Transcript of Module 2A Public Hearing on 19 January 2024

(10.00 am)

Lady Hallett: Mr Dawson.

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

morning is Ms Lesley Fraser.

Ms Lesley Fraser

MS LESLEY FRASER (affirmed).

Questions From Lead Counsel to the Inquiry for Module 2A

Mr Dawson: Good morning. You are Lesley Fraser?

Ms Lesley Fraser: I am.

Lead 2A: You have provided us with a number of statements for

the Inquiry so far, thank you very much for having done

so. If I could just run through them quickly in

order –

Ms Lesley Fraser: Yes.

Lead 2A: – that the references can be put on the transcript for

those who are interested to read them.

You provided a witness statement dated

23 October 2023 which is INQ000320588.

You provided a second statement as a corporate

statement as Director General of corporate, which has

the reference INQ000215474. That’s dated 23 June 2023.

You then provided an addendum witness statement in

that capacity as director on 6 November of this year,


A further statement, again in that capacity, on 9 November of this year, INQ000340122.

Then finally, again in that capacity, a further statement on 4 January 2024, INQ000391307.

You have signed all of these statements, as I understand it; is that correct?

Ms Lesley Fraser: I have, yes.

Lead 2A: You’re familiar with their contents?

Ms Lesley Fraser: I am.

Lead 2A: Do the contents of these statements remain true and accurate as far as you’re concerned?

Ms Lesley Fraser: They do.

Lead 2A: Thank you.

You are the Director General of the Corporate directorate general within the Scottish Government and a full-time civil servant; is that correct?

Ms Lesley Fraser: I am.

Lead 2A: You’ve held that role since March 2021?

Ms Lesley Fraser: Yes.

Lead 2A: And you originally joined the Scottish Government as a civil servant in 2001; is that correct?

Ms Lesley Fraser: That’s correct, yes.

Lead 2A: You explain in some of your statements that the Director General Corporate is responsible for the corporate services required by the Scottish Government, which includes, amongst other things, corporate governance,

legal propriety and ethics, and also you’re responsible

for the Covid Inquiries Response Directorate. Is all

that correct?

Ms Lesley Fraser: All of that is correct, yes.

Lead 2A: Thank you.

The Covid Inquiries Response Directorate, as

I understand it, is a directorate within the Scottish

Government which co-ordinates the Scottish Government’s

response to this Inquiry and indeed to the

Scottish Inquiry?

Ms Lesley Fraser: That’s correct, yes.

Lead 2A: I’d like to ask you some questions this morning about

a number of documents and practices relating to document

retention within the Scottish Government.

Ms Lesley Fraser: Yes.

Lead 2A: As I understand it, this is a matter which falls within

your ambit as the Director-General Corporate?

Ms Lesley Fraser: It is, so I am responsible for all aspects of

record-keeping but I’m also the senior information risk

owner for the organisation, which carries its own

responsibilities as well, but all that general area

falls within my ambit.

Lead 2A: Thank you very much.

Could I just have the 9 November statement,

INQ000340122. You say in paragraph 1 of that statement that:

“The Scottish Government has established policies and guidance in place to support effective information governance and records management. The Scottish Government is committed to openness and transparency, and to cooperating fully with both the UK and Scottish Covid-19 Inquiries.”

Is that correct?

Ms Lesley Fraser: It is correct, yes.

Lead 2A: The current First Minister of Scotland, and indeed the former First Minister of Scotland, Nicola Sturgeon, have repeatedly committed to these important values as well, including statements made in Parliament to that effect; is that correct?

Ms Lesley Fraser: That is correct.

Lead 2A: These values of accountability and transparency represent a bond of honesty with the people of Scotland; is that correct?

Ms Lesley Fraser: That is correct, they’re absolutely fundamental to good government, and a key responsibility as a civil servant, being able to transparently explain what the government has done and why it has done it and how it has done it, and demonstrate that through the record, is fundamentally important to good government.

Lead 2A: And as such, I think it’s correct to say that these principles of openness and transparency and indeed accountability are embedded within the National Performance Framework, about which we heard a little from Professor Cairney yesterday; is that correct?

Ms Lesley Fraser: They are in the National Performance Framework, yes, but they’re in other places as well. So you’ll see them in, for example, the Public Records (Scotland) Act 2011, which we are responsible for complying with, and in a range of other areas as well. So it – it’s fundamental to, as I say, how we operate as civil servants in the Civil Service Code, also referred to in the Ministerial Code as well. So cuts in all ways, but everybody is responsible and accountable for that openness, transparency and accountability.

Lead 2A: Thank you.

I think in fact one sees these principles laid out in a number of key documents relating to the Covid-19 response. For example, the framework which is called the four harms framework, from April 2020, and other such documents.

Ms Lesley Fraser: Yes, exactly so. So the four harms framework is setting out how the government would seek to balance what were recognised to be real harms that were happening across society through this, you know, tragic and unprecedented set of circumstances. But to illustrate that to the public and indeed of course to Parliament and to others who would rightly scrutinise us, so that we could be held to account for the way in which we were endeavouring to respond.

Lead 2A: When government decisions are taken, it’s important that the people are able to understand how, when, why and by whom those decisions were taken?

Ms Lesley Fraser: Fundamentally so, and of course we’re accountable – or rather ministers are directly accountable to the Scottish Parliament and it was critical throughout the pandemic that we had a record of, as you say, who, what, why, when, how. We were regularly sharing that with the Parliament, and Parliament was therefore able to hold ministers to account in live time for the way in which the conduct of the response to the pandemic was being undertaken.

Lead 2A: As regards accountability, it’s hard perhaps to achieve accountability if inadequate records of these matters are retained?

Ms Lesley Fraser: Precisely so, and that’s why it’s a legal responsibility on the government to maintain a proper record and to be able to account for decisions and how those were reached, and to be able to demonstrate that through the public record. And we produce a plan and regularly review that, at least annually, and that is then overseen by the Keeper of the Records of Scotland, who has a legal responsibility to ensure that we are conducting ourselves lawfully in respect of our records management approach.

Lead 2A: Obviously from our perspective we are looking back on a period of time in the past –

Ms Lesley Fraser: Yes.

Lead 2A: – and records such as the ones we’re talking about are relevant to our investigation. But is it not also the case that these records are important when dealing with a situation like the pandemic, which is a continuous one, rather than a single incident, to be able to access records of the kind we have been discussing in order to inform continuous decision-making?

Ms Lesley Fraser: Absolutely. As I say, it’s fundamental to good government. You need to be able to set out what it is that, of course, ministers have asked for advice on and then demonstrate the way in which that advice has been brought together, and you need to be able to explain and demonstrate how perhaps challenging and different perspectives have been reconciled or brought to ministers’ attention, and therefore – and then you also need to be able to demonstrate the way in which ministers have considered that advice and then ultimately reached a decision, and then of course what the government has done about it, what the impact has been, and so on. You need to be able to demonstrate that process.

Lead 2A: I think it would be fair to say, however, would it not, Ms Fraser, that it would be overly burdensome on an organisation like the Scottish Government if one were to suggest they should retain every piece of paper and every electronic piece of documentation relating to its business?

Ms Lesley Fraser: Absolutely. We could not possibly retain absolutely everything. For example, I think in relation to the handling of the Covid pandemic we have well in excess of a million emails, for example. Now, much of those will be, you know, inconsequential. The job of records management is to ensure that the core elements, all of the relevant information, including when there are disputes and when things need to be reconciled or you need to change course, for example, that all of that is set out and it’s clear then to either, for example, a Parliamentary committee looking in pretty live time at what’s going on, that you can demonstrate what has happened; or, as now, that some years since, you can then go back and look at the record and understand how that journey has been undertaken.

Lead 2A: In order to achieve a balance between retaining an impossible amount of documentation and documentation of the type that we have been discussing, would it be fair to say that the government and those working for it should be required to consider the kinds of matters we’ve discussed, the principal aim being that the Scottish public is able to access information which tell them, reasonably, why decisions were taken, by whom decisions were taken, how decisions were taken, when decisions were taken?

Ms Lesley Fraser: Exactly so, and we give guidance through our Records Management Policy and Plan and through training, which is mandatory for all civil servants, and regularly renewed. We also have a direct responsibility on directors in the Scottish Government to ensure that their teams are acting in accordance with Records Management Policy. So that’s where the guidance would be found for civil servants seeking to understand, as you say, how you assemble correctly the full record for – yeah, for inquiries like this, for Parliament, for all the purposes of government.

Lead 2A: I understand, we will come to it in a moment, that there are a number of policies which relate to this subject which existed and were current around about our two and a bit year scope. You are generally responsible for those policies; is that –

Ms Lesley Fraser: I am indeed, yes.

Lead 2A: And responsible for ensuring that they are complied with?

Ms Lesley Fraser: Yes. I share that responsibility for compliance with my fellow directors general. As I say, the way that – because we’re an organisation of 10,000 civil servants, then directors have an accountability for ensuring that Records Management Policy and other policies are fully complied with in their area. And directors then account on an annual basis for compliance through what we call a certificates of assurance process. So that’s one way in which compliance would be assured.

I also oversee an information governance board for the Scottish Government, and there we look at the ways in which we are encouraging and improving records management across the Scottish Government, where we need to pay particular attention, what needs to be changed in processes that we might have in place.

Obviously it’s not an issue that ever stands still, technology keeps moving on, and there are new questions and challenges as well that mean that we need to adapt and change our records management approach, but the fundamentals still persist.

Lead 2A: Because as far as compliance is concerned, it wouldn’t really serve a great deal of purpose to have policies if efforts were not make to seek that they were complied with on behalf of the government, its directors and other senior officials?

Ms Lesley Fraser: Correct, we’d rely on that compliance in order to be able to create that accurate record, as we are legally required to do.

Lead 2A: We’ll come to some of these policies in a moment, Ms Fraser, but as you are responsible for the Covid Inquiries Response Directorate, we have received a number of these policies in what might, I think, fairly be described as something of a piecemeal fashion. In particular, we issued an original corporate request to you for information, including relating to document use, informal use of documents in the management of the pandemic, and we received a single policy in response to that which was dated November 2021. We’ll come to that policy in a moment.

We then required to issue a further Rule 9 request seeking greater information, and this over time resulted in a number of further policies becoming apparent and, indeed, we received some policies from you only in the last couple of days. I think they were directly from you, actually, as I understand it.

Can you please tell us why it is that it has been so difficult, given your responsibility for the Response Directorate, to get the policies that we asked for some time ago?

Ms Lesley Fraser: Well, I’m sorry if it has appeared to the Inquiry and indeed to others involved in this process that that has been difficult or complex. That is absolutely not our intention. We’ve endeavoured throughout to give the Inquiry as well and as quickly as we can precisely the documents that you’ve been looking for.

The fundamental document here is our Records Management Policy. The November 2021 document that you refer to is a – if you like, a supplement to that that explains in a bit more – a bit more clearly and precisely how to treat information, mobile messaging, and –

Lead 2A: We’ll get on to the detail in a moment, Ms Fraser.

Ms Lesley Fraser: Okay, very good.

Lead 2A: Is the reason why these documents were produced in this piecemeal fashion that those charged with locating them had difficulty locating them?

Ms Lesley Fraser: No, I don’t think we’ve had difficulty locating them. I think our understanding of the focus and requirements of the Inquiry has very much developed over time as, I think, the Inquiry has become more and more specific in your requests of us. The reason why we provided or I provided documents to the Inquiry earlier this week is because of a different set of searches that we had undertaken in relation to a Freedom of Information request which brought up a much longer document which was produced – well, not a document actually, a Saltire article. Saltire is the intranet for Scottish Government employees. And we produced an article in April 2020, as our colleagues were moving out of the office – I think 97% of people were office-based before the pandemic, and that switched entirely, obviously, with lockdown, and this pulled together a whole host of useful information. You know, how to negotiate with your broadband, you know, provider, how to get new technology if you needed it, how to get an adjustable chair, a whole range of things. But it also said in terms of staying in touch – and we were thinking about people’s personal wellbeing, but also the business contacts that people have – we were recognising that applications like Zoom as well as WhatsApp were much more prevalent and people were adapting and finding ways to –

Lady Hallett: To go back to the point Mr Dawson was pursuing, the Inquiry asked you for various policies –

Ms Lesley Fraser: Yes.

Lady Hallett: – and you’ve just said a few minutes ago said there was one fundamental policy: the Records Management Policy.

Ms Lesley Fraser: Yes.

Lady Hallett: But instead of sending the one fundamental policy, which we’d have thought it was easy to find – someone would just say, “There’s our one fundamental policy, off to the Inquiry”, you sent the 2021 policy that was about something else. So why was it a member of your team couldn’t find the fundamental policy to send to the Inquiry when first asked?

Ms Lesley Fraser: I’m sorry, my Lady, I understood that we had provided the Records Management Policy in good time to the Inquiry. I’ve certainly been conscious of referring to that from my statements from certainly last summer, I would have expected that to be on any of my statements.

Lady Hallett: It may be I’ve misunderstood, Mr Dawson.

Mr Dawson: No, my understanding, my Lady, was that the policy that was provided originally was the November 2021 policy, and that the policy to which Ms Fraser is making reference was provided at a later date in response to a further request.

Ms Lesley Fraser: That is a surprise to me. I’m –

Lady Hallett: Well, it would be surprising, wouldn’t it?

Ms Lesley Fraser: It would be very surprising. I would understand that that would have been provided with my witness statements last year. But can I check that point, my Lady?

Lady Hallett: And also we’ll get the team to check it as well.

Ms Lesley Fraser: Okay, thank you.

Mr Dawson: If it were the case that one had difficulty locating document retention policies, it might tend to suggest that document retention doesn’t work very well in the Scottish Government; would that be fair?

Ms Lesley Fraser: The Records Management Policy is readily available to colleagues, it’s on our intranet site, we train people on it on a regular basis, my colleagues and I myself, we must take mandatory annual training. On aspects of data handling, for example, the Records Management Policy is referred to through that, so – in fact I’m pretty certain it’s published on our website as well. So it’s a legal requirement that we have a Records Management Policy and a Records Management Plan, and that that is approved by the Keeper of the Records of Scotland. So it’s not a new thing, and it’s absolutely fundamental to the way that we operate.

Lead 2A: Okay, thank you.

Can we perhaps look at the policy, it is INQ000309551.

I understand this is the Scottish Government Records Management Policy. I think this is the one to which you made reference as being the go-to document; is that right?

Ms Lesley Fraser: That is the one, yes.

Lead 2A: There is an October 2019 version, which is the one we see here.

Ms Lesley Fraser: Yes.

Lead 2A: I understand it may have been updated in September 2020 is that right?

Ms Lesley Fraser: We regularly update it, generally on an annual basis, and it’s reviewed at least every five years by the Keeper of the Records of Scotland, yeah.

Lead 2A: But this one would have been the one that would have been current at the time of the –

Ms Lesley Fraser: Yes.

Lead 2A: – period we’re interested in, the beginning of 2020?

Ms Lesley Fraser: Exactly so.

Lead 2A: Could we go to page 3, please. If we see at the top of the page there it says:

“The Scottish Government handles a very large amount of information. This information relates to specific topics and individuals as well as records of decisions made by the Government, actions taken and the rationale behind these decisions. The Scottish Government recognises that its records are an important public asset and are a key resource in the effective operation, policy making and accountability of the Scottish Government. Like any asset, records require careful management and this policy sets out the Scottish Government’s responsibilities and activities in respect of this.”

Just go back to the original document, jump down a little bit further. Under “Scope ‘“it says:

“All employees of the Scottish Government have a responsibility to effectively manage records in accordance with specified legislation and guidelines.”

In the next section:

“This policy applies to all records created, received or maintained by Scottish Government staff in the course of carrying out their functions.”

It also helps us with the definition, which says:

“A record is a piece of recorded information or document, regardless of format, which facilitates the activities and the business carried out by the Government and which is thereafter retained for a set period to provide evidence of a transaction or decision carried out by or on behalf of the Government. Records may be created, received or maintained in hard copy or electronically. Emails, SMS messages, tweets, documents, sound recordings and videos may all be records.”

The policy says that employees of the government have to retain evidence of transactions or decisions carried out “by or on behalf of … Government”?

Ms Lesley Fraser: That’s correct.

Lead 2A: Things done on behalf of government may include making decisions, taking action, and the forming of a rationale behind those decisions; is that correct?

Ms Lesley Fraser: That’s correct.

Lead 2A: Would all of those things be deemed to be part of transactions or decisions on behalf of the Scottish Government?

Ms Lesley Fraser: They would all be considered relevant, yes.

Lead 2A: This policy does not mention WhatsApps or specifically other electronic information, does it?

Ms Lesley Fraser: It talks about emails, SMS messages, tweets, so it’s drawing – and I guess in October 2019 WhatsApp was perhaps not as prevalent at that point as it subsequently became, and I think by the time we get to September 2020, so a year later, WhatsApp is then included in this list.

Lead 2A: We’ll get to that, Ms Fraser. But the important point I think is that – what I think we have tried to do is cast the net as widely as possible, to cover all forms of communication which may become prevalent in the prac –

Ms Lesley Fraser: Exactly so, yeah.

Lead 2A: – of the various ministers and employees; yes?

Ms Lesley Fraser: Yes.

Lead 2A: It states that it’s important to retain records relating to the business of government.

Ms Lesley Fraser: Yes.

Lead 2A: And the business of government contains and creates information which it records about the business of government; is that right?

Ms Lesley Fraser: Yes.

Lead 2A: And this information includes records of not only decisions but, as I think we’ve covered, actions taken and the rationale behind those decisions?

Ms Lesley Fraser: Yes.

Lead 2A: As well as how those decisions were reached?

Ms Lesley Fraser: Yes.

Lead 2A: Thank you.

Could we then go to INQ000274180. Now, as I understand it, this is one of the documents that you were able to provide to us just in the last couple of days. Is that right?

Ms Lesley Fraser: That’s correct, that’s the document – well, it’s a snapshot of what was on our intranet site as guidance for colleagues.

Lead 2A: Indeed, and I think as you told us earlier, this was text that was published on the Scottish Government intranet, I think you called it Saltire?

Ms Lesley Fraser: Saltire we call it, yes.

Lead 2A: In April 2020, as guidance or a policy to assist with working from home; is that right?

Ms Lesley Fraser: Yes, I wouldn’t say it was policy. It’s much more up-to-the-minute guidance for people who are moving from working in the office to moving to working at home. So it is covering things like how to log on, what to do if you can’t get your password to work, all of the things that people would have gone to maybe a person in the office to deal with, and we were now explaining how you can do that when everybody is working from home.

Lead 2A: So this was one of the events that I think you contemplated earlier, where there is still the general policy that we’ve discussed, but this was attempting to try to deal with the particular circumstances that prevailed at the time?

Ms Lesley Fraser: This is a lot of questions that are coming in to us, quite understandably, and we’re endeavouring to pull lots of information together in a single useful place where people can click on links and get that advice.

Lead 2A: If we go to page 8, please, it says under the blue passage:

“Keeping in touch with colleagues and having social and business contacts during this time is vitally important. Apps like Zoom, Slack and WhatsApp can be downloaded on your SCOTS mobile, but must be used in a responsible, professional manner. When using them remember:

“- apps are for official info only

“- messages are only encrypted when in transit – as soon as they arrive on your device it depends on your security settings

“- messages are subject to Freedom of Information


Lead 2A: “– messages should be transitory and not used as the official record

“- messages should be deleted as soon as they are no longer needed.”

The guidance to Scottish Government officials encourages the deletion of messages which might relate to business, doesn’t it?

Ms Lesley Fraser: It tells people, it’s – this is quite shorthand, I would say, so when it says apps are for official information only, that is actually referring, for example, to our security settings. So nothing above official level, so sensitive information or secret information, for example, can be used.

It’s pointing –

Lead 2A: I was focusing slightly more on the final bullet point, Ms Fraser.

Ms Lesley Fraser: Yes, but I think the second to last bullet point is important as well. So they’re – they’re transitory, and they’re not the official record, therefore you need to write the relevant information into the official record, which is what the Records Management Policy requires you to do, and we are rightly pointing out to colleagues that they are subject to Freedom of Information as well.

Lead 2A: Is it clear here that matters require to be written into the official record, as you said, before they are deleted?

Ms Lesley Fraser: That is – because we’re talking about them being transitory and not the official record, that implies to me that therefore they must be written into the official record if they’re relevant to government business.

Lead 2A: Is your position that it is clear?

Ms Lesley Fraser: I think in the context of this, which is a section about connecting with colleagues, yes, that is implied and clear to experienced civil servants.

Lead 2A: The requirement to write it into the official record comes from the first document we looked at, isn’t that right?

Ms Lesley Fraser: It comes from that document, but it comes from the way of working, as a civil servant. Government cannot operate unless civil servants are writing the relevant information onto the corporate record, and it’s searchable, we can look at it when we’re taking forward policy, we can respond to queries and requests, scrutiny in Parliament, Freedom of Information, for example, so the whole way in which government works depends on civil servants ensuring that information is on the record at the earliest opportunity.

Lead 2A: Would this also apply to ministers, surely, as well?

Ms Lesley Fraser: Ministers are not subject to our Records Management Policy, that is a matter for civil servants, so ministers, for example, don’t have access to our electronic records management system directly, they could not write information on to the record.

Ministers work with their private offices, and when a minister comes into office, their private office explains to them how decision-making, the transfer of their views to other ministers or to stakeholders or to policy officials will happen. That private office will explain that if a minister has a meeting without private office being present, for example, then that information must be relayed to private office at the earliest opportunity so that private office can, one, act on it, and two, also record that for the record. Because, again, what ministers are doing is of fundamental importance and interest not just to Government but to Parliament and to others who want to scrutinise our activities.

Lead 2A: But these rules that we are looking at must also apply to ministers by extension, is that not correct?

Ms Lesley Fraser: Ministers are required under the Ministerial Code to work positively and productively with the civil service, and they must – it’s clear in the Ministerial Code, for example, that should they have meetings where civil servants are not present, they must relay that to their private office and – you know, so that the relevant actions can be taken, including the information recorded to the record, and –

Lead 2A: Simply put, do these rules apply to ministers? The reason I’m asking is because we have asked the Scottish Government for its policies relating to the way in which information requires to be retained –

Ms Lesley Fraser: Yes.

Lead 2A: – for these purposes in its key decision-makers, including ministers and senior advisers.

Ms Lesley Fraser: Indeed.

Lead 2A: So are there policies we have not seen that relate to ministers?

Ms Lesley Fraser: No, there are not. It’s – what I’m trying to explain is it’s the civil servants who have the responsibility for record-keeping and not ministers directly. Ministers have a different set of responsibilities about how they work with their private offices, and their private offices have that very important responsibility for ensuring that the actions of their minister and the communications from their minister are then recorded in the record. So I’m just trying to draw that distinction between responsibilities.

Lead 2A: I understand. So if ministers were to refer to these policies as their understanding of the rules that pertained to them, would they be wrong?

Ms Lesley Fraser: They’re not wrong, because they provide good, you know, guidance and advice, which ministers –

Lead 2A: But surely, Ms Fraser, not for them, you’re telling me?

Ms Lesley Fraser: Not directly for them in relation to the retention of records on the corporate records system of the Scottish Government, but it provides good guidance and advice in terms of, for example, how you would treat WhatsApp messages on your private phone if they were relevant to government business.

Lead 2A: If I were a minister at the beginning of the pandemic, keen to know how I would comply with my obligations, if this policy doesn’t apply to me, surely I wouldn’t look at it?

Ms Lesley Fraser: You would be made aware of the relevant aspects that – and as they do apply to ministers by your private office. So that’s a responsibility of private office and then a responsibility of ministers to work well and productively, including the transfer of information to private office so that it can be retained on the record.

Lead 2A: Where can we see for ministers the obligations defined in this regard with this degree of specification from this period?

Ms Lesley Fraser: I’m sorry, I didn’t quite …

Lead 2A: Where can we see applying to ministers the guidance pertaining to their obligations about the retention of records with this degree of specification?

Ms Lesley Fraser: So this degree of specification would be well known and indeed was discussed with ministerial private offices, and ministerial private offices are then supported to be able to have the conversations and the discussions with their ministers about how they will then work.

There’s of course a degree of personal preference about how ministers choose to work with the civil service and choose to work with their private office, but the fundamental points about ensuring that the relevant information is then transferred into email, into the records system, is the critical one, and ministerial private office do that, working with their ministers.

Ministers would have been able to see the mobile messaging policy, it’s not a secret policy. It’s written from the perspective of civil servants because civil servants are the ones with the responsibility, but the good practice guidance would equally apply to ministers.

Lead 2A: Is the good practice guidance a different document that we haven’t seen?

Ms Lesley Fraser: No, no, it’s contained, not in this document that we have in front of us here, but in the mobile messaging policy in 2021.

Lead 2A: There were a number of press articles in 2023 when matters pertaining to retention of documents became a live issue being addressed by the Scottish Government where former ministers, including former Health Minister Alex Neil, suggested that when he was in office he frankly couldn’t understand the policies as to document retention. Is it really surprising that ministers are in that position, given the fact that what you have told us is that these policies relate to civil servants and that there is some more general obligation, poorly defined it seems, relating to ministers?

Ms Lesley Fraser: I would say that the obligation on ministers is not poorly defined, I think it is very clearly defined in the Ministerial Code that they have a responsibility and accountability to let their private office know at the earliest opportunity of meetings and discussions that they have that are relevant to government business, that where a civil servant is not present – if a civil servant is present then it’s the responsibility of the civil servant to take that note.

I think Mr Neil left office in 2016, so potentially arguably before WhatsApp, for example, became prevalent as a means of informal communication, but Mr Neil would at the time have had advice before 2016 about how to work with his private office and ensure that his meetings, decisions, views were then transferred into the record and were acted on by the civil service.

Lead 2A: You’ve said on a number of occasions that private offices would do things with regard to speaking to ministers about their obligations. Do you know that that is the case, that that happened?

Ms Lesley Fraser: I do know that that is the case, yes.

Lead 2A: It’s your job, I think, to oversee that to a certain –

Ms Lesley Fraser: Ministerial private offices sit within my area of responsibility. So, for example, I know that as part of the induction process for new ministers after the May 2021 election, we specifically spoke to ministers about record – well, handling data and information well and looking after data securely, and that was part of the induction process for ministers.

Fundamentally, and I think actually the Deputy First Minister referred to this in particle, if ministers don’t tell their private office about every aspect of what they’ve done, nothing in government will happen. Ministers may talk to each other or talk to a stakeholder; if that’s not relayed, then no action will be taken by the civil service.

Lead 2A: What you’re telling me is during the period with which we are concerned, ministers were definitely told by their private offices that they required to comply with these policies as regards not only general documentation and information, but the specific types of electronic communications that we have mentioned here?

