Transcript of Module 2A Public Hearing on 24 January 2024

(10.00 am)

Lady Hallett: Mr Dawson.

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

morning is Professor Mark Woolhouse OBE.

Lady Hallett: We meet again.

Professor Mark Woolhouse


Questions From Lead Counsel to the Inquiry for Module 2A

Mr Dawson: You are Professor Mark Woolhouse?

Professor Mark Woolhouse: I am.

Lead 2A: You have helpfully provided a statement to this module

of the Inquiry, along with other statements provided to

previous modules. Your modular statement for this

Inquiry is dated 14 December 2023 and has the reference

INQ000369765. Is that your statement?

Professor Mark Woolhouse: It is.

Lead 2A: Do the contents of this statement remain true and

accurate as of today’s date?

Professor Mark Woolhouse: They do, though we have sent a handful of further

exhibits to the Inquiry, but I don’t think they

materially affect this statement.

Lead 2A: Thank you very much indeed.

You’re a professor of infectious disease

epidemiology at the University of Edinburgh?

Professor Mark Woolhouse: I am.

Lead 2A: You sat during the course of the pandemic on the body called SPI-M-O between January 2020 and early 2022?

Professor Mark Woolhouse: That’s correct.

Lead 2A: You’re also a member of a group about whom we have heard evidence, the Scottish Covid Advisory Group from March 2020. You attended that group regularly, apart from a two-month absence from meetings in February and March 2021?

Professor Mark Woolhouse: That’s correct.

Lead 2A: You did not attend the SAGE meetings that we’ve heard about?

Professor Mark Woolhouse: I didn’t.

Lead 2A: Thank you.

You were awarded an OBE in 2002 for service to the control of infectious diseases?

Professor Mark Woolhouse: I was.

Lead 2A: You’re a fellow of the Royal Society of Edinburgh?

Professor Mark Woolhouse: I am.

Lead 2A: Of the Academy of Medical Sciences and the African Academy of Sciences?

Professor Mark Woolhouse: I am.

Lead 2A: We’ve heard some evidence about your role in providing early information and advice to the Scottish Government, in particular through Dr Catherine Calderwood, the then Chief Medical Officer. You have given some evidence

about that to the Inquiry already, but I’d like to ask

you some more questions in the particularly Scottish

context of this module.

Could we have up on screen, please, INQ000352450.

If we could go to – yes, that’s the right one.

This is a chain of emails which you have helpfully

produced to the Inquiry between yourself and

Catherine Calderwood; is that correct?

Professor Mark Woolhouse: It is.

Lead 2A: And I understand that you first contacted Dr Calderwood

in connection with your concerns about the emergence of

a new virus on 21 January 2020; is that right?

Professor Mark Woolhouse: It is.

Lead 2A: What prompted you to contact Dr Calderwood specifically

at that time?

Professor Mark Woolhouse: This seemed to be a matter that very quickly would

require the Scottish Government to engage with, and

since I wasn’t at the time part of any formal advisory

system, it seemed to me the logical route to channelling

my concerns to the government was through the Chief

Medical Officer for Scotland.

Lead 2A: And presumably, given the fact that you, as well as

having contact with people at a UK level, contacted the

Chief Medical Officer for Scotland, you were under the

impression that the Scottish Government had the ability to do something about this?

Professor Mark Woolhouse: Yes.

Lead 2A: Health and indeed public health are matters devolved to the competence of the Scottish Parliament and hence the Scottish Government?

Professor Mark Woolhouse: Indeed.

Lead 2A: We’ve looked at some of the text of these emails before. You – I think the context, please correct me if I’m wrong, of this email is that it follows on from an announcement of recognised human-to-human transmission of the virus the previous day; is that right?

Professor Mark Woolhouse: That’s right.

Lead 2A: What was the significance of the emergence of that piece of information about the virus?

Professor Mark Woolhouse: We already knew about cases of what was then actually called Wuhan pneumonia, at those very early stages, and there was a possibility that these had been acquired from an animal source, a non-human source. And it is possible – there are many diseases like this – that the infection would spread from the animal but could not then spread from person-to-person. So a human is a dead end from the virus’s point of view.

Now, that doesn’t mean it’s not serious, some of these sorts of infections, like rabies, for example, around the world are very serious. But nonetheless that kind of infection would not cause a pandemic.

Lead 2A: So the evidence which had emerged the day before about human-to-human transmission was a significant piece of information which would affect your assessment of the likelihood of the virus transmitting and potentially reaching epidemic or pandemic proportions?

Professor Mark Woolhouse: Well, yes, but it confirmed my fears. I had already received, I think on January 9 or 10, a report from – that was sent to me, unexpectedly, of the Wuhan municipal health authority that already was describing that this was quite a sizeable outbreak and had been persisting for some weeks. So I was already thinking this is unlikely to be just an animal origin epidemic, as in the only cause of human infections is from animal sources. It was already – so I was expecting this news that it was human-to-human transmissible. I’d feared that for over a week, ten days.

Lead 2A: I see. So this very recent piece of evidence about human-to-human transmission had added to and confirmed your fears about previous information which had been made available to you earlier in that month?

Professor Mark Woolhouse: Correct. I thought we were going to have a pandemic or it was very likely that we would have a pandemic from round about January 10th.

