cairney: Yes. I mean, my impression – to be honest, I found the documents very confusing, but my impression was they were anticipating either – “emergency” is defined very generally, so they very rarely refer to a pandemic, or they’re anticipating – my impression is that they’re anticipating emergencies a bit like natural disasters, where there’s this very quick responses by emergency services to an incident. I don’t think that many of the documents talk about, you know, the scale of this kind of pandemic.

Lead 2A: Could we look at, please, paragraph 59. Under subparagraph (e), please.

You talk there, I think, and tell us that the materials which you’ve looked at suggest that – in written testimony in particular, that from a legal perspective, and with the caveat that you’re not a lawyer and you’re relying on this material, the Scottish Government’s position, or at least certain individuals who were prominent in the Scottish Government at the time, suggest that the Scottish Government could have acted so as to impose lockdown, for example, before the Coronavirus Act 2020?

Professor Paul Cairney: Yes, and this is one of – an example where I think I got far more clarity from the Scottish Government in comparison to other issues, because in the draft of my report I had said – I had said that I’m honestly not sure if the Scottish Parliament could have legislated in this field, and I’m not sure what the legal position was before that.

Lead 2A: Mm.

Professor Paul Cairney: And I got very clear – which I quoted here – very clear feedback from the Scottish Government that the Scottish Government could have initiated the legislation in the Scottish Parliament, because this was clearly a public health responsibility, so there were no issues of being challenged, but that it made a decision not to legislate in the Scottish Parliament in favour of a four nations approach built on legislation in Westminster.

Lead 2A: So your understanding from the Scottish Government materials is that the Scottish Government had the power to impose a lockdown before it was imposed?

Professor Paul Cairney: If it legislated to do so.

Lead 2A: Yes.

Professor Paul Cairney: Yes.

Lead 2A: Indeed. But that it chose not to in favour of the four nations approach, which culminated in a co-ordinated commencement to the lockdown in March 2020?

Professor Paul Cairney: Yes.

Lead 2A: Is it fair to say – one might say, I think, that – or is it fair to say that in this area there may be a significant degree of confusion as to where the power lies in this regard?

Professor Paul Cairney: Yes.

Lead 2A: And that perhaps is why you have struggled, as others have, to work out what the position is?

Professor Paul Cairney: Yes.

Lead 2A: But your understanding of the evidence is that the Scottish Government’s position is that it felt it could legislate for a lockdown in the period before 23 March?

Professor Paul Cairney: Yes.

Lead 2A: And we know, of course, that the Scottish Government did not legislate and have a lockdown before that period, but it did issue a number of recommended courses of action in early March to curb social interaction and the like?

Professor Paul Cairney: Yes.

Lead 2A: Given that there is a lack of clarity in this area, it would appear, and it is your evidence that that is the case, is this the sort of thing that would have benefitted from clarification of the blurry lines, perhaps in a Joint Ministerial Committee, so that if an emergency like this struck, everyone would know what their powers were?

Professor Paul Cairney: Yes.

Lead 2A: Does it appear to be the case that the lack of clarity contributed to issues around a delay in the lockdown at that time based on your assessment of the materials?

Professor Paul Cairney: That’s tricky for me to answer. What I can say for sure is that the feedback from the Scottish Government is that they thought this was the quickest way to do it. So I think from their perspective this reduced delay.

I think the counterfactual is: what if Scottish Government ministers had much earlier on recognised this as a problem, thought that the UK Government was not doing enough about it, and therefore legislated much more quickly? From the documents they have given, they do not give the impression that they were operating on a much more accelerated timetable than the UK Government, and therefore, they were quite close together, it made sense for them to do this quickly.

I think that sometimes things that aren’t left said is, although the UK Government does not challenge Scottish Government legislation much, the UK Government and citizens can challenge Scottish Parliament legislation if deemed out of competence.

So I think it would be reasonable for the Scottish Government to say that during a crisis, when there’s not 100% clarity on who’s responsible, it makes sense for Westminster to legislate because then it won’t receive that challenge over competence in a way that the Scottish Government could.

Lead 2A: But as I think you accepted earlier, one might, in a counterfactual situation, had there been greater clarification over these matters between the governments to deal with the pandemic –

Professor Paul Cairney: Yes.

Lead 2A: – that we might have been operating in a counterfactual situation where there wasn’t that lack of clarity?

Professor Paul Cairney: Yes, I think if they had their time again they would have clarified this and the Scottish Parliament would have legislated.

Lead 2A: Okay.

One of the other things that you mention there that we’ll come on to in a moment is you interpret the evidence that you’ve seen as being that the Scottish Government had the formal responsibility but not the financial means to act, before saying this was an example of the blurry boundaries.

What is your understanding of the concern about the financial means that would have been necessary for the Scottish Government to act?

Professor Paul Cairney: Okay, so this is a remarkably concise answer based on the detail.

Lead 2A: Thank you.

Professor Paul Cairney: The – essentially, the history of Scottish Government finance has been that the Treasury essentially provides the budget, the size; the Scottish Government decides how to spend it. So –

Lead 2A: Professor, I want to get into a little bit of the detail about how funding works in a moment – sorry to cut across you – but I’m just trying to clarify what your understanding of the evidence that emanates from the Scottish Government as to what it was specifically –

Professor Paul Cairney: Okay.

Lead 2A: – about the financial issue that meant that they had the responsibility but not the financial means to act, which it seems played some part in the decision-making.

Professor Paul Cairney: I –

Lead 2A: We’ll get on to the more difficult stuff in a moment, I assure you.

Professor Paul Cairney: Okay.

So I think the Scottish Government position is that an act such as lockdown would be profoundly expensive, and that has been borne out, and it did not have the means to borrow the money to finance that activity. It had a budget, but that budget was already allocated, and we’re talking about a scale that it wouldn’t be able to fund, for example – I think the biggest example is the employment furlough, it didn’t feel able financially to fund its own furlough.

Lead 2A: So to be fair, I think it’s important to point out that the evidence that you’ve seen is pointing out that that was an important factor in the decision-making as well –

Professor Paul Cairney: Yes.

Lead 2A: – it wasn’t simply a matter of “We can just go off and have a lockdown because we can”, there were other considerations, including these financial considerations, to take into account?

Professor Paul Cairney: Yes, because I think the key question, when they’re considering solutions, is: is this solution feasible?

So at the time they were wrestling with two feasibility issues. One was the political one: will people accept a lockdown? The other was the technical feasibility: can we do it and can we afford it? And I think, yeah, that informed all decision-making at that time.

Lead 2A: Thank you.

Before we move on to look at this area of funding in a bit more detail, I just wanted to clarify with you, which is an important although I think sometimes perhaps misunderstood element, of the way that the devolution settlement played out in the pandemic. It is important to understand, is it not, that the UK Government continued to have a direct role in controlling Scottish matters during the course of the pandemic?

Professor Paul Cairney: Yes.

Lead 2A: Not all Scottish matters, but certain Scottish matters that were reserved to their competence?

Professor Paul Cairney: Yes.

Lead 2A: So, for example, as we will see in a moment, the funding arrangements were still generally controlled by the Treasury?

Professor Paul Cairney: Yes.

Lead 2A: I say generally because there are some tax raising powers of the Scottish Government that we’ll touch on.

Professor Paul Cairney: Yes.

Lead 2A: Other areas, for example, that we’ve seen, we’ve heard something about already, defence is a reserved matter?

Professor Paul Cairney: Yes.

Lead 2A: So that during the course of the pandemic, when the military required to be brought in to assist with hospitals, that was a matter over which the Secretary of State for Scotland took control?


Professor Paul Cairney: Yes.

Lead 2A: If you don’t know that particular –

Professor Paul Cairney: I –

Lead 2A: In general terms –

Professor Paul Cairney: In general terms –

Lead 2A: – defence matters would be for the UK Government –

Professor Paul Cairney: UK government.

Lead 2A: – and if you take it from me on the hypothesis that there required to be defence intervention, you would expect that to be a matter for the UK Government.

Professor Paul Cairney: Yes.

Lead 2A: So although operational control of the pandemic lay with the Scottish Government, the UK Government had exclusive control in certain areas and therefore an important part to play in Scotland’s pandemic response?

Professor Paul Cairney: Yes.

Lead 2A: Thank you.

So then to turn to the question of funding, we go to paragraph 255, please.

This is what we described earlier as topic 7. You were asked a specific question about this, and you say, I think, at paragraph 258 – if we could just go over the page – I think as you’ve already said in passing that the general rule as far as funding in Scotland is concerned is that the Treasury heavily influences the size of the Scottish Government’s budget but it does not control how the Scottish Government spends its budget?

Professor Paul Cairney: Yes.

Lead 2A: Is that correct? Again, if I could try and put this to you, and if you disagree please tell me. My understanding of the very helpful evidence you’ve given in this regard is that funding is normally allocated to Scotland by the UK Treasury as part of a block grant; is that correct?

Professor Paul Cairney: Yes.

Lead 2A: And that when the grant is being fixed by the UK Treasury, there will be some level of negotiation with the Scottish Government about how big that should be?

Professor Paul Cairney: Yes.

Lead 2A: Broadly speaking, the way that the amount is arrived at is by the application of something called the Barnett formula; is that right?

Professor Paul Cairney: Yes.

Lead 2A: And the Barnett formula is an agreed, though not uncontroversial, means by which a budget is set, effectively, for England, and Scotland is given a percentage of that, and that’s its block grant; is that correct?

Professor Paul Cairney: Yes. The only way I would qualify it is that the term “Barnett formula” has taken on this wider meaning, it means all sorts of things to different people. So it can be defined in the way you suggest, but I would not assume that that is a widely understood description of how it works.

Lead 2A: Right. Effectively the way I’ve suggested is that it involves the application of a fixed percentage of the amount allocated to the budget for England, and the application of that to the English budget gives you what the Scottish budget is. Is that broadly correct?

Professor Paul Cairney: Yes, and I think, you know, the brief context is that it was treated by the Treasury as a means to make changes to the Scottish budget as automatic as possible.

Lead 2A: Yes.

Professor Paul Cairney: They didn’t want to have these annual disputes about how much the budget should be, and this was the formula to –

Lead 2A: Yes, indeed, indeed. So that’s why, although one might do it a different way, many people may, there is a fixed formula which tries to simplify the process?

Professor Paul Cairney: Yes.

Lead 2A: And that presumably gives a certain degree of predictability about what the funding might be for future planning purposes and many other factors?

Professor Paul Cairney: Yes.

Lead 2A: At paragraph 261, this is in the section where you are talking about the Scottish Government’s pandemic response, you note that the Scottish Government’s budget available to deal with the pandemic was largely influenced by spending on comparable services in England. Is that because where large amounts of effectively emergency funding were allocated for England by the UK Treasury, generally speaking, the amount for Scotland was calculated by the application of the Barnett formula?

Professor Paul Cairney: Yes, particularly if – the expectation would be a lot of the funding would be on the National Health Service, so that would be treated as a devolved matter, highly comparable, so it would be relatively straightforward to apply.

Lead 2A: Yes. In circumstances where the Barnett formula is applied as the tool – you described it as being to a block grant – it may well be the case that the Scottish Government may apply a greater proportion to one area and a smaller proportion to another; is that right?

Professor Paul Cairney: Yes.

Lead 2A: And that the Scottish Government has the power to decide, once it’s got its grant, what it uses it for?

Professor Paul Cairney: Yes.

Lead 2A: And over a block grant, which applies to all services, although the Scottish Government may disagree, the amounts that are required may balance out because there might be greater spending in one area as a result of Scottish Government policy but there may be a lesser requirement to spend in another area; is that right?

Professor Paul Cairney: Well, certainly they have to balance their budget.

Lead 2A: Yes.

Professor Paul Cairney: So any additional spending in one area has to be met by a reduction somewhere else.

Lead 2A: Yes, but the theory at least is that they require to do that and therefore if the Scottish Government decides to spend more on health, for example, it would have to find that proportionate deficit elsewhere?

Professor Paul Cairney: Yes.

Lead 2A: Is it correct to say, as I think we’ve confirmed already, that the way in which funding for the Covid-19 pandemic generally worked would be that money would be allocated by the UK Treasury as an emergency budget, and that the Barnett formula would be applied in order to reach the amount that Scotland would get?

Professor Paul Cairney: Yeah, so I think eventually, instead of working it out after the spending had taken place, they estimated what the spending would be.

Lead 2A: In advance?

Professor Paul Cairney: Yes.

Lead 2A: Is it your view that such an approach to working out the Scottish share for specific matters in an emergency situation, which although generally certainly adopted if not necessarily entirely agreed with, is the approach to overall block grant is an appropriate way of allocating funding to Scotland for its specific needs in a specific emergency?

Professor Paul Cairney: No. I would say that what became known as the “Barnett formula” – that’s me being academic – was a political solution, was not a coherent financial solution.

Lead 2A: Again, given your evidence that this was not an appropriate thing to deal with this sort of situation, is this the sort of matter which could have formed part of discussions in a Joint Ministerial Committee to work out how such eventualities may be dealt with in an emergency?

Professor Paul Cairney: Yes. I would say given the level of crisis and, you know, the sort of unprecedented nature of the crisis, the kind of negotiations between civil servants in the UK and Scottish Government would require a level of co-operation between ministers to give them the cover to talk those things through.

Lead 2A: I think you have drawn upon perhaps other sources but certainly John Swinney’s evidence to Module 1 where he said that – not just at ministerial level but more broadly his evidence was that relations between the two governments at the time the pandemic struck were particularly poor?

Professor Paul Cairney: Yes, I think – and it might be important to stress, you know, poorer than what?

So I would say from 1999 to 2007 you had Labour leading both governments, and all of these issues you talk about would be dealt with quite informally. If there were crises at ministerial level it would be dealt with informally between parties. From 2007 that was not possible, and the devolved administrations pushed for more formal arrangements. But I think these meetings are largely in the control of the UK Government. The devolved governments can’t successfully demand that they happen, so they’re sort of subordinate partners there. So their relationship was already bad.

The – over the years there have been – so it’s been both sides. So the SNP has been highly dissatisfied with the UK Government. The UK Government has portrayed the SNP government as not to be trusted. So this was a key feature before, that their position was: it was very difficult to share information with the Scottish Government, because we do not trust their ministers to keep it quiet.

So there was a lack of trust between ministers.

It was exacerbated, I think, by key personalities, and exacerbated by the – you know, the – you know, Brexit, which was, you know, famously, you know, rejected by most people in Scotland.

Lead 2A: Yes.

Professor Paul Cairney: So I would say that up to, roughly, the point of Brexit, it’s hard to imagine a worse relationship between the UK Government and devolved government.

Lead 2A: Thank you very much for that context. We’ll obviously explore these matters with appropriate witnesses in due course, my Lady.

Just a few final things on funding. One of the points that you mentioned earlier was that there was concern, and there’s documentary evidence to suggest that this was the case during the course of the pandemic, that Scotland’s policy control over the management of the pandemic may be limited by its lack of access to financial levers. In particular you gave the most prominent example of their ability to fund the furlough scheme were they to exercise their power to impose a further lockdown, for example, at a different time, perhaps, from England.

You, in your report, talk about this issue. It was, I think, a part of the narrative from the Scottish Government during the course of the pandemic that this was a problem, and you, I think, in your report, comment on this where you talk about the extent to which financial levers may influence policy decisions in Scotland.

Professor Paul Cairney: Yes.

Lead 2A: Is that your understanding of the Scottish Government’s position, broadly, from the papers that you’ve looked at?

Professor Paul Cairney: Yes, that they needed the UK Government to allocate additional funds, that the Scottish Government did not have the means to provide those funds themselves, because, you know, almost all of this additional funding came from borrowing and the Scottish Government does not have those powers. It needed the certainty of how much it would receive so that it could allocate that funding quickly. And I think its position is it not only relied on the UK Government to give it this funding, but it also did not get a clear enough steer about what that funding would be.

Lead 2A: That’s its position. There is evidence which the Inquiry has before it that this was a matter of some concern to the Scottish Government in around November 2020. You’ll remember at that time that contemplation was being given to the possibility of what were called “firebreak” lockdowns to break chains of transmission, and there were concerns expressed not only on the part of the Scottish Government but indeed other politicians in Scotland that to do so would perhaps run the risk of a measure being taken that could not be supported financially.

Is it your understanding that a clarification was made at that stage to the effect that – by the then Prime Minister – that the furlough scheme would be available for future lockdowns in Scotland?

Professor Paul Cairney: I think from a document I took that the former Prime Minister had given a verbal assurance that that would be true.

Lead 2A: There was something of a political issue. The document that you’re talking about is – there are two news articles. Just for the record I’ll leave their numbers: INQ000360049; and the one relating to the Prime Ministerial response is INQ000360145.

Because would it not seem, from a political perspective, odd if the position were that, in terms of the Coronavirus Act, the political power had been accorded to the Scottish Government to do just that, create a lockdown if they felt it appropriate in the interests of Scotland, for the government, the UK Government, then to say “Well, if you feel you need to do that at a different time from us, we won’t fund it”? Would that not be a politically unusual situation to be in?

Professor Paul Cairney: I think so. I think the context you describe is important here, because if you had a situation before 2020 when the two governments were working really well together, they knew each other and trusted each other, then if the Prime Minister had said “We will provide this funding in a flexible manner” the Scottish Government would have been assured and would have acted accordingly. I think the problem here is that – in fact I’m sure this will come up in their testimony – Scottish Government ministers do not trust UK Government ministers, and would not take a verbal assurance as something that they could plan on. And I think it’s that lack of trust, you know, communication, co-operation, that would undermine the delivery of that kind of flexibility.

Lead 2A: Before I move on from that, just to point out, of course, the other devolved nations did have firebreak lockdowns around that time and, as I understand it, the Welsh firebreak lockdown had started before those exchanges on 1 November.

Professor Paul Cairney: Mm.

Lead 2A: And it may be subject to subsequent evidence, but obviously those devolved nations have similar financial arrangements –

Professor Paul Cairney: Yes.