Ms Lesley Fraser: We would have said – well, ministers would be aware of the necessity of talking to their private office, as I’ve said. The level of specification about WhatsApp and the mobile messaging policy was something that was developed towards the end of November 2021, so at that point we would have been discussing that across our organisation, and at that point private offices would be aware of that and discussing it.

I think actually in my evidence pack I did see an exchange between a private office and a minister where they were discussing precisely this in, at the beginning of January 2022. So that gives me again just a second check that indeed this was being discussed.

Lady Hallett: Ms Fraser, I’m afraid I’m not following. I’m a minister and I’m talking to Mr Dawson, who’s another minister, in a WhatsApp message and no civil servant is part of the group.

Ms Lesley Fraser: Yes.

Lady Hallett: What am I or what is Mr Dawson told to do with our WhatsApp messages? In clear terms, what are we told? Are we told, in accordance with this policy – that seems to be delete them when they’re not needed, or are we told to keep them, are we told to tell the civil servants – our private office about them?

What are we told? In clear terms.

Ms Lesley Fraser: Assuming that this is about government business?

Lady Hallett: Yes.

Ms Lesley Fraser: Yes.

Lady Hallett: Well, chances are if I’m a minister and Mr Dawson is a minister it will be, isn’t that right? Unless we’re talking about having a cup of tea, I suppose, but …

Ms Lesley Fraser: You could be having a cup of tea or it could be party business. But assuming it’s government business, then you would agree, right, I’ll tell my private office to do X, Y or Z as a result of the conversation that we’ve had, and that is the general way in which information that is perhaps discussed between ministers would be relayed to the civil service so that action could be taken.

Lady Hallett: But that may not record the rationale which Mr Dawson got you to agree is one of the things that ought to be recorded, that would just be recording the actions to be taken as a result of our decision.

So in other words, things could get lost if the ministers delete their WhatsApp messages without telling private office everything that was discussed or send it – forwarding them to private office.

Ms Lesley Fraser: Mr Dawson was talking to me earlier about the process of agreeing what’s relevant government business here, so ministers couldn’t, for example, meet and – you know, without civil servants in the room, and say “We are determining to set up a new grant scheme here, right, I’ll tell my private office, a new grant scheme will be set up”, impossible to do that, because there’s a whole set of other checks and balances about the expenditure of public money, about the value for money test, about accountable officer responsibilities.

So a minister would say “I’ve spoken to my colleague, we’d be interested in advice on setting up a grant scheme that could do this, will you please get me the relevant advice”, and private office would then say “Ministers have spoken, they’re keen to do this, can officials please provide the advice”.

Now all of that then is part of the official systems of the Scottish Government. That is generally handled on email, that’s where decisions and advice from ministerial offices comes from, and then the civil service will provide that advice and that is where the decision then would be assessed and taken.

Lady Hallett: I’ll leave Mr Dawson to pursue that.

Can I just pursue one other question that I had in relation to the passage we had highlighted:

“- apps are for official info only”

You said you thought it was clear to experienced civil servants – of course not all civil servants are necessarily as experienced as you are – but I confess that I don’t find these rules or principles clear. If messages are subject to Freedom of Information requests, my immediate instinct would be to say, “Well, if it’s going to be subject to an FOI then I’ve got to keep it”, yet the final passage says “messages should be deleted as soon as they are no longer needed”. That seems to conflict with the fact that they need to be kept in case somebody, a representative of the media makes, say, a Freedom of Information request. Is that clear? I don’t think that’s clear.

Ms Lesley Fraser: This is a snapshot of a much longer document which relates to a whole set of issues for people moving home and working from home when they have been working online, and this is a section about connecting with colleagues, both personal colleagues and business colleagues. The “apps are for official [information] only” certainly says to me that’s for nothing that is sensitive, nothing that is secret, because those – “official” is a recognised security marking within government.

And because messages are transitory and are therefore not part of the official record, that says to me: therefore anything that’s relevant must be on the record and then you should be deleting that transitory information as soon as it’s no longer required, which is also part of good practice.

Lady Hallett: Sorry, I don’t think you’ve addressed my point, but, Mr Dawson, I’ll leave it to you.

Mr Dawson: Thank you very much.

Ms Fraser, who monitors compliance with these policies?

Ms Lesley Fraser: As I’ve explained, the responsibility sits with directors. We have over 50 directors in the Scottish Government, and they’re responsible for ensuring the compliance of their teams with these policies along with a range of other policies. That is then annually assured through a certificate of assurance process.

In addition to that, I chair an information governance board of the Scottish Government and we look across the piece at the issues that are emerging, at where we need to make improvements and so on, and we target the resources of government and our actions to ensuring that we are making the necessary improvements. So that’s another form of assurance.

We also have the opportunity to bring in our internal audit colleagues as well. So, for example, in relation to material that we’ve provided for this Inquiry, we’ve on two occasions asked our internal audit colleagues to just check that the approach that we’ve been taken looks to them to be sensible and in line with the questions that the Inquiries have been giving to us, and then we’ve been – obviously acted on the recommendations that have come back.

Lead 2A: How do these compliance bodies know if ministers and/or civil servants are corresponding with each other by WhatsApp, which of course happened during the course of the pandemic, about government business, whether the policies are being complied with if you know nothing of the correspondence?

Ms Lesley Fraser: If the civil service knows nothing of the correspondence then action will not be able to be taken within government.

Lead 2A: Does that not create a very significant risk, Ms Fraser, given that you’ve acknowledged that during the course of the pandemic it was known from April 2020 that people were going to be using these various new media of communication, that people could well be corresponding about the business of government and that not being retained on the corporate record?

Ms Lesley Fraser: I think that what I would say here is that the – you know, three things were happening, I think, here. One, we were moving from most people face-to-face in the office to the majority, the vast majority of people working from home. At the same time we had access to new technologies, I particular remember Zoom being fundamental to the way that we were working in government. And there were quite rightly questions about how that would work.

I think the third thing is that the process of producing information for this Inquiry, and indeed for the Scottish Inquiry, has made us reflect on the way in which these new digital records are being created. So I can see from the evidence that I’ve been referred to in preparation for today that there’s a great deal that, you know, is informal, that is preparing for formal meetings, which then I know will have appeared on the record, but nonetheless we’re creating a digital footprint, a digital record where previously none, I think, would have occurred before.

For that –

Lead 2A: Ms Fraser – sorry.

Ms Lesley Fraser: For that reason, we are already looking at our Records Management Policy and the way in which WhatsApp and other social – mobile messaging apps are handled within our records management approach.

Lead 2A: Does this not mean, Ms Fraser – it is encouraging to hear that Scottish Government –

Ms Lesley Fraser: Yes.

Lead 2A: – is taking action as a result of its experience with this Inquiry. However, is it not the position that the Scottish Government had no control over the use of these messaging systems and the retention of any messages that were sent via them involving ministers or civil servants during the course of the pandemic?

Ms Lesley Fraser: I disagree, because it was necessary for government to be able to function that information was being relayed to civil servants and was then being handled through the formal systems of the Scottish Government, our email principally, but records management and so on. No action, no activity of government could happen without that.

And at the same point we were ensuring that those records were being added to the record so that we could understand the steps that we had taken during the pandemic, we could be held to account in particle in live time, and we were also then from very early on aware that there was likely to be public inquiries and that we should be preparing for those.

So that is why we’ve got very significant amounts of information that we have been able to provide to the Inquiry, I think more than 19,000 documents of that sort, and that is the very fundamentals of government, those are the decisions and how they were reached, and you can see all of that set out in those records.

What I’ve seen in the WhatsApps exchanges that I’ve been pointed to is colleagues preparing for those exchanges and then information potentially duplicated on WhatsApp but then clearly going into formal records and on to email, for example.

So I wasn’t at the time conscious that this was a problem, and believe that we have been able to and we do have a comprehensive record.

However, I think that this has shone a spotlight on a really important issue to do with, you know, what these WhatsApp exchanges convey and what that means in terms of the records that government might look to keep in the future, and that’s the area that we want to look at now in our review.

Lead 2A: Ministers and civil servants were permitted by the Scottish Government to use these messaging platforms to speak about government business during the course of the pandemic; is that not correct?

Ms Lesley Fraser: That is correct, up to a certain level of security., yes.

Lead 2A: They were allowed, for example, to use their own mobile phones for that purpose?

Ms Lesley Fraser: Ministers on some occasions chose to use their own mobile phones if they were dealing with –

Lead 2A: I’ve asked whether they were permitted to do so.

Ms Lesley Fraser: They were permitted to, ministers were permitted to.

Lead 2A: Does it not mean, in these circumstances that, as you’ve said, none of these issues have arisen during the course of the pandemic for the various compliance bodies that you’ve mentioned, is it not inevitable that that would be the case when people are using apps, using personal phones over which the government can have no possible control?

Ms Lesley Fraser: For government business which ministers might want to conduct on a personal phone, the only way that could happen is by installing a secure app on their phone. At the time it was a mobile BlackBerry app that they were using and that enabled them to receive emails to their secure government account on a personal phone. So that was available, I think, until March 2023 as one option for ministers: rather than taking a government phone, they could install this secure app on their personal phone and use that mechanism.

Lead 2A: Would an exchange between a senior minister and a political adviser in September 2020 relating to the number of people who should in Scotland be permitted to attend weddings or funerals fall within the definition of government business?

Ms Lesley Fraser: It would.

Lead 2A: Should that have been retained on the corporate record?

Ms Lesley Fraser: Not necessarily that artefact, but a decision like that, that would have been discussed through our formal processes, so you would see email exchanges on that, you would see evidence and advice on that.

The exchange, I think, between Ms Sturgeon and her chief of staff would be – I wasn’t part of that conversation obviously, but it would be for them to explain. But it would be an adjunct to that formal process.

Lead 2A: We received in response to a request made of the Covid Inquiries Response Directorate a very helpful table, if I may say so, on 13 October 2023, which I referred to at the third preliminary hearing.

The table is to be found at INQ000319509.

In that table, your staff, I think, provided us with summaries of the position of a number of senior ministers who were involved in key decision-making during the course of the pandemic, on a number of issues, including their retention of notebooks and things like that, but also in relation to the extent to which they had used or had retained messages relating to the pandemic and how it had been managed.

In the summary table that we see here, we can see that under the box “Nicola Sturgeon” it says that:

“Messages were not retained, they were deleted in routine tidying up of inboxes or [changes] of phones … Unable to retrieve messages.”

So what that tends to suggest is that at a time a request was made, Nicola Sturgeon, the former First Minister of Scotland, had retained no messages whatsoever in connection with her management of the pandemic. Is that correct?

Ms Lesley Fraser: That’s what that indicates to me.

Lead 2A: And when we asked the government whether it had retained any such messages on its corporate record, you provided us with none.

Ms Lesley Fraser: Correct.

Lead 2A: Does that mean that we have no access to the former First Minister of Scotland’s messages in connection with her management of the pandemic?

Ms Lesley Fraser: The way in which, I mean, Ms Sturgeon will be able to explain this much better than me –

Lead 2A: I think that’s just a matter of logic, Ms Fraser, which I’m asking you to help us with.

Ms Lesley Fraser: Yes. Ms Sturgeon would have worked with her private office in order to ensure that her views and instructions were clearly understood, and they may well have been informed by some of the exchanges that she’d had with her chief of staff or with other ministers, but she would have relayed that to her private office and that would be then the instruction that went from private office and that would be retained –

Lead 2A: Do you know that to have happened?

Ms Lesley Fraser: That is how – as I say, that’s how government works. It’s a necessity, for that information to be captured.

Lead 2A: So is the answer to the question do you know that to have happened, no?

Ms Lesley Fraser: It’s hard for me to give absolutes in relation to a general question.

Lead 2A: It’s just about your own knowledge, Ms Fraser, do you know that to have happened or not?

Ms Lesley Fraser: Well, my experience is that we’ve been able to find the relevant information and to demonstrate how those decisions were made and to evidence that through emails and other exchanges on our corporate records system.

Lead 2A: But if you don’t have access to Ms Sturgeon’s messages, and she doesn’t have access to them any more, how can you know whether the relevant information has been transposed on to the corporate record? How can you give the answer you’ve just given?

Ms Lesley Fraser: I can’t, no, not having seen all of the information.

Lead 2A: Could I just refer you very briefly to page 2 in connection with the former Deputy First Minister. His position was that:

“Messages would have been deleted by auto-delete functions or by themselves manually deleting them as they do on a regular basis.”

So the former Deputy First Minister’s position appears to be that he had messages set up on an auto-delete function. Was that something that was permitted?

Ms Lesley Fraser: The use of WhatsApp was permitted on Scottish Government –

Lead 2A: That’s not the question.

Ms Lesley Fraser: – devices. How ministers and private offices chose to manage that on a day-to-day basis would be a matter for them, so it may be that Mr Swinney spoke on a daily basis and explained what he wanted from his private office and then ensured that information was deleted thereafter so that he was able to manage what would quickly, I suppose, become unmanageable amounts of information.

How ministers work with the private office I think is the critical area.

Lead 2A: You mentioned a moment ago, I think on a few occasions, that it was the responsibility of the directors to ensure compliance; is that right?

Ms Lesley Fraser: Yes.

Lead 2A: And what ultimately that meant was compliance by both ministers and civil servants, although they worked directly with the civil servants who were making sure that the ministers did it; is that correct?

Ms Lesley Fraser: Yeah, so minist – yes, directors are responsible for ensuring that their teams are absolutely maintaining our corporate policies and approaches, including on records management. That includes the director for ministerial private offices, who would have been ensuring that this was working well through the pandemic.

Lead 2A: Would it surprise you if it were the case that a director general had encouraged people in a group relating to the management of the pandemic to delete their messages?

Ms Lesley Fraser: I would be surprised if they encouraged them to delete without ensuring that relevant information was retained. I know that some –

Lead 2A: (inaudible)

Ms Lesley Fraser: I know that some WhatsApp exchanges tipped into what I would call banter and, you know, on some instances, I think, personal support for colleagues as well. Now, that I would argue is not relevant for the corporate record of the Scottish Government and, therefore, would not be something that should be retained, and I would expect colleagues to remind people of that as well.

Lead 2A: To follow up on a question that her Ladyship asked earlier, if that material was deemed discoverable by a Freedom of Information request, would it automatically require to be kept on the corporate record?

Ms Lesley Fraser: The matters for the corporate record are the ones that are relevant to government business and the who, what, why, when, how, where. The Freedom of Information requirements do not include what they call ephemeral information, so –

Lead 2A: But on the assumption that it were covered by the FOI requirements, would that mean that it would require to be transposed onto the corporate record and, therefore, not deleted?

Ms Lesley Fraser: We are required to produce anything that we hold, any information that we hold under the Freedom of Information response and therefore were, for example, somebody to ask for all WhatsApps messages pertaining to a decision on X, then were they held, then those would be discoverable under Freedom of Information.

Now, not all of that information – if, for example, it was about the football last night – would be relevant and therefore ought to be recorded on the government records system.

Lead 2A: Does the Scottish Government place any automatic back-up on government-issued phones?

Ms Lesley Fraser: We automatically back up and indeed sync from our government systems. So we have a set of government systems called SCOTS, and whether those are on your mobile or on your laptop, they will automatically be backed up for a certain amount of time.

Lead 2A: Was that the case during the course of the pandemic?

Ms Lesley Fraser: Yes.

Lead 2A: For people who used their personal phones for communications relating to government business, is there any similar system?

Ms Lesley Fraser: Yes, if, for example, ministers were using the secure app in order to be able to receive emails, then that would be covered by the back-up system –

Lead 2A: Would WhatsApp message on a personal phone be automatically backed up to the system?

Ms Lesley Fraser: No, they would not. That would depend on the settings that the individual put in place.

Lead 2A: Would anything other than the emails on the secure system that you’ve just mentioned be backed up to the secure system?

Ms Lesley Fraser: No, we would not back up information on ministers’ private devices other than the information on the secure app.

Lead 2A: I understand that between December 2022 and September 2023 the Scottish Government carried out an upgrade of its corporate mobile phones; is that correct?

Ms Lesley Fraser: It is.

Lead 2A: And you’ve helpfully provided us with a statement in relation to that.

Ms Lesley Fraser: I have, yes.

Lead 2A: Is the result of that that the messages contained on the phones of a number of individuals were wiped, effectively, from their systems?

Ms Lesley Fraser: Yes, I understand that three individuals have said that they lost messages as a result of that upgrade.

Lead 2A: That’s three individuals in a list of people that this Inquiry was interested in contacting for their involvement in decision-making in this pandemic.

Ms Lesley Fraser: Yes.

Lead 2A: There will have been a lot of other individuals but not people that related to our interest.

Ms Lesley Fraser: Yes, the guidance that people had very clearly alerted them to the fact that if they had non-government systems or apps on their phone they would need to back those up separately, that was, I think, number one instruction –

Lead 2A: The instructions came from you in that regard, I think, didn’t they?

Ms Lesley Fraser: The instructions, yes, came from my digital team, so we – yes, we provided training, we provided, again, Saltire articles and advice, and we sent emails to every single person affected to explain to them the process and what they needed to do, step by step.

Lead 2A: Did you ensure that the information that was given was complied with?

Ms Lesley Fraser: As far as we were able to do, yes. Again, working with a large number of officials we rely on directors to ensure that their teams are aware and complying.

Lead 2A: Could I just ask you one final question, Ms Fraser: in all the circumstances that we have discussed, would you accept that the Scottish Government’s document retention policies were simply not fit for purpose during the course of the Covid-19 pandemic?

Ms Lesley Fraser: I wouldn’t accept that they were not fit for purpose during the pandemic, and I think that’s evidenced by the sheer number of documents that we’ve been able to provide and the end-to-end story that that sets out.

I would accept, and I think this is very much learning and understanding, the hurt and frustration that there has been, as well, of not being able to receive all the WhatsApp messages, for example, that we therefore do need to look again at this new, you know, digital trail that is being left by informal messaging and to consider what that means for the good operation of record management within government, and I’d be very happy to keep the Inquiry updated on that work, if that would be helpful.

Lead 2A: Thank you very much.

In the finest tradition, my Lady, having said that’s the last question, there is one matter I’ll return to. It was on the issue of the records that had been provided with the first corporate statement. The first Director General Corporate statement which was provided by Ms Fraser disclosed one version of the Records Management Plan, which was undated, the November 2021 messaging apps usage policy to which we referred. The plan was an operational document and did not set out the policy itself. Further requests were made by a further Rule 9 request, which again resulted in a further Rule 9 response from Ms Fraser. The October 2019 Scottish Government Records Management Policy, which is the main policy that we have been looking at, was only disclosed to the Inquiry on 11 October 2023.

Is that your understanding, Ms Fraser, or are you prepared to take from me that that’s the case?

Ms Lesley Fraser: I’m sure you’ve investigated that, thank you. If we’ve got any other information on that, we’ll of course come back to you –

Lead 2A: I think the key point about that, as her Ladyship said earlier, was that if this was the obvious policy one could quite obviously have reached for it and provided it to us, along with the November 2021 policy, with the first Corporate statement; is that not right?

Ms Lesley Fraser: Yes, I think I would like to consult my team and just check on that point, thank you.

Mr Dawson: My Lady, I understand that there is one core participant question.

Lady Hallett: There is.

Mr Dawson: Ms Mitchell.

Lady Hallett: Ms Mitchell.

Questions From Ms Mitchell KC

Ms Mitchell: I’m obliged, my Lady. There is also a Rule 10 application which was made which has been sent to the Inquiry, so perhaps if I’m asking my first question they might have a look at that. It was simply arising from something that was said, my Lady.

Lady Hallett: Okay, if somebody could send that to me, thank you.

Ms Mitchell: I understand from my junior it’s been sent off.

Lady Hallett: I’ve got shaking heads, but anyway.

Ms Mitchell: A little. Well, my Lady …

I’m obliged to my learned friend Counsel to the Inquiry for asking many of the questions which the Scottish Covid Bereaved were interested in asking.

I want to move to a slightly separate issue just now, and that is the response in relation to public messaging.

You’ve given us a full statement in relation to public messaging, but I only have a very narrow issue to ask you about, and it’s this: the UK Government in an earlier part of the module, Module 2, it was shown that there were a number of messages which were wrong that were given publicly, and by that I mean that either identified the wrong place to which they applied because ministers referred publicly to “the UK” or “this country” or “Britain” when they were actually meaning England, “England as the UK”, I believe, was a phrase which was used.

What I would like to know from you, Ms Fraser, was: was there any need for a correction of the UK Government’s public health messaging that you were aware of, and was there any discussion within that, and any action taken?

Ms Lesley Fraser: I don’t have here information about whether there was a particular instance, but I know that there were regular weekly meetings between my own communication and marketing colleagues and their counterparts in the UK, and a great deal of time and effort was spent on trying to ensure that there were not contradictory or misleading messages applied through those – through communications and marketing activity.

I think, for example, we had in place the FACTS messaging from – I think with stakeholders from late May 2020 and then in use generally in June 2020, and “Hands, Face, Space” from the UK Government was then something that they launched later that summer, is my understanding.

Now, clearly we had traction and awareness and understanding, and employers and other institutions were bought into and using the FACTS messaging, so there we worked with the UK Government to try to ensure that there wasn’t confusion by overlaying a separate set of messages to a population who were already, we were observing, working very hard in order to comply with these protective behaviours.

Ms Mitchell KC: So I see you understand that detail, but my specific question related to the difficulty of the problems that was being evidenced by the UK Government being unable to distinguish between these on occasions. Do you personally have any understanding of whether or not that was addressed by your team?

Ms Lesley Fraser: My team did have regular discussions, for example, about communities living in the borders, you know, who were, for example, receiving perhaps, you know, contradictory information or difficult to understand information about, for example, train journeys that might cross the border. So there the teams were working together to try to ensure that as far as possible we were giving clear, consistent, actionable advice to people who were keen to respond properly.

Ms Mitchell KC: But I might just press you –

Ms Lesley Fraser: Yes.

Ms Mitchell KC: – focus, in relation to the problem that was identified of the UK Government getting that message wrong, are you aware specifically of anything of that nature?

Ms Lesley Fraser: I would need to check with my teams whether there were specific examples. I know that generally the position improved over the course of the pandemic, so it was more problematic at the outset. I think, for example, the change from “Stay at Home” message was something that we were unaware was going to change to “Stay Alert”, and that caused a problem at the outset.

Ms Mitchell KC: Yes, I think the Inquiry is aware of that.

Ms Lesley Fraser: Okay.

Ms Mitchell KC: So I don’t need any further information in that regard.

My Lady, I don’t know whether or not –

Lady Hallett: I think the question has landed.

Mr Dawson, you’re going to tell me …

Mr Dawson: The position is, I think, although we’re very grateful to Ms Mitchell, the subject has been covered in the questions we’ve already put to Ms Fraser and her extensive statements on the matter.

Lady Hallett: What is the question?

Mr Dawson: The question pertains to the deletion policy and whether it’s – the question is:

“I would like to ask what the rationale was for deletion given the FOI obligation.”

Which I think is –

Lady Hallett: The matter I was pursuing?

Mr Dawson: Indeed. Which I think has been covered as far as I’m concerned.

Lady Hallett: You’ve got a minute, Ms Mitchell.

Ms Mitchell: Okay.

The question is this: what’s the rationale for the deletion of records when it would seem eminently sensible simply to hold on to those records in case someone FOIs you?

Ms Lesley Fraser: Indeed. We can’t physically retain everything –

Ms Mitchell KC: No, I’m talking about individuals on their WhatsApps or other text messages.

Ms Lesley Fraser: Yeah. So we’re concerned about security. So different messaging systems can have different vulnerabilities, and obviously government ministers or civil servants need to reduce the vulnerabilities if on phones that are being used for government business.

Ms Mitchell KC: And –

Ms Lesley Fraser: We’re also concerned that if, for example, there are long WhatsApp exchanges that might contain personal information, sensitive information about individuals that would be covered, for example, by the GDPR data privacy, that those should not be retained. We shouldn’t – government shouldn’t be holding information that is not relevant to government business and therefore that should be reviewed, got on to the record and then deleted at the earliest opportunity.

Ms Mitchell KC: And we touched briefly on the issue of FOIs. If, when someone asks you to show them the retained information you have –

Ms Lesley Fraser: Yes.

Ms Mitchell KC: – it’s only relevant at that particular time, so if it’s deleted you don’t have that obligation, but you do have an obligation to do something, to tell them either when it was deleted or to explain your policy; is that correct?

Ms Lesley Fraser: We have a – yes, we have a general responsibility actually under the Public Records Act to explain what our retention and deletion policies are.

Ms Mitchell KC: So prior to 2021, before the addendum came up, how were people able to know what that policy was?

Ms Lesley Fraser: So under the Records Management Act, it’s clear what the document retention policies are that we agree with the Keeper of the Records of Scotland. In relation to WhatsApp messaging, we would be first of all saying to people “If it’s relevant to government business, get it on to the government record”, that’s the number one thing, because we can’t search easily –

Ms Mitchell KC: I understand the issue, what I’m saying is –

Ms Lesley Fraser: “Once it’s on the record, then for security, data privacy and a whole set of other reasons, please don’t retain information for longer than it’s required.”

Ms Mitchell KC: But if you have to give an explanation for why such a policy is in place, for deletion or the fact that it’s been deleted, we don’t actually have one directly in relation to ministers?

Ms Lesley Fraser: Ministers don’t have the responsibility directly to write information onto the corporate record. That is the responsibility of civil servants.

Ms Mitchell: I think I’ve taken enough of my Lady’s minute.

Lady Hallett: Thank you, Ms Mitchell. In fact the email was sent to the M2 inbox, not the M2A, that’s why it took a while to track it down.

Ms Mitchell: I apologise.

Lady Hallett: Not your fault. I mention it so it doesn’t happen again.

Ms Mitchell: Thank you.

Lady Hallett: 11.30.

Mr Dawson: Thank you very much.

Lady Hallett: Thank you very much indeed, Ms Fraser.

The Witness: Thank you.

(The witness withdrew)

(11.16 am)

(A short break)

(11.30 am)

Lady Hallett: Mr Dawson.

Mr Dawson: The next witness, my Lady, is Mr Kenneth Thomson


Mr Kenneth Thomson


Questions From Lead Counsel to the Inquiry for Module 2A

Mr Dawson: You are Kenneth Thomson?

Mr Kenneth Thomson: Correct.

Lead 2A: Could you please try to speak into the microphone,

Mr Thomson, as best you can.

You have provided, I think, a number of witness

statements to the Inquiry, for which we’re very

grateful. The position in your regard is slightly

complicated in that I think there were some statements

which you had some responsibility for compiling but were

actually signed off and finalised by others subsequent

to you leaving post; is that correct?

Mr Kenneth Thomson: I saw those – they were compiled by others on behalf of

the Director General. I saw some of that material

before I left post but, as you I think are saying, some

of it was signed and submitted to the Inquiry by my


Lead 2A: Yes, let’s try to go through and – just to be

absolutely clear which ones you’re responsible for and

which ones you’ve had involvement with.