Lead 2A: – and therefore it would seem that some sort of plan had been laid out for the Welsh firebreak lockdown, which no doubt we will address in due course.

Professor Paul Cairney: Yes. And I should say there’s a long history of that kind of allocation. I think, again, the – not everyone would use this term, but the – academically you would say that is called “formula bypass”. So the UK Government would ostensibly use the Barnett formula to make these decisions, but would always reserve the right to make any ad hoc financial decision it wanted to in relation to devolved governments. So there is a long history of essentially saying “Here’s your budget” but then on an ad hoc basis giving different allocations.

Lead 2A: Okay, thank you.

One matter I just wanted to raise with you at paragraph 289, please.

This is in your conclusions section relating to topic 7. You earlier on have done an analysis of some reports and materials available from, amongst others, Audit Scotland, relating to the question of how the money was spent –

Professor Paul Cairney: Yes.

Lead 2A: – and was the conclusion that came from that analysis that it’s difficult to know exactly what the money was actually spent on?

Professor Paul Cairney: Yes. I think that Audit Scotland’s quite clear on that, that it’s – they’re very dissatisfied with the lack of clarity and how the money was spent.

Lead 2A: When we talk about “the money”, the money that was allocated in support of the pandemic response?

Professor Paul Cairney: Yes. And I think the added complication is that Audit Scotland can only audit resource allocation by the Scottish Government and the Scottish public sector, and, you know, this response was characterised by spending from the UK to the Scottish Government or the UK directly, and so not only did it not know what Scottish Government spending was in sufficient detail, it was unable to audit the UK Government spending.

Lead 2A: Okay. Thank you.

I’d like to move on to a separate topic, please, which is to do with the structures for decision-making within the Scottish Government, in particular paragraph 42 of your report, please.

You say that:

“The Scottish Cabinet performs equivalent functions to the UK Cabinet.”

And I think you say there that in the constitutional or the decision-making structures of the Scottish Government, similar to the UK Government, the Cabinet is the ultimate decision-maker; is that correct?

Professor Paul Cairney: Yes.

Lead 2A: At paragraph 45, you note that compared to the UK Cabinet, the Scottish Cabinet is smaller, which creates a greater potential to “perform a more meaningful collective function”; is that right?

Professor Paul Cairney: Yes.

Lead 2A: What do you mean by that?

Professor Paul Cairney: My impression of the UK Cabinet is that if – in fact you can see it visually: it’s people sitting around a huge table, and there are far more people there than could possibly contribute collectively to joint decision-making. I don’t think that’s what it exists for. And if ministers want to perform that kind of work, they do that in far smaller Cabinet committees, or subcommittees.

So I think – for as long as I’ve studied UK politics, Cabinet has not been seen as a decision-making body, it’s rather been seen as a decision-ratifying body.

Lead 2A: Right.

Professor Paul Cairney: Whereas the – at least the Scottish Government’s description of its Cabinet is that because it’s smaller, because they have cross-cutting responsibilities, because directorates can respond to different ministers, and because the Deputy First Minister has this overarching role, it can perform that function that, you know, would be – you know, that most people would think Cabinets perform.

Lead 2A: But consistently with some other themes from your evidence, you say in paragraph 45 that this potential is not necessarily or always realised.

Professor Paul Cairney: Yeah. It’s difficult. I would say the story that “We make all decisions through the Scottish Cabinet” I think is the official story. It was – if I was doing academic work, it would be my starting point for criticise analysis to look at what actually happened. I would just assume that there was always this gap between the official picture and how things are really done.

Lead 2A: When you mentioned earlier the concept of a – the UK Cabinet you were describing as potentially a decision-ratifying body, what exactly do you mean by it? Does that mean the decisions are taken elsewhere and simply put before the Cabinet to rubber stamp them; is that roughly what you’re saying?

Professor Paul Cairney: I mean, “rubber stamping” has a real –

Lead 2A: Yes, please use your own words to describe it.

Professor Paul Cairney: I would say that given the amount of time and deliberation and knowledge that it would take to make a meaningful collective decision, and the time given to a UK Cabinet and the amount of time for deliberation, those two things don’t match up. You could not make decisions in that manner. And they don’t.

I don’t think even the UK Cabinet puts up much of a pretence that that’s how it works.

Lead 2A: The theory, however, of Cabinet being the decision-making body is, I think, that various different aspects of government decision-making and, by extension, Scottish life, or UK life, are represented by different people, such that different views can be brought to bear in a decision-making body that then leads to a collective decision; is that the theory at least?

Professor Paul Cairney: Yes. And I think those discussions do happen. Ministers, civil servants and others do debate those issues, but I think the UK style, if you like, is to do those things before Cabinet and behind closed doors, and then use Cabinet as a way of ratifying the decisions and discussions already had.

Lead 2A: Yes.

Professor Paul Cairney: The portrayal of the Scottish Cabinet here is different, at least from the Scottish Government. It is that the Scottish Cabinet is the place where people have these debates and make these choices.

Lead 2A: Okay.

You mentioned there the complexity and volume of material that was inconsistent with the idea that UK Cabinet was actually making the decisions. Obviously within the pandemic, as we’ve seen, the volume and complexity of the material was at the extreme end.

Professor Paul Cairney: Yeah.

Lead 2A: Do you think, therefore, that Cabinet, proper Cabinet decision-making, as the Scottish Government purports happens within its decision-making structures, would have the advantage of spreading the burden of that information and allowing its totality and complexity to be taken more into account in an ultimate decision than, say, for example, if you had just an individual decision-maker?

Professor Paul Cairney: Yes. I think it performed a profoundly important function, because on the one hand the – you know, minute-by-minute day-to-day decisions of ministers could not be process – you know, could not all be processed by a Cabinet, but they were able to process key matters of principle that would guide all activity. So –

Lead 2A: Your evidence there is on the assumption, I think, that their purported model is the model that actually played out?

Professor Paul Cairney: Yes.

Lead 2A: But we will explore that in the evidence. Your position is that during the course of the pandemic, that purported model of Cabinet decision-making would have been a good one for the reasons that we’ve discussed?

Professor Paul Cairney: Yes. If working well –

Lead 2A: Yes.

Professor Paul Cairney: – and as described, it would be an excellent way to make decisions.

Lady Hallett: With the UK Cabinet, what happened during Covid was we ended up with the Cabinet committees, like Covid-O and Covid-S.

Professor Paul Cairney: Yes.

Lady Hallett: They were Cabinet committees, they were comprised of people, so they – it wasn’t as if they were just a couple of people in the corridor making a decision on their own.

Professor Paul Cairney: No, indeed not, no. But I think that would be – I think the Scottish Cabinet could be considered to be the equivalent of that Cabinet committee in terms of the size and scale. I think they had a Cabinet committee so they thought: let’s have the most important people in the room, let’s make it a manageable process. Particularly during an emergency.

And I think the idea here is, because the Scottish Cabinet is already smaller, they could do that without relying as much on Cabinet committees.

Lady Hallett: Yes.

Mr Dawson: Could I just go to paragraph 43, one final matter on this. In this paragraph you are talking about decisions which would normally be taken at the Cabinet level. Is there a clear guidance about decisions requiring to be discussed and made at Cabinet level and circumstances in which they can be delegated, for example, to an individual minister? I think here you suggest perhaps not?

Professor Paul Cairney: I think, well, the language matters here. I think … I think from their perspective they’re as clear as they need to be, because I think the thing that is either stated elsewhere or is implicit throughout is that ministers have to make judgements to interpret these rules, and individual ministers are responsible for their own behaviour, Cabinet is responsible for the collective behaviour. So this is very much about the judgement of individuals within a broad context.

Lead 2A: So that does that mean where responsibility is delegated, the Cabinet needs to decide – understand it’s giving away its collective responsibility to a particular individual, which may have – it may, theoretically – some adverse consequences, because that’s the reason why Cabinet exists, to have a collective view?

Professor Paul Cairney: Yes. And it’s interesting to me, the witness statements do provide examples of how this works, and I think they have provided the least controversial – you know, I think if you look at the example they give, you think: okay, that’s reasonable. So the example they give is: in principle we’ll agree to remove the obligation to wear a face mask once these conditions are met, and then that is delegated to the First Minister.

So I think that’s – you know, if you think these are the examples, then it’s straightforward because the principle’s been established, the measures of change have been established, so this is just a case of making a decision.

Lead 2A: Yes.

Professor Paul Cairney: It’s – I don’t have access to, like, a full allocation of the choices made by the First Minister.

Lead 2A: Yes, yes, I’m really trying to address this for the purpose of looking at those sorts of decisions in the abstract with you, to try to work out what would be the advantages and disadvantages, which I think we’ve covered.

Professor Paul Cairney: Yeah.

Lead 2A: I would just like to go to paragraph 48, please.

In this section, you’re telling us something about the way in which the civil service works in Scotland. The civil service is a reserved matter, is that correct?

Professor Paul Cairney: Yes.

Lead 2A: Is it correct to say that the civil service at the time of devolution was an important part of the devolution settlement, in that in reserving the civil service to the UK Government’s ambit, that was one of the mechanisms by which the primacy of the Westminster Parliament would be thought to be maintained; is that broadly correct?

Professor Paul Cairney: Certainly the way I would describe it is this is the way to solve most of those problems of intergovernmental relations we talked about. Regardless of relationships between ministers, there would always be this excellent relationship between civil servants.

Lead 2A: Right, but in terms of the constitutional settlement, one of the things that – one of the important things that civil servants do is to advise ministers, that’s broadly their function?

Professor Paul Cairney: Yes.

Lead 2A: And sometimes that might involve telling a minister that they’re not doing the right thing or making a bad decision or they should think about it, or something like that?

Professor Paul Cairney: Yes.

Lead 2A: And one of the things in the settlement, the devolution settlement, which related to that was the possibility that civil servants might sometimes have to tell Scottish Government ministers that what they were wishing to do exceeded their legislative competence?

Professor Paul Cairney: Yes.

Lead 2A: And that was a means by which that was meant to be regulated?

Professor Paul Cairney: Yes.

Lead 2A: You mention there the Constitutional Reform and Governance Act 2010, was that an Act which – it did a number of things, but one of the things that it did was it changed the ability, the power – it accorded power to the Scottish Government to be able to appoint its own civil servants?

Professor Paul Cairney: Yes. I mean, I will admit to being confused by the fine details of this. But my impression has always been that the Scottish Government has delegated responsibility for recruitment, so it essentially operates as – you know, a – to some extent autonomous organisation recruiting civil servants according to these rules, and so it’s a kind of operational rule within these rules.

So I think the only time this becomes a problem or a contentious issue is the appointment of the most senior civil servants. So essentially these are supposed to be non-partisan, non-political roles, but I think the most senior civil servant is performing, you know, a very delicate political task, you know, that would have to be managed well.

Lead 2A: But to be clear, from 2010, as you set out there, there is a Scottish Government Civil Service Code; is that right?

Professor Paul Cairney: Yes.

Lead 2A: And the fundamental rule of that is, as a civil servant, you’re accountable to Scottish ministers, who are in turn accountable to the Scottish Parliament?

Professor Paul Cairney: Yes.

Lead 2A: There’s an accountability there to the Scottish Ministers, as opposed to the UK Government in some way?

Professor Paul Cairney: Yes. And that did become an issue in relation to Scottish independence, because the permanent secretary at one time was expressing that language, to say “I am here to support an SNP-led Scottish Government, it is their commitment to foster independence, therefore it is my duty to, you know, foster that”. So I think that was – really symbolised there, in terms of the balance they struck – very much the way they articulated their role was in relation to the Scottish Government, and they would often downplay their, you know, wider UK role.

Lead 2A: Have these sorts of things given rise generally to concerns, at least about whether the Scottish civil service is too committed to the cause of independence?

Professor Paul Cairney: I mean, there would be lots of expressed concerns by certain people. So it’s hard for me to give, you know, like, a balanced account of that. That’s essentially a –

Lead 2A: All I’m asking is: is that a matter which is an issue in public discourse, about there are concerns in that regard? I am not asking you to say whether they are well-founded or not, but merely that this is a matter on which political commentators, political experts like yourself, that you’re aware this is an issue which you are sometimes called upon to discuss and think about?

Professor Paul Cairney: Yeah, certainly it would not be difficult to find critics of the Scottish Government civil service saying that they were too committed to the SNP government.

Lead 2A: Thank you.

Could I go to paragraph 206, please. This is the last topic that I intend to take you to, Professor.

This is the section which, if I recall, is topic 5, where you’re talking about public communications.

Professor Paul Cairney: Okay.

Lead 2A: You give again a very useful commentary on this. At paragraph 206 you refer to other literature which notes that at times of crisis leaders can be led into a more presidential style of decision-making and communication, where the elected leaders seek to personalise their power.

Do you think that a presidential style of leadership was a feature of the Scottish Government’s communications strategy, in particular Nicola Sturgeon fronting much of the communication operation?

Professor Paul Cairney: Yes.

Lead 2A: In your report, you also note at paragraph 229 that there is – you’ve helpfully told us about some polling which exists which tends to suggest that Nicola Sturgeon in her public role certainly compared favourably to Boris Johnson in terms of public approval, but you make a distinction there between public satisfaction with government communication and the ability of the public to understand the information conveyed by governments.

Could you just explain briefly the difference and the significance of that?

Professor Paul Cairney: Yeah, so the – so governments commission essentially proxies – proxy information of how well their campaigns are going. One of them is a question about, you know: “Do you trust this government and this government to act in your best interests?” Or something like that.

So the Scottish Government scored consistently higher in terms of that general trust that this government was acting in your best interests. So I think that’s – that’s not only work commissioned by the Scottish Government, but also in independent polling. I think you might struggle to find someone who didn’t come up with that same kind of picture.

They also commissioned work to try to understand – because, you know, the issue with trust is – it is not all a good thing. So in work that I have reviewed, the authors prefer this idea of watchful trust, which is you put enough trust in people that you think they’re competent and sincere, but you always keep an eye on them as part of your duty. So if you simply unconditionally trust a government, you’re failing in your duty to hold them to account.

So – and I think the satisfaction in trust is quite a weak proxy of how things are going, because people may put their trust in governments without any evidence, you know, to give them the reason to do it. Or there are clear differences in terms of trust in governments according to the extent to which you share their beliefs or you support the party that they’re from.

Okay, so you separate that out, there’s still this difference in trust, but they are also looking for measures of understanding and compliance with the measures they take and measures over time. So they want to know: do people understand what we were asking of them? Do they agree with what we’re asking them to do, or at least are they willing to do it, and are they doing it?

So those are very different polling data. One is very general and one is specific on behaviour.

Lead 2A: I think you say that at least there’s limited evidence of the second type, the ability of the public to understand the information, whereas there is a proliferation of evidence from various different places for public satisfaction, which may be a less reliable and less helpful indicator; is that correct?

Professor Paul Cairney: I think if you truly want to understand if people understand information, you have to ask them to describe it. You have to say to them: tell me what this means. You don’t ask them “Do you understand what this means?” Because lots of people will say they understand but will not be able to describe it.

So they’re working on these proxies, and there are some examples – so I think this is an interesting one that I would probe. The Scottish Government representatives have been asked about this already in Scottish Parliament committees, and a committee has put to key people that there are campaigns that we have done that people clearly don’t understand or even remember. So the famous one is FACTS, which I could perform not knowing what the five things stand for, but I simply could not – I don’t know what they stand for, and I studied it and in my report they’re listed. I think it’s striking that a minister giving evidence to a Parliament committee was given a round of applause for recounting those five, and I think to me that summed up the issue.

So I think the response from key people has been: well, even if people could not tell you what FACTS means, it has raised awareness and the kind of – they kind of know what it means. They know, okay, wear a face mask, distance yourself, seek a test and so on.

So there’s a lot of that focus from Scottish Government submissions on: this is generally going okay, look at the weight of communication that we’re doing, and – I would say that’s a key theme. Whenever probed to say “How effective is your campaigning?” the answer will be, “Oh, look at the amount”, and I think that’s an issue for me.

Mr Dawson: My last question was going to be whether you could recount FACTS, but as you inform me you don’t want to do that, that is my last question. Thank you very much, Professor.

There are no core participant questions, my Lady.

Lady Hallett: Thank you very much indeed, Professor. We’ve hardly touched the surface. You’ve obviously done a huge amount of work, for which I’m extremely grateful, but don’t worry about the rest of your written material, we take into account all the evidence, not just the oral, the written as well.

The Witness: Thank you.

Lady Hallett: I’m just sorry I won’t have the time to pop along to Stirling and listen to a seminar or lecture, if you still give them. So thank you very much for your help.

The Witness: Thank you.

(The witness withdrew)

Lady Hallett: Right, I shall return at 1.35.

(12.35 pm)

(The short adjournment)

(1.35 pm)

Lady Hallett: Mr Tariq.

Mr Tariq: Good afternoon, my Lady. May I please call Dr Donald Macaskill.

Dr Donald MacAskill


Questions From Counsel to the Inquiry

Lady Hallett: Sorry you have been kept waiting for some time, Dr Macaskill.

Mr Tariq: Dr Macaskill, thank you for your assistance to the Inquiry to date.

There are a few preliminary matters that I wanted to raise with you. Can you please keep your voice up and speak slowly, because we have a stenographer who is taking a note for the transcript. If any of my questions are unclear, please say so, and I will rephrase.

Scottish Care has provided a witness statement to the Inquiry that’s dated 11 July 2023. The statement is at INQ000224524, and you will see that the statement is on the screen in front of you.

If we turn to page 35, there will be a signature which is beneath the personal data. Is this your statement?

Dr Donald MacAskill: It is.

Counsel Inquiry: Are the contents of this statement true to the best of your knowledge and belief?

Dr Donald MacAskill: They are.

Counsel Inquiry: I understand, Dr Macaskill, that you wanted to say something before we get into the substance of your evidence. Here is an opportunity to do so.

Dr Donald MacAskill: Thank you, Mr Tariq.