There is a witness statement from you dated

9 November 2023 under reference INQ000343888. That’s your statement?

Mr Kenneth Thomson: It is.

Lead 2A: You’ve provided a number of other corporate witness statements, as you were at the time the Director-General for Strategy and External Affairs for our module. One was dated 22 June of this year, INQ000215495, and a further statement dated 23 June, INQ000216655. These are also statements that were compiled and signed by you?

Mr Kenneth Thomson: Yes, they were.

Lead 2A: Do the contents of these statements remain true and accurate as far as you’re concerned?

Mr Kenneth Thomson: They do.

Lead 2A: Just to clarify, my Lady, the two corporate statements covered slightly different areas which fell within the area of responsibility of Mr Thomson at the time.

A further four witness statements have also been provided by, I think, the Director-General for Strategy and External Affairs. We understand you’re familiar with two of these statements as you provided them in draft prior to leaving post; is that correct?

Mr Kenneth Thomson: I would need to see them to know which ones I saw –

Lead 2A: Let’s just run through them, I don’t want to –

Mr Kenneth Thomson: Yeah, go on, go through them –

Lead 2A: I don’t want to be asking questions about ones you’re

not responsible for, Mr Thomson.

The first was a supplemental statement dated

26 October 2023. It’s INQ000348720. This statement –

you may recall this one, I think that you did have

an involvement with it – was a supplemental statement

of that date relating to Covid-specific structures of

the Scottish Government such as SGoRR, the Covid

directors and the four harms group.

That was one I think that was compiled by you,

possibly, but then signed by your successor, Mr Griffin,

is that correct?

Mr Kenneth Thomson: It was seen by me and provided in draft, as paragraph 1


Lead 2A: Thank you very much. And the second statement, similar

to that, was INQ000339039, a statement dated

1 November 2023.

Mr Kenneth Thomson: That’s not the statement –

Lead 2A: No, that’ (inaudible) I’m afraid. There was a second

statement, we’ll come back to that.

I understand also that two further statements were

provided on behalf of the directorate general with which

you were previously associated. These were provided by

your successor, the first dated 5 November 2023,


Mr Kenneth Thomson: I have a different number in front of me. Yes, I now have 267 before me.

Lead 2A: Yes. Have you seen that statement at least?

Mr Kenneth Thomson: That one I think was prepared without my involvement.

Lead 2A: Right. And a further statement dated INQ000362632. This is one dated 6 December providing a correction to the previous one. I think, again, that was provided by your successor. Did you have any involvement in that one?

Mr Kenneth Thomson: No, that’s highly unlikely.

Lead 2A: Thank you very much. We’ll just return to the other number in a moment but deal with your personal background.

You initially joined the civil service, as I understand it, in October 1988, is that –

Mr Kenneth Thomson: Correct.

Lead 2A: Since late 2011 you held the role as Director-General Constitution and External Affairs, which as I understand it was renamed Strategy and External Affairs in February 2022?

Mr Kenneth Thomson: That’s correct.

Lead 2A: I’ll refer to the – could you just tell us, that’s a directorate family, is that correct? It’s a term we heard from Professor Cairney yesterday. Is that a directorate family and could you tell us what that is?

Mr Kenneth Thomson: It’s a family of directorates. So, as Professor Cairney said, the Scottish Government structure is a number of directorates supporting portfolios – mapping isn’t quite one to one – and directors, leading directorates, are managed by a director-general, and a director-general’s span of command is informally known as a family.

Lead 2A: Right, so you were in charge of a directorate-general and under you will be have been, at different times, a different constellation of directorates?

Mr Kenneth Thomson: Yes.

Lead 2A: Thank you.

In your work I understand that you supported the First Minister, Deputy First Minister and Cabinet including on cross-governmental work?

Mr Kenneth Thomson: I had two broad areas of support to ministers. The first was what you’ve just summarised, the second was support to a portfolio Cabinet Secretary in relation to a number of different matters, which changed over the period of the Inquiry, but that’s probably less relevant.

Lead 2A: Yes, but your responsibility included those matters that I mentioned?

Mr Kenneth Thomson: Yes, it did.

Lead 2A: You explain helpfully in your statement ending 343888 at paragraph 6 that this role is analogous to the role of the Cabinet within the UK Government; is that a fair description?

Mr Kenneth Thomson: It’s broadly fair, it’s the best way I have of describing what my role is, but it’s not exactly the same. The principal difference is that the Cabinet Office is co-ordinating actions across separate government departments, whereas I and my teams were co-ordinating action within one organisation working across directors, as you’ve described earlier.

Lead 2A: Thank you.

You retired from the civil service in November 2023.

Mr Kenneth Thomson: That’s correct.

Lead 2A: And I understand that you were awarded the Companion of the Order of the Bath in the most recent New Year’s Honours List; is that –

Mr Kenneth Thomson: Also correct.

Lead 2A: I’d like to ask you some questions about the subject which we’ve just been covering with one of your former colleagues, Ms Fraser, which is to do with document retention policy. We heard evidence yesterday about a number of important framework documents which set out the principles which are designed to guide decision-making within the Scottish Government, including the National Performance Framework. These documents include, amongst other things, a commitment to transparency and accountability; is that not correct?

Mr Kenneth Thomson: It is correct.

Lead 2A: These are important documents which lay out principles with regard to the way in which Scottish Government aspires to conduct its business, and these principles apply both to ministers and to civil servants, as you used to be.

Mr Kenneth Thomson: Indeed.

Lead 2A: There are a number of documents, I think, that reiterate the commitment to these principles which emanated by means of guidance to the way in which decision-making would be made in the pandemic, for example the framework relating to the four harms strategy from April 2020?

Mr Kenneth Thomson: That’s correct.

Lead 2A: Indeed, during the course of the pandemic the Scottish Government’s public communications strategy was also consistently said to be based on openness, honesty and accountability; is that correct?

Mr Kenneth Thomson: Correct.

Lead 2A: We’ve heard evidence from the current Director-General of Corporate, Ms Fraser, about the government’s document retention policies and the importance of keeping records. What is your understanding of the Scottish Government’s policy on the use and retention of informal messaging such as WhatsApps as at the period with which we’re interested, from 2020 to the end of the pandemic in April 2022?

Mr Kenneth Thomson: So I think this will be a longer answer than my answers so far. So at the period of the pandemic and the requirement to stay at home, our use of electronic messaging grew very rapidly, for obvious reasons, and at the early part of that period we had a number of corporate tools to make that possible.

From memory, the main one was Skype at the time, later replaced by Teams. But in order to co-ordinate the work that we were doing, there was also a need to contact people rapidly, using, for example, messages that would show up on their phone if they were away from their – where they were working at home and so on. So we used a number of different – people would use a number of different tools to contact each other.

Coming to records management, the key principle there is to create and maintain the formal record of government decisions, what decision was taken, by whom, when and on what evidence. In my experience, corporate decisions were taken in the formal Scottish Government systems, including their IT system, so principally that would be the SCOTS email system, and my understanding of the use of – or my practice in the use of informal messaging would be, as I describe in my witness statement, to contact or be contacted by others in order to, you know, share an important piece of information that had just become known or to say “I’ve sent you something by email, you need to look at it right now” or “The First Minister wants to you at St Andrew’s House in two hours’ time” or – messages of that sort, that needed to get into my attention rapidly.

Lead 2A: Okay.

Mr Kenneth Thomson: Where – so most of these messages didn’t contain material that would be relevant – you know, a “salient fact” I think is the way it’s captured in the relevant policies. But where there was a salient fact relating to government business or pertaining to a decision that was in contemplation, it would be my practice to transfer that into the corporate systems usually by sending an email within the Scottish Government system saying “The First Minister has asked for additional advice on subject X” or something of that sort, and then having done that I would not retain material relating to government business in non-government systems.

Again, as later confirmed in the mobile messaging policy, you know, the instruction to us was to transfer salient points and then to delete the messages. So that’s what I did.

Lady Hallett: You’re very softly spoken, I don’t know if you always were, but if you would speak up a bit more I’d be very grateful.

Mr Kenneth Thomson: I’ll do my best.

Lady Hallett: Thank you.

Mr Dawson: Just for the sake of clarity, Mr Thomson, I think you may be referring to the paragraph in the November 2021 mobile messaging apps usage policy, about which we’ve heard a little, where there is stated an obligation at least monthly, but preferably at the earliest opportunity, you must transcribe the salient points of any business discussions and/or decisions. Was that your understanding of the position?

Mr Kenneth Thomson: Yes, as the date shows, that policy post-dates the start of lockdown and the work I was doing, but that was my understanding of the application of the Records Management Policy to informal messaging platforms at the time. And indeed is – you know, has been my practice for many years.

Lead 2A: Yes, so that may have used a particular form of wording but effectively that had been your understanding of the obligation throughout this period?

Mr Kenneth Thomson: Yes.

Lead 2A: You use the phrase “salient facts”, which might be interpreted slightly differently from that wording, but that wording is what you always thought the obligation was?

Mr Kenneth Thomson: Yes, you’re always thinking as a civil servant: what are the decisions under contemplation here? What is the evidence that would go into the public record that that decision was taken by whom? And so on.

So if I use as an example, some of the decisions taken by governments, plural, in the course of COBR meetings in March were taken very rapidly, and part of your mind as a supporting official is thinking: a decision in that corporate discussion was taken, it was taken by my First Minister, I need to capture that, I need to make sure that is part of the formal record.

So that’s what you’re doing. In ordinary times most of that is happening routinely – solely in corporate systems, you don’t need to send anybody informal messages about it. But where there are messages which say, for example – a realistic example would be the First Minister saying – she might message me to say “We’re having a meeting in two hours’ time, I need additional briefing on such and such”, and if I couldn’t provide that to her myself directly immediately, then I would transfer that into the formal system to say, “The First Minister needs briefing on such and such” – now that’s not actually our – that’s doesn’t – evidence of decision, because there’s no decision in that, but that was my practice, it’s the – always thinking: what do I need to transfer into the formal system?

Lead 2A: I think you talked in your description about the importance of understanding not just the decision but “on what evidence” were the words that you used. I’d just like to clarify what you mean by that.

Would you agree with me that that would require the corporate record to contain information relating to the way in which decisions had been taken, by whom they had been taken, the advice that had been tendered and accepted or not accepted, and any discussion which contained information of that nature?

Mr Kenneth Thomson: Yes. The gold standard for this is a decision by Cabinet, and it will always be clear, and I believe it is clear from the materials in front of you, that Cabinet would receive a paper which would set out in a lot of detail the evidence, the options, the consideration, the advice, the recommendations, and then, continuing the chain of evidence, as it were, the Cabinet conclusions will set out what decision ministers took and give an account, not a verbatim account but an account of the discussion which had led to those decisions.

So when things moved at pace, in such a way that even on the very intense pace that we were working with Cabinet at that time, a decision was being taken away from Cabinet more rapidly, you would want to capture that same set of evidence. So, for example, just after the May 2021 election, before the – the First Minister was still the First Minister, because there is always a First Minister, but she had not yet been nominated by the particle for reappointment, and at that point we had an emergency within an emergency because the – we had information coming from the scientific advisers about a new variant, the Delta variant. And I think some of the messages that you have from me at the time show the Chief Medical Officer contacting me – I think not in the messages but separately he had rung me to tell me this news and the two of us had gone to brief the then First Minister, and then there’s a rapid exchange of messages about, first of all, how we brief the First Minister and then, secondly, what – does this new information bring back into play decisions that the government has already taken and announced about moves between levels and, if it does, on what basis will those decisions be taken. And I think somewhere in that message chain there is me commissioning formal advice from one of my team to the First Minister about that decision.

From memory, again, that was not a decision taken by Cabinet because we didn’t have a Cabinet. We – the Cabinet could have met, that was provided for in the pre-election guidance, but in the event, because – including, partly, because she was to be asked an urgent question in the particle even before having been nominated, the First Minister would need to be transparent with particle about her thinking, and in fact what she decided to do was take a decision and tell Parliament what that decision was. So we recorded that decision, and of course it’s also apparent in the record of particle what that decision was.

Lead 2A: Thank you.

Ms Fraser told us that it was part of the responsibilities of directors and directors general to ensure that there were compliance with these policies that make sure that all of the matters we’ve discussed ultimately ended up on the corporate record. Did you do that while you were a director general?

Mr Kenneth Thomson: Yes, I did. In fact I – that was not an onerous responsibility in the sense that the – most of my dealings were with the First Minister and the First Minister didn’t take decisions in informal messaging. She – it would be very rare that she would message me at all, never mind in order to make a decision. So most of what we were doing was speeding up the formal decision-making processes that we were used to using, which would be a written submission, a reply from the private office or a draft Cabinet paper, a circulated paper, a discussion and Cabinet conclusions. So there was little material in my experience that – certainly not relating to decisions – that needed to be transcribed from my informal messaging into the corporate record.

However, I think I say this in my witness statement, looking back, the use of these messaging systems was much greater because we weren’t in the same physical building, and it was possible, and I think the evidence shows that this happened – that different people interpreted the policies in different ways. So although I had no messages to give you, you found – recovered some from others, I see that many of my colleagues were keeping messages and I wasn’t. So that’s an example of the risk that I allude to in my witness statement.

Lead 2A: Okay.

Could I take you to some messages, please, to have a look at them just to understand your approach in this regard.

INQ000331192, please. It’s at page 5.

This is an exchange from the very beginning or very near the beginning of the pandemic in the first lockdown, 25 March 2020. This comes from a WhatsApp group chat that was provided to us and the WhatsApp group was called “WhatsApp group OROG”; can you recall what that was to do with?

Mr Kenneth Thomson: Yes, I can.

Lead 2A: Could you tell us what it’s to do with?

Mr Kenneth Thomson: I’m sorry?

Lead 2A: Could you tell us, please, what the group was to do with, what were the business or the –

Mr Kenneth Thomson: The group called OROG was, from memory, a group of directors and me and some other directors general which came together shortly after the lockdown decision. I think OROG stood for operational response oversight group.

It was an informal group, it wasn’t a formal part of the Scottish Government’s governance or decision-taking, and it was really a place in which these directors could, as you would say, formally maintain situational awareness so we could understand what was going on and what needed to be done, so we were keeping an oversight of all of the different activity that was going on, so that, for example, within the Health directorates people were standing up new programmes on shielding, within other parts of the organisation people were moving resources from one place to another because of the – of what we could see we would need to do, and OROG was a group that kept oversight of that.

I think it’s fed back to directors in written form within the Scottish Government systems, but it also had a WhatsApp group in which, out of our group calls, we were able to share information and I think that’s what this thread will be.

Lead 2A: So this is a piece of correspondence between you and someone whose name has been redacted in which you say:

“My next strategic prediction: [this particular individual] is about to remind us to clear this thread…”

Then a person says:

“No need ken you have already done it thank you.”

This seems to be you acknowledging that there will be clearance of the messages from this group, despite the fact it involves business discussions relating to the pandemic; isn’t that right?

Mr Kenneth Thomson: No, this is quite an informal group. It is discussions about the pandemic but it’s not a forum in which decisions, especially not ministerial decisions, were taken, there are no ministers as part of this group.

Lead 2A: It involved business discussions?

Mr Kenneth Thomson: Yes, it’s about: do we have the right people in place to do that bit of work? Have we got adequate cover?

So, for example, one of the topics I remember being part of this was concern for the welfare of staff in that we know that in emergencies – if you’re running an emergency 24/7 you will need five people to cover one post, allowing for three-shift working and for people to have some recovery time at weekend and for sickness, and at this point we thought that many of our staff might be absent sick.

So one of the things we were discussing in this was what later became called the rule of two, in other words have we got key roles doubled up so that we’ve got some additional resilience.

So there’s those kinds of discussion going on.

Lead 2A: These are business discussions, are they not, Mr Thomson?

Mr Kenneth Thomson: Yes, but they don’t lead to – as I’m describing them here, they don’t lead to decisions by government.

Lead 2A: As I read out to you a moment ago, the obligation which you had told me had been the obligation throughout your period as a civil servant, was that you had to transcribe the salient points of any business discussions and/or decisions, so discussions – salient points of discussions required to be retained on the corporate record, did they not?

Mr Kenneth Thomson: So the test I’m applying when I’m looking at this material is: does this material need to be part of the record? And the record is described and defined in our Records Management Policy in relation to decisions taken by government.

What I’m describing is conversations amongst civil servants about making sure that we’re able to support the business of government, so it’s business in the sense that it is our work but it doesn’t relate to decisions taken by ministers as part of the government, that’s the distinction I’m making.

Lead 2A: That’s simply not what the policy says. It’s discussions, business discussions.

If someone, for example, wanted to know what were these directors discussing about this rule of two at the time, perhaps someone had been dissatisfied with what you ultimately decided, they would need to know, would they not, what discussions had taken place in order to know how the ultimate decision had been reached? What you’re suggesting here is that there is an early almost pre-discussion clearance of the thread.

Mr Kenneth Thomson: No, I don’t think so. I think these are business discussions and from them any salient points would need to be transferred into the corporate record, and the test that I’m applying is: we’ve had a discussion about how we’re doing our business, is there something here that affects – that needs to be part of the record of the actions of government in responding to the pandemic? If that’s “I’m a bit worried about person X, that they’ve got caring responsibilities and their work’s just exploded”, that’s not – if I apply the test, does that need to be part of the formal record of government decisions? I don’t think it meets that test.

Lead 2A: The test should of course be defined by the policy and not subjectively by you?

Mr Kenneth Thomson: I’m making a judgement about the – whether this example of information meets the criteria set out in the policy to be part of the formal record.

Lead 2A: Okay.

Can we go to INQ000268017, please, page 10.

Again, there is an exchange here, this is dated a bit later, this is from August of 2020 and there are a number of people in this chat, the group is called “Covid outbreak group”, do you remember that group?

Mr Kenneth Thomson: I don’t recall it, but it sounds entirely likely that I was part of it.

Lead 2A: Yes, you were part of it because we can see the messages from you that – a number of other people we can see, they include Nicola Steedman, who I think was the Deputy Chief Medical Officer, if I remember correctly; is that right?

Mr Kenneth Thomson: Yes.

Lead 2A: And Jason Leitch, who was the National Clinical Director?

Mr Kenneth Thomson: Yes.

Lead 2A: And in this there’s a discussion which starts with you saying:

“Just to remind you (seriously), this is discoverable under FOI. Know where the ‘clear chat’ button is…”

To which Nicola Steedman replies:

“Yes – absolutely…”

Jason Leitch then replies:

“DG level input there…”

Then you say:

“Plausible deniability are my middle names. Now clear it again!”

And then Jason Leitch says:


And you say:

“Me too.”

Is this you encouraging people in advance of messages being exchanged relating in a group called “Covid outbreak group” to delete messages in order to defeat FOI requests?

Mr Kenneth Thomson: No.

Lead 2A: What was your intention when sending this message?

Mr Kenneth Thomson: My – you’ve shown me one part of this. I think probably what has just been said is something that it might have been a bit of personal disclosure or it might have been something that seemed to me not to be a useful thing to say in a group like this because it might not relate to the purpose of the group. I don’t know, I can’t see what it was that prompted me to say it. What I have said is that this channel is discoverable under FOI, which I believe to be correct. That doesn’t mean it needs to be kept, it needs to be important – there’s a – the FOI rules operate in that way, but the Records Management Policy relates to information which is kept. So I’m reminding my colleagues that this channel is discoverable under FOI, which I think is correct, and then I’m saying in an informal way that my understanding of our approach to these groups is that messages should not be kept – other than in relation to salient points, as we’ve just discussed, these messages should not be kept and should therefore be deleted.

Lead 2A: You mentioned the possibility that there had previously been some personal discussion. If there were personal discussion, that wouldn’t be recoverable by FOI, would it?

Mr Kenneth Thomson: If it is information held by the government then I would need to probably take some advice on that, but if I run through, supposing that there had been a FOI request for an informal messaging channel, I would first of all make sure that we had clearly what information we held, and that would include information in the form of messaging channels and in people’s notebooks and so on. So the first step in dealing with an FOI request is to make sure you know what information you hold. Then you decide – you apply the terms of the request to discover – you know, to decide what’s in scope, you know, is this information in scope. Then you consider whether there are any relevant exemptions from the FOI legislation, and those are also set out in FOISA, Freedom of Information (Scotland) Act, and then you consider in relation to most of these exemptions whether the public interest test applies and whether given that the information should be disclosed even though there might be a relevant exemption on more than one. So that’s the process you go through.

Lead 2A: You used the phrase:

“Plausible deniability are my middle names. Now clear it again!”

You are suggesting to people in this discussion, prominent people in the Covid response, that they should, as a matter of instinct, clear their messages to defeat FOI requests are you not?

Mr Kenneth Thomson: No, I’m responding to Jason Leitch teasing me by saying that’s a “DG level input there” by bantering back, if you like, but what I’m saying is: unless material is salient and relevant to the public record, in which case it should be transferred – and then all of the material should be deleted. That’s what the – I think later our corporate policy would say.

Lead 2A: Thank you.

INQ000268025, please.

Again, this is a group which is, intriguingly, named “Quantum of Omicron”. It says in the group – starts off with you speaking:

“I feel moved at this point to remind you that this channel is FOI-recoverable.”

To which someone named Penelope responds:

“Clear the chat!”

Someone called Jim McMenamin says:

“Happy to do so – Lan reduced from 51 to 39 but fair comment.”

And then Jason Leitch says:

“WhatsApp deletion is a pre-bed ritual.”

Again, does this indicate, Mr Thomson, that there is a culture amongst people who are prominent advisers or decision-makers in connection with the Covid-19 pandemic in Scotland to delete their messages in order to delete the very purposes for which the policies are set up?

Mr Kenneth Thomson: I need to give you a longer answer to this question, but the short answer is no. The longer answer begins on a point of fact. In fact this is not the Quantum of Omicron exchange. It’s – because –

Lead 2A: You may be right about that, Mr –

Mr Kenneth Thomson: – this is much earlier than Omicron. I think this is actually a set of messages about the Delta variant.

Lead 2A: Yes.

Mr Kenneth Thomson: So – and this is relevant to – to the point I want to make. I think I’d said earlier that we had an emergency within an emergency when Delta emerged in Glasgow just after the Scottish elections, and these messages are from that time, and earlier in this thread, because I do recall this thread, Jason Leitch has posted into the thread a message from Twitter, and I have therefore gone to see what is that message and why has Jason posted it in, and the context here is that we know that there is a new variant of the virus, we think it’s in community transmission in Glasgow, we think that it’s between – I may be wrong on the details, but it’s 40% to 80% more transmissible, it’s significantly more transmissible, and it’s spreading primarily among members of the Indian and Pakistani community, who are very well represented in Glasgow, and the same variant also got a hold in Bolton. And final bit of context, in two days’ time Rangers supporters are planning to march through Glasgow to celebrate the fact that their team has just won a trophy. And Jason’s tweet is – well, not his tweet, the tweet that he posted into this group – is from a die-hard Rangers supporter reporting a food safety expert as saying that there is, therefore, no risk to Rangers fans if they march through Glasgow on Saturday. And I know how – I guess how Jason is going to feel about that, and he is envisaging what actually happened, which is that thousands of Rangers fans did march, against the regulations then in force, against the advice of the Scottish Government and the police and Rangers Football Club, in – very closely packed and – you know, thousands of people there, many of them will have had Covid, more of them will have had Covid by the end of that march, and some of them will have got ill and some of them may have died. So I’m imagining how Jason is feeling about that as a clinician and, given his role in communications, that he’s going to have to be the person who says “Well, I’m a doctor and I say that you shouldn’t march”, and they say “Well, there’s a sort of doctor who says you can”, and what I’m really doing – I accept in an oblique way – with my reference to the FOI is saying “Take a deep breath before you comment about the tweet you’ve just posted, Jason.”

Lead 2A: The reference to the phrase by Penelope “Clear the chat!” is somehow reminiscent, I think, of the phrase that you used in the previous message: “Now clear it again!” Was that a phrase that was used to describe this ritual of clearing the WhatsApp messages?

Mr Kenneth Thomson: Well, it is used there. To repeat a point from earlier, that was in fact the instruction that we were given in the corporate policy, having transferred any salient points to the corporate record.

Lead 2A: Again, the discussion that you are talking about relating to the Delta variant emerging, I think you were putting it in its context, is a business discussion between you and other senior advisers advising the government about their response to Covid, is that not right?

Mr Kenneth Thomson: No, I think if you read the whole of that group what you see is a group of colleagues co-ordinating rapidly on logistical matters and – in fact, yes, it’s a business discussion in the sense that you used the term earlier, I should say that, but I think elsewhere in that I say – I ask my colleagues does this have implications for the decisions already announced by ministers, and we have a discussion about whether the UK Government is likely to change its position, and we conclude that it does have implications, and what I then say, somewhere in this group, is then we need advice to our ministers, and I think I commissioned Dominic Munro, who is also a member of this group, to write that advice and to send it to the First Minister within the formal systems, and I think that’s what was done, leading to a rapid decision – I think I referred to it earlier – in relation to both Murray and Glasgow, as local authority areas. So, yes, it’s a business discussion, but there are – no decisions about the exercise of government power are taken here, there is no decision here about whether Glasgow would remain for longer in level 3, which is the issue in question.

But what we identified was a need for ministers to have advice – in fact the First Minister was telling us in no uncertain terms that she needed advice on this – and we were making dispositions about who was going to cover a meeting, a four nations meeting with the UK Government, who was going to write the advice, who was going to support the First Minister in her preparations for answering an urgent parliamentary question and so on.

Lead 2A: Could I ask you, please, Mr Thomson, to try to speak slightly more slowly. If it’s of any consolation to you, I’m being similarly admonished. So I’d be very grateful, just for the sake of the stenographer –

Mr Kenneth Thomson: We will both do our best in that case.

Lead 2A: Yes, thank you.

Could I just ask you to go over the page, please, to the second page of this chain, and I think we see there at 18.19 in the middle – this is the same chain as we were looking at before, which you very helpfully reported out is not Quantum of Omicron, my understanding is it was subsequently named Quantum of Omicron. It’s a rather odd collection of letters and numbers which is meaningless.

Mr Kenneth Thomson: I don’t think that’s correct. There was a group called Quantum of Omicron. From my memory it was started by the then Chief Medical Officer in order to share rapidly emerging information about the Omicron variant, but that group was not this group.

Lead 2A: Thank you. I’m looking at the entry there at 14 May 2021 at 18.19, it says:

“Ken Thomson: updated the message timer. New messages will disappear from this chat 7 days after they’re sent, except when kept.”

Is that you putting an auto-delete function on the message group such as to delete messages automatically, whether they relate to government business or not?