And I think it’s very important, on behalf of Scottish Care’s care home, home care and housing support members, that I would state at the beginning my own personal but also our organisation’s condolences to the thousands of individuals who lost their lives as a direct result of Covid, but also to the tens of thousands of others who had lost the opportunity to spend their last few months, weeks of their lives because of the measures which were undertaken during the pandemic. So we express our condolences to them.

But I would also want at the same time to recognise and to underline the amazing dedication of frontline women and men who went out to care in our care homes and in other community settings and in individual homes. They are the best of us. At a time of real fear, when the novel coronavirus was presenting itself, they left the comfort of their own homes to care for and support some of our most valuable citizens. Thank you.

Counsel Inquiry: Thank you, Dr Macaskill.

I want to now start with the substance of your evidence and I want to begin by asking you questions about Scottish Care.

Scottish Care is a membership organisation representing the independent care sector in Scotland; is that right?

Dr Donald MacAskill: That’s right. So we represent charitable, not for profit, employee-owned and private providers of older people’s care in care homes, and in the community in care home and housing support.

Counsel Inquiry: As I understand it, Scottish Care has around 350 members; is that correct?

Dr Donald MacAskill: Correct.

Counsel Inquiry: During the course of the pandemic, your interest lay in the field of care homes but also those that were being cared for at home, as your members delivered both of those services; is that correct?

Dr Donald MacAskill: That’s correct, yes.

Counsel Inquiry: These services were delivered to a wide range of people, it could be older people, people with long-term health conditions, people with disabilities, people with learning disabilities and people with physical disabilities; is that correct?

Dr Donald MacAskill: Correct.

Counsel Inquiry: The organisations that Scottish Care represents, they vary in size; is that correct?

Dr Donald MacAskill: Absolutely, they vary from single operators, often family-run operators, charitable organisations of various size, all the way up to national and larger corporate bodies.

Counsel Inquiry: Over the course of the pandemic, your members were at the forefront of caring for some of the most vulnerable people in our society, both in residential care settings but also in individuals’ homes; is that right?

Dr Donald MacAskill: Yes, and the frontline staff employed by our members were very much at the forefront of addressing the challenge of the pandemic.

Counsel Inquiry: I now want to turn to the role of Scottish Care in the pandemic.

It said in the statement of Scottish Care that Scottish Care was at the heart of the debate and discussion around the social care sector, that it provided a detailed and vocal response to the issues faced by the care sector in Scotland. Your statement explains that Scottish Care attended meetings and working groups convened by the Scottish Government, it contributed to guidance that was produced by the Scottish Government and Public Health Scotland, which impacted the sector, and it maintained direct and regular communications with the Scottish Government on the key issues affecting the sector. Is that correct?

Dr Donald MacAskill: Correct.

Counsel Inquiry: I want to turn to the period leading up to 21 April 2020, and in particular look at some of the Scottish Government’s decision-making in that critical period of March 2020 and up to 21 April 2020.

We know that a large number of patients were transferred from hospital to care homes without being tested for the virus in the early stages of the pandemic, and it was not until 21 April 2020 when it became mandatory for hospital patients to have two negative Covid-19 tests before being discharged and for all new care home admissions to be isolated for a period of 14 days.

There is data which shows that between 1 March and 21 April 2020, 82% of the 3,595 patients discharged from hospital to care homes were not tested, and 752 care homes took in untested patients between 1 March and 21 April 2020.

So I hope that that summary contextualises my questions about this period.

Can we turn to the report from Public Health Scotland which is titled “Discharges from NHSScotland Hospitals to Care Homes between 1 March and 31 May 2020”. This report is at INQ000101020, and you will see that the report is on the screen in front of you.

Can we turn to page 6 of the report.

You will see that there is figure 1 on page 6 of the report, and you’ll see that on 13 March it says:

“First Clinical Guidance for Care Homes.”

And this is stated as being: social distancing, essential visits only, accept admissions to the care home if safe, close the home if resident tests positive.

So if we can explore some of these further, what was understood within the care home sector to have been meant by “accept admissions to the care home if safe”?

Dr Donald MacAskill: So before that development of that guidance, we had made representations – and you have evidence of my communications with Scottish Government – that, based on a long period of distrust between particularly residential but also nursing care home providers, we needed a degree of assurance that what was meant by clinical assessment was sufficiently robust. Indeed, in our early meetings with our members online, we had stipulated that at this stage our guidance was, and this remained the case, that providers should not admit new residents unless they were assured about the robustness of the clinical assessment.

We challenged that that should include the testing of those being admitted, both from the community and from discharge from any setting, but particularly an acute and secondary care setting. There were reasons given to us as to why that was not possible, and instead the argument that was made by clinicians was that a robust clinical assessment should be sufficient to enable somebody to be admitted.

On the one hand, hearing all that we were hearing about how important it was to keep flow happening and not to have our NHS hospitals collapse, we were cautious about being the sector which stopped that flow, but on the other hand we were also extremely well aware, not least myself through my international connections and contacts, of what was happening in Italy and Spain and also in France, that the population most at risk was a population over the age of 80, with multiple comorbidities, and that tended to be a population that lived in Scotland’s care homes.

So we were balancing our knowledge that the population most at risk from this novel coronavirus was our population, whilst at the same time seeking robust assurance that if somebody was discharged from hospital, that we could be as assured as we could be that that person was safe and was not coronavirus positive.

Counsel Inquiry: Before we go through the guidance in a bit more detail, I’m interested to find out what your experience and understandings were at the time based on what you were seeing internationally. Are you able to explain that in more detail?

Dr Donald MacAskill: I was a member and still am a member of the Global Ageing Network and also the Commonwealth ageing network, and we were in regular contact, in February and into March, exchanging what was happening in different parts of Europe and more widely internationally, and it was known to anybody in the care sector that the population most at risk was our older population.

And we were already, even in late February and certainly in early March, beginning to identify that the classic symptoms demonstrated as being Covid symptoms were not manifesting in the same way in a population which was particularly old and with multiple comorbidities. So added to the usual characteristics of fever and cough and flu-like symptoms, we were evidencing a loss of mobility, confusion, delirium, issues to do with continence, diarrhoea and vomiting, which were more frequently being manifested as symptoms of the new coronavirus.

So the international social care community was very aware, as we were in Scotland, that this was of significance to our sector, which is why Scottish Care became the first body in the UK, and indeed, as far as I’m aware, in Europe, to issue our own guidance at the end of February for our members.

Counsel Inquiry: Looking at the guidance that was issued on 13 March, the guidance on 13 March refers to “accept admission to the home if safe”. Is the qualifier, “if safe”, is that a clinical assessment that’s being made?

Dr Donald MacAskill: So what is meant there is clinical assessment.

I should say that we were disappointed with the process of the development of the guidance on 13 March, and we’ve presented evidence and papers to the Inquiry to that end.

We found that there was a minimum level of engagement with Public Health Scotland, or HPS at this time, in the development of this guidance, and as was seen both here in the necessity to repeat that guidance. Mainly as a result of our remonstrations later in the month, we found, both here but also throughout the main stage of the pandemic, the lack of engagement and professional respect from Public Health Scotland and its understanding of the social care sector and its unique situation, particularly in relation to infection prevention and control in care homes, to be wholly regrettable.

Counsel Inquiry: You’ve touched upon what you describe, I think, as limited engagement in respect of the guidance that came on 13 March. Is it correct that I think you were only consulted, is it, on 12 March, about the draft guidance?

Dr Donald MacAskill: Yes, and given a quite tight timeframe of a matter of hours to make comments. And not just in terms of admission, we made comment about the reality of how difficult it was to transfer a system of essentially infection prevention and control methodology developed for an acute sector such as a hospital into an environment such as a care home, particularly a residential but including a nursing home, which was first and foremost somebody’s home.

And whilst in words clinicians may have accepted, “Yes, we recognise this isn’t a hospital, it’s a care home and somebody’s home”, what that actually meant in terms of the freedom of movement, in terms of managing and supporting somebody living with later stage dementia, in terms of the importance of mobility and routine and ritual in living in your own home was singularly failed to be understood, certainly at this juncture but I have, unfortunately, to say at several points during the pandemic.

Counsel Inquiry: We will come back to other points in the pandemic, but just so I’m clear, that Scottish Care had issued its own guidance as early as, is it late February?

Dr Donald MacAskill: I think from memory 24 February.

Counsel Inquiry: And when it comes to the guidance that comes from the Scottish Government and HPS, Scottish Care have an opportunity of mere hours to be able to comment on the guidance before it’s published?

Dr Donald MacAskill: Yes.

Counsel Inquiry: If we’re looking at the guidance again, there’s a reference to social distancing. How easy is it to maintain social distancing in a care home?

Dr Donald MacAskill: I think only somebody or a group of people who had no experience of the reality of life in a care home would have under – would have put that there, to be honest.

Care homes are busy, interactive environments where people are constantly moving around, gossiping, laughing, engaged in the lives of each other, moving into each other’s space, and the idea that, particularly when you’re supporting somebody with latter stage dementia, that you discourage contact, especially touch, from that person, who may not understand, is really far-fetched.

So it became hugely problematic for care homes to keep social distancing, particularly in the lives of people with dementia, and it became really traumatic for residents in particular who were used to social interaction, who were used to spending time in communal space, whether that be, you know, watching telly, engaging in an activity or just simply being with people.

It became a massive challenge for most operators and providers to adhere to guidance which was not fit for purpose.

Counsel Inquiry: Looking at social distancing, and you’ve touched upon people with dementia, is it correct that many residents within care homes suffer from dementia?

Dr Donald MacAskill: So one of the challenges then and now, sadly, is that we don’t have sufficient data to properly give an understanding of the number of people living with dementia in our care homes, but practitioners would argue that we’re talking between 80% to 85%. The nature of care homes today, whether residential or nursing, is vastly different from what it was ten years ago. Life expectancy is down at about 14 months compared to about five years ago where life expectancy was three to four years. Very few people move into a care home unless they have underlying significant health conditions, and the majority of those have a neurological condition, in the majority of those it is dementia.

Counsel Inquiry: Did care homes feel pressure – you’ve touched upon, I think, the pressures that care homes were feeling in terms of trying to help the NHS create capacity – to accept patients being transferred from hospitals, and if they did, why?

Dr Donald MacAskill: The answer is undeniable pressure, which was a pressure which some even against their best judgements felt that they could not but address.

And that pressure came for many reasons. In Scotland we have got something called the National Care Home Contract, which is a contract nationally between local government, through COSLA, and care providers. It has very clear terms and conditions, 70% of those in a care home fall under the contract, it’s paid for by the state, and one of those conditions is that a registered care home as part of the contract should not ordinarily refuse admission unless there were very clear clinical reasons not to do so.

So there was that pressure from health and social care partnerships, who were themselves being pressured by the NHS secondary and acute sector to clear the hospitals, and to make sure that people who were fit for discharge were able to be admitted into a care home.

The other related pressure was the constant barrage in the popular media, from politicians and others, about how important it was that the social care sector came up to the plate, and that was – the sector was able to keep the flow going and prepare us for what many considered to be a huge increase in cases.

So there were multiple points of pressure, and many found it very difficult to resist that. That’s the reason that we were arguing for robust testing and clinical assessment.

Counsel Inquiry: You’ve touched upon the pressure being felt by care homes. Jane Morrison, of Scottish Covid Bereaved, yesterday had said that many of the group’s members had experience of family members feeling, in hospitals, pressured into being moved from hospitals into the care environment. Were you aware of similar concerns or pressures faced by patients and their family members?

Dr Donald MacAskill: Yeah, we were.

And moving into a care home is a major decision for anyone. It’s in many senses a sense of bereavement and loss, a loss of a relationship, a home, a dynamic that an individual may have had. It’s a process that has to be managed carefully. And care homes are really good at that, they are sensitive to the fact that the importance of choice of the person having as much voice and control as is possible within their capacity, ability.

So this is a process that has to be managed, and critical to that is that family and informal carers are closely involved in the transition from their own home or indeed from a hospital setting into a care home. All of that was cast aside in many instance, and individual care home managers and staff frequently in our contact spoke about the fact that people were being “railroaded”, to use the term that one person used with me, to make a choice, which was a very limited choice, of: that care home or no care home.

Counsel Inquiry: At this stage, on 13 March 2020, there was no need for a negative test before a patient was transferred from a hospital into a care home. In Scottish Care’s statement, it is said that Scottish Care advocated from early March 2020 that there needed to be a robust clinical assessment – which you’ve touched upon – and testing of residents entering into a care home from both the community setting and also the acute NHS setting.

Do you recall when in March 2020 Scottish Care had come to the view that there needed to be testing of admissions coming into care homes?

Dr Donald MacAskill: Very early, and indeed probably in late February. Again, because of what we were aware of internationally. And I have to place this into some sort of context. I talked earlier about a breakdown and a lack of a relationship of trust. And there were many reasons for that and, you know, I appeared before the Scottish Parliament and its Health Committee a few weeks before and spoke about one of the major issues affecting social care provision was the feeling from social care providers that the priority in all instances – and this is before the pandemic – was being given to the NHS and not least the issue of delayed discharge and the importance of what was called at the time “bed blocking”, and making sure that the flow continued, particularly during winter. So there had always been a pressure to make sure that hospitals were not “blocked”.

In that context, many of our members reported to us a lack of trust in the hospital discharge process in normal times, and I’ve lost count of the instances of hearing from our members of people – what used to be called the “Friday night discharge”, and that was to clear hospitals for the weekend. People were discharged late on a Friday afternoon, often without information being communicated to family, typically and not infrequently without appropriate medication or at least scripts that were able to be taken to a pharmacy out of emergency hours, and in many instances with a lack of or insufficient case notes to enable that transfer to happen positively, both to the community and into care homes. That was the context.

Now, in some parts of the country discharge worked brilliantly, professionally, with a degree of mutual regard and professionalism. In other parts of the country there was simply a lack of trust.

Against that backdrop, we then had the new coronavirus being introduced, and we were very clear as an organisation, listening to our clinical colleagues out in the field, that they needed additional reassurance, and simply saying “We leave this to the professionalism of clinical assessment”, I’m sorry, it didn’t wash at the time, I communicated that to the Cabinet Secretary, and I indicated that what we wanted and needed was testing, to evidence a negative test. Which with nothing else could mean – and we appreciate that testing was for in the moment, but it would mean a reduction in the potential period of isolation for an individual in a care home.

Counsel Inquiry: You referred to the Cabinet Secretary, that’s a reference to Jeane Freeman; is that correct?

Dr Donald MacAskill: That’s correct.

Counsel Inquiry: You’ve spoken about the context pre-pandemic and the tensions between the NHS and trying to have more rapid discharge of patients and the issues around prioritisation of the NHS over the social care sector. Did the pandemic exacerbate all of those issues?

Dr Donald MacAskill: Absolutely. I’m on record as saying that the problems facing social care in January 2020 were still there but accentuated by July 2020.

And one of those was the almost myopic political and media and public attention and focus on the NHS at all costs. And that really hit hard to many frontline social care staff, because even when the pandemic started and we had supermarkets giving priority to NHS staff and to key workers, many of our frontline staff were turned away, particularly by one supermarket who I won’t name, because they weren’t considered to be key workers.

When we started to clap people on a Thursday night, that didn’t include social care staff for the first two weeks. It was only afterwards that they were considered to be of value. The emphasis on “Protect the NHS” everywhere you saw made social care staff feel – and certainly providers of care home and home care feel as if “Here we go again, we’re of less significance and of less value”.

Counsel Inquiry: You’ve spoken about Scottish Care’s position formed in late February, into March around testing. When did Scottish Care start to push that position on the Scottish Government? Do you recall when?

Dr Donald MacAskill: Early March.

Counsel Inquiry: And social care was and is a devolved matter, as is public health.

Dr Donald MacAskill: Yeah.

Counsel Inquiry: So as far as you were concerned, did the responsibility for these important matters fall on the Scottish Government?

Dr Donald MacAskill: We recognise that there were some issues over which Scottish Government had a limited degree of control, such as PPE, such as finance, but we certainly perceived that decisions around discharge and testing as far as capacity enabled were matters for Scottish Government.

Counsel Inquiry: From your interactions with the Scottish Government around this time, was the guidance that just we’ve spoken about on 13 March from – it was Health Protection Scotland at the time, that later on became Public Health Scotland – was that endorsed by the Scottish Government?

Dr Donald MacAskill: The 13 March guidance –

Counsel Inquiry: Yes.

Dr Donald MacAskill: – and all subsequent were endorsed by Scottish Government, yes.

Counsel Inquiry: It is also said in Scottish Care’s statements that Scottish Care advocated that all individuals entering a care home should be treated as Covid positive and therefore barrier nursed for a period of 14 days. What is meant by treating all residents as Covid positive when entering a care home?

Dr Donald MacAskill: So on the basis of what we’ve talked about, our lack of trust in the nature of a clinical assessment at point of discharge and in the absence of an agreement to undertake a test, we were encouraging our members to engage in barrier nursing, which is high intensive infection control nursing. But bearing in mind that is only possible in care homes which are nursing care homes rather than care homes which are residential care homes, who would neither have access to the relevant PPE or the skills to engage in barrier nursing.

And even those care homes which were nursing care homes would have and did have a limited amount of supply to enable them to barrier nurse. It’s not that care homes, particularly nursing care homes, were not used to infectious disease, very experienced with norovirus, very experienced with flu, but the nature of this novel – new – virus meant (a) that there was a lack of understanding within the sector, as there was across the health and social care sector, about what was needed in terms of nursing somebody, but certainly the principles of barrier nursing are about isolation, high levels infection and – control management, but they are again to reiterate extremely difficult to undertake in an environment where you are working with people with dementia and where you, as became very clear in the pandemic, have real constraints upon staffing.

Counsel Inquiry: So in practical terms, many of your members would not have been able to barrier nurse residents; is that correct?

Dr Donald MacAskill: They wouldn’t have been able to barrier nurse the majority of residents, no.

Counsel Inquiry: In Scottish Care’s statement, it is also said that from March 2020 Scottish Care advocated that priority be given for testing to care home staff and those providing care at home, even in the context at that time of the very limited testing capacity that existed. Why did Scottish Care think that this group should be prioritised for testing in the early weeks of the pandemic?

Dr Donald MacAskill: Our overarching concern, and again I articulated this at the time, was that we recognised that our population were the most at risk from this novel coronavirus, and that even accepting an environment where there was a restricted number of tests available, that instead of – sorry, in addition to a focus on the NHS we should also be focusing on social care settings. First of all, on the residents in those settings; secondly, on staff, especially in homes where there had been cases, because for a considerable period it was only after five positive cases had been detected that additional measures were introduced. So we wanted to get ahead of the game by using the limited number of tests that we had available to engage in preventative testing so that we could monitor not just after an outbreak but before an outbreak happened. And we argued with those who would listen that as well as utilising tests in a clinical acute NHS setting, where practice around infection prevention and control should have been more regular and advanced, though admittedly the range of nosocomial infections might question that, that priority needed to be given to social care. But in an environment where the whole concentration was on secondary and acute NHS, that aspiration came to nothing.

Counsel Inquiry: In the context of testing for staff, Scottish Care say in its statement that staff working in care homes were likely to pose the greatest risks to those being supported in care settings. Why would you say that?

Dr Donald MacAskill: Because the majority of residents in the care home weren’t going anywhere. They were a static population. The population which was moving was staff coming from their own homes, living in communities. And, you know, we very clearly and quickly mapped that in communities where there were high levels of incidence of the virus, then not surprisingly there was greater risk and occurrence of outbreaks within care home communities, because people live in communities. And whilst there were some care homes where staff literally left their families for a month or six weeks to move into the care home, to literally pull up the drawbridge, those were the exception, and what was happening was an ingress of staff from community into an environment where individuals were at greatest risk.

So that’s one of the reasons why we said it’s really important that we start to test staff in a preventative manner, and fortunately in many instances what happened was that we started to use tests after an outbreak occurred.

Lady Hallett: Could you speak a little more slowly, Dr Macaskill?

Dr Donald MacAskill: Sorry.

Lady Hallett: I have the same failing, so we’re in the same club.

Mr Tariq: We have spoken a little about staff who were working in care homes. What about staff who were providing services for those in their own homes? Would these types of employees be moving around multiple homes over the course of a day?

Dr Donald MacAskill: Absolutely. And whilst there was a challenge and we’ve already – the Inquiry has already heard of the virtual overnight withdrawal of support for individuals in their own home, services which did continue meant that staff were, you know, on a typical day, visiting 12, up to 20 individuals. So that was different households engaging in different levels of care and support. But at this stage, almost certainly, a – personal care and intimate care and support.

The care at home workforce, I remember using the phrase “they are the forgotten frontline” in late April, early May, because all the focus had been placed on care homes, both in terms of testing and other intervention including PPE. And this workforce, who are significantly larger than the workforce in care homes, had largely been forgotten.

Counsel Inquiry: So in terms of your perception of prioritisation, you’ve got the NHS that was being prioritised, then you’ve got care homes, but then below that is those that are people that are being cared for at home?

Dr Donald MacAskill: Absolutely.

Counsel Inquiry: Now, what was the impact on the workforce in the care sector of staff not being prioritised for testing?

Dr Donald MacAskill: I think – you know, and I’ve been looking at some of our early video webinars, I think it’s really difficult for those of us for whom this has been our world for the last two or three years to forget the sheer terror and fear felt by frontline staff in care homes and going out to visit people in their own home.

Nobody had the depth of knowledge that was needed to give assurance to people about how you contracted this disease, what the risks were to yourself, and the palpable fear that individuals felt in working for care – in care was extremely high. And it’s to their credit that individuals continued to get up in the morning, leave their families, and go out to care homes and to other people’s homes. In that context, I think the – there was a sense of despair and there was a degree of resignation, “Well, of course they’re going to prioritise the NHS”, because that’s what they were experiencing, but there was also a growing sense of anger, that: why should we be putting ourselves at risk without the level of protection which we, as experienced professional clinical staff in care homes and in communities know, even if we’re not employed by the NHS?

Counsel Inquiry: In the absence of that workforce being prioritised for tests, did that lead to staff having to self-isolate and taking longer absences from work if they came into contact with somebody that was Covid positive, and if so what impact did that have on the care home being able to deliver the services to its residents?

Dr Donald MacAskill: One of our arguments for extending testing and for that to include staff was also for it to include staff who had to self-isolate because a family member or they had been in contact with an individual. In early April in particular, we were at a point at which we were facing a very real risk of collapse of our workforce with more and more individuals having to isolate as the virus became more prominent and prevalent in the community. And introducing testing, which eventually did occur, to enable staff to return to work earlier, safe in the knowledge that they weren’t at that time positive, would have made an immense difference at a time of real criticality.

Counsel Inquiry: At this time of real criticality where there is reduced workforce because people are having to self-isolate, what impact did that have on the residents in care homes?

Dr Donald MacAskill: It had a profound impact. We were – we advised our members to lock down on 12 March, so that was the day before the guidance came out, and it was a couple of weeks before national lockdown. So care homes were used to lockdowns, not least for norovirus, but they were time-limited and they were proportionate to the risk which was occurring. By the time that we’d got to April, a number of us were already beginning to ask the question about: what impact of a long lockdown, what was that going to be? Yes, we were keeping people safe, and I remember writing this, life is not just the ability to draw breath in and out, it’s also the relationships, the purpose that you have in continuing to live. And we were hearing from frontline staff as early as April in 2020 that people were turning their face to the wall, that they were losing a sense of desire to continue, they were losing a sense of purpose, because they didn’t have contact with their family and they didn’t have contact with their wider community.

The burden of that upon staff, who were depleted in number, who were having to manage Covid risk, who were having to manage under a guidance system and an infection prevention and control methodology which was not fit for a social care environment, was massive, when most of them would have wanted to spend time with individuals who – unlike the patient in an acute setting, who the staff is unlikely to know, these were people who were known to staff, in some instances, for many years, and they could see that deterioration right in front of their eyes.

Counsel Inquiry: Were you raising these issues directly with the Scottish Government in March 2020?

Dr Donald MacAskill: The issue of deterioration and decline – so we thought it entirely appropriate that lockdown happened for a period of time because that had been the pattern of behaviour and we felt that it was a legitimate action to achieve an end which was to keep people safe. As April began to – sorry, as April came and as April began to move forwards with no indication, except actually a worsening of the disease, a number of us – and I said – you know, I wrote articles, I appeared in the media, I engaged with a number of individuals at government about “we need to start thinking about ways in which we can manage the pandemic without the level of restrictions on social interaction and engagement”, but instead what we got, later on, was the establishment of a clinical approach to care homes which turned them into clinical environments.

Counsel Inquiry: We will come back –

Dr Donald MacAskill: Yeah.

Counsel Inquiry: – to issues from about May 2020. I want to focus on the initial phase in March leading up to 21 April where the guidance on testing was changed.

The Inquiry understands that you had a meeting with Jeane Freeman, who was the Cabinet Secretary for Health and Social Care, on 18 March 2020 to discuss issues relating to the care sector. Was your broad position at the time that the existing guidance which had been issued by, at the time, HPS on 13 March was not fit for purpose?

Dr Donald MacAskill: At that meeting we had had, after the 13th, already two meetings of our members where over 250 members attended virtually, and we were being told – and we communicated this to the CMO’s office and to others, and indeed that communication led to a change in the guidance the following week, that it simply wasn’t working, that we needed a degree of more robust clinical assessment at point of admission, that we needed a sensitivity to the implementation of infection prevention and control, that we needed to have a bit of a reality check about how reasonable it was to expect somebody living with dementia to remain in their own room and not to use public environments and not to move around. So there were a whole list of areas which we had especial concern over, but one of the predominant ones was in relation to admission and testing, which is the subject of a considerable amount of the conversation with Ms Freeman.

Counsel Inquiry: Can we look at the briefing paper that was prepared for Ms Freeman in advance of her meeting with you?

Dr Donald MacAskill: Yeah.

Counsel Inquiry: This briefing paper is at INQ000261341. You will see that it says at the top:

“Briefing for Cabinet Secretary for Health and Sport”, and it says “Meeting with Scottish Care”, on Wednesday 18 March, and the meeting is at 1.30 in the Scottish Parliament.

Can we look at page 2, and under the heading “Testing”, here it says, and this is – by reference “they” is Scottish Care:

“They have concerns regarding the current testing arrangements and would like:

“- people tested before they are discharged from hospital to care homes so that care homes feel confident in accepting admissions from hospitals; and

“- testing for frontline social care staff in order to avoid 14 day isolation periods to enable them to return quickly to work.”

Thereafter, this is then the briefing paper for Ms Freeman, it’s telling her what lines to take, and it says:

“Testing for patients/people is currently being triaged into four different categories in the following order 1) patients needing critical care/ventilated 2) admissions to hospital with pneumonia/influenza like illness or acute respiratory distress syndrome, 3) clusters of outbreaks such as in care homes and 4) if there is capacity – testing of staff.”

Then bullet point number 2:

“Testing for staff – currently neither health or social care staff are being tested unless they fall under categories 1 or 2. This is mainly due to testing capacity issues with [laboratories] etc, however the policy of testing staff may change.”

So at this meeting I think you say that the focus of the meeting was around the admission criteria. Did you explain the sorts of issues you’ve raised with me today to Ms Freeman at the meeting with her on 18 March?

Dr Donald MacAskill: Yes, and as you will have seen from the note, they were expecting the line that I’ve addressed to you today, which is the lack of trust and our desire to have a more robust process of testing to give clinical assurance.

Counsel Inquiry: What was her response?

Dr Donald MacAskill: As far as I can recall, Ms Freeman’s response was as stated in the lines to be adopted, which was that there was insufficient numbers of tests available and that priority would be given to those who were being admitted to hospital who may have manifested pneumonic or other respiratory conditions and that where there was a cluster in the care home.

I remember saying, you know, that’s a bit like bolting the door after the horse has bolted. That yes, we need to know if there is an outbreak in a care home and how many individuals may have the virus as a result, and how many staff, though that wasn’t considered for testing in that regard in that time. We wanted to get ahead of the game. And I go back to what I said earlier, it wasn’t that we were saying “Don’t use what tests you have available for the NHS”, but begin at least to start thinking about the relative priority which you need to give to social care.

And I remember saying at the time that, you know, the lack of the engagement of social care operators in pandemic planning in all the exercises which we and the Inquiry knows about, is illustrative of the fact that if social care operators are not there and not social care policymakers, if social care operators are not there at the table, then clinical care decisions are going to be misplaced, as it evidenced in this regard.

Counsel Inquiry: Do you think she appreciated or understood the gravity of the situation that you were telling her in the early weeks of March leading up to this meeting on 18 March?

Dr Donald MacAskill: I’ve absolutely no doubt that Ms Freeman appreciated that what I was telling her was what I believed and what was being communicated to me by our members. I had frequent meetings with Ms Freeman and I think she would probably agree that we did not always agree, we had often robust exchanges, but both of us sought to be constructive and positive in moving things forward.

I understood and understand the emphasis on the NHS from her perspective, but I have to say at the time, as it evidenced here, but also subsequently, I do call into question the prioritisation of the acute and secondary NHS with the limited degree of resource available at the expense of the social care sector and those who it supported.

Counsel Inquiry: On the same day that you met with Ms Freeman, the Inquiry has seen a paper that was prepared by Derek Grieve from the Health and Social Care Directorate of the Scottish Government for Ms Sturgeon and Ms Freeman. This is a paper that’s dated 18 March 2020.

And it’s at INQ000222973.

You will see that, on page 1, at the very top it says that the – this is a paper that’s addressed to the Cabinet Secretary for Health and Sport and the First Minister, and it’s titled “Covid-19 testing and surveillance”, and its purpose is, at paragraph 1:

“To provide initial advice on our approach to Covid-19 testing and monitoring following the decision to move from containment to delay in response to the outbreak.”

Can we turn to page 2, and I want to look at paragraph 11, and if I may read:

“If our aim is ultimately to contribute to saving lives then we will not be able to limit testing to hospitals. A substantial proportion of those who are likely to be infected by the virus will remain in a community setting, in particular care homes. Colleagues in HPS are currently modelling this demand. What we know is that there are 35,989 residents in 1,142 care homes. Testing a significant proportion or all of these residents would significantly exceed the available capacity in laboratories.”

So you will see that the advice that was being given on 18 March to Ms Sturgeon and Ms Freeman is that the testing arrangements would need to be expanded to save lives and that care home residents are identified as being those particularly at risk.

There is also a reference you see to “Colleagues in HPS … currently modelling this demand”. Do you know what the issues were around modelling of care homes?

Dr Donald MacAskill: In relation to that specific section, I don’t know what the issue for colleagues at HPS would have been, but as you have, I think, heard at different points during the Inquiry, the issue of data in care homes has been a long-lasting issue of concern, and the availability of social care data, and very much, you know, pre-dates the 2020 pandemic.

I sat in many rooms talking about the data gaps which existed in social care. But that gap was itself the result of a myopic concentration and data in the NHS and particularly around delayed discharge. Had we given as much resource to developing datasets and supporting the social care sector to give and develop data, then we would have had more understanding.

But actually in this regard and with regards to testing, I’m not at all convinced, having seen some of the other written evidence statements from other parties, that it was just an issue around availability. And whilst Ms Freeman makes that statement very clearly in her own written statement that “we didn’t have sufficient tests”, I note in the statement from Ms Sturgeon, evidence from the CMO at the time, of a resistance to using testing per se because it was a – there was a danger of it creating a false positive, and indeed that it wouldn’t assist the clinical management of an individual in a care home whether or not you knew that they were positive. I’m paraphrasing that.

So I do wonder, and I think it’s something that we need to ask, whether or not there were clinical resistance to undertaking testing within a care home environment, or indeed any environment.

From our perspective, we were very clear: testing wasn’t a panacea but it was an additional tool to give assurance, to help individual residents in a care home reduce the risk of being isolated for long periods of time and to enable staff to return to work as quickly as possible.

Counsel Inquiry: You’ve referred to other evidence that you’ve seen, and I think that’s a reference to witness statements that you’ve seen –

Dr Donald MacAskill: Yeah.

Counsel Inquiry: – within this module. But in the context of what you were being told at the time, and we’ve seen the lines that Ms Freeman was given to take in her meeting with you, was the absence of testing in care homes for residents that were being discharged from hospital into care homes, was a reason the absence or lack of testing capacity?

Dr Donald MacAskill: Ms Freeman indicated at the meeting that lack of capacity was the main reason, but around that at the time there was a clinical discussion around the effectiveness of testing and the risks attached to it.

Counsel Inquiry: If we look at what is being said in the paper, what is being mentioned is that there are nearly 36,000 residents and it’s in that context it says “Testing a significant proportion or all of these residents would significantly exceed the available capacity”. But what is not being said here, as far as I can see, is there being some analysis of one of the positions that Scottish Care had advanced, which was: we ought to be prioritising testing of those that were coming from hospitals into the care homes. Is that correct?

Dr Donald MacAskill: That’s correct.

Counsel Inquiry: We now have seen from later data that was published by PHS – this is a report from October 2020 – that between 1 March and 21 April 2020, 82% of the 3,595 patients discharged from hospital to care homes were not tested. Therefore in the context of trying to prioritise those people for testing, one would have perhaps only required a much smaller number of tests than the 36,000-plus that is being discussed in this briefing paper. Is that right?

Dr Donald MacAskill: That would be right.

Counsel Inquiry: Whilst the data from PHS around the number of discharges from hospitals into care homes of people that were untested only came out in October 2020, would Scottish Care have been able to assist the Scottish Government, if the Scottish Government had come to Scottish Care and said “Can you give us a broad estimate of the number of admissions that are happening from hospitals into the care homes over this rough period?”

Dr Donald MacAskill: We would technically have had the ability to do so by asking our members. We probably wouldn’t have had the capacity as a small organisation to engage in that exercise but local health and social care partnerships could have gained that information from providers.

Counsel Inquiry: So it might have been that whilst – one doesn’t – needn’t wait until October 2020 to at least get a rough ballpark figure in March 2020 if one is looking for smaller testing capacity for that limited group of people being admitted from hospitals into care homes; is that correct?

Dr Donald MacAskill: Yeah, I think so. So if what lies behind is the assertion that: could we have – from the limited capacity that we were told – have prioritised those being admitted into care homes, could we have used those tests, then the numbers certainly say yes. Our argument was that the lives of those moving into care homes but also those who were residents and staff in care homes should have had as equal a priority as those working in NHS settings.

Counsel Inquiry: You have provided documents – or, before I turn to documents, there was some evidence yesterday from Roger Halliday and Scott Heald that data relating to the number of people going between care homes and hospitals and the number of people entering care homes from the community was not available at the time. Is it your position that whilst the exact numbers might not be available at the time, that there would be a way, such as contacting your organisation, so that you then connect the Scottish Government to some of your members, where one can get a ballpark figure if needs be?

Dr Donald MacAskill: It would have been very difficult, particularly in the midst of an emergency situation, as we were in at this time, for that exercise to be carried out. One of the continual issues facing the care sector, both in care homes and in home care, is the lack of robust data, and very little overarching data analysis work has been undertaken.

So we could have asked the question. Whether there would have been an ability to respond at local level at the time would have been challenging. And though data was developed, what became known as the Turas platform, that was during the stage – during a relatively early stage of the pandemic, in order to give the whole system the information that it needed.

Counsel Inquiry: Would Scottish Care or your members be able to at least provide the Scottish Government some ballpark that maybe 3,000 tests are needed –

Dr Donald MacAskill: Yes.

Counsel Inquiry: – not necessarily the 36,000 tests?

Dr Donald MacAskill: Yes. Nobody came to us to say or ask “How many tests do you think would be needed?” in order to enable admission to care homes from either the acute sector or, importantly, from the community, because there continued to be need in the community of people who weren’t able to live independently. And lockdown, we often forget, impacted on the ability of families to care for individuals, especially with geographical distance. So there was a demand from the community to move into care homes as much as there was from hospitals.