Mr Kenneth Thomson: It’s me doing what I say in my witness statement was my practice, that what I would do is transfer salient points into the corporate systems where that was necessary, and I would do that weekly. The later policy said at least monthly. And then having done that I would delete the messages because salient points had been transferred and the rest didn’t need to be kept.

And I say in my witness statement that where there were – where the messaging platform provided a way of automating that process then I would use it.

I think by 14 May the decision in relation to extending Glasgow’s period in level 3 had been taken and announced. I think it was announced earlier that day. So I was probably anticipating that there would be little or no additional traffic on this. In fact, from memory, the next step in decision-making about Glasgow and level 3 was at the meeting of the Cabinet on 1 June, which would have been the first meeting after the election. And the Cabinet had a long submission from – unusually not a Cabinet paper, but formal written advice, 30 to 40 pages of it, on the basis of which ministers took a decision at that point to move Glasgow into level 2. So I wasn’t anticipating any – that there would be much more traffic in this group, and therefore I switched on something that would save me the work of coming back to it in a week’s time to check whether anything had arisen.

Lead 2A: Again just above that you see one you have your colleagues I think using the phrase “Clearing the chat” that we saw earlier; is that right?

Mr Kenneth Thomson: So yes, she is confirming that she too is following our practice and indeed our policy of not retaining messages that didn’t need to be kept.

Lead 2A: While we’re on this exchange I was just quite interested in some of the things that aren’t being discussed there more substantively, Mr Thomson.

You can see a message from you slightly before that, at the top, where you say:

“It was really useful to have that full Four Nations Ministerial call led by the PM to share all the information and responses so that communications could be aligned, wasn’t it?”

And then you say:


And then Gregor Smith, who was the Chief Medical Officer, says:

“Cobra anyone?”

And then there is a reference to Penelope Cooper saying:

“I feel a cost benefit for FM would not have been positive.”

I wonder if you could explain to us what it is that you’re discussing at that time. You’ve already given us some helpful context what was going on at that point. There is reference to a four nations ministerial call. And it seems on our interpretation that you were, perhaps slightly sarcastically, saying that the meeting was not useful although the words suggest that it was?

Mr Kenneth Thomson: Sorry, I will try to speak slowly on this, because I’ve got a lot to say.

So I was going to say that, yes, looking at that, I was being a bit sarcastic. I will explain why.

So I’ve already referred to this being an emergency within an emergency, and the Delta variant, and I mentioned Bolton. So relevant to – and I’ve also said that the First Minister had already taken and announced their decision that Glasgow would move to level 2 shortly after these exchanges, and the question that we were considering with the First Minister, including in a discussion that the CMO and I had had with her, I think on 12 May, was whether the new information that we had about the Delta variant called that decision into question. The reason for that would be that the level and the NPIs associated with that level, in which Glasgow currently was, the decision on that would have been taken on the basis of the epidemiological characteristics and situation at the time the decision was taken. And that would have been on the knowledge that we had about the infectiousness of the virus at that point.

If the virus – if there’s a new variant of the virus which is, let’s say, 50% more transmissible and it’s in community transmission among communities that are – where spread will be – may be easier because you have larger households or multigenerational households and that might involve more risk, you might have more cases and more risk, and that means, you know, the decision that you had already reached, there is new information here that means that you not only could but you would have to revisit that decision. So that’s the context.

And the UK Government faces this challenge in relation to England as well, and I’ve mentioned Bolton, there were other areas too. Very similar considerations, communities and so on. And in that circumstance, if I wind back to the period running up to the original stay-at-home decision and then shortly after that, there was better, at that time, opportunity for governments to align their policies including through COBR and in relation to – you know, outside COBR, in relation to these matters through more or less formal calls, sometimes led by Mr Gove.

But what we had – what we were doing, what we had been doing, I think, just shortly before these exchanges, was watching live on the television the Prime Minister making what I think was a delayed announcement, and I think he did – he’d said – he gave his assessment of the new variant, but he did not in fact make – mention any different decisions about restrictions. The first we knew that that was going to be what he said was when he said it live on television.

Lead 2A: So your point, I think, here, to take it succinctly, is that you – there was information which you obviously had to be able to say that, and you’re saying that that’s information which it certainly would have been useful for the reasons you’ve set out, the similarities in the communities, et cetera, to have been shared with you on your four nations ministerial call.

Was it a consistent theme of your involvement in those calls that information which would have been useful to you was not always clearly shared by the Prime Minister or representatives of the UK Government?

Mr Kenneth Thomson: Yes. Just to give one bit of context here.

Lead 2A: Thank you.

Mr Kenneth Thomson: When I say “It was really useful to have that full Four Nations Ministerial call led by the [Prime Minister] to share all the information and responses”, what I’m saying is that didn’t happen.

Lead 2A: Yes, I follow.

Mr Kenneth Thomson: There was a four nations call, I think from memory led by Mr Gove, I wasn’t part of it but Penelope Cooper supported the First Minister in that call. The Delta variant was mentioned but – and all the – so I knew from Penelope’s feedback from that that it was of concern to all four nations but Mr Gove had not indicated what the UK Government’s decision in relation to Bolton or anything else to do with Delta would be.

So what I’m saying, and I’m trying to be succinct, but what I’m saying is that I did not feel that there had been a useful exchange between the governments of the kind that would have been appropriate in relation to a rapidly emerging new variant.

Lead 2A: This is obviously an important moment, isn’t it? There’s a significant threat at this stage.

Mr Kenneth Thomson: There is.

Lead 2A: I asked you whether this was – this failure to share information was something that you had experienced before – this is significantly into the pandemic – and I think you said yes, that you had had previous problems of this nature.

What did you in your senior position do to try to improve these meetings and other relations with the UK Government in order to try to access the information which you thought would be important to the Scottish Government’s response?

Mr Kenneth Thomson: So I think it may be helpful if I answer in two parts. And the first is, at a high level and across the period of the pandemic, to say why I said in passing that I thought that the intergovernmental relations had deteriorated somewhat.

Lead 2A: Yes, please.

Mr Kenneth Thomson: And then the second is to answer your point about what did I do about that.

So, to be as succinct as I can, I would contrast what I’ve already said about the position here in relation to Delta, with the exchanges in late March and in April and May, first of all in relation to introducing the stay-at-home requirement and then, and perhaps more pertinently, in relation to the first review of those restrictions and how that would be approached.

So I recall a four nations call on 7 May, I think, in which the First Ministers of Scotland, Wales and Northern Ireland and the deputy First Minister of Northern Ireland were engaged in a discussion with the Prime Minister in which –

Lead 2A: We will return to that particular aspect.

Mr Kenneth Thomson: So I can be more succinct in that case.

That was a good exchange. And if you’re going to come back to it I can unpack what I mean by that.

If I contrast that with what I’ve just described, you will see I think there is a deterioration there. So what did I –

Lead 2A: Just to be clear, a deterioration after the May, the early May exchanges, is that what you’re saying?

Mr Kenneth Thomson: So I think I would characterise that by saying that in the run-up to lockdown there was pretty good – albeit that this was all happening extremely fast, but my First Minister was in COBR. Often in other circumstances I might have had to argue for her presence there, which I would do by contacting my counterparts in the Cabinet Office. And so she was there, so that’s good.

I think – I’ve described the May exchange to which we may come back. In that exchange, my First Minister was arguing for continued post liaison so that – it didn’t mean that the decisions of the four governments would be the same but they would have the opportunity to exchange information and their intentions beforehand rather than discovering what each was doing by reading the newspapers. But by this point, in May of 2021, that effectively was where we were.

Lead 2A: I would like to ask you a few questions now about a separate subject, thank you very much, which is to do with the –

Mr Kenneth Thomson: I’m sorry, Mr Dawson –

Lead 2A: Sorry.

Mr Kenneth Thomson: – I didn’t actually give the second part of my answer –

Lead 2A: Oh, I’m sorry. Please.

Mr Kenneth Thomson: So there were, during this period – it was part of my job, I should start by saying, I was responsible for the quality of the relationship between the UK Government and the Scottish Government. I might put that differently by saying I was supported by ministers in that relationship. Now, what the outcome was depended on what ministers did with it. And in that role I had close constructive professional working relationships with a series of opposite numbers and other contacts in the UK Government, largely in the Cabinet Office although, during the pandemic, my counterparts there also moved into Mr Gove’s department. And I have a reasonably good network in Whitehall more generally.

So what I was doing, as I felt that there was insufficient bandwidth in the relationship, was using those contacts, which were both formal and informal, to put the case for more frequent contact and liaison, both formally and informally. So to give examples, if I became aware that, for example, the Prime Minister was going to visit Scotland, because it would be a courtesy that the UK Government would tell us that, then I would contact my opposite numbers and say, “Is there a possibility that we could arrange a discussion? Would the Prime Minister be willing to come and see the First Minister, because if so I’ll go and ask the First Minister if she would agree to that”. And that did actually happen with Mr Gove. I can’t recall that it happened with Mr Johnson.

I might also say, “Would it not be useful to have a four nations call about this?” And that did happen in fact. So to nuance what I said about a deterioration, things improved somewhat, from memory, in September of 2020 when – I cover this in my statement – there was better bandwidth, and that led to a meeting which – out of which the four governments published a joint statement about their strategic intent in relation to coronavirus. And I thought that was a good thing.

From memory I wrote the first draft of that statement and I was pushing my contacts to say “I’ve written something that my First Minister shouldn’t have a problem with and I don’t think the Prime Minister should have a problem with it either because it just – it brings together what all these ministers have said. Would it not be a good thing if we got all the four First Ministers together and asked them if they agreed that, because then that could be set out publicly as an expression of their commitment to work together?”

And indeed that happened, so that was positive. But then shortly after that we had an opportunity, as I say in my witness statement, the governments had an opportunity to align their approach to tiering or to levels, but in the event that didn’t happen and there – there was some degree of alignment. I could say more on that now or you may wish to come back to it.

Lead 2A: Could I just ask you in that regard, on the discussion opportunities and decision-making and information sharing mechanisms.

Could we go to INQ000233375, please.


Lead 2A: Sorry, just give me two seconds.

Mr Kenneth Thomson: That looks like an internal Scottish Government document.

Lead 2A: Yes, that’s not what I’m looking for.


Lead 2A: Can we just look for context at INQ000233 – that’s the same reference, sorry. I’ll ask you this without necessarily going to the document.

You’re referring there to there being, I think the general characterisation of your position was that there were early opportunities to be able to use connections that you had to be able to try to promote intergovernmental relations. There was a deterioration in those, in particular I think you pointed things that happened around May; is that correct?

Mr Kenneth Thomson: I’m listening carefully to your question. You put it to me that there was a deterioration in my contacts with my opposite numbers, which I would not say was the case. There was a deterioration in the opportunities that ministers had to come together for these discussions.

Lead 2A: Yes. Can you tell us what the nature and state of the relationship between Mr Johnson and Ms Sturgeon was during the course of the pandemic?

Mr Kenneth Thomson: I can tell you what my observation of that was.

Lead 2A: Yes, please.

Mr Kenneth Thomson: I’m sure you’ll take evidence from Ms Sturgeon herself.

Lead 2A: Yes.

Mr Kenneth Thomson: So I’m going to go back before the pandemic. I was present supporting Ms Sturgeon at her first meeting with Mr Johnson after he became Prime Minister, and – so the context here was, in a conversation after that meeting she and I were contrasting the style of this Prime Minister with his predecessor, and my observation of that description, and the First Minister can confirm this in the conversation afterwards, was that it had been a conversation among two senior politicians – you know, I think the First Minister’s phrase to me was, “You can have a debate with him”. She was contrasting that with her experience of his predecessor. That doesn’t mean that the relationship was warm or that – they were clearly not politicians of the same view, but at that point I think, speaking for myself not Ms Sturgeon, I was more optimistic that it would be possible for that relationship to become productive. I think –

Lead 2A: Did it?

Mr Kenneth Thomson: The short answer to that is no, but I think I want to give you a more nuanced answer, which is that in the early stages of the pandemic there was serious engagement between all ministers in the COBR meetings and otherwise. I didn’t see party politics in those discussions at all. And that was also present in the early lockdown period as these discussions began to – you know, ministers turned their minds to when would the restrictions be lifted and how. I think in the meeting of 7 May to which, again, we may come in more detail but I think that was the first point at which I was concerned that the – well, I’m going to distinguish the decisions and the relationship.

It was clear to me in that discussion that it was quite likely that the Prime Minister would decide to release restrictions in England sooner than my First Minister at that point thought was right, given the facts and circumstances before her in Scotland, so there was going to be difference between the approaches of the two governments. That is not in itself a problem, but I thought I could also detect at that point that the course of this relationship was going to go in a different – they were going to diverge in terms of their ability to do work together, because the Prime Minister was assuring the First Minister that, you know, he wasn’t going to release anything on the very day – and she makes this point in the meeting – when the newspaper had headlines like “Freedom beckons” and “Magic Monday”, and I thought, you know, there’s not – something not quite joining up here.

And from that point on I think it became harder for there to be the same kind of four governments coming together discussing decisions, taking decisions each for their own jurisdiction, which might or might not be the same but would have been discussed in that way. And in my statement I use the term “alignment” for this. Alignment doesn’t mean the outcome is identical, but there was good alignment, and that alignment – the opportunities to create it and therefore the alignment deteriorated over the period of the pandemic. With – with the exception of the period around September 2020 that I referred to earlier.

Lead 2A: Thank you.

There is some documentation in relation to opportunities that there were for the governments to co-ordinate their responses, for example the ministerial implementation groups which we’ve heard something about in Module 2 already, and some of the documentation suggests that there was a degree of dissatisfaction with those in the Scottish Government, in particular as regards – the observation made in a number of places that there was no substitute for head of governments getting together and really being able to try to work out a consensus approach.

Would you agree that that characterisation, both of the ministerial implementation groups and the fact that there was no substitute for Ms Sturgeon and Mr Johnson getting together to make proper decisions together is an accurate characterisation of the Scottish Government’s position?

Mr Kenneth Thomson: Yes. In your earlier question you asked me about the relationship between the two heads of government.

Lead 2A: Yes, indeed.

Mr Kenneth Thomson: Yes. So it’s useful for me to add, answering this question, that under that there was a good deal of intergovernmental discussion, I don’t wish my earlier answer to give the impression that there was no contact, there was a great deal of contact, including through the ministerial implementation groups, and actually also in relation to the JMC, which I know is of interest to the Inquiry. Although the JMC in plenary did not meet in this period, the JMC Europe had been very busy on Brexit business and continued to meet through this period, so there was a lot of that and the participation in –

Lead 2A: Just for clarity, that’s the Joint Ministerial Committee on which Scottish Government and the UK Government are both represented; is that correct?

Mr Kenneth Thomson: That is correct, it’s the forum created by the memorandum of understanding at the time of devolution.

Lead 2A: Thank you.

Mr Kenneth Thomson: And it meets in different formats, and JMC(E) it’s Joint Ministerial Committee (Europe).

Lead 2A: You were telling us about the relationships between the two –

Mr Kenneth Thomson: Yes. So the – your question was about the quality of the interaction and the satisfaction with the interaction in the ministerial implementation groups.

Lead 2A: Yes.

Mr Kenneth Thomson: That they existed and that Scottish Government ministers took part in them was, I think, welcome and useful, but did they achieve the potential for alignment, to use the language of my statement? I don’t think they did.

Lead 2A: What was your interpretation of the reason for that?

Mr Kenneth Thomson: I think a combination of factors. I think the UK Government had a significant challenge in reaching these decisions because it had a broader range of responsibilities over a larger geographic area, point one. Point two, a much larger group of ministers in the Cabinet. Point three, a different institutional landscape, with separate departments rather than portfolios and directorates within one organisation. And point four, part of my role was to kind of look in on this and discern what I could when I – in an informal message I said “strategic prediction”. Quite a lot of what I was doing was trying to work out what the UK Government’s strategy was or would become so that I could help my ministers to understand that and to align with it or to seek – consider whether that was relevant to the decisions they were taking.

So part of my job was to try to work out how the UK Government was taking its decisions, and that was quite hard to do and in my experience those decisions tended to be taken quite late in the sense – I don’t mean late in epidemiological terms, I mean if there’s a MIG, a ministerial implementation group going to happen, the UK Government will direct its mind to those issues only relatively shortly before the meeting.

And then, final point, the UK Government finds it uncomfortable to take its decisions with a Scottish Government minister or Northern Ireland minister in the room, so although our ministers were participating in these meetings, they sometimes had the impression that ministers had decided – UK ministers had decided beforehand what needed to happen and they were kind of playing that through the discussion once our ministers were involved in it.

Lead 2A: Thank you. I had asked you another element to this, which was whether these ministerial implementation groups, with which you’ve described a certain degree of dissatisfaction on the part of the Scottish Government, were an adequate substitute for the two leaders coming together to try to work profitably together in the interests of both parts of the United Kingdom, and is your position that the relationship between those two did not work well, to the detriment of both nations (inaudible)?

Mr Kenneth Thomson: So in supporting work between governments – and this is also relevant to the relationship Ms Sturgeon had with, for example, Mr Drakeford and the First and deputy First Ministers in Northern Ireland – but in supporting that a number of things are in play. There’s a – within government there’s a constant pressure for issues to get escalated and there’s a constant need, battle on the part of those supporting the heads of government to delegate. So any – anyone supporting a head of government wants to make sure that their energy and time and attention is only being taken by the things that absolutely have to come to them, and if I put myself in the shoes of my counterparts supporting the Prime Minister, they would be wanting to ensure that his time and attention were not taken up by things that are – the First Minister of Scotland thought were important but he might not. So that’s a fair point.

Lead 2A: When you say they were “making sure” that was the case, can you just clarify what you mean by that?

Mr Kenneth Thomson: What I simply mean is that it is part of the role of the people supporting the head of government to triage the issues that were clamouring for attention, and it’s entirely proper that those supporting the First Minister would say, “The First Minister of Scotland wants to speak to you, what priority does that have within other things that are on your agenda?” However – and my next point is that it’s therefore necessary for heads of government to be able to delegate liaison and decision-making and so on, including in intergovernmental forums, and that was part of the purpose of the ministerial implementation groups.

So where you do need head of government direct participation and decision-making, as you did in the COBR meeting of 23 March, it doesn’t mean that you need it on decisions about travel restrictions to Spain some time later. That’s the point I’m trying to make.

Lead 2A: Yes.

Mr Kenneth Thomson: That’s preparatory to the answer to your question. It is important for there to be a relationship of trust between heads of government such that if my First Minister thinks that actually the Prime Minister does really need to know this, there should be – you know, she should be able to get through to him, and vice versa. And in my experience that didn’t happen. You know, it was not … it was – the relationship had not been built up in peacetime, as I use as a metaphor in my witness statement, in a way that allowed it to be deployed in the particular circumstances of Covid.

And to come to your – the final part of your question, yes, I do think that affected how the – whether the decisions were the best they could have been. I shouldn’t say that without particularising why I do say that. So if I come back to levels and tiering, I’m entirely – I can speak to the reason why the Scottish Government took the decisions it did, and indeed so can Ms Sturgeon, but there was an opportunity, perhaps briefly, for the – for tiers and levels to be brought together in a system which could have been promulgated for the UK, or at least for Great Britain, with clarity, and that would have been easier for ministers and communication teams to do than having two separate systems, and in the event that didn’t happen.

But – and just to expand briefly on two further points, because they do bear on this. It’s reported – I think in the Inquiry’s documentation there’s a reference to the First Minister saying that she proposed to introduce a three-level system. That’s not actually correct. It was reported –

Lead 2A: It was reported, that’s correct.

Mr Kenneth Thomson: What she actually said was “I have been discussing with the Prime Minister their proposal for a three-tier system”, or something of that sort. And indeed she had – or there had been – we had had information, a bit late in the day perhaps but we knew what the UK Government was thinking about. In the event, she concluded that a system of this kind was required in Scotland, that it needed to have more than three levels because I think in her view a level 3 would not be adequate to suppress the virus at all points, you needed a level above that, and also you needed a level below it because you might want to make smaller steps out to make sure that you don’t take off restrictions and then have a second spike.

What she do, though – or the reason that the Scottish Government’s five-tier system was numbered 0 to 4 – which later was the WHO’s recommendation, but that’s coincidental – it was numbered in that way so that levels 1 to 3 would be broadly comparable with the UK Government’s tiers 1 to 3, because in the nature of the NPIs applied in them they were broadly comparable.

So that was our trying to align, trying to achieve that degree of alignment but it didn’t, in my view looking back, it didn’t succeed in – between them, the working between the governments didn’t succeed in realising the full potential for that.

Lead 2A: Could I just ask you briefly some questions about the very early period of the pandemic. My understanding is that you were involved – one of the things you were involved in was briefing ministers who were attending COBR; is that correct?

Mr Kenneth Thomson: It’s not quite correct, but let me explain.

So as you know from my witness statement, my involvement in this began over the weekend of the very end of February, and I won’t repeat what I say in the statement about how that came about, but from – so I was not part of meetings that took place over that weekend, I don’t think there were any COBR meetings that weekend, and I wasn’t part of my COBR meetings on Covid before that, although I have supported ministers in COBR before.

From Monday 1 – no, 2 March, I was concerned to support the First Minister in what was clearly a major emergency and in my then day job, if I can put it that way, my teams and I would have contributed to intergovernmental interactions, usually not so much COBR because the resilience team would lead on that, but I thought that I could be of support to the First Minister by, you know, being around her and in supporting her in COBR. Not – this is the point I really want to make: not in relation to decision-making on COBR, the Chief Medical Officer and others were there to support her on that, I was supporting her in my IGR role (intergovernmental relations) by helping her to read what decisions the UK Government – you know, how the UK Government was responding to this emergency, how its decision-making was shaping up, what the opportunities would be, you know, would it be necessary or relevant for her to seek to influence those decisions, if so how could she best do that. Those would be the big kinds of conversations I would have had with her, perhaps before and after COBR meetings in the very early stages.

Lead 2A: Thank you.

I wonder if I might just take you to one document briefly, please.

The document is INQ000346137. I’m looking at page 14. Thank you.

This is a notebook which –

Mr Kenneth Thomson: Could you tell me which of those pages is page 14?

Lead 2A: Yes, it’s the Wednesday the 26th entry that I’m going to be looking at, which is at the top left.

Mr Kenneth Thomson: Forgive me, Mr Dawson, this is a document you showed me this morning so –

Lead 2A: Yes, absolutely, I’m just wanting to ask you about this. This is a contemporaneous notebook –

Mr Kenneth Thomson: If I may?

Lead 2A: Yes.

Mr Kenneth Thomson: Wednesday the 26th of what?

Lead 2A: This is 2020.

Mr Kenneth Thomson: Of February?

Lead 2A: Of February 2020, the period that we were just discussing.

Lady Hallett: Please, I appreciate you didn’t have all the documents in good enough time, but please just say and Mr Dawson will make sure that all –

Lead 2A: Thank you.

Mr Dawson: Mr Thomson was kind enough to tell me before we started, my Lady, that he had had the opportunity to look at the extracts we gave him, so –

Mr Kenneth Thomson: And this was one matter that (inaudible) which month is being –

Lead 2A: Yes, thank you for asking me to clarify.

This is a notebook which we received from Derek Grieve, who was the deputy director of health protection division within the Directorate of Population Health; is that correct? Is that your recollection?

Mr Kenneth Thomson: That Derek Grieve had that role, yes.

Lead 2A: Yes?

Mr Kenneth Thomson: Yes.

Lead 2A: I’m interested really in just understanding whether your recollection of that period, given the limitation of the role that you’ve described, is consistent with the way in which Mr Grieve is describing the position of the Scottish Government at this stage.

He says in relation to this that he attended the COBR (M) meeting with Cabinet Secretary Freeman, that’s Jeane Freeman:

“It’s clear all [departments] in UK Gvt are fully engaged and mobilised in a way the SG simply isn’t.”

And I’d like to ask you then just to go to the Thursday the 27th, it’s the next note, where he says:

“Despite Shirley trying to encourage them, still no real engagement. They then spent 20 [minutes] talking about internal SG comms. Completely amazed!”

And the page 18, please.

It’s the Thursday the 5th entry I’m looking at, where it says in the first entry – if we could zoom into that, please:

“I attended Directors meeting … Laid it out thickly but few believe this is going to be serious.”

That’s Thursday 5 March 2020 we understand it.

These entries might be taken, Mr Thomson, to suggest that Mr Grieve characterised the general mood within the Scottish Government as being one which was not particularly engaged with the emerging threat despite what appeared to be his concerns about it. Was that an atmosphere which you recognised in the Scottish Government at that time as regards the emerging threat of Covid?

Mr Kenneth Thomson: So I will turn to the relevant passage in my witness statement to answer this.

So these straddle the period in which I involved myself in Covid in the Scottish Government. I was in London in the week of the first of the entries that you showed me, so I wasn’t part of that COBR meeting, from recollection –

Lead 2A: I’m not suggesting you were, Mr Thomson, I’m just suggesting that you might be someone –

Mr Kenneth Thomson: Sorry.

Lead 2A: – given the prominence of your position, to be able to reflect upon these observations made by Mr Grieve.

Mr Kenneth Thomson: Absolutely. So I’m rehearsing in my mind which of these discussions might I have been involved in. Possibly 5 March, but not the other ones because I wouldn’t have been in Scotland.

So to answer your question, and forgive me for my drawing myself back into the events of the day, I – as I say in my witness statement, I was aware of the preparations that were being made for Covid, in the sense that at the meetings of the Scottish Government’s executive team I was hearing from my Health and Social Care counterparts, colleagues, that they were preparing to ramp up for what Covid would mean for us, and I think I read in Derek’s notes here a frustration that that – that the ramping up, the mobilisation of the Scottish Government is not happening as quickly as he would want to see happen.

I agree with that. I don’t think that means that the Scottish Government in the sense that Derek Grieve and his colleagues – I think they were very closely involved in consideration of Covid and the threat that it posed. As I said in my witness –

Lead 2A: I think, Mr Thomson, that their consideration doesn’t seem to have led to any sense of urgency about it?

Mr Kenneth Thomson: Well, I think – I think they were – I think – I took that is – this is not what you mean, but I think that they thought this was very urgent, and what they’re trying to do, and Derek is expressing his frustration about this, is to, if you like, spin the flywheel up. And I shared that concern.

Mr Dawson: If that’s a convenient moment, my Lady.

Lady Hallett: It is. I shall return – I’m sorry we have to break in the middle of your evidence, I hope you were warned you may have to, Mr Thomson. I shall return at 1.45.

(12.47 pm)

(The short adjournment)

(1.45 pm)

Lady Hallett: Mr Dawson.

Mr Dawson: Thank you, my Lady.

Mr Thomson, if I could just return to the – you remember there was one statement we were looking at at the beginning, one of your statements that we didn’t manage to get up.

If we can just go to INQ000339039.

This is a statement dated 6 November. This, I think, falls into the category of one of the ones, Mr Thomson, that you drafted but was ultimately signed by your successor; is that correct?