Counsel Inquiry: Where some of the evidence the Inquiry’s heard is that that sort of data was lacking, and if you put yourself in the position of the Scottish Government in March 2020, would an obvious source of trying to at least establish what that figure might be, would it not be contacting Scottish Care, considering there was already direct lines of communication?

Dr Donald MacAskill: That could have been a means of communication, but equally if I was running the Health Department I would contact the hospitals who were discharging individuals into the community, because they have very robust data at point of discharge and had spent years developing that whole framework because of the – as I said earlier, the concentration and focus on hospital discharge. So they would have evidence of where people were moving to, which is the evidence that Public Health Scotland later used.

Counsel Inquiry: And that would have been evidence that would have been available in March 2020 had somebody sought to try to explore it or at least estimate what the numbers might be?

Dr Donald MacAskill: I don’t think it’s beyond the realms of very practical possibility for that data to have been gathered in very short order.

Counsel Inquiry: You’ve provided some documents to the Inquiry which show the type of issues that your members were raising with you around this time.

Can we look at an email that Scottish Care received on 25 March 2020. This email is at INQ000249952.

The subject heading of the email is “Admissions Criteria for Care Homes”. And if we can look at this second email, and it’s addressed – it’s sent to your organisation, from one of your members, and it reads:

“Hi Karen/Donald.”

Is Donald a reference to you?

Dr Donald MacAskill: It is.

Counsel Inquiry: If I can read from the second paragraph, it says:

“The sector needs much clearer admissions guidance and policy from Central Government/[Care Inspectorate] on how we can admit Residents.

“What we have at present is dangerous.

“I appreciate the NHS is at breaking point.

“We are there 100% to help.

“But we have a duty of care to our Staff and Residents and we are breaking so many codes by being forced to take in admissions the way we are when it’s not safe and breaking so many codes by refusing as well. Dreadful dilemma.”

So your member here accepts that there is a focus on creating capacity for the NHS, and that care homes are part of assisting in that strategy, your member says they’re 100% to help; is that right?

Dr Donald MacAskill: Yeah, I think that sentiment articulates very clearly and succinctly what was being said by dozens, hundreds of our members. They were caught between the stirrup and the ground.

Counsel Inquiry: Can you describe what the dreadful dilemma was facing care homes at this time in March?

Dr Donald MacAskill: I think the dreadful dilemma goes to what I said earlier, which was we needed guidance which gave us robust assurance that as much as possible, in the constraints of a new virus, that people entering the care home as new residents or as returning residents were Covid-free and as safe as possible.

And the other side of that dilemma was the desire to support the NHS when there was the perception that the NHS could be overtaken by the rise in the number of cases. And the dilemma faced by many managers and staff at local level was: how do you keep people who are existing residents and staff safe and at the same time recognise that – if somebody’s fit for discharge, a hospital’s certainly not where they want to be, and they should be discharged, either home to the care home or into the care home for the first time. So how do you balance both of those whilst at the end of the sentence recognising that there were pressures, because of contractual pressures and existing relationships with health and social care partners, not to break, in this case, the National Care Home Contract.

Counsel Inquiry: Is that what the reference to breaking codes means?

Dr Donald MacAskill: Yeah.

Counsel Inquiry: If we read on:

“Scottish Care needs to sort at least Guidance for Homes in my view and be much much more specific and proactive to ensure our Sector is acting as correctly and professionally as we can at this unprecedented time. There’s multiple things we could do to make it at least safer.

“The NHS/SW Policy seems to be ‘NHS need the beds so your taking them’.

“Worrying way to work.

“So greatly flawed and I don’t like to be emotive but a disaster waiting to happen is probably a balanced phrase to use.

“A few worrying points.

“Here’s what we seemed to be getting told.

“- ‘as long as you keep them isolated in their bedrooms for 7 days’ …..there’s too many flaws to list regarding this so I’m not going to start….but just one is not Care Homes have dedicated staff in dedicated isolation or separation areas.”

So if we pause there, for whom was there a seven-day isolation requirement? Was this positive patients?

Dr Donald MacAskill: So the guidance, both the 13th and the later guidance, indicated that individuals should be isolated for a period of seven days, because at that time the sense was that the virus would manifest itself within a seven-day period, and if somebody was not positive at the end of that seven-day period then they were safe to move around and engage in other activity.

So the recommendation in the guidance and certainly our recommendation was that if you cannot be sure about the status of an individual, and that means if you can’t do a Covid test, then you should as far as possible isolate that person for seven days, and ideally barrier nurse that person. But I’ve already talked about the impracticalities and the availability of staff and resourcing like PPE to enable that to happen on a wide scale.

Counsel Inquiry: If we read on in this email, it says:

“Cross infection rates of Covid-19 is very high in prepared well trained ICU units and hospital units never mind a communal care of 50+ beds.”


“ - ‘as long as staff wear the appropriate PPE’ – That’s not possible. No Care Home has the appropriate equipment. None. A low grade face mask, a plastic apron and a pair of latex gloves is not the appropriate equipment for barrier nursing a potential carrier transferred from a high risk area in the middle of a deadly highly contagious Pandemic by a Care Assistant with no training in High Risk Infectious Diseases in a Care Home not equipped or designed for such.

“- ‘tell your staff to follow barrier nursing/infection control/isolation good practice’….I have friends who are Doctors/Intensive Care Staff/Anaesthetists/Nurse lecturers who are as trained as anyone in this in the very short time anyone has had (and have at least had some training previously for such events) and they feel exposed and underprepared in their PPE management and practice with better equipment. Many are frightened by this disease and its potential for spread….never mind an army of Care Home Carers and Elderly Care and Dementia Staff.”

So is the point here that infection control measures that might be appropriate in an acute setting just aren’t going to work in a care home?

Dr Donald MacAskill: Yes, and it’s the sort of issues that I’ve reflected earlier about, you know, a containable infectious unit in a hospital is “easy”, in inverted commas, to manage, to curtail, but when you’re talking about an environment with free flow of individuals, with individuals who might remember for a minute what you’ve said to them but then will forget why they shouldn’t touch that or why they shouldn’t go and speak to somebody or why they shouldn’t go into that room, it becomes really difficult. And I think what the writer is indicating is that with this new virus even those who were very skilled and experienced in infection control and management were really anxious and worried, that fear I spoke about earlier, and even they struggled in such an environment. So why did we expect an under-resourced and understaffed social care sector to be able to step up to the plate when the NHS wanted to clear its decks?

Counsel Inquiry: And part of that, in your witness statement, you explain for the cause of this guidance, I think you describe Public Health Scotland as being distant and detached from the care sector during the pandemic and not appreciating the practical requirements of the sector. Is guidance such as this the manifestation of Public Health Scotland not understanding, in your words, the care sector?

Dr Donald MacAskill: I think this was the beginning of an evidence that HPS and then Public Health Scotland didn’t fully understand the unique particularities of delivering social care. They clearly understood acute and secondary care settings, but at various points what I began to call an IPC fundamentalism failed to appreciate that a care home, or indeed a person’s own home, was not equivalent to or the same as an acute sector. And that perhaps was enshrined in an example which I frequently heard, when the process of inspections and scrutiny using these IPC standards began in the care home sector and when the care home sector was literally hung out to dry on failing to achieve these standards, where a common complaint would be that in an individual resident’s care home, especially a resident with – living with dementia, articles of significance, of memory, items which are important to them were often described as “clutter which risk infection and should be removed”. So care staff were told by IPC specialists “get rid of that stuff”, and yet these objects were intrinsic markers of identity for that person, they were things that rooted them to their self, to their family and their story, and yet they became for IPC specialists objects which were a risk of infection.

I think we failed to balance the rights, the individuality of individual care home residents in guidance which was developed by people who had no contextual understanding and, to be blunt, showed no interest in gaining that understanding from people like myself and other practitioners, that that guidance treated people as a group, as a blanket entity, instead of the individuals with rights and autonomy which they deserve to be treated as.

Counsel Inquiry: We may have time to come back to that, but I want to finish with this email, if we can read on the next section, it says:

“Also the position of ‘if a Resident gets Covid-19 they stay in the Home until the recover or die’ is again a real worry – how does that work with the main aim of ‘protecting our elderly and most vulnerable’??? It may meet the other aim of ‘protect the NHS’ but it doesn’t meet the first one.

“Again, surely there’s a better way.”

And that’s a matter that’s touched upon in Scottish Care’s statements, it says that the guidance that was published from 13 March caused confusion within the care sector which led to the belief that individual residents who were Covid-19 positive should not be transferred to hospitals, and I think in the statement there’s a reference to a presumption of a blanket ban on care homes transferring residents who had tested positive to hospitals.

Can you explain why care homes had come to believe that there was a form of blanket ban on transferring residents into hospital?

Dr Donald MacAskill: They arrived at that belief because it was their experience, in numerous instances, of attempting to gain access to a hospital or indeed to a GP to enable an admission to hospital. There developed very quickly after the 13 March guidance was produced until later on in the month where significantly following our remonstrations and from work that we did with other clinical colleagues, a – there was the presumption that if an individual contracted Covid in a care home then they should be supported and enabled in the care home and should not be transferred out of the care home. Now, in many instances I’m not denying that for many individuals that was the right clinical decision, to support an individual, often with palliation, to enable the end of their life in as supportive and dignified manner as possible. But the presumption that that should be the result and the end decision and clinical assessment for all is simply wrong.

And at the same time I was commenting publicly about the draft ethical(?) framework which was developed by the clinic – by the CMO at the time, which had used age as a proxy for decision-making should we get to a situation where there were limits on resources available for clinical intervention. And that existence of an age proxy, age discrimination, was evidenced, I believe, in the presumption that if somebody developed a condition such as dementia in a care home they should not ordinarily be transferred to hospital. And it wasn’t just – sorry, Covid.

It wasn’t just Covid that was preventing somebody being transferred, it was other conditions where ordinarily they might have been transferred because of the desire to make sure the NHS acute and secondary setting was as clear as possible. And I have absolutely no doubt that individuals whose lives could have been saved were not saved because of the nature of that uncertainty caused by this guidance.

Mr Tariq: My Lady, would this be an opportune time to pause?

Lady Hallett: How much longer do you think you have?

Mr Tariq: I was planning on being maybe around 15 more minutes.

Lady Hallett: And I think there is one question from Ms Mitchell.

Mr Tariq: Yes.

Lady Hallett: Very well, we will break now and I shall return at 3.05.

(2.50 pm)

(A short break)

(3.05 pm)

Lady Hallett: Mr Tariq.

Mr Tariq: I’m obliged, my Lady.

Are we able to go back to the email that was on screen that, if you recall, Dr Macaskill, we were looking at this email. If I can read on from the paragraph that begins:

“I don’t have a problem taking Residents.

“I absolutely have a problem with how this is being forced on us and implemented.

“It’s so flawed I don’t know where to start.

“The Horse may well have bolted on this though for some or many Care Homes and their Staff and Residents….but we surely can find a better way from now?”

Your member in this email has described the admission criteria for care homes in March 2020 as a disaster waiting to happen. Do you agree with your member’s sentiment?

Dr Donald MacAskill: I think he was reflective of the views of many people that the lack of robustness in those guidance, the prioritisation of the NHS, the presumption that people should not be transferred to hospitals, the level of presumption around what it was like to manage somebody in a care home, an IPC fundamentalism, I think he was absolutely right, yes.

Counsel Inquiry: So you would share, as at March 2020, being able, with all the experience and knowledge that you had, including seeing what was happening around the world, your view was that this was potentially a disaster waiting to happen?

Dr Donald MacAskill: Our view was without the issues I’ve talked about today, and to a certain extent that began to be sorted by the end of March with the additional guidance, we got closer to a set of guidance which was more appropriate. Unfortunately, what we then saw was a period of scrutiny and inspection and implementation of guidance which was just as insensitive to the context of a care home as some of the guidance.

Counsel Inquiry: There was between your meeting with Jeane Freeman on 18 March – sorry, 13 March – sorry, 18 March – so between your meeting with Jeane Freeman on 18 March and the change of guidance on 21 April, there was 34 days and – 34 days that it took from Jeane Freeman’s meeting with you to the Scottish Government’s guidance and the PHS guidance coming to the position that had been suggested by you, which was testing of admissions into care homes.

Why were there, as far as – to the best of your knowledge, why was there this delay of 34 days between Scottish Care meeting with Ms Freeman and the guidance being updated to reflecting the position that Scottish Care were advocating for?

Dr Donald MacAskill: I’m not in a position to answer that, but all I can say is that we continued to make overtures during that period.

Counsel Inquiry: And as we know, on 21 April Ms Freeman announced that Covid-19 patients discharged to care homes should have two negative tests before discharge, and all new admissions should be tested and isolated for 14 days on arrival in the care home.

What were you being told about the rationale now, on 21 April, for having two negative tests?

Dr Donald MacAskill: The primary reason given to us was the argument that there was sufficiency of testing availability.

Counsel Inquiry: What was the impact on residents of Scottish Government delaying till 21 April before being in a position to introduce this guidance?

Dr Donald MacAskill: All I can say is, from the perspective of our members and what we were hearing from frontline staff, was an absolute conviction on their part that unnecessarily people died during that period of time, and I’m very aware of Public Health Scotland’s statistical minimum assessment of discharge impact, but as I said when that report came out, statistics tell one story but if you go and speak to the women and men who worked in care homes, they will tell you a very different story.

Counsel Inquiry: We know that beyond 21 April 2020 there were still issues that were arising in relation to discharge of patients from hospitals into care homes. What were those issues that existed after the guidance had been up updated?

Dr Donald MacAskill: Regrettably there were instances where it became clear that assurances that the policy was being implemented were not upheld and people were discharged, as they had been before, without robust clinical assessment, without testing or being tested at an inappropriate time. You know, for instance, there was examples of people being tested when they went into hospital but not at the point of discharge. So – and both into the community and into care homes. So by no means, despite a very clear ministerial lead, did clinicians and practitioners in the acute and secondary sector follow the rules at all times.

Counsel Inquiry: I now want to turn to another issue that you’ve touched upon, which is around visitor restrictions in care homes, and we know that care home residents were subject to quite severe restrictions for many months, including bans on visits, being unable to leave the home, being cared for primarily in their room. What was the impact of these restrictions on the health and wellbeing of residents?

Dr Donald MacAskill: It was profound. It’s difficult to imagine that level of restriction happening to any of us, but when it happens to somebody with limited or fluctuating cognitive ability, it was deeply traumatic for them. I would also say it was deeply traumatic for staff who quite frequently used phrases like “We felt as if we were wardens”. Previous to the pandemic you could count on two hands the number of incidents of complaints around visiting, around access between family members and care homes, and yet instantly over a period of time care home staff were put in an invidious position of keeping people apart who they knew wanted to be together. And they had to do so by following guidance, but they also had to do so because of fear of the violence(sic) and fear of any repercussions that might follow as a result of them appearing to breach the guidance.

So it was an invidious position for staff but, much more traumatically, it was a devastating experience for residents, their families, and undoubtedly caused a harm which, whilst it may not have been brought about by the virus, was certainly brought about by the protective measures.

Counsel Inquiry: In Scottish Care’s statement it has said that as early as April 2020 Scottish Care made representation to the Scottish Government that the restrictions on visiting to care homes was disproportionate, that it was failing to meet the pastoral needs of individuals and having a traumatic effect on residents and families. It is also said that Scottish Care called on the Scottish Government to adopt a human rights-based approach to visiting in care homes.

We’ve heard some evidence this morning about a human rights-based approach in the language of the Scottish Government’s policies. What do you mean by calling on the Scottish Government to adopt a human rights-based approach on this issue?

Dr Donald MacAskill: You will be aware that previous to the role I undertook at Scottish Care I ran a human rights consultancy for nearly a decade and a half, so I was very aware of what a human rights-based approach should be, and indeed had recently lectured on the difference between the rhetoric of human rights and the reality of implementation. So for me very clearly, in terms of visiting restriction, one demand with which made, which was never listened to, was the necessity of upholding and undertaking a human rights-based assessment. That did not happen on the visiting restrictions.

But the principles of human rights best practice, of enabling voice of ensuring participation, of treating each individual on their own – in their own right, of ensuring that no harms resulting in terms of Article 3 but also Article 8 in terms of the right to family life, the balancing of appropriate privacy, we continually said we needed to adopt a human rights-based approach which does not treat care home residents as this amorphous group but addresses the particularity of each individual.

Care homes spend most of their time talking about and engaging in person-led or person-centred care and support. Overnight that was thrown out because of the constraints put upon frontline staff and providers of care.

Counsel Inquiry: So is it your position that in respect of visiting restrictions the Scottish Government hadn’t adopted a human rights-based approach during much of 2020?

Dr Donald MacAskill: That is my conviction.

Counsel Inquiry: What was, in the absence of a human rights-based approach, the main driver for the Scottish Government in respect of the policies and guidance around visiting restrictions?

Dr Donald MacAskill: Risk aversion, and an inappropriate balancing of what was acceptable.

Now, I know that in a shared environment, in a congregated living environment you have to balance the desires of one individual over and against another. Care homes are really good at doing that. They recognise that there is always a dynamic of give and take in any context. If there had been sufficient trust and regard to the professionalism of frontline care staff and clinical staff in the care sector, if that had been heard and listened to at all periods of the pandemic, then I’m quite convinced that we would have restrict – we would have withdrawn visiting restrictions much earlier. And I reached a point of personal despair, having drawn up guidance to enable the freeing up of visiting, that after drawing those up it took over six weeks before they began to even being to be considered. We took too long and as a result we limited the lives of people.

Counsel Inquiry: Was this guidance, draft guidance that you had prepared, to assist the Scottish Government and PHS around visiting restrictions?

Dr Donald MacAskill: The draft guidance was developed as part of the – a clinical and professional advisory group, and I’m – myself and three others contributed to the first stage of draft, but we all of us despaired about the length of time it took to turn that guidance into reality, as many in the care home sector and wider care felt that when the rest of society was opening up, care homes were still being closed down.