Mr Kenneth Thomson: It was provided in draft by me. It was drafted on my behalf and I commented on that draft.

Lead 2A: Understood. Can I just confirm with you that insofar as the statements were prepared by you, they remain true and accurate at this moment in time?

Mr Kenneth Thomson: That is correct.

Lead 2A: Thank you very much.

If I could just return to a topic to which we’ve alluded a few times, Mr Thomson, but we haven’t quite arrived at yet, which is the time period around May of 2020, you’ve referred to this a few times in your evidence already but it’s a topic I was particularly interested in covering with you. This is, I think, a quite important period, and it’s – just to put it in context, it’s the month after the Scottish Government has launched its four harms framework, and it is the month in which the Scottish Government route map out of the restrictions is published; is that correct, to give context?

Mr Kenneth Thomson: That’s correct.

Lead 2A: I understand that over this period some meetings took place which led up to the public announcement on behalf of the UK Government about its messaging changing with regard to the way in which they wished to try to explain what people should be doing at that stage. Is that right?

Mr Kenneth Thomson: That’s correct.

Lead 2A: And the messaging that I’m talking about is the change, broadly speaking, from a Stay at Home to a Stay Alert message, which was issued by the UK Government on 10 May 2020?

Mr Kenneth Thomson: That’s correct.

Lead 2A: I understand that there was a meeting which took place between the First Minister, former First Minister, and former Prime Minister, on 7 May to discuss the position with regard to the pandemic. Is that correct?

Mr Kenneth Thomson: My recollection is that it was a four nations meeting, so it was also attended by Mr Drakeford and by probably the First and deputy First Ministers of Northern Ireland, so it was a four nations meeting rather than a bilateral.

Lead 2A: Yes, indeed, but it was a meeting at which there was discussion between the former First Minister and the former Prime Minister about the approach that would be taken.

You’ve very helpfully provided us with some of your notebooks about – which have your notes of various important junctures in the pandemic.

Could we have a look at, please, INQ000371228.

Mr Kenneth Thomson: Thank you, Mr Dawson. Whilst that is coming up, perhaps I could just say a word about my notebooks?

Although I think you’re about to show me a fairly detailed note of this conversation, that wasn’t generally how I used them, and I probably noted this particular meeting because I didn’t have access to a computer or (inaudible).

Lead 2A: It may be that we don’t have to look very carefully, they’re really just as an aide memoire for you, Mr Thomson, because there’s a few important points I would like to take just to clarify exactly what was going on.

I must admit that we struggled slightly with your handwriting. I wonder whether you ever considered a career in the medical profession.

But it may be that we don’t need to try to struggle with that today if we can deal with this on the basis of some basic propositions, if I put them to you and you can tell me – please disagree if I get it wrong, but I’m just trying piece together the narrative.

The position I think of the First Minister at this important juncture was broadly that she was concerned about some media reports which had suggested that the UK Government was going to drop its Stay at Home message, and that she was keen – and your notes back this up – to try to impress upon others at the meeting, in particular the former Prime Minister, that she would not be prepared to drop that message for Scotland in light of the Scottish Government’s interpretation of the threat; is that correct?

Mr Kenneth Thomson: That’s exactly correct.

Lead 2A: And she – in fact, I think, these notes suggest that you’ve noted her as saying something along the lines of “Stay at Home is the foundational message”, and in fact she appears to have said that a change would be catastrophic?

Mr Kenneth Thomson: Yes, I don’t have that page in front of me, but I do recollect that she did say that and I wrote –

Lead 2A: Yes, so that was her position. And it seems from the notes that she was attempting to try to convey that position forcefully to the Prime Minister?

Mr Kenneth Thomson: Exactly.

Lead 2A: In your notes as well, and we do have other notes of this particular meeting which I think are consistent with this position, is that the Prime Minister in response to this position being advanced by Nicola Sturgeon was that he indicated that he totally understood that Stay at Home remained an important part of the message; was that broadly your understanding of his position at that meeting?

Mr Kenneth Thomson: Yes, that is what he said. The First Minister was concerned that there was a gap between what he was saying there and the – I referred already to the headlines, I refreshed my memory on them, so I don’t need to repeat that. I think she also said, and I wrote down, that “The newspapers didn’t get” – you know, “didn’t make that up by themselves”. So she was pointing to, “You’re saying one thing to me but you’re leading the newspapers to expect another thing”.

Lead 2A: Indeed, I think there’s a note to that effect that we managed to make out suggesting that the media wouldn’t make that message up so there must be some element of truth to it. And they were trying – she was trying to ascertain whether that was in fact the UK Government’s position or not; is that broadly correct?

Mr Kenneth Thomson: That’s the case. And – and Mr Drakeford said much the same thing. It might actually have been he who said that, but she would have agreed with it.

Lead 2A: So Mr Drakeford was struggling to understand with precision what the UK Government’s position on this important matter was as well?

Mr Kenneth Thomson: No, I think Mr Drakeford and Ms Sturgeon understood that – they had a clear sense that the Prime Minister wanted to release restrictions. That wasn’t quite what they heard him saying to them. They believed that, you know, he’d been leading the media to expect that that is what would happen I think the following Monday. And they were both clear that, in relation to the conditions and the epidemiology in Wales and Scotland, that was not the right thing to do. So they wanted to be, to get confirmation from the Prime Minister of what he was going to do and impress on him that I think both of them, but certainly Ms Sturgeon, did not agree that that would be the right thing for Scotland at that time and that that would be a decision that she would make rather than he.

Lead 2A: Did you and the First Minister leave that meeting with the impressions that the Stay at Home message would remain the position of the UK Government at that time?

Mr Kenneth Thomson: Well, again, there was a gap here. The Prime Minister explained that his concern was that the UK Government’s message was actually “Stay at Home (unless you need to go to work)”, I paraphrase slightly, and he thought that too many people were interpreting that as just “stay at home”. So she was concerned that, you know, if he wanted to soften that message that would have a deleterious effect on the compliance with NPIs you know, she would hope that that would be – would not feature in Scotland, but she was concerned about that, and I recall her saying to me, possibly at the end of that meeting, she turned to me with some exasperation and said “I can’t stand in front of a television camera and tell people to stay alert to something that they can’t see”. She was thinking about how does this work as a piece of public health communication, and she was – she said it would be a mistake to depart from that foundational message of Stay at Home.

Lead 2A: So do I take it from what you’re saying that her concern was perhaps two-fold: one was that the Stay Alert message she didn’t particularly understand herself and therefore couldn’t communicate that in a public health communication; is that right?

Mr Kenneth Thomson: It fits it very well.

Lead 2A: Also I think that there was a risk that if that were to remain – were to become, sorry, the message of the UK Government, that there was a risk that that message would cause confusion in Scotland in particular because her epidemiological advice was to the effect that she should stick with the current regime and the current messaging?

Mr Kenneth Thomson: So I would say that there were two points in there. The first is that departing from the Stay at Home message as currently understood and adhered to in Scotland would be the wrong thing to do in terms of the epidemiology in Scotland. And the second was that even if it was the right thing to do in England, the nature of the communications from the Prime Minister publicly might cause confusion because, as she said at the time and as has come out in other evidence, quite often the Prime Minister and others would say “I’m telling people in the country” or “the UK” when actually they meant, in this case, England. That was the confusion.

Lead 2A: Thank you.

I understand that on 8 May, which was the day after this meeting, the former First Minister was reported as saying that there was some recognition that each of the four nations would move at different speeds and that she would not be pressured into lifting restrictions prematurely. Is that correct, there was an announcement to that effect by the former First Minister on that day?

Mr Kenneth Thomson: I think it might have been a reporting of comments rather than an announcement by her, but –

Lead 2A: Yes.

Mr Kenneth Thomson: – what you say is exactly what she felt at the time, and (inaudible) –

Lead 2A: Were you involved in briefing about that message or advising about that message at that time?

Mr Kenneth Thomson: Well, I … so the word “briefing” has a precise meaning within the civil service. So I didn’t brief her on whether it was the right thing or the wrong thing. She gets that advice from my medical colleagues. But I was involved in discussions with her about – part of my role as I explained earlier was to help her understand what was going on in the UK Government, so I was part of those conversations about what is the UK Government going to do, what is the right thing to do in Scotland, what’s the interaction between these two things.

Lead 2A: Would it be correct to say that at that time there was a significant concern or apprehension that there was about to be a significant change in the approach being taken by the UK Government and the Scottish Government to the management of the pandemic?

Mr Kenneth Thomson: Yes.

Lead 2A: I think that you sent an email to the First Minister, which is INQ000222934. I’d like to look at that with you, please.

In this you say:

“First Minister –

“Dominic Munro has given you advice ahead of today’s COBR meeting. This note supplements that on one aspect: the framing of the ‘Four Nations’ approach.

“Following your discussion with the Prime Minister, Mr Gove and other First Ministers on Thursday and Friday, as officials we set out to our UKG counterparts the need for deeper and more consistent engagement on the aspects of their work which apply across the UK and affect devolved interests, including (for example) business guidance and border controls:

“We acknowledge that some details have been shared through the UKG’s Ministerial Implementation Groups and the Four Nations calls, but continue to press for the full detail of the UKG’s proposals, which we have not yet received (at the time of writing).

“Much of the detail of tomorrow’s UKG document will be, in effect, a plan for England (though it will probably continue to mix England-only and UK-wide aspects). We know that UKG officials are conscious of the risk of COBR becoming mired in the detail.

“At the level above the detail, the Four Nations are moving in broadly similar ways, though to different timescales, and remain reasonably closely aligned. As you emphasised to the Prime Minister, however, each government is responsible and accountable for guidance and regulations within its own jurisdiction.

“You may wish to assess during and after COBR, whether there is scope and advantage in consolidating the Four Nations approach, including the emphasis on the separate accountabilities of the four governments.

“One way to do so would be to draw on the lines set out below, either by proposing these as a shared basis for media briefing, or consolidating them in a joint statement. These lines go no further than restating the governments’ existing programmes, and are consistent with the principles they have published in the past two months (extracts attached).”

Then you set out a proposed form of words which relates to the four nations approach trying to set out the characteristics of that as you understand it.

What was your thinking in trying to advise the First Minister at this time in this way and what was your apprehension about what was perhaps happening or about to happen?

Mr Kenneth Thomson: So it’s useful to be reminded of this.

In an earlier answer I – we covered the events which led to the publication of the joint statement in September. I think this is probably – in my mind, as I wrote this, was: is that the point we could get to? And you will see that it took us from May to September to get to that point, which in the world of an epidemic is a very long time indeed.

Lead 2A: Mm.

Mr Kenneth Thomson: Why was I offering her advice of this kind? I was concerned, as you put it to me earlier, that the two governments might be pulling apart. I don’t mean in terms of the decisions because the decisions should be taken on the facts and circumstances before them, but pulling apart in terms of their ability to align and understand and share in advance what those decisions were going to be.

And what you see here is the product of conversations or exchanges with my counterparts, including in Wales and Northern Ireland, to say “I’m concerned about that, it would be good if COBR could pull us back to where we, the devolveds, think we need to be”, and then I’m saying to the First Minister “You could draw on these lines”. And I emphasised to her, because she was concerned about this, that I’m not proposing that she should cede decision-making about Scotland to the UK Government – which would not be right (she would think, and I would agree) – but I am saying, you know, “There is an opportunity here to join up and here’s how you could propose that we do it”, and I say “This doesn’t actually go any further than each of those administrations has already said, it’s just an opportunity to pull together and say this is what we are all trying to do, which is protect our administrations and our people from the impacts of this terrible disease”, which would be what you would want your senior politicians to do.

Lead 2A: Did you feel – it seems from what you’re suggesting here that there was a need, not for any innovation but for there to be a reiteration of the four nations approach, as you had understood it before that point?

Mr Kenneth Thomson: That’s correct.

Lead 2A: Was that because you apprehended that there was about to be a departure from this approach?

Mr Kenneth Thomson: It was in part for that reason but in part also because I could see that the decision-making for all the governments was about to – was going to become over the summer more complex.

You know, it’s – there is a reference elsewhere in the evidence to the concept of the hammer and the dance. Now, if lockdown is the hammer, then the decisions about the fine grain of what restrictions you can release and when, and when it’s safe to do so, or how you mitigate the other harms, that’s the dance. So decision-making for all these governments, and therefore the interaction between them, was becoming more complex, and just at that time I was concerned that the bandwidth in the relationship, certainly at heads of government level, and below it actually, was inadequate to good alignment given that challenge.

Lead 2A: Would it be fair to say that in advising the Scottish Government it was important to bear in mind that the UK Government would always have, because of the devolution settlement, control over aspects of pandemic management that would inevitably affect Scotland’s strategy in fighting the virus?

Mr Kenneth Thomson: So you put that to me as the UK Government would have control over, and I’ll answer that part and another part.

There were certain aspects of pandemic management that were reserved. Incidentally not border controls in relation to public health, one might come to that, but there certainly were some that were reserved and the UK Government had control of those and that was relevant to the Scottish Government’s decision-making. Furlough would be an example.

But there’s also a concern in my mind at this point and in the First Minister’s that the decisions that she is taking within devolved responsibilities are within the context of GB or the UK where the UK Government, in its role as, I’m putting this in quotes, the government of England, in other words in its exercise of responsibilities which in Scotland are devolved, it’s taking those decisions and because of the – and when the Prime Minister says something it gets reported through the whole of the UK – that influences the environment in which she is – the former First Minister is managing the pandemic. So there’s both control but also the interaction of messaging.

Lead 2A: I don’t wish to diverge, but you mentioned something which is of interest to me, which is the question of border controls, so if I could just deal with that but come back to this narrative in a moment.

The question of border controls is one which we’ve found slightly difficult to comprehend. Is your position from the answer you’ve given that border controls were effectively a matter under the control of the Scottish Government during the pandemic, as regards Scotland of course?

Mr Kenneth Thomson: Forgive me if I dive into the detail. The detail’s complicated but, to address Professor Cairney’s word, I don’t think it’s blurry in relation to this matter, because the place where what is reserved is set out is schedule 5 of the Scotland Act. And I should say that I was one of the people who contributed to the drafting of that at the time. And in schedule 5 you will find – you will not find “borders” as a word appearing. What you will find reserved is immigration and nationality, under section 6B of the specific reservations, and you’ll find the regulation of international trade reserved at paragraph 7 as part of the general reservation of foreign affairs.

What that means is that border controls at the border in relation to immigration and nationality and regulation of trade, which is what most border controls are, those are reserved, and the administrative apparatus by which the UK Government deals with that is within its control. But border controls in relation to public health are not reserved, therefore they are devolved, which is why the Scottish Parliament was able to pass an Act, the Public Health etc (Scotland) Act 2008, at which section 94 sets out provisions for controls, international it’s called, but it includes the ability to make regulations which provide for what happens when a vehicle arrives at the border, including the ability to require that persons in that vehicle should quarantine.

Now, those are the powers that were being used in relation to travel restrictions, and because of the passage of that Act post devolution the UK law officers would have had the opportunity to satisfy themselves as to the – that Act was within competence. So although it is complicated –

Lead 2A: This is why, Mr Thomson, that when one looks at the restrictions in Scotland at borders, they are exercising control by the Scottish Government, because it relates to the control of public health rather than other matters which might be under the control of the UK Government, such as immigration and nationality?

Mr Kenneth Thomson: That is exactly right. And to add one further point, the Scottish Government needed the help and co-operation of the UK Government to make all this work because administratively the means by which you do this involves the input of Border Force and so on.

Lead 2A: Yes.

Mr Kenneth Thomson: So that support is necessary. But in terms of the vires for these, that’s clear in my mind.

Lead 2A: Thank you. Well, it will be a matter for her Ladyship in due course to determine whether the lines are blurry in that regard, but thank you for the explanation.

To return then to our narrative from May, you mentioned that the email you had written was in connection with a COBR meeting and I think your aspiration, you said, was that the COBR meeting might be able to bring things back into alignment, as you say; is that right?

Mr Kenneth Thomson: Yes, that’s fair.

Lead 2A: And the COBR meeting took place on 10 May; is that correct?

Mr Kenneth Thomson: I’m relying on you for that, but yes.

Lead 2A: It was very shortly after that period that we have been discussing. We have a note of this, it’s from Ms Elizabeth Lloyd, it’s quite a useful shorthand and I’m interested to know whether you agree with me as to whether this is what happened.

We understand that this relates to – this is at INQ000346141 at page 114, and we understand that this relates to the 10 May COBR meeting where she says:

“COBR is a shambles.

“PM ignoring comments.

“Welsh plea not to advise people to travel – completely ignored.

“NI/SG insisting that it be clear PM is referring to England.

“Repeated calls for assurance ignored by PM.”

Now I’m using that as a swift means to try to characterise what I think happened at that meeting but, Mr Thomson, does that ring true with your understanding of what occurred at that meeting? Despite your aspiration, things went very much the other way?

Mr Kenneth Thomson: In short, yes. Just for clarity, as I read this – Liz Lloyd’s writing is much better than mine – but the “NI/SG” means Northern Ireland Executive and Scottish Government –

Lead 2A: Yes, that was our understanding.

Mr Kenneth Thomson: Yes, well, I see no reason to disagree with that characterisation of the meeting.

Lead 2A: One of the tasks I suppose which we’ve set ourselves is to try to understand the point at which – and I know, I think, from your statement you don’t like the word – Scotland diverged from the UK four nations type approach or the UK’s approach involving the four nations considerations that you set out in your advice.

I’m interested to explore with you, if you can tell me, whether you think that this is the moment at which that divergence occurred? I know you don’t like the word “divergence” but please forgive me.

Mr Kenneth Thomson: So to be clear, because I am trying to be helpful, I only don’t like it in the sense that – I think Mr Jacobs quoted me in the opening statement – if it implies that the approach of the UK Government is the orthodox one and somehow if you divert from that you’re becoming unorthodox.

But yes, the approaches did diverge. Was this the point at which it happened? So this is 10 May. (Pause) So, if I go back to, let’s say, 23 March, and the Stay at Home decision, there is no divergence in that. And if I go forward from this point in time to October when the levels and tiers systems were introduced, there’s definitely divergence by that point. So it happened somewhere in between those.

I think it would be fair to say that in this meeting you can see the start of that process, because if you compare my advice that you showed me a moment ago with Ms Lloyd’s description of the meeting you can see that my aspiration for greater alignment was not being realised.

To finish with one qualification of that, it wasn’t a one-way – it wasn’t a straight line deterioration, if I can put it that way, the quality of interaction did ebb and flow a bit, and it ebbed back in a bit in September, as you’ve seen, but I’ve also said that that took a long time and time was not a thing we had.

Lead 2A: Thank you.

There is one more matter I’d like to raise with you, please. There are a number of commentators who have suggested that in the Scottish Government’s management of the pandemic, the pandemic was politicised in order to try to further the cause of independence. I’d be interested to hear your perspective on that criticism which is held certainly by certain sectors of the Scottish public.

Mr Kenneth Thomson: So I’ve heard that criticism made in, with two – in two forms. The first is that the Scottish Government’s attention or energy was in some way devoted to work on independence rather than work on Covid. I was also the Director-General responsible for supporting our ministers in constitutional change and as you can see, I hope, from the materials in front of you, during this period my – pretty much my entire attention was focused on Covid and that which was not focused on Covid was focused on Brexit, which also has constitutional dimensions. So I don’t agree with that.

The second way I hear that criticism is that somehow in her decisions the First Minister was seeking to show people – you know, to make – to be different for the sake of being different to remind people that Scotland has the ability to take decisions on its own. And I also don’t agree with that. I said earlier I didn’t see any party politics on the part of any politician in the COBR meetings.

In all the advice that I gave the First Minister and all the exchanges I had with her about that advice, there was nothing of that sort present. Indeed, I couldn’t give her advice in relation to party politics without breaching the Civil Service Code, which I did not do.

And if I then turn to the substance of these decisions – well, first of all, these were not differences for the sake of being different, they were differences of substance in relation to the timing and the design and the application of NPIs and how you change that as vaccination comes through. This was serious decision-making with clinicians and epidemiologists and scientific advisers and other advisers in relation to economic policy and social policy.

So there were real differences, and in this Scotland was not the outlier. Coming back to my dislike of the word “divergence” it was quite often the case, as in these exchanges I think, that two or more of the three devolved administrations were taking one view and it was the Prime Minister and the UK Government that was taking the different view.

And then finally, I think not just in the decisions but also in the outcomes there are substantial differences, and I think the Inquiry has that before it in the expert evidence of Professors Hale and Diamond, where, if you look at age-standardised mortality rates over the period, you see substantial differences in the outcomes of the pandemic in the four nations. And the – I think it’s important to see these differences rather than not see them – and I’m not saying this to say the Scottish Government did well. None of us – you know, none of us wanted this to be as it was. But I am saying there were real differences in the approach and in the outcomes and we should all learn from all of that and we can’t do so if somehow the narrative of the pandemic is that we all ended up in the same place or that the differences were just for the sake of it. That’s – I think in public policy terms that would be a mistake.

Lead 2A: Is it the case that your position is that the Scottish Government’s principal focus remained on managing the pandemic from January 2020 to April 2022?

Mr Kenneth Thomson: The only other focus – sorry, give me the dates again?

Lead 2A: It’s just the period of our scope, Mr Thomson, January 2020 to April 20 –

Mr Kenneth Thomson: So to give you as precise an answer as I can, it was not the only focus and the two other focal points I would give you would be, first of all, Brexit, because you’ll remember that during the pandemic period the UK was preparing for the possibility of a no-deal Brexit, which involved significant work and attention within the Scottish Government.

Then secondly I would say during this period the focus of the Scottish Government began to move, and particularly after the May 2021 election, from the response to the pandemic to the concept and the operationalisation of this concept of Covid recovery, and that’s reflected in the changes to ministerial titles and roles after that election.

Lead 2A: Thank you.

Could I ask you to look, please, briefly at INQ000214408.

This is Cabinet minutes, we call – I think they’re called “conclusions” internally – from 30 June 2020.

Can we have a look at page 56, please.

Mr Kenneth Thomson: Sorry, just before you move off this page, I’m just looking to see if I was at this meeting. I don’t think I was. But that’s fine, I can comment on –

Lead 2A: Thank you.

Paragraph 56, please.

At letter (e), it says that Cabinet:

“Agreed that consideration should be given to restarting work on independence and a referendum, with the arguments reflecting the experience of the coronavirus crisis and developments on EU Exit.”

Is this conclusion reached by Cabinet indicative of the fact that the Scottish Cabinet in June 2020 wished to politicise the coronavirus crisis?

Mr Kenneth Thomson: (Pause) I’m reading the wording carefully. Consideration should be given to restarting work. So we would then have – I think there was a set of –

Lead 2A: It’s the second half of the sentence I think I’m focusing on, Mr Thomson:

“… with the arguments reflecting the experience of the coronavirus crisis …”

Mr Kenneth Thomson: Yes, it’s helpful to be reminded of that, so that runs slightly contrary to what I said in my previous answer and I do acknowledge that.

My previous answer was in terms of – I was thinking, you know, what was my focus on, what was the Scottish Government’s focus on, what were my team’s focus on. The constitutional work at the time, just to give you a bit of context, had been paused, I think I’m right in saying.

Lead 2A: Yes. Mr Russell had done that at the beginning.

Mr Kenneth Thomson: Yes, he had. And the – as we moved out of the lockdown restrictions, more of the ordinary business of the Scottish Government began to resume, including this bit.

I think – I don’t think that – this might account for the differences between this and my earlier answer – I don’t think I gave significant time to that, but some of my team who, for example, had been moved from that independence work into work such as travel restrictions might then have resumed work on this because we had been able to adapt our structures and put more people into a team who would take forward travel restrictions further on.

Lead 2A: One further document, and this I think will be the last, Mr Thomson.

INQ000371228. I’m afraid we’re returning to your notebooks. Page 50, please.

The context of this, which I hope you can take from me, is – I looked at this earlier – it’s dated, we think, 25 May 2021, and we think it is recording a conversation between yourself and the then Deputy First Minister in which, shortly after the election, you’re discussing, amongst other things, the very subject that you said was one of the main focuses of the Scottish Government in that period after the election, ie Covid recovery. You will recall – you will know of course that the Deputy First Minister had been appointed at around that time as the Minister for Covid Recovery I think; is that right?

Mr Kenneth Thomson: Yes, that’s right.

Lead 2A: And in that context there is a phrase at the top where you’ve written:

“Indy is back.”

Does that tend to suggest that in the course of that conversation the Deputy First Minister has indicated to you the policy priority is to now pursue independence again?

Mr Kenneth Thomson: So I need to apologise for the fact that my notebooks were written for me rather than for counsel to read. This page is not in fact a record of points made in the discussion with the Deputy First Minister, possibly the previous page is and I’ve failed to, you know, put a new subject heading at the top. This page, which I remember quite well, is me writing out of my head the reasons I am concerned about my own personal resilience. And I’m doing that just after the election. I’m wondering – I’m constructing a possibility here which is that people will fall over, including me. I say that three-quarters of the way down the page.

Lady Hallett: Mr Thomson, I’m sorry to interrupt, but the question really is a simple one. You have written down what seems to be “Indy is back”, which we all assume means independence is back on the agency. Presumably you got that impression from a minister? Which is the point I think Mr Dawson’s asking.

Mr Dawson: Thank you, my Lady.

Mr Kenneth Thomson: No, I think what I’m listing here is reasons that –

risks, rather than –

Lady Hallett: No, but did you get the impression from

a minister that independence was back on the agenda?

That’s the question.

Mr Kenneth Thomson: I can’t – I don’t recall that being part of the

discussion with the Deputy First Minister.

Lady Hallett: But did you get that impression from any

other minister? Otherwise why did you make this note?

Because it would only be back on the agenda if

a minister had said it’s a policy issue again, wouldn’t


Mr Kenneth Thomson: Well –

Lady Hallett: That’s the question. It’s a simple question,

Mr Thomson.

Mr Kenneth Thomson: Right, I was trying to explain why I had written this


If the question is, was there a possibility that

independence work would resume, yes that’s definitely

a possibility. But that’s not actually why I wrote it


Mr Dawson: Thank you, my Lady.

We’ve referred to looking at statistical information

and making comparisons about the way in which the pandemic ebbed and flowed in the different nations of the United Kingdom, and we have heard some detailed evidence about that from the Scottish Government and its own Chief Statistician.

In the period after this point, Scotland was still to experience its highest rates of infection. It was still to experience around a third of its deaths. It was still to experience incredible hardship and devastation, including hospitals being overwhelmed, the military needing to be called in. Is it your position, as you suggested earlier, that the focus of the Scottish Government over that period remained on the Covid pandemic and not on independence?

Mr Kenneth Thomson: As I hope I communicated earlier, certainly my work through that period, as the situation deteriorated, remained dominated by Covid, and to some extent by Brexit.