Counsel Inquiry: We know that visitor restrictions were eased in autumn 2020 but the guidance on outbreaks meant that many residents still faced severe restrictions for many weeks. Do you consider that the Scottish Government’s approach on this issue in late 2020, going into 2021 and 2022, did it move towards considering properly the human rights of the residents and their families?

Dr Donald MacAskill: No, it did not.

Counsel Inquiry: Why would you say that the Scottish Government didn’t move to a human rights-based approach later on in the pandemic?

Dr Donald MacAskill: I think the fear of repeating the trauma of the spring and of there being a resultant increase in death as a result of not tightly managing a care environment, was an overriding concern. And ultimately, as people kept saying to me, can we live our lives rather than exist in an imprisoned environment? Which was a sentiment expressed by staff as much as it was by family, residents and carers.

Counsel Inquiry: I now want to move to a separate topic, and something that you’ve touched upon several times already, and that’s around inspections, oversight and investigations.

On 21 April Ms Freeman – 21 April 2020 – announced that NHS directors of public health were required to taken enhanced leadership for care homes. Multidisciplinary care and professional oversight teams were convened, and Scottish Care says in its witness statement that in addition to inspections from the Care Inspectorate, care homes were being inspected and visited by oversight teams and by health improvement Scotland.

What was the impact on care homes of this increased regulatory oversight and inspection during the pandemic?

Dr Donald MacAskill: Profoundly negative, and we developed a report to indicate that. It is very rare in an emergency for significant change and improvement to occur when those carrying out those inspections and scrutiny are not respected, have no professional regard, and don’t understand the context in which they were inspecting. And that was the experience of having NHS practitioners assessing the validity or otherwise of IPC measures in a social care environment.

Counsel Inquiry: What impact did this increased regulatory requirements and inspections have on care home residents?

Dr Donald MacAskill: In a sense, it perpetuated and continued a practice of what I called the clinicalisation of care settings. Inevitably, in order to comply with a scrutiny approach which was much more clinical, much more medical in nature, care homes had to change their practice, otherwise they would lose their registration. And a number of us at the time spoke about the fact that new standards and frameworks were introduced virtually overnight with minimal consultation, absolutely no training, learning and development resource in – on the part of staff knowledge and awareness, and suddenly care homes were expected to be able to adhere to standards which (a) they disagreed with and still significantly today disagree with and (b) over which they had no control, and that resulted in a real sense of de-professionalising individuals working in care homes.

Counsel Inquiry: We also know that in May 2020 the Crown Office initiated a process of reporting an investigation of deaths that were occurring in care homes, and it is said within Scottish Care’s statement that this caused considerable trauma within the care home sector. What was the impact on – the Crown Office investigations on care homes, what was the impact on care homes and care home staff?

Dr Donald MacAskill: So the impact on care homes of an investigation that was solely directed at the care sector was increased risk aversion because of the fear of being prosecuted for criminal action if they were seen to be in breach of any of the regulations, whether it be on visiting, whether it be on IPC or on any other area. The impact on staff was profoundly damaging. And I would have to say, of the whole pandemic experience, this has been a lasting damage because it’s still ongoing. I know of a number, of hundreds of individuals who have communicated with me about the mental distress and upset that they have experienced. I know of dozens who have left the sector solely as a result of the investigations of the Crown Office, because a whole sector has been held up as being culpable for actions – only in Scotland, in no other administration that I am aware of national – in the UK or internationally.

Yes, it’s appropriate that the public are assured of best practice and that everything is done, but in order to achieve that, the holding up of every single worker in every single care home as potentially culpable has been emotionally and psychologically hugely damaging.

Mr Tariq: My Lady, that concludes my questions. There is a question on behalf of Scottish Covid Bereaved.

Lady Hallett: Ms Mitchell.

Questions From Ms Mitchell KC

Ms Mitchell: I am obliged, and indeed I am obliged to my learned friend Mr Tariq, who has posed many of the questions that the Scottish Covid Bereaved wished to be placed to this witness.

You have already touched upon one of the questions I really wanted to ask, so it’s really just to explore it with you a little bit further.

You have spoken about the imposition of visiting restrictions in care homes and it’s the experience of the Scottish Covid Bereaved that there was differences, broad differences in fact, in approaches taken by different care homes to the implementation of visiting restrictions.

Were you, first of all, aware of the fact that they weren’t being implemented uniformly?

Dr Donald MacAskill: Absolutely, yes. We are very aware that there were some of our members who simply refused to implement the restrictions full stop, because they didn’t feel them acceptable, and there were others who followed them to the letter because they were frightened to do otherwise.

Ms Mitchell KC: You have indicated quite clearly in the evidence to this Inquiry that in relation to Scottish Government and Public Health Scotland that their provision of guidance in relation to various matters wasn’t, as you put it, informed by the views of those with a proper understanding of the matter. Would it have been useful or helpful for your body to have provided any supervision or specific guidance during the pandemic to care home providers in relation to the implementation of visiting restrictions?

Dr Donald MacAskill: Apart from the reality that we didn’t have resource or capacity so to do, what we did do during the pandemic was, through surgeries and through webinars, to encourage or members to be as flexible as possible, recognising that there were issues to do with Operation Koper, which was a huge negative cloud over them, there were issues to do with insurance, which we’ve not talked about because of the withdrawal of multiple insurance coverage for care homes, which made many more risk averse of appearing to break guidance.

But we did everything we could, we worked in the early stages with groups like Care Home Relatives Scotland to try to increase the willingness of our members to open up when it was appropriate to do so. I’m sure we could have done more, but we were very clear that the best interests of individuals was that we opened care homes as quickly as possible, but it was extremely difficult to challenge particularly small providers.

And I think we forget the vast majority of provision of care homes in Scotland is by small, single operators or small, double, three operators. It’s very difficult in that environment to give them the assurance that by appearing to act against guidance, whose status was never confirmed, they weren’t at risk of deaths occurring and Operation Koper investigations resulting.

Ms Mitchell: I’m obliged for the detail given in your response.

My Lady, a new issue was touched upon, and that is one insurance. I am loathe to start and I don’t have authority to start on a new track, but if my Lady would think it would be of any assistance to the Inquiry to hear about that issue, I would be happy to ask a follow-up question in that regard.

Lady Hallett: My only concern is we have another witness that we’re trying to get in, so how long do you think it would take?

Ms Mitchell: Just to ask him to expand upon the issue of the removal of insurance and what effect that had.

Lady Hallett: If you can do it in summary, Dr Macaskill.

Ms Mitchell: I’m obliged.

Dr Donald MacAskill: Very quickly, at the start of the pandemic there were multiple providers for insurance for the care sector; within weeks that reduced to around about half a dozen. And at the same time there was an exorbitant increase in the cost of premiums, upwards of 200-300% increases. It was one of our major headaches. And one of the main reasons was that insurers would not cover Covid and insurers set additional conditions including the latest care inspection report on IPC, and one of the risks to that was increased visiting access. So we engaged with insurers both in Scotland and nationally and with the support of government, Scottish Government, to try to ease the system, but the lack of – or the issue around insurance definitely impacted on the willingness of care providers to open up to visiting.

Ms Mitchell: I’m obliged.

Lady Hallett: Thank you very much, Ms Mitchell.

Forgive the cough.

Thank you very much, Dr Macaskill, I’m very grateful to you, and having heard your advocacy I’m surprised that anyone didn’t pay immediate attention to you, so thank you very much indeed.

The Witness: Thank you, my Lady.

(The witness withdrew)

Lady Hallett: Mr Tariq.

Mr Tariq: My Lady, may I please call Ms Nicola Dickie.

Ms Nicola Dickie

MS NICOLA DICKIE (affirmed).

Lady Hallett: Sorry if we’ve kept you waiting.

Questions From Counsel to the Inquiry

Mr Tariq: Good afternoon, Ms Dickie. Thank you for your assistance to the Inquiry to date.

There are a few preliminary matters that I wanted to discuss with you before we get into the substance of your evidence. Can you please keep your voice up and speak slowly, because the evidence is being transcribed. If any of my questions are unclear, please say so and I will rephrase.

COSLA has provided the Inquiry with a witness statement that’s dated 7 September 2023. This is a statement which is INQ000273700, and this is a corporate statement that’s submitted to this module of which you were the author. Is that correct?

Ms Nicola Dickie: That’s correct, yes.

Counsel Inquiry: If we turn to page 18, I was going to say is that your signature, but would that have been your signature?

Ms Nicola Dickie: Yes, it would.

Counsel Inquiry: COSLA has also provided an addendum to the witness statements dated 24 October 2023, which is at INQ000327643, and this is – if we turn to page 5, this is again where your signature would be.

Are you content for the statement and the addendum to the statement to form your evidence to the Inquiry?

Ms Nicola Dickie: Yes, of course.

Counsel Inquiry: Are the contents of the statement true to the best of your knowledge and belief?

Ms Nicola Dickie: They are, yes.

Counsel Inquiry: Just before we look at COSLA’s role in the pandemic, I just wanted to touch very briefly with you on COSLA as an organisation.

COSLA is a national association of Scottish councils; is that right?

Ms Nicola Dickie: Yeah.

Counsel Inquiry: It’s a membership organisation of all 32 local authorities in Scotland; is that correct?

Ms Nicola Dickie: Yes, that’s correct.

Counsel Inquiry: What functions does COSLA perform for its members in a non-pandemic time?

Ms Nicola Dickie: So COSLA is the membership organisation for the 32 local authorities in Scotland. We are a politically-led organisation. The Inquiry I’m sure will have heard from our sister associations across the rest of the UK, the Local Government Association. We provide representation, negotiation, for our members in support of access to legislation, finance and policy that supports the communities that they serve up and down the length and breadth of Scotland. We are also the employers association for the 32 councils, so we negotiate the terms and conditions of the local government workforce and indeed pay.

Counsel Inquiry: Would it be possible, Ms Dickie, just to keep the pace slightly slower, because there is a stenographer that is trying to transcribe the evidence.

As far as I understand it, you were the chief officer, health and social care, in COSLA between February 2020 and September 2021. What was your role and responsibilities in that position in relation to COSLA’s pandemic response?

Ms Nicola Dickie: So as the health and social care chief officer, I was responsible for all the policy as it related to health and social care and including public health.

As the pandemic emerged, I also took on the lead role across the organisation. So I played a co-ordination role – given that the pandemic was primarily in health and social care settings – in terms of guidance. But it also meant I had a co-ordinating role across the rest of the policy teams that the organisation has. So we also look after education, children and young people, housing, homelessness, so I was playing that co-ordination and lead role as well as doing the policy related to health and social care.

Counsel Inquiry: In October 2021, you became the director of people policy in COSLA. What was your role and responsibility in that position in relation to the pandemic response of COSLA?

Ms Nicola Dickie: So the previous role was the chief officer for health and social care. The director sits above that role in the organisation, so – and I have teams that directly report to me who deal with health and social care, children and young people policy and indeed COSLA’s strategic migration team which deals with asylum and refugee issues.

Counsel Inquiry: I understand that you remain in that position to this day, is that right?

Ms Nicola Dickie: That’s correct, yes.

Counsel Inquiry: I now want to turn to the issue of the relationship between the Scottish Government and local government.

In the expert report of Professor Paul Cairney, who gave evidence this morning, he says – well, I’ll simply quote:

“Overall, COSLA/local government is an important but subordinate partner in Scottish central-local relations.”

The Scottish Government retains responsibility for the management of emergencies in Scotland, including health emergencies, within the limits of devolution. Local government plays a role of strategic partner for the delivery of policy in each local authority area.

Similar to that there is a report that I will come to later on, it’s a report by Professor Kevin Orr of the University of St Andrews and the improvement service, which is titled “Good governance during Covid-19, learning from the experience of Scottish local authorities”, and in that report it said, and I quote:

“There is a long-standing and well-developed academic literature analysing the tendency of central governments to regard local authorities as delivery agents for national policies.”

Do you agree with this assessment that the Scottish Government has a tendency to view local authorities as delivery agents for national policy?

Ms Nicola Dickie: I don’t think it’s as straightforward as that at all times. I would also question the word “subordinate”. I think from a local government perspective we are absolutely clear that we are a legitimate sphere of elected government in this country and we deliver functions for the communities that we serve.

I think we recognise that there will be times where things are best done nationally and there are things that are best done locally. So I recognise that the devolution settlement and indeed what’s further devolved down to local government – it’s not the same across all of the policy teams that COSLA has access to, but I do think that there is a time when local government is more than a delivery agent of colleagues in Scottish Government, and I don’t believe that that’s true across all of the Scottish Government all of the time.

Counsel Inquiry: So my question was about the perception that the Scottish Government has of local government and local authorities, that they sometimes view local government as a delivery agent for its national policies. Is that a tendency that you see coming from the Scottish Government towards local governments or local authorities?

Ms Nicola Dickie: I think it’s some that many in local government would see as true at times.

Counsel Inquiry: In COSLA’s corporate statement, it is said at paragraph 3.2, I don’t want intend to take you to it but I’ll read out what it said, it says:

“COSLA played a key role in the framework set up by the Scottish Government to respond to the pandemic.”

In the corporate statement, it’s explained that COSLA was represented in a number of groups set up by the Scottish Government, it had bilateral regular meetings with the former Deputy First Minister of Scotland, John Swinney, COSLA had meetings with other Cabinet Secretaries and ministers in the Scottish Government. Overall, how would you describe the Scottish Government’s engagement with COSLA during the pandemic?

Ms Nicola Dickie: So I would describe the Scottish Government’s engagement with COSLA throughout the pandemic as vast. There was a lot of conversations, engagement going on both at political and official level. As I’ve already said, we carry out all of the policy teams and the devolved functions that local government has, and there wasn’t a part of our organisation or the services provided by local government that weren’t touched by the pandemic, so we were in regular contact and there was good engagement both in terms of the formal structures that are alluded to in my statement but also in terms of those political relationships.

Counsel Inquiry: So does COSLA feel that it had sufficient opportunities to communicate the views and concerns of local government to the Scottish Government during the pandemic?

Ms Nicola Dickie: I think we do, I think in my statement I refer to the first time that COSLA and indeed representatives from the chief executives of Scottish local authorities saw this, we were in – the first time we were in a SGoRR meeting was 16 March, COSLA and Scottish Solace, who are the chief exec in local government, attended SGoRR, both at official level and at ministerial level throughout the pandemic. I think that demonstrates that there was a concerted effort to bring the views of Scottish local government into the thinking and the decision-making processes of colleagues in Scottish Government. I think that engagement was on the basis of the statutory legislation that had been introduced made it clear that decisions were for Scottish ministers to make, but there was engagement and COSLA were consulted throughout the various stages of the pandemic.

Counsel Inquiry: Do you consider that the view – so you say the engagement was vast, but engagement is one thing, and then properly listening, understanding and factoring in those views into the decision-making might be something different. Do you feel that the Scottish Government always listened, understood and then factored in the views of local government into its decision-making during the pandemic?

Ms Nicola Dickie: So I think colleagues in government always listened, I think they tried their best to understand what we were saying, I think it becomes more difficult to understand how that was factored into the decision-making process because those decision-making processes were for Scottish Government and therefore we were not necessarily party to how that evidence was then weighed up.

Counsel Inquiry: How that evidence was then effectively –

Ms Nicola Dickie: Yes.

Counsel Inquiry: – going to the key decision-makers who were then making the decisions that affected local government; is that correct?

Ms Nicola Dickie: Yes.

Counsel Inquiry: We know from COSLA’s statement that it was a member of the National Incident Management Team. These were meetings that were usually chaired by Public Health Scotland’s Dr Jim McMenamin, and one of the functions of the National Incident Management Team was to provide strategic public health leadership and to advise the Scottish Government on measures to control the pandemic.

Can we look at the meeting minutes from the NIMT from 2 December 2020. This is at INQ000197243.

You, as I understand it, had attended by this stage, I think, a prior NIMT meeting on behalf of COSLA; is that correct?

Ms Nicola Dickie: Yes, that’s correct.

Counsel Inquiry: And it appears, as we will go through the minutes, that this meeting was attended by Jane O’Donnell. Can you tell me what Ms O’Donnell’s position was as at December 2020?

Ms Nicola Dickie: Yep, so Ms O’Donnell was the director of people policy in COSLA in December 2020.

Counsel Inquiry: You will see that the document at the top, it’s got the logos of Health Protection Scotland and Public Health Scotland. It says “National Incident Management Team”, and it’s a meeting of 2 December 2020.

If we’re able to go to page 2, I want to read from the second entry. This says – and it’s attributed to AB, who we understand to be an official from the Scottish Government, it says:

“The [Deputy First Minister] will have a call with the local authority Chief Executive – my understanding is the DPH …”

Is that the director of public health?

Ms Nicola Dickie: Yep.

Counsel Inquiry: “… is not on those calls, but following cabinet this week one of the ways to resolve would be to have the local authority Chief Executive and [director of public health] on the same call. Supplementary to that could be to get a short joint paper agreed by the local authority Chief Executive and DPH about where you think you are and the evidence that has been done to show why you should move up or down a level.”

So this appears to be a proposal from or a suggestion from an official within the Scottish Government on how to better involve local authorities in the decision-making process around local restrictions, such as keeping them informed of the evidence upon which the decision is made. Is that right?

Ms Nicola Dickie: I believe so, yeah.

Counsel Inquiry: Can we then read the next entry, and this is from Ms O’Donnell of COSLA, and it says:

“I think it’s vital we don’t end up in a situation where local authority colleagues are putting up different advice from what advice is given here – whatever we do – the NIMT considers the data and that we are only supplementing with local colour. We are cautious we don’t act in a way that would be inadvertent.”

So the concern here of Ms O’Donnell appears to be that if you bring in local authority voice into each of these individual decisions, their position might then conflict with the advice that the NIMT is giving to the Scottish Government; is that correct?

Ms Nicola Dickie: No, I have to say I don’t – that’s not the way I read that, because when I’m talking about local authority colleagues, I think, “putting up”, I suspect that’s the conversation that the chief executive of the council was having with their council leader. So I don’t think this is about when local government’s view was being fed into Scottish Government, I think what we’re getting at here, having read before and after, is that the directors of public health should be working with the council chief exec so that they’re sitting down with their council leader and saying: here are our statistics, this is what this means, here’s what our trajectory looks like, and then potentially, for example, and what we’re hearing in the public health community is that we’ve got another wave coming or there’s a different – you know, there’s a different variant of concern.