Mr Dawson: Thank you very much, Mr Thomson, I’ve no further questions.

Lady Hallett: And I don’t think there are any Rule 10s.

Mr Dawson: Nothing at all, my Lady, thank you.

Lady Hallett: Very well. Thank you very much, Mr Thomson.

(The witness withdrew)

Mr Dawson: The next two witnesses who will be giving evidence together are Dr Jim McMenamin and

Professor Nick Phin.

Dr Jim McMenamin


Professor Nick Phin


Questions From Lead Counsel to the Inquiry for Module 2A

Mr Dawson: Thank you very much.

This is the second occasion on which we have had two

people give evidence together. I will, as I endeavoured

the first time, attempt to direct my questions as best

I can, but the Inquiry would be very interested to hear

perspectives from both of you, so if there are

observations you wish to make on questions I’ve

addressed to the other, please indicate and I’d be very happy to hear from you on those matters too.

You are Dr Jim McMenamin?

Dr McMenamin: Yes, that’s right.

Mr Dawson: And you are Professor Nick Phin.

Dr Phin: Correct.

Mr Dawson: And I understand you both have provided a number

of statements to the Inquiry. In particular,

Dr McMenamin, you have provided a witness statement

under Inquiry number INQ000360968. The statement is

dated 29 November 2023. Is that your statement?

Dr McMenamin: Yes.

Mr Dawson: Does the statement remain true and accurate as

at this date.

Dr McMenamin: Yes, it does.

Mr Dawson: Professor Phin, you have also provided a statement to us, very helpfully. It’s dated 6 November 2023, under INQ000339576. Is that your statement?

Dr Phin: That is.

Mr Dawson: Do the contents of that statement remain true and accurate?

Dr Phin: They do.

Mr Dawson: As I understand it, having been briefed by your representatives, you were involved, Professor Phin, in the compilation of some corporate statements which were helpfully given to the Inquiry on behalf of Public Health Scotland. Is that correct?

Dr Phin: That’s correct.

Mr Dawson: And they are INQ000300280, a statement dated 2 October 2023, and a supplemental statement dated – INQ000361394, dated 23 October 2023, and a further PHS chronology dated INQ000176685.

You contributed to the compilation of these documents, as I understand it, although it was along with others, as I understand it?

Dr Phin: That’s correct, yes.

Mr Dawson: Do these remain true and accurate to the best of your knowledge and belief as at this date?

Dr Phin: They do.

Mr Dawson: Just to understand your respective roles here, you’ve both therefore provided individual witness statements to the Inquiry, and Dr McMenamin, I intend to ask you questions predominantly relating to your own personal experience of the pandemic but, insofar as it’s relevant to discuss PHS’s corporate position, I think, Professor Phin, you’re able to answer questions as best you can; is that roughly correct?

Dr Phin: That’s – that’ll be – yes, that’s the case.

Mr Dawson: And Dr McMenamin, that’s correct as far as your position is concerned? You were not, as I understand it, involved in the creation of the corporate materials, but you have very helpfully provided what is in fact a very lengthy personal statement and you can speak to that.

Dr McMenamin: Yes, that’s right.

Mr Dawson: Thank you very much indeed.

So to start with you, Dr McMenamin, I understand you are a consultant epidemiologist; is that correct?

Dr McMenamin: Yes.

Mr Dawson: And that you are the head of Health Protection (Infection Services); is that right?

Dr McMenamin: Yes.

Mr Dawson: And that you were the Public Health Scotland Covid-19 strategic incident director; is that correct?

Dr McMenamin: Yes, that’s correct.

Mr Dawson: And you have been the strategic lead for the respiratory team within PHS or its predecessors for the past 19 years?

Dr McMenamin: Yes, that’s right.

Mr Dawson: You were, as I understand it, during the course of the pandemic, a chair of a body which we will come on to called the National Incident Management Team.

Dr McMenamin: Yes, that’s correct.

Mr Dawson: You sat on a number of different bodies which provided advice to government, both UK Government and the Scottish Government, including SAGE.

Dr McMenamin: Yes.

Mr Dawson: And NERVTAG.

Dr McMenamin: Yes.

Mr Dawson: And the Scottish Government Covid Advisory Group.

Dr McMenamin: Yes, that’s correct.

Mr Dawson: Amongst others.

When the pandemic struck, Dr McMenamin, you acquired the role of public – I think Health Protection Scotland Covid-19 strategic incident director. What did that particular role entail?

Dr McMenamin: It meant overall co-ordination of, initially, the Health Protection Scotland response and, thereafter, the response (inaudible) Public Health Scotland.

Mr Dawson: Was it correct to say, as I said there, that that role was under the guise of Health Protection Scotland rather than Public Health Scotland?

Dr McMenamin: Yes, that’s initially –

Mr Dawson: Initially, yes, because as I think we’ve heard before from other witnesses there was an important reorganisation at around the time the pandemic struck of public health services in Scotland. I’ll try and narrate it briefly, but if I get anything wrong, please correct me.

There had been a number of agencies involved in the delivery of public health in Scotland, including Public Health Scotland before April 2020; is that right?

Dr McMenamin: Yes, correct.

Mr Dawson: And as part of strategic reorganisation of the way in which public health services were to be delivered, the Scottish Government decided to create a new body called Public Health Scotland.

Dr McMenamin: That’s correct.

Mr Dawson: And that body was incorporated in late 2019 as I understand it.

Dr McMenamin: Indeed.

Mr Dawson: And became operational in early April 2020.

Dr McMenamin: Yes, it did.

Mr Dawson: Which was a particularly important time as regards public health, because it was shortly into the first lockdown in the pandemic.

Dr McMenamin: Yes, that’s correct.

Mr Dawson: How did the role that you had of Covid-19 strategic incident director sit alongside other medical advisers who gave advice or provided assistance to the Scottish Government’s Covid-19 response, including, for example, the Chief Medical Officer and others?

Dr McMenamin: Thank you.

The principal route by which we offer advice remained exactly the same before and after to some degree, in that our principal contact through Scottish Government would be both through the offices of the Chief Medical Officer but also in reporting through our policy colleagues in Scottish Government.

The only additional reporting requirement that changed as of 1 April became that the co-sponsorship arrangement that we had for who we would report to meant that corporately, in addition to Scottish Government, there was also the involvement of our local authority colleagues and the body COSLA and Solace that were then a part and parcel of that combined reporting that we often did.

Mr Dawson: We’ll come on to some more detail relating to the National Incident Management Team of which you were chair in a moment, Dr McMenamin, but I’m interested to know, around that time at the beginning of the pandemic there must have been a clamour on the part of the Scottish Government for medical advice as to how they would handle the crisis. Did you find, from your perspective, and you’ve just explained how it fitted in with others, that the medical advisory systems at that crucial time provided clarity as to who it was that was to give the ministers who required it the ultimate medical advice, or was there a confusion perhaps of medical voices?

Dr McMenamin: I certainly don’t recall there being any confusion of medical voices, but rather a clear reporting arrangement where we were able to have an open door, effectively, to any urgent contact with the Chief Medical Officer, and that we had the opportunity through our Scottish Government policy colleagues to maintain the relationship with Scottish Government. And that was a very close working relationship that we had really from the first moments in January, when we identified there’s something not quite right happening in China, all the way through to the announcements by Scottish Government of the arrangements that were to be put in place for the emergency powers that Scottish Government would enact to support the response in Scotland.

Mr Dawson: Thank you.

Could I just ask you some details about your background, Professor Phin.

I understand that you joined Public Health Scotland as director of public health service on 6 January 2021; is that right?

Dr Phin: That’s correct, yes.

Mr Dawson: And in that role you were charged, along with others, with, as I’ve said, not only preparing the corporate response but collating together information to be able to respond to our questions as directed towards PHS; is that right?

Dr Phin: Yes.

Mr Dawson: Presumably that involved consultation with others because you yourself had arrived at PHS during the course of the pandemic.

Dr Phin: That’s correct, yes.

Mr Dawson: So, in as far as we are asking you questions, we have to understand that for the first half, if you like, of the pandemic, you were not personally part of Public Health Scotland; is that right?

Dr Phin: Yes, and if there are questions I think are – might be useful, I can involve my colleague.

Mr Dawson: I’m very much obliged.

Before that I understand it that you were the director of the Centre for Infectious Disease Surveillance and Control at Colindale.

Dr Phin: Yes, for three and a half years I was the interim director, I then became deputy director for the National Infection Service within Public Health England and part of that was dealing with emerging infections, et cetera. So my initial involvement, therefore, was I convened the first national – well, the IMT in London, within, I think, four or five days of us getting news of the developments in China.

Mr Dawson: So in the early part of the pandemic, before the role you took up with PHS, you were working within Public Health England?

Dr Phin: That’s correct.

Mr Dawson: As a result, in your witness statement you have been able to provide us with a number of interesting perspectives about the way in which things were approached differently in the two nations.

Dr Phin: That’s correct, yes.

Mr Dawson: Thank you.

We’ve heard some evidence from one of your colleagues in PHS, Mr Heald, already and so we’ve covered some of the functions, in particular the data side of things, but I wonder if we might just summarise what the role of PHS is and was.

I would attempt to summarise it along these lines: that during the course of the pandemic PHS received policy decisions from the Scottish Government and assisted with the medical side providing advice on the medical side of those; is that correct?

Dr Phin: Yes, I mean, medical but also epidemiological –

Mr Dawson: Yes.

Dr Phin: – statistical and other aspects.

Mr Dawson: It also had a role in issuing advice in the other direction, if you like, towards hospitals and the public and other organisations that might wish to receive advice about the policy of the government at the time.

Dr Phin: Yes, I think a key role was trying to translate some of those policy directions and aspirations into something that could be used, you know, by external organisations.

Mr Dawson: So in effect PHS was providing data and advice upstream towards the Scottish Government, but also it was providing it downstream towards institutions, organisations and the public?

Dr Phin: That’s correct, yes.

Mr Dawson: As we’ve heard from Mr Heald, an important part of that role was that PHS obtained, analysed and published data relating to the pandemic which was used both by the Scottish Government in its assessment of the threat but also by the public.

Dr Phin: That’s right.

Mr Dawson: And we’ve heard a good deal about that already from Mr Halliday and Mr Heald.

Did the nature of the role of HPS or PHS in any of these capacities change during the pandemic, or did it remain as that?

Dr Phin: From my perspective – bearing in mind, as I say, I came in 2021 – I can’t comment what it was like before then, but from 2021 onwards I would say that the role was pretty much unchanged. We continued to provide that advice, translate it into operational, if you like, guidance and provide intelligence and insight where appropriate.

Mr Dawson: Dr McMenamin, you may be able to assist with this as well.

As far as the way that advice was commissioned from HPS, or subsequently PHS, was concerned, from Scottish Government, how was that advice commissioned? Was it advice that was offered or was it specifically requested? How would that advisory function work?

Dr McMenamin: I think it would be fair to say that there was a mixture of different approaches that allowed advice and guidance to be offered, either through recognition, because it was fairly obvious that we would need to support our NHS board and local authority colleagues in the investigation and management of cases, but in particular once we reached the first cases being reported in Scotland and our Scottish Government colleagues increasingly moving towards a stepping up of their response on behalf of government and ultimately the emergency powers that were then enacted to support that, more and more of a transition from a health protection alone response into a societal response that our government colleagues were then very, very much at the forefront of, and in particular through the actions of First Minister, a co-ordination of that communication of messaging that was co-ordinated by our Scottish Government colleagues from some point in March onwards.

Mr Dawson: Okay.

Obviously, as we discussed with Mr Heald and Mr Halliday, there would be a situation where data was available upon which decisions might be made about the best thing to do to manage the pandemic which would emanate from PHS, and that that PHS data would form a subset of the entirety of the information available to the Scottish Government.

Dr McMenamin: Indeed.

Mr Dawson: What I’m interested in exploring is the extent to which PHS would form its own views based on its data, one assumes, about what to do, and the Scottish Government would make its mind up or take advice separately, or whether that was a collaborative exercise.

Dr McMenamin: It’s sometimes easy to forget that in the first days of our response, and indeed the first months, that we had no patients that were potentially presenting with infection and that our data then was a nil return thus far, for instance across the months of January and indeed across the month of February, that we had no cases, but rather that we were using the experience of others, whether that was from China or closer to home in Italy, across the month of February and then using the initial cases that were described in England. Our first approach to that was then to use whatever data was available to us to inform that, backed by this international data.

Professor Phin and I have had a long working relationship across decades in which making sense of those first cases using a First Few 100s approach was actually something which then was important that we were able to bring to the fore and work collaboratively across the UK to describe that first series of cases.

Mr Dawson: I think that’s a project, if you like, that the Inquiry’s heard some evidence about already in Module 2, so just to understand that, the position is that at the beginning – as regards access to information in particular – there was very scant information available and that therefore access to data and information was driven by the need to get one’s hands on whatever was available –

Dr McMenamin: Absolutely.

Mr Dawson: – to inform – best inform the response.

As the pandemic went on, one assumes more local data systems and testing and cases started to emerge, one could advise on and inform about a more local response; is that correct?

Dr McMenamin: And that the opportunity was afforded in the short interval to gear things up, to begin to be able to receive and process that information, recognising that this was in the days before declaration of a pandemic, it was very likely we were going to see an increase in cases and we would require to be able to report on all of those cases.

Mr Dawson: We’ve heard some evidence from the previous witness, who was a government civil servant, about difficulties that were experienced at a government level obtaining information from the UK Government.

You mentioned the fact that there was a necessity to try and rely on whatever evidence one could get, as hopefully reliable as possible, one would assume.

From a scientific perspective, was there over this period – and indeed any other period during the pandemic – any difficulty which was experienced gaining information on a scientific basis from the UK Government or from UK agency – English or UK based agencies?

Dr McMenamin: Not at all from our health protection colleagues. As you might imagine, in peacetime, outwith a pandemic setting, there was very good working relationship with our colleagues at what was Public Health England and what became the UK Health Security Agency, and indeed I have been a past chair of a multicountry group looking to harmonise some of our surveillance output. So we were using the relationships that we already had well established to make sure that we were keeping each other, and indeed the rest of the four nations – and indeed a fifth nation, the Irish Republic – very well aware of what was developing.

Mr Dawson: Sorry, Professor Phin.

Dr Phin: I’m just wanting to say, coming from the other perspective, when I was in Public Health England at that particular time we made every effort to try and involve the devolved administrations, as we called them, in both the information sharing and, where time allowed, the detailed development of policy and guidance.

I think it would be fair to say that we didn’t start off with no guidance at the beginning of a pandemic. We had the 2009 pandemic, and at that point I was leading the Pandemic Flu Office, and indeed we’d produced a suite of guidance around how we might manage various aspects of it.

So it was a case of getting that guidance out, dusting it off, looking at what we now knew about – what we knew about Covid, and seeing how we could adapt that existing guidance and use it in a rapid and helpful way with the response that we would – that potentially we could anticipate.

Mr Dawson: Thank you.

So her Ladyship will decide upon this in due course, but whatever the position as regards governmental information sharing or relations from a scientific perspective from both ends, your evidence is that that worked as well as one could expect?

Dr McMenamin: Yes.

Mr Dawson: I wonder if I could take you, in relation to this initial period, Dr McMenamin, to paragraph 14.18 of your witness statement. The statement is INQ000360968. We asked you some questions about this early period, which you have helpfully responded to in your statement. You say that:

“Early in the response HPS moved on to an emergency footing and instituted their Emergency Response Plan. Sustaining the response over the initial short period of months significantly taxed the capability of HPS to near breaking point despite the best efforts of our parent organisation, National Service Scotland, and the able assistance provided by our ARHAI colleagues …”

Could you tell us, first of all, which time period you’re referring to?

Dr McMenamin: So as an immediate response across the months of January, February and March.

Mr Dawson: And you say there that – this is obviously the period before the kind of April, PHS comes into existence –

Dr McMenamin: Yes.

Mr Dawson: – we’re still talking about HPS, that the position at that stage had stretched HPS to near breaking point. Can you tell us what you meant by that?

Dr McMenamin: I am indebted and will be forever indebted to just exactly how much and how wholeheartedly all of our staff threw themselves at addressing all of the issues of the day. It has become commonplace, I think, we’ve seen in some of the responses that it became common, regrettably, that colleagues were working 12 to 14-hour days for seven days a week and not necessarily having much in the way of opportunity for any downtime. So that continued sustained effort over an initial period, that didn’t start with a lockdown but rather started in January, was a significant effort by all of those staff that that meant then, for all of my colleagues then, I can offer nothing but thanks for all of the effort that they expended.

Mr Dawson: Could you just assist us with the acronym ARHAI?

Dr McMenamin: So Antimicrobial Infection and Healthcare Associated Infection is the acronym. I hope that the provision of the glossary in my own statement was then useful for that purpose to help anyone who might be reading that.

Mr Dawson: Yes, thank you.

Dr McMenamin: Those colleagues were part of our parent Health Protection Scotland organisation, but remained with our NSS colleagues at the creation of Public Health Scotland, so, if you like –

Mr Dawson: We’ll get on to that in a moment, but I was just keen to try to understand what the role of that particular body was. In particular, what was it doing specifically in the pandemic response and the process you’ve described over those early few months?

Dr McMenamin: Thank you. The principal role throughout this and the continued role that they had across the pandemic was in the provision of infection prevention and control advice for all of the NHS in Scotland.

Mr Dawson: Okay.

I’d like to ask you a few questions about the reorganisation. You’ve both given us in your statements helpful explanations of that but, broadly speaking, as I think you’ve alluded to, there was a reorganisation which meant a number of the public health functions which had previously been HPS moved to PHS; but one of the notable things that did not move was this ARHAI part of the operation, which stayed within – administratively within the ambit of National Services Scotland; is that correct?

Dr McMenamin: Yes.

Mr Dawson: Can I ask you whether, given the role that you have stated was played, an important role, by your ARHAI colleagues, that administrative separation between the two wings, if you like, of this public health response, or two of the wings, whether that caused difficulty when the separation happened? Because previously you were administratively together and you move to being administratively apart.

Dr McMenamin: So this might be considered akin to the most painless separation or divorce that I’ve ever experienced, because our colleagues continued on a day-to-day basis to work with us, night and day, to be able to deliver what we needed to do. So in those early days, certainly, and that first year of April 2020 to March 2021 was actually something which was barely visible to any external agency, let alone an internal one. We continued to rely on each other to assess the delivery of the things that we did.

Mr Dawson: But both parts, if you like, if I can describe it as that, played an essential role –

Dr McMenamin: Absolutely.

Mr Dawson: – over that period.

Dr McMenamin: Absolutely.

Mr Dawson: I think you recognise that in your statement.

Dr McMenamin: Yes.

Mr Dawson: Professor Phin, you in your witness statement, INQ000339576, at paragraph 11.1.2, comment under subparagraph (i) there that:

“In my view the separation of ARHAI from PHS should not have gone ahead at the start of the pandemic. Trained and suitably experienced health protection staff, familiar with working in the national health protection structure, were in short supply and leaving them in NSS impacted on the ability of PHS to mount an effective response at a critical time during the pandemic. It created artificial barriers to effective working at a time when this was desperately needed. Staff on both sides became distracted by trying to work through new arrangements etc. This was avoidable and unnecessary.”

In particular –

Lady Hallett: I’m sorry to ask, Mr Dawson. I think the public gallery look as if they’re being frozen. Can we please – one lady has already had to leave because she was so cold, and I’ve seen others shivering. If we could sort that out rather than – we don’t want to freeze our audience.

Sorry, Mr Dawson.

Mr Dawson: I did warn you about coming to Scotland …

Lady Hallett: I don’t think it’s meant to be that cold indoors, though.

Mr Dawson: Thank you, sorry.

Professor Phin, we were asking you about this administrative change, and in particular in light of the evidence that Dr McMenamin’s already given about the earlier period before April and the extent to which the pressures had driven the HPS service to near breaking point.

Could you assist us with your apparent view that you think this separation should not have gone ahead, in particular as regards the effect that you think this may have had on the effectiveness of the response?

Dr Phin: Yes, I think people maintained a very professional approach to this separation, they tried not to let it get in the way of any sort of barriers to useful working. However, what effectively happened was that Health Protection Scotland lost a third of its workforce in – when we became Public Health Scotland, and over the period of the pandemic we found ourselves going after the same groups of staff. So we were advertising to fill posts, and indeed there was movement from ARHAI, as we describe, ARHAI, to Public Health Scotland and from Public Health Scotland to ARHAI, which I don’t think was helpful.

I think a decision to defer that would have been useful at the time, and indeed there is a consultation ongoing at the moment which Public Health as a corporate body will be contributing to, and we will await the outcome.

What I’m expressing there, I think, is a personal view based on my experience of working in health protection over many years, and that ARHAI equivalent in Public Health England having – working extremely well within Public Health England. So again this is a professional perspective.

Mr Dawson: Because one of the things that the Inquiry is, of course, interested in is the extent to which it might make recommendations to try and make response in any future pandemic better, and I’m sure you are both also engaged in that process regularly. It did occur to us, on reading these comments and others, that this administrative separation – which of course had been pre-planned many months before, and no one knew there would be a pandemic – would be something perhaps that we might consider as being something that would improve any future response.

Would you agree with that, Professor?

Dr Phin: I would. I mean, if you look at health protection, health protection is an umbrella term describing all aspects. We cover vaccination, we cover infection control, antimicrobial resistance, we interact with animal health, we interact with the food industry, FSA. So health protection is that umbrella under which we all operate and we all work. Clearly people develop special interests, we hive off elements where it’s appropriate to develop and garner expertise, but ultimately working as part of that larger health protection organisation, we’re able to flex people to where they may be needed in the event of, let’s say, a large food-borne outbreak or, as indeed in this situation, in a pandemic.

So being able to have that overarching health protection structure I would say is a key issue going forward.

Mr Dawson: Thank you.

One of the things I just wanted to follow up on was that I think, Dr McMenamin, you said earlier that one of the important functions of ARHAI was development of guidance for infection prevention and control in hospital settings. Did that part of the operation also provide such guidance for social care settings?

Dr McMenamin: So, yes, they made a significant contribution potentially to anything that we were offering for setting specific information, but in the main the priority, as the name suggests, of – for their full name, for their abbreviation, was that their principal focus was always to be in the healthcare settings.

So outside of that, they were able to, where it was possible, begin to offer advice, but in the main it was a healthcare offer of that advice.

Mr Dawson: I think at paragraph 11.4.2 of the corporate statement it suggests that their role covered both health and social care, but is that to be understood with the limitation that they played some role in that, as I understand what you’re saying, but not their priority was hospital (inaudible)?

Dr McMenamin: We’re probably the wrong people to ask, because given that that separation from 1 April 2020 – but we can perhaps offer our understanding about that, but it would be good to confirm anything that we’re saying with our ARHAI colleagues.

Mr Dawson: Yes. The reason obviously I’m interested in that, to be candid, as you will have worked out, Dr McMenamin, is over the period that we are interested in at the very beginning of the pandemic –

Dr McMenamin: Yes.

Mr Dawson: – you will be aware that there were many, many infections and deaths in care homes in Scotland.

Dr McMenamin: Yes.

Mr Dawson: That’s an important part of the module that we’re addressing here, and we’ll come on to some elements of that in due course, but –

Dr McMenamin: Yes.

Mr Dawson: – I’m interested in the extent to which the reorganisation, or indeed inadequacies in the ARHAI role in providing guidance to, rather than to hospitals, to care home settings, created a potential problem, given, as we have heard from witnesses, including Donald Macaskill of Scottish Care yesterday, that there was a clamour really within the care community for guidance as to how operate effective infection control within an environment such as a care home, which –

Dr McMenamin: Yes.

Mr Dawson: – as I’m sure you’ll be aware, is difficult to do.

Dr McMenamin: Yes.

Mr Dawson: So can you help us, either of you, from a corporate view or from your own personal perspective, Dr McMenamin, as to whether there was a deficiency in the service being provided at that time with regard to guidance, which resulted either from the reorganisation or from the fact that it wasn’t clear that guidance to be provided to care homes was a priority in this public health service?

Dr McMenamin: So I don’t recognise that as being any deficiency. Our colleagues in infection prevention and control were able to make clear a very articulate recommendation about what would be advisable in the setting for health and social care, and they certainly were very much part of the guidance team and the offer of advice that covered this important period across March and April of 2020 onwards.

Mr Dawson: Just to be clear – sorry, before I come to you, Professor – there might be a difference in the type of guidance being provided, because guidance could be provided to government as to what they should do about it, but I mean guidance being provided to the sector itself.

Dr McMenamin: Yes, and indeed my infection prevention and control colleagues were making significant contribution to any of the guidance that was being issued either by Health Protection Scotland before the end of March 2020 or thereafter from Public Health Scotland.

Mr Dawson: Yes, thank you.

And, Professor, you have a view?

Dr Phin: Well, it’s just to say that, you know, we didn’t start from scratch when the pandemic started. Healthcare in social and healthcare settings have for many, many years been dealing with outbreaks of flu, norovirus, et cetera, in healthcare and in the community. So there are well established processes around infection control within the social care setting. In addition to that, we have local health boards which have got health protection teams, and we made clear in a number of iterations of the guidance that was subsequently issued that healthcare – social care settings should approach those health protection teams if there was any concerns or if they needed advice around the implementation or understanding.

So, you know, we didn’t start from nothing, there was existing principles, there were existing processes in place, and it was simply a case of trying to adapt those to the peculiarities of the themes or the things that were emerging from this particular pandemic.

Mr Dawson: There’s just one other aspect of the reorganisation which I’d just like to give you the opportunity to comment on. I think we may have touched on this already, but Chris Robertson – who’s the Chief Statistician, I think, at HPS – said in his witness statement to this Inquiry that:

“Almost certainly the formation of PHS in April 2020 initially had a major negative impact on the management of the pandemic in Scotland, as there was a whole new layer of senior management who the senior consultants had to report to. The management structure of PHS was more complex than HPS, and the whole organisation much larger. In addition, many of the senior leaders on the PHS board did not appear to have extensive experience in managing a pandemic response and were new and external appointments.”

So this is an aspect of the reorganisation which a witness who was involved is suggesting may have had an impact on the response, and one might reasonably think that such a reorganisation of senior management would have an impact on direction, control and the ability of the organisation to function as fully as one needed at that time.

I’d be very interested to hear your perspective on that, whether you agree with it or not, from a corporate or indeed individual perspective.

Dr McMenamin?

Dr McMenamin: I recognise everything that you’ve said that Professor Chris Robertson has written. In practice, I can see much of what Chris has written is something which was either being addressed but was perhaps interrupted, or at least the speed with which people could come to common understanding was interrupted because the pandemic was so demanding of our time. But nonetheless our chief executive and the interim clinical director in Public Health were instrumental in trying to overcome some of the immediate difficulties that we had, particularly about expanding our workforce. Which is always going to take time because you – the specialists that we needed to grow or acquire from elsewhere were going to take that time.