So I think the “putting up” there is putting up to their council leader. I don’t know that it’s feeding into Scottish Government. That was certainly my reading of that and I certainly know that there were conversations in and around about that time to make sure that council leaders had exactly the same information that Scottish ministers were looking at so that they could draw conclusions, as it were.

Counsel Inquiry: But if we look at the first sentence, the concern seems to be that:

“… local authority colleagues are putting up different advice from what advice is given here – whatever we do – the NIMT considers the data and we are only supplementing with local colour.”

So is the concern not here that actually if you engage with local authorities their position on what level, for instance, of restriction should apply might be different from what has been advised by the NIMT and if you involve – and that then means that there isn’t a single piece of advice going up to the Scottish Government to make the ultimate decision?

Ms Nicola Dickie: That’s not what I take from that, and I have to say that the way that the NIMT advice was formulated was that it was done on the basis, as you know, as you can see from the rest of the minute, what are the facts and the figures telling us. We had absolute conversations around about everyone needing to be faced with the facts before they went any conversations around about levels.

What I would say is both the documents that government published, so the strategic framework document that laid out the phases early on in the pandemic, so kind of April, April/May 2020, and then the subsequent advice that was published around about the tiering system, both were quite specific around about engagement with local government.

So it doesn’t suggest to me if you’re publishing in a publicly available document that you’re going to try to subvert any information that local systems will be providing to you.

Counsel Inquiry: If we then read the entry below, this is from TP, who is a director of public health, and it says:

“… issue is that we are being asked to give advice in the absence of all the harms.”

That’s, I think, a reference to the four harms strategy, and the NIMT is only looking at the first harm here, and not looking at some of the other harms such as the economic harms.

“England agreed to share their 3 harms and I think Scotland should share the harms papers with DPH and local authorities and then we will have all the information.”

So is this a recognition that actually local authorities weren’t getting the full picture that would then inform the decision-making that the Scottish Government were making?

Ms Nicola Dickie: I think you can take that from that, and the paragraph before, from Jane, to say that we need all of the information so that when council leaders are going into conversations with Scottish ministers that they have the exact same facts and figures and understanding as Scottish ministers were.

I think we were coming from the position that if you provide all of the facts and figures and a reasonable decision has been taken, I think reasonable people should come to a similar conclusion, but we needed to make sure that everybody was aware of the same information so that we didn’t have misunderstandings unnecessarily because people only had partial information.

Counsel Inquiry: And it was the position, as far as I can see from this minute, that local authorities only did have part of the information upon which decisions were being made; is that right?

Ms Nicola Dickie: At what stage, sorry?

Counsel Inquiry: At this stage, at this time of this minute, that they weren’t, for instance, having access to the four harms assessment that was being undertaken, local authorities?

Ms Nicola Dickie: So I think – I can’t recall exactly at what point all of the four harms information was going out, but that minute would suggest that would be the case. Forgive me.

Counsel Inquiry: I appreciate that we’re talking about events from some time ago. If we read on, I want to look at the entry that is SG, who we understand to be a representative of HPS, and it says:

“… the calls with [Deputy First Minister] are essentially political with leaders of each council. Chief executives when they are invited to speak they talk about their engagement with the DPHs. Also to highlight either the CMO or DCMO takes part in that call and goes through the data – I think there is a process of engagement and I’m not entirely sure if we are over complicating things with having another report.”

So is that some effectively – or what do you understand or could be meant by the fact that calls between local authorities and the Deputy First Minister might be perceived as political in nature?

Ms Nicola Dickie: The 32 council leaders are politicians first and foremost, so it’s factual that they are calls between two politicians.

Counsel Inquiry: But they are elected, and they’re trying to do the best for their –

Ms Nicola Dickie: Yes.

Counsel Inquiry: – whether it’s a local authority or whether it’s central government. In the context of a pandemic why would those calls be necessarily political or essentially political, as is being said here?

Ms Nicola Dickie: So I think the fact that you’ve touched on, local elected members are first and foremost there to advocate on behalf of their local community, their local businesses, the parents, the relatives who were contacting them. So I suspect that essentially “political” is a recognition that local elected members would want to put their point across and be putting their intelligence from the communities that they were supporting forward in a way that paid officials were perhaps not.

Counsel Inquiry: What you see here is it was being suggested that having another report, and you’ll recall that was the initial proposal, which outlines the evidence upon which a decision is made to move a local authority up or down a level would be, I think what’s being suggested here, overcomplicating things. Is that right?

Ms Nicola Dickie: Sorry, give me the first part of the question again, sorry.

Counsel Inquiry: You recall that the initial proposal –

Ms Nicola Dickie: Yeah, got that bit.

Counsel Inquiry: – was about – it’s the second entry on the page, and the suggestion was that we could get a short joint paper agreed by the local authority chief executive and the DPH about where you think you are and the evidence that has been done to show why you should move up or down a level. So that’s the suggestion. And then the response further down in the minutes is that that would be overcomplicating things with having another report. Do you see that?

Ms Nicola Dickie: I don’t have a view on whether that’s overcomplicating things or not. I would suggest that providing as much information as we possibly can to all parts of the system is the most useful thing that we can do.

Counsel Inquiry: And I think if we then read on to the sixth entry, this is from Dr Jim McMenamin of PHS, it says:

“… in a paper as yet to be circulated for broader consideration, on the basis of what Andy has outlined we can see any opportunity that exists to have alignment of our thoughts to ensure there is a single public health interpretation of the data as it stands, how that summary is used is very much in the hands of Scottish Government colleagues. Often case studies can be helpful and my understanding for Grampian is at least in some of the discourse I was privy to, sometimes there were various things that were then suggested constructively about how things could be improved. Perhaps the simplest things are on the Thursday on receipt of the information and when the spreadsheet is being added to that’s the point where perhaps we should be engaging with our stats colleagues to see if this does equate with what you see and if not, have that local discussion on a scientific basis for common ground. That might allow us on Friday to afford that opportunity for that clear single version of the truth to be imparted. I trust there is a broad consensus agreement and we can proceed on that basis.”

So is this not where again the NIMT seems to be concerned with a clear single version of the truth that is being imparted to the Scottish Government about what advice is around restrictions for local government, whether they move up or down a level? Is this not in this context a resistance to engaging better with local authorities so that they have the full picture, so that there is this joint paper where they can see the evidence, and they have more access to central governments?

Ms Nicola Dickie: So I think that’s true on both sides here, because you said yourself in the earlier extract of this that this NIMT was only looking at harm 1. I think there’s a sense that when ministers then speak to local government, local government are potentially providing more information and analysis and local information on harms 3 and 4.

So I think what you’re hearing here is local government saying “We need the complete picture”, but also Scottish Government and Public Health Scotland saying as an NIMT if we look at the figures and we say this is what the figures are saying, but then when the minister speaks to the council leader or the chief exec they are then able to provide some information about the harms that are being caused to community or a particular business sector, we need to be in a situation where all of that information is being gathered together at the one stage.

Counsel Inquiry: In the various Scottish Government groups that COSLA was a member, some of which you attended, did you get the sense that there was reluctance by the Scottish Government or others within those groups to engage more fully with local authorities in relation to the decisions that affected them?

Ms Nicola Dickie: That’s not a sense that I got, no.

Counsel Inquiry: It’s been suggested by some in local government that the Scottish Government’s approach to decision-making was too centralised, with insufficient input from local authorities into decision-making process that affected them. Do you agree with that assessment, that the decision-making from the Scottish Government was too centralised?

Ms Nicola Dickie: I think I can say that the period of the pandemic was a long time and I think there were times when the decision-making and the input from local government was very good. I think there are times when individual local authorities felt that their engagement was very good. I think there were also times when individual local authorities didn’t feel that things had gone so well. So I think in the same way that local government is not a homogeneous group, every decision that was taken in Scottish Government was not taken through a standard process because of the speed that we were moving at.

So I think it does feel like a bit of a mixed picture. I think there were good engagement, I think there were genuine intentions there. I think the areas of decision-making inside government that COSLA and local government had long-standing relationships with, so for example education, those were tried and tested relationships, if you like, we were used to dealing hand in glove, because the competencies there are very similar. I think when we got into other areas where we didn’t have such a close working relationship things got a bit more difficult. So I don’t think it’s as straightforward as saying it was good or bad, I think there were peaks and troughs and I think individual local authorities at times fell one way or another. Depended on where they were in the pandemic, depended on how the engagement was going and ultimately what was happening at a local level.

Counsel Inquiry: I want to take you to the report which I’ve referred to before from Professor Kevin Orr of the University of St Andrews. It’s at INQ000351044.

And you will see that the report is headed “Good governance during COVID-19: learning from the experience of Scottish Local Authorities”.

Are you familiar with this report?

Ms Nicola Dickie: Yes.

Counsel Inquiry: For your Ladyship’s information, this is a paper which provides some findings and learning from discussions that the researchers and the authors had with senior officials and the elected members of six local authorities in Scotland, and these six local authorities were chosen for this project to provide a mixture of different geographies, so from the islands, from the mainland, different governance arrangements, and also different political compositions, so it’s meant to reflect across the board of the 32 local authorities.

The researchers then conducted interviews with representatives of these local authorities, and the purpose of the paper was to help local authorities learn from the experience of the pandemic and to inform future reviews of governance.

The names of the six local authorities and the interviewers have been anonymised in this report to allow them possibly to speak a little bit more freer about their experiences.

Can we look at page 34 of the report, and I want to look at the quote on the second half, so it says:

“One chief executive was directly critical of what was felt to be an unnecessarily centralised approach by the Scottish Government.”

The quote reads, and this is based on the interview:

“The public face of the pandemic for both governments, was their respective political leader. In Scotland’s case, that was the First Minister. It was clear from a delivery partner perspective, that the political involvement in all the decision-making associated with the response was all pervading and on some occasions, the political ‘optics’ seemed the guiding force. And of course, because of the 24/7 media world we now live in, the respective national political leaders were centre stage of that 24/7 media word. In the gold command structures put in place by the Scottish Government, there was no scope for any departure from the nationally set approach, which was an unrelenting single focus on health harm rather than the 4 harms approach that was claimed. There was no real local decision-making and no real opportunity to influence the response/actions to be taken. It was a here it is and it’s to be implemented. Since devolution in Scotland, there has been a growing tension between the Scottish Government and local government and the pandemic has exacerbated that tension not only between respective politicians but also across officials. Local political leaders were being held to account for decisions they had no locus in and privately were being criticised by the Government for not doing enough to support the response, when they were not being treated as a partner in the response.”

Did COSLA’s members communicate concerns of this nature to COSLA during the pandemic?

Ms Nicola Dickie: I think there were times where COSLA leaders collectively raised concerns. I think in evidence we’ve provided there were times when Mr Swinney came and addressed council leaders to listen to their concerns, when Scotland’s Chief Medical Officer or Scotland’s clinical leads came to COSLA leaders, so there was an opportunity for COSLA leaders to feed that information in, for us to impart that to government, and at times for the government to hear that direct from council leaders.

Counsel Inquiry: But this seems to be at least a criticism that isn’t limited to one moment in time or one particular decision, it’s an impression of the Scottish Government’s approach across the pandemic; is that right?

Ms Nicola Dickie: I think that’s what that quote is suggesting there, I mean, I think this report is dated December 2020, so that was, you know, first part of the pandemic, I suspect it was wishful thinking on our part that we were through the worst of it and we should take the temperature of local government. I suspect if this had been re-run again you would get a slightly different result. Some of that might be better, some of that might be worse, but I think that’s what that is saying there.

I think the other report, Mr Orr’s report, Professor Orr’s report that you reported to there speaks of the tension around about the devolution settlement that’s been around since Scottish Parliament came to fruition. So, as I said earlier on, I think it’s a version of something that many across the local government family might recognise.

Counsel Inquiry: We will come to other evidence from local authorities that is being provided to the Inquiry, but do you agree, does COSLA agree with the statement that the political involvement in all the decision-making associated with the response was all pervading and on some occasions the political optics seemed to be the guiding force?

Ms Nicola Dickie: That’s not something that I can agree or disagree on behalf of COSLA.

Counsel Inquiry: Did you get the impression at least that some of the Scottish Government’s decision-making during the pandemic was at least in part guided by political considerations of the political optics?

Ms Nicola Dickie: I didn’t, no, on a personal level, no.

Counsel Inquiry: There is a reference here to:

“In the gold command structures put in place by the Scottish Government, there was no scope for any departure from the nationally set approach, which was an unrelenting single focus on health harm rather than the 4 harms approach that was claimed.”

You will have had some insight into the four harms by attending some of the NIMT meetings. Did you have an impression that the Scottish Government’s focus was on effectively the first harm to the detriment of the other harms that are identified in the four harms approach?

Ms Nicola Dickie: I think all of the harms were discussed all of the time. I think it was often not clear what was being weighed in amongst those harms. I think there were times when the health – when harm 1, which were direct Covid harms, were absolutely front and centre, but I can also remember being in NIMTs where harm 4, around about economy, was certainly at the forefront of the discussions.

I think with hindsight the four harms approach, understanding what the weighting was in advance would be something that would be quite useful. So I think we were discussing and we were feeding in information across the four harms, but, as I said earlier, not being party to the decisions that were then taken inside government, it’s difficult for us to work out what was the weighting that was applied across those harms throughout.

Counsel Inquiry: I think the related point to that is it’s not really a science, is it, the four harms approach? It’s not a decision-making tool that you input in what the harm is for harm 1, 2, 3, 4 and it tells you what the answer is, it’s more akin to guiding principles; is that right?

Ms Nicola Dickie: Yeah, I think that’s absolutely right, and I think that’s also one of the reasons that feeding in the information from local areas was so critical because on paper harm 4, around about economy, could look like something specific, but if the local knowledge then told you that there was – a particular sector was going to be – do you know, if I give the example of fruit picking, do you know, that’s one of the areas that four harms looked at, and – and for, do you know, two-thirds of the councils in Scotland it made no difference, but it made a difference for the council areas in Scotland that were waiting to do that. So I think that’s why we were always keen to make sure that the local concept and what Ms O’Donnell called “colour” was being fed into those conversations, because four harms is – you’re right, it wasn’t necessarily a decision-making tool, it was one way of looking at the pandemic and the various harms that were being done, but it was certainly being followed up by some of that localised and – intelligence.

Counsel Inquiry: So would you then disagree with the sentiment in this quote that there was no real local decision-making and no real opportunity to influence the response actions to be taken?

Ms Nicola Dickie: So I think I would go back to the point that the legislation that was passed was clear that the decision-making through that emergency legislation was for Scottish ministers. We didn’t have the power to take decisions at a local area around about stopping transport and stopping people doing things. So I think we’ve got to think about the practical legal machinery that was there was not for local – local decision.

I do think that there was an opportunity to influence – as I’ve said already, it’s difficult to work out, if things changed, was that as a direct result of COSLA’s influence or was that a direct result of an individual’s influence or was that something that had changed in the pandemic? It was a bit difficult to work out, if something had changed, why that was the case. That said, everything was moving at pace, so …

Counsel Inquiry: At the outset you’ll recall that I quoted a passage, I think it was from Professor Cairney’s report, which had described the relationship between central government and local government as one of the local government being the subordinate partner. I think you took issue with that. Would that, in this context, in the pandemic, is it fair to say local government was the subordinate partner, if you’re explaining that ultimately the decisions lay with central government?

Ms Nicola Dickie: I think that’s fair.

Counsel Inquiry: If we turn to page 35 of the report, and you will see the quote at the top:

“Indeed another chief executive commented:

“I think there was a tendency from the government to act as though local authorities were the same as NHS boards and they could just say, ‘We want you to do this and we want it by Friday,’ rather than the way they would normally engage with local authorities.”

And then there is another extract from an interview further down the page, where it says:

“One council leader whose area was placed in a local lockdown is also critical of the relationship with central government:

“We got involved in the decision-making process very late in the day. It was frustrating for us that we felt that our voices weren’t really being heard. I feel that although a lot was said about partnership working between Scottish Government and local authorities, that didn’t really happen on the ground. We were given the opportunity to meet with people, but we didn’t really feel that we were able to get the opportunity to influence those decisions. We were just being paid lip service.”

Is that sentiment or those impressions, impressions that you formed as being a senior individual within COSLA, who sat on many of these Scottish Government groups?

Ms Nicola Dickie: So I think it’s fair to say the top quote around about the chief executives, I’ve already alluded to the fact that we had many ministers and civil servants who had never worked with COSLA or local government closely, I think in some of the reports that I’ve read as well the recognition around about the democratic mandate that elected members across Scotland’s local authorities have – was not necessarily understood across – understood to the same extent across all parts of Scottish Government, so I think there was a tendency early on in the pandemic to say “We want this and we want it done by then and this is how we want it to be done”. I think that’s one of the reasons that COSLA kept our decision-making and governance going, because there is – no individual in COSLA has executive decision-making powers so everything had to be done using our existing governance structures so that all 32 council leaders were given the opportunity.

So I think there was a tendency right at the start, maybe through a lack of understanding about just how councils are structured and what our democratic mandate is.

I think on – on the second one, as I said, I think across the piece, across local government, council leaders didn’t feel like that all of the time, I think there were fits and starts – or I think there were differences about how they felt the decision-making process was running, but local government in Scotland don’t – don’t tend to shy away from telling people if they think lip service is being paid, so, again, if that was the case, these issues would have been raised by COSLA, raised with the ministers, and the opportunity for council leaders to meet with politicians was provided.

Counsel Inquiry: Did you form the impression that only lip service was being paid to the voices of local authorities in the decisions that affected them?

Ms Nicola Dickie: No.

Counsel Inquiry: If we’re then able to turn to page 34 of the report, and it says, if I can read the quote at the top, it says:

“On that tension [and the tension here is referring to the flow of the information from the Scottish Government to local authorities] one chief executive offered the following perspective:

“We were getting no advance insight from the Scottish Government around what was going to happen next in terms of public health measures to be put in place, so we couldn’t brief our members in advance of the public announcements. This created a suspicion amongst members, that its own staff were not keeping them briefed – when in reality, their own staff had no advance notice either. As a staff base, and a delivery partner of Scottish Government being informed at the same time as the public, was hugely frustrating and unhelpful.”

Is this the sort of feedback that COSLA was getting from local authorities during the pandemic about the fact that the Scottish Government’s communications to local authorities was not particularly good and in fact was causing all sorts of issues because some local authorities were finding out about restrictions in their local area at the same time as the public?

Ms Nicola Dickie: So I think it’s fair to say that there was an element of that. That feedback provided, I mention it in my statement, and indeed the surveys we undertook from the 32 local authorities in advance of these modules, that that comes through loud and clear, certainly from some of those submissions. So I think that’s fair to say that that tension was there. COSLA were regularly feeding that back.

At times, there was an element of things were just moving really, really fast, so it might be the case that COSLA’s chief executive was aware and perhaps the chair of Solace, as a representative of the 32, where those phone calls or ability to catch up with everybody between a decision being made and it being imparted it was not always a situation that we were able – so I think we did get some of that feedback, we did provide that feedback to colleagues in Scottish Government, and as the pandemic went on and decisions were being taken at a slower pace I would have to say that did improve.

Counsel Inquiry: If it was the case that local authorities were sometimes finding out about public health measures that were imposed in their local areas at the same time as the public, say for example by watching Nicola Sturgeon’s daily coronavirus briefing, what challenges might this present on the ground for local authorities?

Ms Nicola Dickie: So I think again in the surveys from the 32 local authorities the types of challenges were almost immediately from an announcement being made, members of the public were contacting council officers asking for what that meant or what happened next, and that does lead to a level of challenge and frustration in local areas.

What I would say is that where the guidance was directly related to functions of local government, we would normally have a bit more notice than that. So if we take, do you know, the schools being closed, that information was available, but where things were ancillary to what local government was doing, so if it was happening in a transport section or something, that might be slightly different. But it is something that was an issue throughout the period of the pandemic.

Counsel Inquiry: But if it’s a decision, for instance, about a certain area being placed in level 3 instead of level 2, that impacts a local area because it’s a degree of the restrictions in that area, and it would surely cause all sorts of problems for the local authority that needs to implement those restrictions if it’s finding out at the same time as the public?

Ms Nicola Dickie: Yeah, I mean, absolutely. I think again in the survey responses that came in from the 32, that was absolutely crystal clear from a number of areas. What I would say is that it was 32 councils and how often that happened it’s difficult to tell because things were changing that often, but any time that feedback was provided to COSLA we were sure to feed that in to colleagues in government and try to make sure it didn’t happen on a future occasion.

Counsel Inquiry: I’ll come back to some of the survey response, but I want to just explore the levels system that was introduced in October 2020 in a bit more detail.

Was COSLA engaged in the decision-making process by the Scottish Government to introduce the five levels framework in Scotland?

Ms Nicola Dickie: Yes, we were.

Counsel Inquiry: How was COSLA engaged in that process?

Ms Nicola Dickie: So COSLA were engaged in that process in the way that we were throughout, which was colleagues in government would contact us to say “This is potentially where we’re going, this is where we’re thinking”, and then they would provide us with early drafts of what the broad parameters were.

We would then take that out across our professional associations and our member councils, and we would be looking for does it work in general terms for local government, and other issues around about the various regulatory services, access to core services. And then what we would also be doing is we would be looking at the tiering system, not just in the generic functions of local government but also in the specifics for remote and rural communities, for our island communities, making sure that worked for our border authorities, and then feeding that information back to local authorities so that we got, at the point of publication, something that local government could operationalise at a local level. And that meant across all of the tiers and all of the various interventions that local government would have a part to play.

Counsel Inquiry: So am I correct to understand that COSLA had quite a significant engagement in relation to the introduction of the five levels system?

Ms Nicola Dickie: So the introduction of the levels and what those levels meant and the various NPIs that sat against the levels, COSLA was engaged in that and took a sounding from all of our professional associations that would support us.

Counsel Inquiry: In mid-October 2020 it was said at the time that the Scottish Government planned to introduce a three-tier system similar to that which had been announced in England, and in fact Nicola Sturgeon was quoted as saying that the Scottish Government was seeking to align as closely as possible with other UK nations on a strategic level, although she stressed that the ultimate decision lay with the devolved government, this is the Scottish Government.

So were you aware that in mid-October 2020 the Scottish Government was contemplating a three-tier system similar to that in England?

Ms Nicola Dickie: I don’t recall that off the top of my head.

Counsel Inquiry: Do you see that there might be some strategic benefits in having the same three-tier system in Scotland as exists in England, so that it would be easier for the public to understand that roughly Tier 2 means the same north and south of the border?

Ms Nicola Dickie: I can see from a strategic perspective how that might’ve been useful.

Counsel Inquiry: And in fact, and you’ve touched upon this already, that the local authorities have provided survey responses to a survey, this was provided to the Inquiry by COSLA, and they’d been asked to answer various questions, and Moray Council said in its survey response:

“Changes of levels and having different levels across local authority boundaries caused some confusion, as did it being called ‘levels’ in Scotland and ‘tiers’ in England. This caused outbreaks of arguments on our social media channels which we worked hard to contain as there were often contributors giving conflicting information depending on whether they were personally choosing to follow UK Government or Scottish Government guidance.”

In kind of similar sentiments, East Lothian Council’s response was:

“Confusion arose due to UK Government and Scottish Government issuing separate guidance, regulation and imposing different Covid-19 regulations, constraints and effective dates. As a country bordering England, this led to much confusing for local residents, visitors and businesses.”

So do you agree with these responses, that having a three-tier system in England and a five-level system in Scotland at the same time created public confusion, or at least quite a significant risk of public confusion?

Ms Nicola Dickie: I think there was definitely the potential for public confusion.

Counsel Inquiry: So we know that from the press coverage, and indeed Nicola Sturgeon is quoted in that press coverage, in the middle of October what is being considered is a three-tier system to align as closely as possible to England for strategic benefits; and then on 23 October 2020 the Scottish Government introduces a bespoke five-level system that didn’t align with the system that was being operated in England. Do you know why that decision was made?

Ms Nicola Dickie: I can’t recall, and I haven’t seen any of the – we’re not core participants, so I haven’t seen the document that you’re referring to –

Counsel Inquiry: I’m not talking about a specific document. It was the public announcement on 23 October 2020 when the five levels system came in, and what I was trying to ascertain was: if COSLA was engaged and consulted in the process, was it consulted in how the system came about, whether it was going to be three tiers or five levels?

Ms Nicola Dickie: Not that I can recall.

Counsel Inquiry: Can we turn to an article from the BBC News website, this is at INQ000351050, it’s an article from the BBC News website and it’s headed “Nicola Sturgeon: ‘Buck stops with me’ on Scottish Covid tiers”, and you will see that it’s dated 20 October 2020, and just below the photograph of Nicola Sturgeon it says:

“Nicola Sturgeon has insisted that she will have the final say on local Covid-19 restrictions in different parts of Scotland saying ‘the buck stops here’.”

If we read over the page:

“The Scottish first minister said she would not ‘offload’ decisions about local alert levels onto councils.

“A lengthy row has played out between UK ministers and leaders in Manchester over imposing stricter rules there.

“Ms Sturgeon said it was her ‘driving ambition’ not to repeat this when a new multi-tier system begins in Scotland.

“She said the government would ‘consult and be as collaborative as possible’, but would ultimately make the decisions and would not be getting into ‘standoffs’.”

If we then scroll to the top of page 3, and this is a fuller quote from Ms Sturgeon, and it says:

“The first minister said: ‘I believe it’s really important that the really important that the buck for these difficult decisions stops here, with me and government.

“‘We are asking people to do extraordinary things right now, and it’s not fair for me and the government to try to offload those onto other people, be it local authorities or health boards.

“‘We have to consult and be as collaborative as possible – we will absolutely be engaging with local authorities. And as we take decisions about which levels apply in which parts of the country we will want that to be collaborative.

“‘But ultimately we have to be able to take the decisions’.”

If we can pause there, so this is quoting Nicola Sturgeon from her daily coronavirus briefing, and her intention is that ultimately the responsibility for these decisions about which level a local authority might find itself in is a matter – the decision for the Scottish Government, and she says the buck stops with her and the Scottish Government; but she also indicated the Scottish Government wants to be as collaborative as possible with local authorities, and that includes consulting with them in the decision-making process.

Is it fair to say that the local authorities’ experience of the Scottish Government’s engagement with them in the decision-making process perhaps painted more of a mixed picture than what Nicola Sturgeon aspired to?

Ms Nicola Dickie: I think that’s fair to say in the early stages of the levels system being brought in. I suppose it’s also the reason why, come April 2021, we entered into an engagement protocol between Scottish Government and COSLA that would lay out exactly what the engagement protocol would look like. So I think in the period between the levels system being published and us getting to that, there were different experiences across local authorities, and that was something that we sought to rectify come April 2021. So I think that’s a fair assertion.

Counsel Inquiry: I now want to turn to some of the local authority responses that the Inquiry has received, because this is the local authorities being able to reflect on matters in 2023, when they produced these responses to the Inquiry. And some local authorities, it is fair to say, reported in their survey responses that the Scottish Government did engage with them in relation to decisions about local restrictions, and examples of local authorities falling into that category include Aberdeen City Council, Dundee City Council and the City of Edinburgh Council.

However, other local authorities reported very different experiences.

For example, Aberdeenshire Council said that it was not involved in the decisions of the Scottish Government to impose local restrictions. It added that it was not asked to agree or participate in Scottish Government’s decision-making in relation to local restrictions imposed on its area.

North Lanarkshire Council said that the Scottish Government determined the local level placing of North Lanarkshire Council, and the council was not involved in the decision-making.

South Lanarkshire Council says that Scottish Government determined the local level placing of South Lanarkshire Council, in consultation with Public Health Scotland, and the council was not involved in the decision-making. Any dialogue with the Scottish Government related to advising the council of a change of tier. The council was not involved in any meetings with the Scottish Government to determine the placing of the council into a local level.

West Dunbartonshire Council said that there was little opportunity to influence the decision-making.

Angus Council says that it was difficult to see where local needs were considered, and indeed Angus Council adds:

“The main causes of confusion resulted from the council hearing of new rules, initiatives and restrictions at the same time as the public, specifically UK Government 5 pm briefings and unscheduled Scottish Government briefings. This meant that if the rules were complex, contradictory and/or poorly articulated, the public would look to the council for guidance when we had no further information to give. This was frustrating. It diminished the council’s credibility as a trusted source of information and was therefore counterproductive in disseminating key messages.”

So what we have here is not just the occasional one-off bad experience; these are local authority responses to the Inquiry given in 2023 which seems to paint – it’s not one local authority, it’s numerous local authorities, and in fact there’s others which I’ve not gone through the responses for the sake of time, and their experiences seem to all be that the Scottish Government failed in its intention, as communicated by Nicola Sturgeon, to consult and be as collaborative as possible about which levels applied in their local area.

In that context – and because it’s not one response, it’s multiple responses from a range of local authorities from different areas, different geographical areas, different political compositions – is there not a pattern here that the Scottish Government’s rhetoric, Nicola Sturgeon’s rhetoric that she was going to be as collaborative as possible wasn’t actually borne out in the reality on the ground?

Ms Nicola Dickie: I think that those surveys that are being sent in from individual local authorities are their experience, and whether that’s a pattern is not for me to determine. I think they’ve provided their experience of it and, as I said, the engagement protocol that subsequently came in in April 2021 was in and around about exactly what those local authorities have highlighted there.

Counsel Inquiry: Yes, but the engagement protocol came in – there was an engagement protocol COSLA had worked on, is it right, with the Scottish Government and it came in in April 2021, but the evidence of these local authorities isn’t in the survey responses that the Scottish Government’s engagement fundamentally changed in character post April 2021, is it? Not in their survey responses, they’re not making that point?

Ms Nicola Dickie: Not in the survey responses, but then I don’t know if the survey responses – I don’t think we asked specifically for a date before or after, if I’m … but it’s a long time since I looked at the survey responses on the way out.

Counsel Inquiry: But you would expect, for instance, if it was that there was a fundamental change in the way Scottish Government engaged with local authorities, they might say to local authorities, “Yes, the situation was bad in late 2020, but then COSLA and the Scottish Government introduced this engagement protocol and things significantly improved”; but that’s not what is said, is it?

Ms Nicola Dickie: That’s not what’s in the survey responses, no.

Counsel Inquiry: In the addendum statement to the witness statement of COSLA, COSLA was asked to explain why some local authorities appeared to be frequently involved in the Scottish Government’s decision-making and others appear to have had no involvement in the Scottish Government’s decision-making, and the response was:

“Some local authorities were frequently on the cusp of different tiers of restrictions and discussions would be held in relation to the most appropriate way forward. Some local authorities such as North Lanarkshire were never in that position as they had high infection rates throughout the use of the tier system.”

That’s you explaining why perhaps North Lanarkshire Council were never – their position is “We were never consulted”, and you say: well, the ones that may be consulted were ones that were on the cusp of different tiers. Was that your explanation of why maybe the engagement differed between local authorities?

Ms Nicola Dickie: Yes, so I think when the original levels system came in, we started out that every local authority in Scotland would have a conversation with Scottish ministers at every review. That quickly became unworkable, given the level of work that was going on for Scottish ministers, and indeed council leaders and their chief execs. Then we moved to a situation where if councils – council areas were moving through the trajectory as they would expect, so their figures were coming down, they were moving down the levels, and there were no issues with that, then they wouldn’t necessarily step forward and ask for a conversation.

Those local authorities who were on the cusp or who were going in the wrong direction, potentially, as it were, in terms of severity of restrictions, could expect that engagement and would be in a situation where they would be able to talk through some of the stuff that we’ve covered already on the NIMT.

As part of those conversations, that was also an opportunity for local areas to provide information on any other support that they may require, so that included things like if they were going to have to go from one level to another. And that meant that you had to start looking at restaurant premises again, the – the local authority would be asked do they need some mutual aid from another local authority around about Trading Standards officers, for example, or, as the example I gave earlier is a particular sector, “Is there a particular issue with your local authority that’s staying in this tier that Scottish ministers need to be aware of before they make that decision?”

So that was certainly – we started off with everyone having a call and then we moved to those who were on the cusp, or indeed those who potentially were moving up the way, would have a conversation with Scottish ministers.

Lady Hallett: Wrap it up or I’m going to have a screaming stenographer. Not screaming because she’s remote.

Mr Tariq: I will be just one or two more questions, if your Ladyship allows.

Lady Hallett: If you could.

Mr Tariq: Yes.

Lady Hallett: And if you could keep answers to a minimum.

Mr Tariq: So you’ve given the example of North Lanarkshire Council, it’s an authority that didn’t have any engagement, it says, with the Scottish Government. But the Inquiry’s seen evidence that on 28 October 2020 North and South Lanarkshire Councils published a letter to the Scottish Government urging Nicola Sturgeon not to place the councils in level 4 – which would have been the strictest – in level 4. The letter was signed by the chief executive of NHS Lanarkshire and Police Scotland’s divisional commander for Lanarkshire, the councils argued that they should remain in level 3, and we know the following day Nicola Sturgeon announced that North and South Lanarkshire Councils were placed in level 3. She described it as a borderline decision, which suggests that the local authority was on the cusp of two different tiers, but their position is, as I’ve said, in the survey responses “We were never consulted in respect of the decision-making”.

Do you consider that it would have been better for local authorities such as North Lanarkshire Council and South Lanarkshire Council to be involved in the decision-making process in the first place, as opposed to needing to publicly argue their case with the Scottish Government about not being placed in a higher level?

Ms Nicola Dickie: I would say it’s always better to engage before decisions are taken and the need for things to get difficult.

Counsel Inquiry: Does the fact that some local authorities had to resort to publicly arguing their case not create the risk that, if the Scottish Government didn’t accept the case, there might be less compliance in the local area as the public perceived the restrictions as unfair or unjustified?

Ms Nicola Dickie: I think there’s a – there’s potential for that to happen. The other thing I’ll say is that at a local level, people were coming under sustained pressure from various groups to make sure that they were advocating on behalf of their local areas. So I think both of those things are true, that local elected members and senior leaders had to demonstrate that they were in many respects putting forward the case for their area, but similarly I recognise that that – doing that publicly does have the potential for compliance to be –

Counsel Inquiry: The final question from me: does the fact that some local authorities were not involved in the Scottish Government’s decision-making process but had to resort to publicly arguing their case, does that not create the very risk of the standoffs that Nicola Sturgeon had said that she wished to avoid when she set out her plans for the levels system?

Ms Nicola Dickie: I think that does create that risk.

Mr Tariq: There’s no further questions from me.

Lady Hallett: No, thank you very much indeed.

Thank you for your help, Ms Dickie.

Just one thing: you did say that you didn’t have access to material because you weren’t – or COSLA weren’t a core participant. COSLA did make an application, but it was nearly a year late, and that was the basis upon which your application was refused. Had you made it earlier, you might well have been made a core participant.

So on that note, I shall return at 10 o’clock tomorrow.

(The witness withdrew)

Mr Tariq: There is one final matter.

Lady Hallett: Is it publication?

Mr Tariq: Yes. My Lady, I would invite your Ladyship to allow permission to publish all the statements that have been referred to, including the documents that have been referred to in the –

Lady Hallett: What I did in previous modules, Mr Tariq, just if it helps everybody here, I’m happy to make that the default setting. So unless someone brings to my attention that there’s a good reason not to publish it, either in full or in part, then otherwise they’ll be published.

Mr Tariq: That might make the job of counsel easier. Thank you.

Lady Hallett: One less sentence at the end of the day.

Thank you very much, 10 o’clock tomorrow.

(4.33 pm)

(The hearing adjourned until 10 am on Friday, 19 January 2024)