It’s certainly unfortunate about the timing of the creation of the organisation, but nonetheless important that we went ahead with that, and that as we pulled together, as the teams across all of those organisations coming together, we had very, very good buy-in from all of those team members. So at a practical level we could see the immediate benefits of having increased access to the same workforce who had joined us from NSS, who were part of an original organisation, Information Services Division, but also some of the expertise that our colleagues from Health Scotland were bringing to this, and in particular – and if opportunity arises in the discussion to talk about inequalities – their great experience was going to be very, very helpful over those coming months as we began to look at that.

Mr Dawson: Thank you.

I would like to just say to you, Dr McMenamin, that my question doesn’t seek to imply any criticism in any way. This was a pre-planned reorganisation which came at a really extremely unfortunate time. It is part of our remit, however, to explore as a matter of fact –

Dr McMenamin: Yes.

Mr Dawson: – whether that reorganisation did impact upon the response which this important organisation could provide, and support and advice that it was obviously was called upon to do.

Do you think overall that it did as a matter of fact, without suggesting any culpability or anything of that sort?

Dr McMenamin: It certainly may have affected some of our initial work, but work before PHS was formed had already been enabled by the appointment of a chief executive who was working in the background to make sure that that transition could be as smooth as possible. But I certainly could not disagree with you that that was challenging because we had to expend time and energy that otherwise we wouldn’t have had to – with getting to know new colleagues who were going to be instrumental in helping us doing things.

Mr Dawson: Thank you, Dr McMenamin.


Dr Phin: Yeah, from a corporate perspective, although not around at the time, I worked extremely closely with chief exec and my other colleagues from January 2021 onwards. Looking through and talking to them, it was very clear that there was a recognition they were new to this, and therefore they followed almost to the letter the advice that Jim and his team was giving them about what was needed, what resources needed to be deployed, and I saw nothing to suggest that there was any reticence about moving people into support it.

So it’s not something I recognise in the sense that PHS actually provided greater flexibility. There were more resources to pull on, albeit not trained specifically in health protection, but everyone made a contribution and I would say that the establishment of that team across the wider remit actually helped bolster the response and, as I say, I saw nothing to indicate that the advice about how it should be structured, how it should be resourced was ever rejected, and in fact it was supported as best was possible at the time.

Mr Dawson: Thank you, Professor.

With my apologies for overrunning, my Lady, that would be a moment to break.

Lady Hallett: No, not at all. People probably don’t know as yet, we may have to sit a little later tonight. So I shall return at – we’ll have a slightly shorter break in case we need to have another break later, and I shall return at 3.20. And by the looks of it, we’re not freezing members of the public gallery any more; good.

(3.08 pm)

(A short break)

(3.20 pm)

Lady Hallett: Mr Dawson.

Mr Dawson: Thank you, my Lady.

Moving into a slightly different area, we are of course in this module concerned primarily with looking at political decisions made by primarily the Scottish Government but connected with Scotland, and we are asking you questions to try and understand your role in that process.

In your report, Professor Phin, you say at paragraph 1.4.4 of the report, INQ000339576, 1.4.4, where you say, reading from roughly the middle:

“PHS had therefore minimal opportunities to provide Ministers with a first-hand account of the thoughts of senior staff in PHS or to make them aware of the practical implications of policy decisions. The main mechanism by which PHS was able to provide advice to Scottish Government was through the NIMT.”

To which I will return imminently.

Do you think that PHS could or should have been able to provide more direct information and advice to ministers, given their central role in the public health response?

Dr Phin: Yes, I was contrasting the approach in Scotland with that experience then for the 12 months in England, and right from the start PHE – either myself as one of the incident directors, one of my medical director or director of health protection – would be involved in face-to-face discussions with the minister, they would be attending COBR, the COBR meetings, and there would be in the room present providing direct advice, based on largely our experience of: if you were to introduce this policy, this is what it could mean on the ground, these are the issues that we’d have to think through.

With the greatest of respect to colleagues in Scottish Government, they were working at a national level, they were not working – well, they, I’ve(?) understood I think what the local implications, the restrictions, the limitations indeed, on what could be done with the public health workforce. So very much being able to be in the same room, advise, point out the implications, I think, was really important.

Mr Dawson: Did that create a situation where decisions may be made about restrictions which might be incapable of being delivered on the ground?

Dr Phin: Yes, I think we’ve given a couple of examples, one around borders where there was an expectation that somehow we would be going out, checking up on people as to whether they were maintaining quarantine, and I think there was a reasonably robust exchange between our chief executive and Scottish Government saying that just wasn’t a feasible option, we didn’t have the legal powers, and in any sense, you know, it wasn’t something that we could do. But nevertheless we were instructed to try and enquire about people’s wellbeing and provide them with information, but equally if they didn’t respond there was an implication that we should somehow report this to Police Scotland. And again that is outwith anything that we would normally do, and had we been available we could have pointed out some of the limitations of that approach.

Mr Dawson: Do you think, other than just the practical issues and potential problems that that causes, do you think that that represents perhaps a gap in the knowledge base available to the Scottish ministers in making decisions, because it may be if they were aware of those practical limitations they would have chosen an alternative way of managing the pandemic, for example in the borders situation that you’re suggesting?

Dr Phin: It’s possible, and I would be speculating if I gave an opinion one way or the other. I’m simply noting that the difference, the contrast between England and Scotland where, if you like, the public health, the health protection advice was round the table, providing it directly. That’s not to say it was always listened to, but at least there was an opportunity to put those points across, and we were working, if you like, through a filter, you know, people were interpreting what they heard and they were then trying to then re-interpret that in the context of what they were being asked.

So being there, being able to clarify things at that point, I think could have been extremely beneficial.

Mr Dawson: I think you mentioned there was another example other than borders that you had considered.

Dr Phin: Yes, I mean … yes, there was another, and I’m trying to think what it was. Apologies, I can’t remember, but if it comes to me, I’ll –

Mr Dawson: Thank you, I appreciate that.

Just staying in your statement there, Professor, there was another issue I wanted to raise with you at paragraph 1.4.3, the immediately preceding paragraph. You enumerate(?) some of the challenges faced by those responding to the pandemic included the need for definitions used for certain key data items, their significance and the frequency of reporting to change over the course of the pandemic; and I think you highlight there, without going through all of the text, that there was an issue in this regard where PHS had suggested that a definition relating to deaths, mortality figures, would appropriately be changed in order to try to maximise accuracy and that that proposal was refused by the Scottish Government because they had become used to the way in which the definition had operated up to that point.

Can you add anything to that?

Dr Phin: Well, yes, I mean, that was one example you’ve given. Another example was in relation to our definition of a patient in hospital with Covid, which was – the definition that had been used was 28 days, so that was then used to understand occupancy, who was occupying beds in hospital. The reality was that, you know, 28 days is a long time, most people would have been recovered, therefore they weren’t occupying a bed because of Covid, and back in November, I think it was, 2022 we proposed the change to bring that down to 14 days. This was supported by CMO’s office but it wasn’t until May 2023 that that change was actually introduced. So that was nearly six, seven months, and we reckoned, we estimated that using that original definition we were overestimating the number of people in hospital by something like 24%, and if you’re trying to make planning assumptions, that’s quite a lot of people that you may be overestimating –

Mr Dawson: I think perhaps we touched on this with your colleague Mr Heald, it was because the definition of being in hospital 28 days after the test may include people who are no longer suffering from Covid –

Dr Phin: That’s right.

Mr Dawson: – but were in hospital for another reason. But the point here is that these were matters on which PHS made representations to the government to try to improve the system, but that these were rejected.

Dr Phin: Yes, they were eventually implemented –

Mr Dawson: Yes.

Dr Phin: – but it was after some time –

Mr Dawson: In the intervening period, PHS’s position would be that the data provided was not as accurate as it might have been?

Dr Phin: Yes.

Mr Dawson: I wonder if I might then move to the NIMT and I think, Dr McMenamin, in relation to this. You were the chair of this body. The PHS corporate statement states that:

“HPS set up a National Incident Management Team that met for the first time on 13 January 2020. The composition of the NIMT was dynamic and adapted to the evolving response to the pandemic. NIMT members include local health board directors of public health, Scottish Government policy and analytical advisers, the CMO and representatives from local government and PHS teams. Attendees changed over time between the initial set-up in January 2020 to the formalisation of the group and the agreement of the terms of reference in September 2020.”

Was the NIMT a body that was created simply to deal with the Covid crisis, or was it a concept that could be brought together to deal with an emergency of the nature of the Covid crisis, the idea of which already existed?

Dr McMenamin: Okay, so in reverse order, I think, to what you just asked me: the “Managing incidents of public health concern” which has been in place as a document that a number of stakeholders assisted us to generate from the Scottish Health Protection Network was a long-standing approach for how we dealt with any incidents, no matter their size, about what should or could be done and who might be able to assist you in delivering the response that was required to bring that issue under control.

Our initial incident management team met, as you said, for the first time in January and I think we’ve – we met something like 169 times. I think I might have been the chair 162 of those 169, and Nick maybe three or four of those, whenever I got benched to take leave or something else. So that group was really important in helping us to deliver everything that we then hoped to be able to deal with on a national basis, dealing with whatever the emerging issue was of the time.

And certainly from my perspective it was the privilege of my working lifetime to be able to be the chair of that group, because I don’t think I’ve ever come across a group of colleagues who were as dedicated to try and make sure that they managed Covid as best as was humanly possible to reduce the impact on the population.

Mr Dawson: Thank you.

Just to tie into one of the answers that Professor Phin gave a moment ago, my understanding is that the CMO sat on that group; is that correct?

Dr McMenamin: Yes, that’s correct.

Mr Dawson: And you mentioned earlier that one of the reporting mechanisms of PHS, or HPS as it was at that time, was through the CMO, and I think the passage we went to before suggested that because there was not direct contact with ministers, as there had been in Professor Phin’s experience in England, the NIMT was the main reporting mechanism.

Was it therefore the case that the CMO attended meetings and that whatever input the group could have the CMO then took away and fed into the Scottish Government machine?

Dr McMenamin: I think it was both directions, it was imparting any urgent issues for the incident management team to be able to address, but also hearing first-hand what the intelligence was that was being offered in each of the meetings about what were we seeing, what if anything was working in control of the cases that we were seeing, and instances where that was not the fact, but either that we were seeing an increasing number of cases, that’s to say that whatever policy issues had been implemented were not having the effect that they should or, particularly once we had the availability and deployment of vaccination, just what were we beginning to see. That allowed us to have the advice that we were offering from NIMT to come in through the formal four harms reporting arrangement, which I’m sure that we’ve been through over the previous days.

Mr Dawson: Yes.

Dr McMenamin: And offered that opportunity to also have in that four harms meeting that direct representative, the CMO, able to give an update to which I, as the chair, or whoever was attending on behalf of PHS, able to supplement that with any additional points that were felt to be important.

Mr Dawson: When you say that the NIMT was able to report and feed into the process local experience – you’ve talked about outbreaks, the effect of vaccination – was it possible through that mechanism to feed through local health experience, so in hospitals and the NHS, the frontline, if we can call it?

Dr McMenamin: Indeed. However, within the four harms exposure of all of that information, our representative colleagues, as directors of public health, or I think from one of the colleagues that you had yesterday on behalf of COSLA, Solace, hear that local representation about: yes, this is something that we agree with, or their opportunity to offer any contrary view.

Mr Dawson: I’m particularly interested in the extent to which it was possible to get frontline NHS information into the machine through that; that was part of it?

Dr McMenamin: Absolutely, yes, that is part of that. My principal role in garnering all of that advice then was to make sure that we had representation from all of our NHS boards and, through COSLA and Solace, opportunity to hear exactly what the intelligence was from those local areas about just exactly how bad a problem were they seeing, what was working, what did not, and that allowed us to contextualise any of the advice that we were then offering about the societal measures that were implemented at the time, or later the impact of vaccines.

Mr Dawson: Okay, thank you.

What prompted the NIMT to be set up on 13 January 2020?

Dr McMenamin: As part of our managing incidents of public health concern, there’s a set choreography for what we would do where: is there a problem? A problem assessment group, and that can be called by any of the constituent members – in this instance an internal issue within Health Protection Scotland – and thereafter say: we think that there’s something that at the very least that we need to begin to prepare for, where we can say there’s unusual infection in China which is unexplained, appears to be causing severe illness and was a recognised first step then where we implemented that to try and ensure that we were beginning to prepare for dealing with any increase in cases, should we see any.

Mr Dawson: So do I take it, then, that the instigation was from within HPS itself?

Dr McMenamin: Yes.

Mr Dawson: It wasn’t the Scottish Government or anything telling you to do that; you yourselves put that body together?

Dr McMenamin: That’s correct, and indeed that would be the normal circumstance for almost every incident management team that we’ve ever created.

Mr Dawson: What advice generally was being given over the period between January and February, to the end of February let’s say, through the NIMT to the government about the nature of the threat?

Dr McMenamin: So in I think almost a daily basis that we have opportunity, through our national incident co-ordination, to be able to meet with a variety of stakeholders which included government, not just for the Chief Medical Officer who you’ve mentioned already, but also for a number of liaison colleagues within the policy side of government to hear exactly what was the feedback from our NHS board or indeed local authority colleagues about just what they were seeing.

Now, I’ve already mentioned that early on, that we necessarily were investigating any returning traveller who might meet a case definition, but the first identification of a new case for the first time in Scotland was not until the report on 1 March of 2020.

Mr Dawson: So there was little local information one could give, but were you looking at other sources, for example you mentioned earlier getting information from England or internationally, you obviously –

Dr Phin: Indeed.

Mr Dawson: – somehow found out about the virus from China in the first place. So what was the tenor of the advice about the threat? I mean, it seems that there is other evidence which is available to this module from another epidemiologist who was expressing, he says, considerable concern about the threat over this period to the Chief Medical Officer. Was that the tenor of the advice being given by NIMT at that stage? Because obviously there was little local information.

Dr McMenamin: Indeed. I think across the UK, whether it was through Professor Woolhouse directly or whether it was from a variety of colleagues who were reporting to us, Professor Phin in his prior role, or indeed other colleagues in England, but also any feedback that we had from colleagues in the World Health Organisation or elsewhere, where this distillate of information was demonstrating a picture of gradually escalating, a ramping up of concern across the month of January and February, particularly once we saw that this was not just an isolated problem confined to the shores of China, but rather one which was beginning to hit home closer to home, whether that was Italy or elsewhere.

Mr Dawson: So by the end of February, what advice had been given by NIMT about the threat to Scotland to the CMO or Scottish Government?

Dr McMenamin: That there was this gradual escalation of threat that we could see and that the important grouping – that we haven’t yet moved on to consider – is the advice that was coming through from SAGE, the Scientific Advisory Group for Emergencies –

Mr Dawson: Yes.

Dr McMenamin: – along with any advice from the New and Emerging Respiratory Virus Threats Advisory Group (NERVTAG), both of which bodies I was sitting on.

That international experience was feeding in through both of those groups, and was being fed in in parallel to anything that we were seeing locally, where that international concern fuelled by any of the modelling scenario output by SPI modelling group was certainly very, very influential in describing what was happening abroad and what might happen next.

Mr Dawson: Given that international perspective on the threat which you were also part of, as you said, on those committees, and indeed your knowledge about epidemiology, what advice was being tendered at a local level to Scottish Government about the need to consider precautionary measures that would need to be taken, for example the ramping up of PPE, the development of a testing regime during the month of February, let’s say?

Dr McMenamin: Well, I think, looking back on things, we had not the position that we perhaps enjoyed at the peak of where we were able to do a million tests a day, but rather that we had a limited number of tests from about the middle of February onwards from, you know, February 10, maybe we had to do – the capability to offer something between 350, 375 tests per day from a new testing system that was available to be deployed. And I think that that was reflecting in what we were advising, which was: we think that there is an escalating issue internationally. We at that point had not seen any human cases being identified in Scotland, but we had seen some cases identified in England, and indeed across the month of February we were aware of the first of the death reports that were beginning to come through about that. So the advice that we had then was: we need to be prepared to escalate. It was over to our government colleagues who, on a societal perspective, were beginning to put the machinery in place to begin to generate what you’ve then taken us into, which is: and what should we do about PPE which is already stockpiled, what should we do about any of the other planning that we need to have in place?

Mr Dawson: One thing that you’ve alluded on as being the actual course of events is it does take a while to ramp up testing, it takes a while to acquire PPE, one needs to work out what the current state of stocks and capacity is.

Given the emerging nature of the threat – as you said, the gradual nature, the emergence of cases in Europe, deaths in Europe – to what extent do you think that the message being given to government from any of these bodies on which you were sitting was one of urgency such that, even although the threat may not materialise, if it does, one needs to be more ready than we actually were in Scotland?

Dr McMenamin: I think that the primacy of the offer of advice here was one where we recognised that that prime influencer of what should happen next needed to be the SAGE group. They were informed by NERVTAG, informed by SPI modelling group, of course informed by any of the national health protection agencies across the UK, but the primary recommendations were going to stem from what our SAGE colleagues were saying.

Mr Dawson: Is that because those bodies had access to the best available information?

Dr McMenamin: It’s not just that they, like us, had access to that information, but rather that they had the brain power in the room to be able to make that determination and recommendation or advice that was then going to UK ministers or being offered to ministers across each of the devolved administrations.

Mr Dawson: Thank you.

I think the professor is keen to say something on this subject.

Dr Phin: I just wonder if a little bit of context might be helpful here.

We’ve got to just reflect back to the 2009 pandemic. During the 2009 pandemic many people, organisations globally were heavily criticised for overreacting to what turned out to be a relatively mild infection.

So in the people looking at this, there was the context: at what point do we say this is mild and it’s going to be a serious condition? So that was going through people’s minds.

The second thing is that the information we were getting out of China suggested that this originated in a wet market or seafood market – wet being, you know, live animals as opposed to wet in the sort of colloquial sense – and therefore people were watching and waiting: is this going to be something where there is evidence of human-to-human transmission? And once that started to emerge, that then started to build up a picture that concern should be taken.

The stocks were controlled by UKHSA, and I think it would be fair to say that in the early weeks UKHSA – or PHE, as it was at the time – would be the organisation that would take the national, the UK perspective. But as it gradually started to emerge, the DAs, the devolved administrations started then to take on responsibility given that health is a devolved, you know, responsibility in Scotland.

So I think in that context, there was a caution, there was an uncertainty, the information we were getting was coming out slowly and, you know, caution was the day.

The last point I wanted to make was about testing, because I think that was something that came up yesterday. Until we know the genetic sequence of the virus, you can’t develop a test. That came out in the middle of January. PHE Colindale worked tirelessly to develop a test. That then had to be field tested, you needed a virus to be able to test it against, it needed to be validated, and it wasn’t until 10 February that Scotland carried out its first test. And that validation is important, because CDC, you know, globally – you know, global body that’s held in very high esteem, developed a test which actually turned out to be faulty and did not deliver it. So these are high stakes endeavours.

So the first test was in Scotland on 10 February. 350 tests by the end of February, I think it was 1,900 by the end of March – pardon?

Dr McMenamin: Daily tests.

Dr Phin: Sorry, daily tests. These are daily tests, not weekly tests. Thank you.

So wanting to do some of the things that we love to do was constrained simply by the fact that there wasn’t the resource, there wasn’t the infrastructure and indeed, as the pandemic evolved in those early months into 2020, supply chains were stretched, we ended up not having enough sample kits because everyone was trying to get their hands on them.

So there were multiple factors here that delayed the introduction of testing, which I think we all accept now was an important part of our control response.

Mr Dawson: Thank you.

You mentioned in your response that the position was characterised as one of caution, based on the context that you set out, including 2009. Was it the case and was it important that advice being given to the Scottish Government and other governmental bodies didn’t only reflect that caution but reflected an element of precaution, given the possibility that the reliance on previous experiences such as 2009 may not turn out to be how this coronavirus manifested itself?

Dr Phin: I wasn’t party to those discussions, either in PHE or in PHS –

Mr Dawson: Of course.

Dr Phin: – but I was party to the discussions where we looked at the evidence, and there was this initial sense of caution: is this going to be the same as 2009? Have we got evidence that there is person-to-person transmission, which would be a key feature of an evolving pandemic? Once we were clear about that, I can’t comment on the mechanisms as to how that was fed into either Cabinet Office in England or in Scottish Government. I do know that the CMOs met regularly at that point to consider it, so I would have expected there to have been some information being fed in at that level.

Mr Dawson: I was holding off on your response, Professor, but perhaps more appropriately for Dr McMenamin: was it your experience, given your involvement in these advisory structures, that Scottish Government was getting a message of precaution as well as caution at this time? Or was, as the professor has suggested, what characterised the advice being one of caution based on the previous experiences to which he’s alluded?

Dr McMenamin: I think it would be fair to say that both things were happening, it was caution and precaution. Indeed, I caught part of the testimony earlier from Mr Thomson while we were in the waiting area, and I could see then that that gearing up that was being discussed was something that, certainly from the health protection side of public health discussions, was one that we could see that happening within the discussions we were having then with our health protection and director of public health colleagues, while at the same time any discussion that we had with Scottish Government colleagues, whether it was from the CMO’s office or from policy side, we could see that this was an escalating concern, and particularly became an escalating concern once we began to see our first home cases identified and, in particular, as Professor Phin has just taken us into, once we had demonstration of community transmission, onward transmission of this infection to others in the population, then, yes, that was coming home to then be truly something which was much more scary for us.

Mr Dawson: That’s a key epidemiological red flag, I suppose, is it?

Dr McMenamin: Absolutely.

Mr Dawson: When did that occur in Scotland?

Dr McMenamin: So I think the demonstration that we had is from our first case identification that we had on 1 March, the follow-up of those individuals, along with what our colleagues were doing across the rest of the UK, we were then able to demonstrate sustained community transmission by about the middle of the month of march. That meant then that with – despite anything that was being done in the background, meant that we had to have some serious discussion then about what further escalation needed to be in place and how incrementally could it be delivered.

Mr Dawson: You’ve mentioned your involvement in both SAGE and NERVTAG –

Dr McMenamin: Yes.

Mr Dawson: – Dr McMenamin. The broad question I’m interested in as regards those bodies is the extent which you and other representatives from Scotland were able to voice issues from a particularly Scottish context in terms of asking questions, seeking information, feeding information in, or whether you thought the Scottish participation was suboptimal from a Scottish public health perspective?

Dr McMenamin: I certainly don’t think it was suboptimal. Like any new group when it’s forming, of course there are teething difficulties or maybe from time to time, because of a delivery method for how you communicate, there can be interruptions in information provision or you drop off of an invite or something, but all of those things were really very quickly remedied, in particular for SAGE.

NERVTAG, my status in that group was as a member because I’m an appointed member to that group, whereas –

Mr Dawson: In private capacity, was it?

Dr McMenamin: That’s right.

Mr Dawson: Yes.

Dr McMenamin: So that throughout all of that, that group was very, very active in looking at any of the new information. For the SAGE status, I think I’m variably described either as a member or observer, but the key thing was that either of the health protection teams in each of the administrations, along with representatives of the chief medical officers of the UK and the policy side were part of those discussions, and I think that that was a full offer of observer status for those groups, and that I felt at no point any difficulty about being able to contribute, particularly when we had something key to raise, and that in particular when we began to describe the first of the vaccine effectiveness studies, that was very, very welcomed by that SAGE group, as we had something new and important potentially as a path out of the lockdowns that had been in place, and relaxation of societal measures.

Mr Dawson: Was that through the EAVE II project?

Dr McMenamin: Yes, that’s correct.

Mr Dawson: We’ve heard some evidence about that already. My broad understanding is that that was a project which was able to deliver early, very early, in fact the earliest, I think, information about the effectiveness of the vaccines in February 2021 –

Dr McMenamin: Yes, that’s right.

Mr Dawson: – because it was a mechanism that was able to access information quickly through its previous set-up, if you like; is that correct?

Dr McMenamin: Indeed, and that first demonstration of effectiveness is of somewhere between 84% and 92% effectiveness for one dose of vaccine on a national basis was really important.

And picking up on something that Nick said earlier – I beg your pardon, Professor Phin – that we had the forethought to set something up after the 2009 pandemic which was now bearing fruit and was looking at the whole of the Scottish population to use information to be able to demonstrate that effect.

Mr Dawson: The EAVE project involved reviving, as I think you mentioned, a previous project and scaling it up, as I understand it, to be able to access a huge amount of information to inform us about –

Dr McMenamin: Indeed.

Mr Dawson: – the crisis, and therefore it was in a position to be able to report quickly on vaccine effectiveness, as we’ve discussed.

Was it a tool that was used in order to affect the real-time response or did it merely use the same dataset as was being used in order to inform that response?

Dr McMenamin: Well, Professor Aziz Sheikh and Professor Chris Robertson are the key architects of this from the University of Edinburgh, and through Professor Robertson who worked with us but is a University of Strathclyde professor of mathematics. It was using near real-time data to be able to demonstrate what our vaccine effect was, but also even before we had vaccines be able to say something about who is most at risk of the development of complications of Covid? The identification of those groups most at risk led to refinement of the some of the advice that was then able to be offered on a policy basis. We were able to use that dataset for validation of risk groups across the UK and, more than that, it’s really important and I think it’s become important for everyone that they have confidence about: is the vaccine that I’m going to receive going to make me unwell? And it is important, then we were able to investigate on a whole population basis things that might not have been picked up in any of the initial trials of vaccines but, because you were using a whole population, and even though you might have a rare side effect, something is one in a million, you’re able to identify that using that whole population basis.

Mr Dawson: In the period before that, I think you identified that the project was able to achieve research benefit which would assist the general pandemic response by identifying things through the researchers’ efforts, such as particularly at-risk groups and that sort of thing, which might not have been something available elsewhere –

Dr McMenamin: Absolutely.

Mr Dawson: – of the EAVE II project.

Dr McMenamin: Absolutely, and that demonstration of this surveillance output and the evaluation of the health policy and health benefit of some of our routine approaches was then immensely useful. Not just for Scotland, not just for the UK but was internationally greeted with the broad consensus that this was a really dramatic development that globally was then captured in media reporting.

Mr Dawson: We heard from Mr Roger Halliday about the lack of research opportunities and access to data that might have benefitted on a wider scale the pandemic response in Scotland. Would it be fair to say that EAVE II is the exception to that proposition, very much so?

Dr McMenamin: In fact that I think went much further than that. It’s integral to what Professor Phin and I, with PHS, are looking at about what should be an important part of what Public Health Scotland is doing routinely in the future for the observations about the impacts and description of risk factors, in particular looking at the health inequalities issues that our own organisation is trying to do to not only identify what the inequalities are, but to assess the interventions that are there to try and address those inequalities.

Mr Dawson: Thank you very much.

I believe, my Lady, we are to have a short break at this stage for the stenographer.

Lady Hallett: Because we may be sitting later –

Mr Dawson: Yes.

Lady Hallett: – the stenographer literally just needs to move her fingers –

Mr Dawson: A short break –

Lady Hallett: – or she gets very tired.

Mr Dawson: – would be convenient.

Lady Hallett: So I’m not going to go very far, I suggest other people don’t go, and I shall return at 4.05.

Mr Dawson: Thank you, my Lady.

(4.01 pm)

(A short break)

(4.05 pm)

Lady Hallett: Mr Dawson.

Mr Dawson: I have some questions for you now, it’s about two things that I think are related, broadly speaking: care home related guidance, but also something called the policy alignment check which you cover in your statements.

In relation to the care home guidance, we’ve heard some evidence about this already from Donald Macaskill of Scottish Care, and I think it’s fair to say that our understanding of the responses you have provided in this area is that, as per your general position, Professor Phin, you have provided a corporate response but were not part of PHS at the time of the early pandemic; and, Dr McMenamin, your position, as I understand it, is that care home guidance was not a matter that you had direct involvement in, there were others who dealt with that, but that very helpfully you have attempted to answer the question by looking at contemporaneous materials to assist us as best you can with the thinking and process behind care home guidance being issued over that early period.

So have I got that correct?

Dr McMenamin: Yes.

Mr Dawson: And I think that’s an important caveat to your evidence, that you were not, Dr McMenamin, the person who was actually dealing directly with this, but that you are assisting us on an informed but slightly second-hand basis. Is that fair?

Dr McMenamin: Indeed.

Mr Dawson: Could I just ask you, first of all, about aspects of your statement to do with the concept of the policy alignment check.

In particular, Dr McMenamin, you raise in your statement at paragraph 50.8 some of the challenges that appear to have been experienced by HPS in the early stages of the pandemic, trying to reach consensus in a timely manner. In particular, you refer to some disagreements with the Scottish Government about what precise language there should be and indeed who should take the lead, if you like, in relation to issuing guidance.

I wonder if, perhaps in the specific care context a bit more generally, you could explain to us the issues that were experienced, as you understand it, by HPS and subsequently PHS in that regard.

Dr McMenamin: Guidance spanned the period from March of 2020 onwards. My colleagues within HPS and then PHS from 1 April were then working collaboratively with a number of stakeholders to look at whatever guidance was required in each setting. As you might have already gathered, that increasing appreciation about what steps would need to be in place, particularly across the month of March, as we began to appreciate just exactly what we needed to plan for for Covid, meant that very rapidly we were trying to come to a conclusion about what initial guidance might be provided. So, for example, for care home settings, a provision of an initial response in which we were in liaison with Scottish Government, trying to rapidly pull together something for advice.

That is something which Professor Phin and all of us working in health protection are very familiar with, whenever you have an initial incident response where you often are giving completely unacceptable timelines to colleagues to rapidly contribute to information, recognising that you’ll do the best that you can for the maximum good within the time available to you, knowing that you may yet have opportunity to come back under current revisions, over the course of the rest of that month or later, to try and identify any further wording change or incorporate any of the new things available.

And in particular we’ve already began to talk about what the testing challenge was for us in that the number of tests that were available per day, talking about the most good that you could make of those tests was something which was incredibly clinically challenging.

You might imagine if someone is being managed in an intensive care or in a hospital bed and clinically there are some decisions to be made about what medicines, et cetera, that they’re receiving, that having priority for testing in that limited testing environment available to you becomes important, as is the investigation of incidents and outbreaks.

That meant that it’s not just our colleagues in Scottish Care but in fact everyone involved in that process who is then saying: what can we do to improve the availability of tests? We might recognise that we might not have them this very moment to be able to help with the care home setting, but what can be done to maximise our availability of those tests, and recognise that in fact that, as it turned out later, that we began to incrementally introduce those tests not just to the individuals receiving the care, but to staff that were also involved to try and make sure that we, as it became available to us, could manage that risk.

Mr Dawson: You’ve helpfully told us about the prevailing circumstances with regard to care home guidance.

In trying to combine two topics at once, which was my fault, I don’t think we’ve heard from you about the influence, if any, of the policy alignment check, particularly on the care home guidance in March.

Is there, based on your researches, an effect on the quality or timing of that guidance being provided by HPS?

Dr McMenamin: Forgive me, but it does sound as though there might be a misunderstanding about something.

Mr Dawson: Thank you.

Dr McMenamin: I think within the – I’m straying into territory for Professor Phin. In the corporate response that we outline, the policy alignment check and the arrangements for that were really something which stemmed from the middle of May onwards, rather than in this initial period that you’re speaking to for care homes, was something which we were looking at from the middle of March onwards.

Mr Dawson: Right. So it wasn’t an issue, it was simply because there’s a sentence in the corporate statement that suggests that the PAC process was a direct consequence of the NHS in Scotland having been placed on an emergency footing during the period from March 2020 to April 2022, but that may just reflect the entirety of the pandemic, it may not be that March was when this was actually an operative issue.

Dr McMenamin: I think I would understand that the key point that’s been made there is that, rather than Public Health Scotland – or their predecessor, HPS – being the key body who was responsible for guidance, it changed potentially as of those emergency powers coming in, because the primacy about who had control about the final bit of sign-off then becomes the Scottish ministers, and that that is a key distinction to make between the period before the institution of the emergency powers and the period that preceded it.

Mr Dawson: So let me just get this right. The emergency powers came in in Scotland on 26 March.

Dr McMenamin: Yes.

Mr Dawson: Which by your interpretation means that that was the point at which the Scottish ministers took responsibility over lockdowns, restrictions and the like?

Dr McMenamin: Well, they always did have control about that.

Mr Dawson: Yes.

Dr McMenamin: But rather that they, for guidance purposes, what I’m talking about here, that they had the final say about –

Mr Dawson: I see.

Dr McMenamin: – what should be communicated.

Mr Dawson: Right.

Dr McMenamin: And communication, then – as a key part of what you’re trying to do with guidance – was then their responsibility. So that’s not to say that of course our government colleagues didn’t have a significant input to anything that we said about guidance as one of our key partners in that period before –

Mr Dawson: Prior to that period, 26 March, HPS would, with in consultation with others like the government, have issued guidance of this nature by its own action.

Dr McMenamin: Indeed.

Mr Dawson: But then subsequent to that, there was a requirement, given the slightly changed position of the Scottish Government in the management of the pandemic, for there to be greater Scottish Government involvement in the process and effectively an alignment check between what you were proposing and what they were prepared to have put out. Is that broadly the position?

Dr McMenamin: Broadly speaking, without the term “policy alignment check” having been formally coined, because that was not coined until some point about the middle of May.

Mr Dawson: So this did not have an effect on guidance being issued about care homes in March.

Dr McMenamin: Correct.

Mr Dawson: The first such guidance having been issued, I think, on 13 March and that having preceded that period, that was simply issued by HPS itself; is that correct?

Dr McMenamin: It was issued by HPS itself following discussion with a number of our stakeholders.

Mr Dawson: Thank you.


Dr Phin: Yeah, I wasn’t there at the time but, like Dr McMenamin, I’ve looked at the notes that were available, and I think it’s important that the guidance that was issued in March was actually for a care setting. It wasn’t simply care homes. It covered services delivered in the home, community services generally. It was a generic document. It wasn’t until later, I think until April, that we actually issued specific guidance for the care homes, by which time we were into this situation where sign-off was by Scottish Government.

The policy alignment guidance was absolutely key to taking forward guidance because, prior to that time, the challenge that we had was trying to get agreement and trying to get guidance out in a timely fashion, and – I think as you will see from some of the evidence we submitted –there were substantial delays in getting sign-off, which actually resulted in three or four sets of guidance actually not being issued but as moving on to an updated set of guidance. So the whole idea of the policy alignment is to try and speed up, make the process more efficient, and to address any concerns.

I would say that there was an analogy with Public Health England where we had something called the triple lock, which was an attempt to try and make sure that the organisations were all aligned and so that any guidance that was issued, you know, had the support and clarity from all organisations.

Mr Dawson: Could we look, please, at INQ000101020. This is the report which her Ladyship has seen before, “Discharges from NHS Scotland hospitals to care homes between 1 March and 31 May 2020”, published in October 2020. This is a report that was compiled by Public Health Scotland in connection with the discharge from hospitals to care homes over that period; is that right?

Dr McMenamin: That’s right.

Mr Dawson: In this report, it is, I think, set out that guidance was issued by HPS first on 13 March 2020?

Dr McMenamin: Yes.

Mr Dawson: And that it suggested a number of things, including social distancing, essential visits only, accept admissions to the home if safe, and close the home if resident tests positive.

Dr McMenamin: Yes.

Mr Dawson: That’s broadly what the guidance was.

Now, you’ve given an answer to this, I think, already, but I just want to address it directly.

That guidance contains no guidance or suggestion about the possibility of people being tested, or the requirement for a test before being moved from a hospital to a care home; is that right?

Dr McMenamin: Yes, that’s correct.

Mr Dawson: What is the reason why there is no element related to testing in that advice from HPS, as you understand it, based on your researches, Dr McMenamin?

Dr McMenamin: Well, my understanding was about availability of the tests that would be able to support such an approach, not just about, as you’ve just taken us into, discharge from hospital or admission from home to a care setting, but also the thinking that was going on in the background about: what would we need to be able to test not just those individuals who were in that care setting but potentially the staff who would be involved too?

Mr Dawson: So the issue was that, as you said earlier in your answer, there were no tests and there were difficulties around prioritising testing at that stage; is that –

Dr McMenamin: I think it’s the latter, that there was certainly significant pressure on test availability, dependent upon the setting that we wished to deploy it, and that there had to be effectively a triage, the concentration of where did we think the maximal benefit might derive from that test offer.

That’s not just from HPS at the time, or ultimately from PHS, but rather across all of the clinical service, about what could or should be done there.

Mr Dawson: Some might suggest, and indeed have suggested – and I would like to give you the opportunity, both of you, to comment on this – that at that time it was known that where the greatest need was was care homes, because the most vulnerable were the elderly and it was known or ought to have been known that care homes were generally an environment which had poor infection control, not at the level of a hospital, such that if a positive patient were released they would be exposed to a number of elderly vulnerable patients whom they would be likely to infect.

I simply invite your comment on that, because it’s a matter that’s been said to us by several witnesses.

Dr Phin: Could I come in on that point? I think – I don’t know if you’re aware of it, but there was a consensus statement issued on 26 May 2022, and this was a consensus statement that was commissioned by the Department of Health and Social Care in England and it was an independent report involving care homes, NHS, et cetera, and this was looking at the discharge of patients from hospital with Covid into care homes. It was a fairly extensive review, it actually used the data that was provided by Public Health Scotland in coming to its conclusions, and I think it draws out a couple of really important issues.

I think it recognises that both in care homes and in hospital we have two things, we’ve got two high contact groups, in other words we’ve got people being provided by care, very close contact, therefore potential for transmission is high, and they’re both dealing with vulnerable populations.

The conclusion of this report – and I’m very happy to forward it to you if you’ve not already seen it – is an acknowledgement that at least some care home outbreaks were caused, partly caused or intensified by discharge from hospital to care homes, and I think that’s an important issue.

They also identified, as was the case in the Public Health Scotland finding, that there is an association between care home size and outbreaks. In other words, the bigger the care home, the bigger the interactions, the more potential for outbreaks to occur.

And then finally, which I think is a really key issue, is that there was an acknowledgement that hospital discharges to care homes without testing early in the pandemic is highly likely to have caused some outbreaks. However, looking at two outbreaks that occurred, one in the East of England and one in Norfolk and Suffolk, the conclusion was that this was not the dominant driver, and in fact in the East of England study just under 6% of cases were definitely linked to hospital, and in fact in the Norfolk and Suffolk outbreak two out of 89 cases were linked. And again the conclusion is that hospital discharge was not a prominent feature of transmission in the healthcare setting.

Instead, and it’s in the report so I’m not – this is not me saying this – that care home staff and visiting professionals were probably the cause of many of the introductions and the promulgation of infection within the care homes, and they cite a case in Norfolk where there were six establishments, genetic sequencing identified this was not in the hospital, it was not in the community, it was being transmitted within the hospital setting.

So I’m not sure if you’re aware of it, I think it’s useful, because I think it acknowledges that there was an element but it was not the key, it was not the dominant route of transmission.

Mr Dawson: Do we see in either of the boxes on 13 or 26 March, which helpfully summarise the guidance, the two pieces of guidance issued by Health Protection Scotland, guidance relating to what should be done to minimise the risk of transmission by care home staff or visiting professionals?

Dr Phin: Sorry, I didn’t –

Dr McMenamin: For visiting professionals?

Mr Dawson: Yes, I’m quoting what I understood Professor Phin to have said was the predominant cause of the trans –

Dr Phin: Yes. That was the conclusion from this consensus –

Mr Dawson: What I’m asking is whether any guidance was given by this public health body to try to minimise that route of transmission at that time?

Dr McMenamin: If you mean –

Mr Dawson: Because I don’t see it in the boxes.

Dr McMenamin: Okay. The context here was regarding the care homes, which is what you’ve put up on the screen. Professor Phin’s already taken us into that, there was broader guidance that was available for use across the NHS and other settings, and indeed for the clinical management of individuals in the community. I think that the guidance was perhaps updated five times across the month of March. I’m not quite sure across the month of April how many times. But perhaps either Professor Phin or myself would need to come back to you about the detail of that specific question that you just asked.

Mr Dawson: It doesn’t appear in those boxes.

Dr McMenamin: That’s correct, it does not appear.

Mr Dawson: Yes.

Just to be clear, there was a second guidance, I think, issued by HPS on 26 March. Did your researches, Dr McMenamin, reveal why it was that a second piece of guidance was necessary at that particular point? There was a significant change obviously on 21 April, but why was a second guidance issued at that time?

Dr McMenamin: I think it would be fair to say that I’d just covered part of that by saying that each and every opportunity was made to update any of our guidance, and that there were five updates to that across the month of March. Forgive me, but I don’t know what the driver was for –

Mr Dawson: Yes. If you don’t know because of your limited involvement, I understand that, Dr McMenamin.

The other major element of these guidances – other than the fact that they don’t require negative tests or, as was subsequently the case, two negative tests before a patient or a resident would be allowed to be transferred from a hospital into a care home – is that the infection control measures and social distancing measures which are recommended here are, according to those who work within the care profession, completely unrealistic.

For example, “essential visits only” is simply something that many care home patients, many of whom suffer from dementia, it’s simply not something that is tolerable. Simply also that the vague suggestion that there should be social distancing in a care home with many patients with dementia, for example, is something at the very least – if not impossible, is something at the very least on which further specification would be required.

Have your researches indicated that there was any consideration in the publication of these guidance or these very practical limitations on the ability of the care sector to minimise infection within care homes?

Dr McMenamin: I think, certainly from what I have been able to see as communications in the background and from my own recollection of some of the discussions with colleagues at the time, of course all of those considerations were articulated, not just by Scottish Care, but were certainly discussed in a number of meetings across that time, and there were very passionate presentation of those views by a number of colleagues, including by Donald Macaskill, in those sorts of meetings.

I think that there was much sympathy for all of those views, but in practice what we had at the time was something which was scary because of the large number of potential deaths that we may yet go on to see at that time point, and regrettably – and it is with much regret that everyone, myself included, in PHS offer our deep regret about each and every one of those deaths and that for all of the families of everyone who was affected by this dreadful infection, and for the care staff too who managed all of these much loved individuals in those settings.

I think it would be certainly an instinctively human reaction that of course all of those things were being considered in each of those settings, but the key driver was: do the most good that we can. Understandably our knowledge at the time was as whatever you’ve seen documented, and that what we were then offering was the best advice at the time to try and deal with it, and that that then dynamically had to change over time as more information became available to us, particularly once we knew about the offer of tests when that became available to us.

Mr Dawson: Are there any – given your answer and what we’ve looked at, are there any elements of the public health services and Scotland’s role in providing guidance and support over this period that PHS, as kind of a legacy body, is able to identify, and are there any further expressions of regret which the organisation would like to advance on behalf of PHS to those who lost loved ones as a result of that mass outbreak of care home infections?

Dr Phin: Yes, I mean, unreservedly. Clearly the pandemic had an enormous impact and, as you say, a key risk factor for Covid complications and indeed deaths was age, older population, those with comorbidities, those with existing vulnerabilities, and these were the types of people who actually lived in some of the settings we’re describing at the moment.

It’s – I can only offer my sympathy, my condolences. This was a situation unprecedented. We were desperately trying to get principles, guidance out to care homes that they could use and adapt, and I have to stress that we recognised at the outset we cannot provide a set of guidance that answers every question, because as you have said there were people with dementia, there were people with other conditions for whom different types of care were necessary.

So what we tried to produce were some principles, some key pieces of guidance, and advice, that could be adapted and used in the healthcare setting – sorry, in the social care setting, where the people looking after those people had the better – had a greater insight into what they needed and how to adapt those principles in a practical and sensitive way.

So, yes, we – you know, my condolences on behalf of the organisation to all those families and individuals who suffered.

Dr McMenamin: One further thing perhaps to add is: you may recognise from the evidence that we’ve submitted, Public Health Scotland’s role here is in provision of guidance, it’s our local authority and NHS board colleagues who had the relationship with the care homes and, as Professor Phin has just taken us into, that opportunity for those offering care in the community was to make a dialogue with their local health protection teams and their public health departments to go through any issue that they had. That was certainly a really important thing for those departments to be able to collect any of the valuable intelligence there and share that, and indeed the very welcome component of Cabinet Secretary announcement also was the role to try and co-ordinate activity by the department – by the department of public health directors locally to try and address such circumstance.

Mr Dawson: Those provisions, I think you’re referring to the 21 April announcement?

Dr McMenamin: Yes.

Mr Dawson: Which is reflected again here. Is there any reason for you to think that those provisions could not have been introduced much earlier, based on your knowledge of the way that public health and these organisations and agencies work?

Dr McMenamin: Yeah, I think from the review of the information that I see, an earlier step in retrospect, something which could potentially have been done was that earlier appeal for better co-ordination. That’s not to say that any of our colleagues were not doing their best, but rather it was unclear about who had overall primacy in being able to make sure that things were as best co-ordinated as they possibly could be. I’ve already said that HPS and PHS didn’t have – we certainly don’t have any legislative power to be able to do anything for those settings.

Mr Dawson: Yes.

Dr McMenamin: Another body that is there is able to say something about the care homes, which is the Care Inspectorate. So for them, working in conjunction with those agencies who are responsible for the care of the population, it’s the NHS boards and the local authorities.

Mr Dawson: Thank you for that perspective.

I’d like to ask you about one other area. I might be able to cover this without going to the detailed report.

You’ve helpfully given us some very detailed information about a particular aspect of the Covid-19 pandemic in Scotland, namely the significance of the Nike conference which took place in late February 2020 as regards the transmission of the virus.

As I think is reflected in reports which emanate from PHS and you, this is an event which has largely been portrayed as a superspreader event, but as I understand it the – HPS undertook an investigation into the extent, retrospectively, as to whether that had in fact been the case or not.

My understanding is that the broad conclusions were that that proposition was in fact not correct, and that the strain of the virus which had been introduced via that event could be shown to have died out and not caused a mass outbreak of infection as had been speculated.

Is that the broad conclusion of the report?

Dr McMenamin: Indeed, the Nike conference wasn’t a ground zero, it was one of at least 200 plus introductions of slightly different variants of the Covid-19 virus into the population. There was some remarkable detective work enabled by whole genomic sequencing, looking at the genetic fingerprints of the different variants at the time which allowed us to demonstrate that the public health actions that were taken limited the effect of the spread.

The spread within the Scottish and indeed the UK population was something that appeared to be limited to those individuals who attended or, for instance, to households of those individuals, and that that certainly meant that we instituted a number of local actions to deal with that.

It’s certainly fair to say that that was certainly assisted later by what we then have all come to see, which is either for Scotland, the rest of the UK or internationally, across the month of March into April, all of the societal measures that then kicked in to try and limit the spread of infection, but we’ve certainly not seen recurrence of any of that infection –

Mr Dawson: It was that aspect that, not so much relating to the particular conference strain but the wider investigation that I was interested in, because I think what the report shows is that in Scotland on at least 283 occasions during March and February, Covid, SARS-CoV-2 was introduced into Scotland.

Dr McMenamin: Yes.

Mr Dawson: And there is in fact a separate estimate from another group of 307 over that period.

Dr McMenamin: Yes.

Mr Dawson: And that the lineages which were introduced over that period could be traced to mainland Europe, particularly Spain; is that right?

Dr McMenamin: I think particularly Italy, Spain and other European countries, yes.

Mr Dawson: Yes, thank you. Spain is just mentioned, but that – it is effectively from continental Europe where Covid came into Scotland over that period –

Dr McMenamin: Yes.

Mr Dawson: – is that what we think?

And the study also helpfully indicated that there was community transmission which was likely to have occurred in Scotland undetected up to one to two weeks earlier than the first detected case which was on 1 March; is that right?

Dr McMenamin: Yes.

Mr Dawson: And also it suggests that, considering the 14 to 28-day incubation period before seroconversion, the report concludes that it was likely that the virus began circulating in Scotland in late February 2020?

Dr McMenamin: Yes, on that basis.

Mr Dawson: Yes. So it’s a helpful indicator as to what was actually going on at that time, although of course unknown.

Dr McMenamin: Indeed.

Mr Dawson: Could I ask you about one further aspect of that, Dr McMenamin? You have in your report some observations. Another aspect of the Nike conference which has caused some degree of public consternation is the fact that information relating to it which was available to HPS in its investigations but Scottish Government and other agencies, other public agencies, was not publicised at that time, which I think created or contributed to the creation of an apprehension that something was being hidden from the public and that it was significant in connection with the way in which Covid spread in Scotland.

You suggest in your report I think that there are some positive public health reasons for not publicising the name. I think they include at least the – your experience that if one does release details of things like that, that that might reduce the willingness of the agency involved or the company involved to participate in initial investigations, which you have said are important; is that broadly correct?

Dr McMenamin: That’s correct.

Mr Dawson: Would it not have been possible, however, to try to find a middle ground? Because the public health communications policy of the Scottish Government subsequent to this was based very much on the idea – the idea – that the Scottish Government was being honest with the people of Scotland, and the Nike conference experience in many eyes soured that relationship and meant that people did not trust the Scottish Government.

Would it not have been possible to deal with those public health concerns that you’ve pointed out by anonymising but still releasing information so that people were aware that there was a potential threat, and perhaps even to reassure them about the fact that HPS and your colleagues were doing everything they could to try and keep it under control?

Dr McMenamin: So in retrospect, yes, that’s one certain area that it could have been done, but with the agreement of the Chief Medical Officer of the time they agreed with our conclusion which was to keep –

Mr Dawson: Thank you.

Dr McMenamin: – to keep the information as it was.

I do take your point that that is a really important area of keeping the public with us in any of our communication, and certainly our government colleagues were supportive of this at the time too.

Mr Dawson: Thank you very much. Just bear with me one second.


Mr Dawson: Those are my questions. I’m sure I could go on for many hours, but we’ve reached the end of the day.

There is one Rule 10 proposal which we are just dealing with, my Lady, very momentarily, from one of the core participants.

Lady Hallett: Which I haven’t seen yet?

Mr Dawson: No.


Lady Hallett: Are you the source, Ms Mitchell?

Ms Mitchell: I had assumed that that would be sent. I had checked, it was sent to the right box.

Two in the one day, my Lady, but it’s just that I had an opportunity that my learned friend didn’t have to look at the document that was being referred to by Dr Phin in relation to outbreaks, and –

Lady Hallett: Ask your question, Ms Mitchell.

Ms Mitchell: I’m obliged. I’ll be very, very quick.

Questions From Ms Mitchell KC

Ms Mitchell: The report you referred to, just so we can be clear I’m talking about the right document, is the consensus statement on the association between the discharge of patients from hospitals and Covid in care homes published 26 May 2022; is that correct?

Dr Phin: That’s correct, yes.

Ms Mitchell: You clearly have a detailed knowledge of that report. The report indicates that in relation to the data from which – the information you gave about discharge into care homes, that has some important limitations; is that correct?

Dr Phin: Yeah.

Ms Mitchell: Can you identify what those limitations are? Would it be easier for me to point them out to you, at this time of day, perhaps?

Dr Phin: Well, I would be happy to take it and give a fuller response.

Ms Mitchell: Perhaps I can just put it this way: the limitations are, I think, broadly speaking, two-fold in relation to the data.

The first of these two, what are described as important features of limitations of the data, is that there was lone variable levels of testing in care homes’ populations in wave 1, with variations between areas depending on testing capacity. Typically, symptomatic residents admitted to hospital were tested but asymptomatic residents who were admitted for other reasons were not routinely tested. So there was a testing problem: if you couldn’t test, you didn’t know where Covid might have come from. Is that correct?

Dr Phin: Well, yes, generally, but the two instances are cited where a study was carried out in the East of England where they were able to demonstrate that 6% of cases were linked, and that is where whole genome sequencing would have been an important component.

The other one was an investigation of six establishments that were linked in Norfolk and Suffolk, where again two out of 89 were linked through this genetic fingerprinting –

Ms Mitchell: Indeed.

Dr Phin: – able to say these were exactly the same strain and there was nothing in the community that we were aware of and there was nothing in the hospital.

I think what these are is a consensus statement, these are a group of people both NHS, social care, scientists, and this is their conclusion, looking at a number of different studies, and … yeah.

Ms Mitchell: And indeed their conclusion, that the first part was that all analysis of the impact of hospital discharges are limited by two important features of the available data, the first which was identified, the second which is no UK country can easily and completely identify who is resident in care homes or who was discharged from hospital to care homes because sometimes the addresses weren’t changed. So that is another limiting factor of the data.

And in fact the report ends by saying none of these problems are fixable retrospectively, meaning that all of the analysis done are based in data that are less than ideal. Is that correct?

Dr Phin: That is the conclusion of that group. I would add though that they additionally looked at international studies, which actually supported the findings of their conclusion. So I keep going – I go back to it’s a consensus group.

I’m simply reporting and I’m – I think it would be obviously relevant to this Inquiry that they had a copy of that report, given it does highlight some of the issues that I think have been raised elsewhere.

Ms Mitchell: I’m obliged.

Lady Hallett: Thank you very much, Ms Mitchell.

Thank you, Mr Dawson.

Thank you both very much. Thank you or a second time, Dr McMenamin. I’ll try not to call you in every module, but thank you for your help. Thank you, Professor, for your help too.

(The witnesses withdrew)

Lady Hallett: And I hope that everyone gets as restful a weekend as possible, and I will see everyone at 10 o’clock on Monday. Thank you.

(4.48 pm)

(The hearing adjourned until 10 am on Monday, 22 January 2024)