Lead 2A: Thank you.

You say – it’s on the second page of the page we have here – in the second paragraph:

“There are some instructive parallels with the H1N1 pandemic in 2009-10. Indeed, one possibility is that this could turn out to be quite similar in some key respects: a widespread epidemic fuelled by mild cases but with mortality among vulnerable patients.”

Can you tell us why it was that you were seeking to draw to Dr Calderwood’s attention parallels with the 2009-10 H1N1 pandemic and the various features which you identified as being a possibility of the pandemic which you were predicting for the novel coronavirus at that time?

Professor Mark Woolhouse: I think that was the most instructive parallel available. And it wasn’t just the characteristics of the infection – which, as the Inquiry has heard a lot of evidence for, turned out to be significantly different from influenza – but also the nature of the response. And I had been involved in the Scottish response to the H1N1 pandemic in 2009, and there were deficiencies in the response at that time, and I was very anxious that history didn’t repeat itself.

Lead 2A: Yes, I think we’ll get to that very expression that you use in one of these messages. But what was it about the information that you had that suggested that it would be an epidemic fuelled by mild cases, with mortality amongst vulnerable patients?

Professor Mark Woolhouse: It’s a respiratory infection and that’s a pretty standard textbook expectation for respiratory infection.

Lead 2A: As far as the ability to detect the spread and therefore significance of the virus, what is the significance of the fact that it would be fuelled by mild cases?

Professor Mark Woolhouse: That simply means that it would be very difficult to track by detecting people with – reporting with symptoms. You wouldn’t see a lot of the cases, so you would need other ways of identifying those –

Lead 2A: Cases –

Professor Mark Woolhouse: They wouldn’t know they were cases.

Lead 2A: Yes, so people would have mild symptoms that they wouldn’t necessarily associate as anything out of the ordinary and therefore might not report for testing, such that chains of transmission might go undetected; is that the broad idea?

Professor Mark Woolhouse: Yes, and, as you may want to discuss later, that turned out to be a huge problem.

Lead 2A: Yes, indeed, at the moment I’m focusing on what it was you were predicting. You were also predicting mortality amongst vulnerable patients as being a feature of a respiratory virus of this nature, based on your extensive experience?

Professor Mark Woolhouse: Yes.

Lead 2A: You say – although in that paragraph you are pitching your prediction as a possibility, in the previous paragraph, based on the not unexpected announcement, as you’ve explained, of human-to-human transmission, you state that “this will become a pandemic, and therefore will affect Scotland”. That was your position at the time?

Professor Mark Woolhouse: Yes.

Lead 2A: And that was why you wanted to bring this to the attention of the Scottish Government through the Chief Medical Officer?

Professor Mark Woolhouse: Absolutely.

Lead 2A: Thank you.

Could I just then go to the next paragraph where you highlight, in light of your predictions and the particular features of the prediction you’re making, what it is you think will need to be done to try to cope with this. You say:

“Such an epidemic would be difficult to track. As in 2009-2010 what would be needed is an integrated surveillance set up that combines clinical surveillance, genomic surveillance, and serological surveillance. (The latter requiring an appropriate test; we and I am sure, many others are working on this already). This should be unexceptionable. My reason for writing now is to emphasise that, based on experience of 2009-10, that that system needs to be put in place in advance of the arrival of the virus, so the sooner the better. If we wait until after the virus has arrived then we will miss information of public health value and our efforts to prevent the control of the pandemic will be compromised.”

So the message you were trying to convey was, based on your previous experience of what you considered to be similar viral outbreaks, one needed to act fast in order to try to keep the spread under control?

Professor Mark Woolhouse: Correct.

Lead 2A: Can you help us a little bit with the requirement for clinical surveillance, genomic surveillance and serological surveillance; what would those different components have been aimed towards achieving?

Professor Mark Woolhouse: So I’m actually taking this straight from what my team did in 2009/2010 on behalf of the Scottish Government. They asked us to do this eventually, and that’s the work that we did. There is a clinical surveillance system, not just in Scotland but more widely, for influenza-like illnesses, respiratory infections, essentially. That’s useful, but what we’d found in 2009 was it wasn’t extensive enough, and what we were able to do, working with colleagues in Health Protection Scotland, was get that – it’s based around general practices, and we got that scaled up very quickly and that provided very useful information quickly during 2009.

Genomic surveillance – I don’t know how much evidence the Inquiry’s heard about the value of whole genome sequencing? It wasn’t something that Scotland actually was geared up to do in 2009, so again, my team, we had to introduce that – it was relatively new technology at the time, we had to introduce that into the process. And that was extraordinarily valuable, just as it was with Covid-19, but not nearly as advanced at that time.

And serological surveillance, and that’s again what we did in 2009, it’s basically detecting people who have antibodies to infection, so it’s tracking an infection by taking blood samples, and detecting who has had the infection. So it’s not the same as the PCR tests and the lateral flow tests that came along with Covid. Now, I – in this I didn’t anticipate those. But it was a very useful tool in 2009, this serological surveillance.

Lead 2A: Obviously, as you said, you were seeking to convey a sense of urgency about the need to create these systems and develop these systems specific to Covid. What was your understanding of Scotland’s ability to do that at that point?

Professor Mark Woolhouse: So, prior to this chain of emails, I’d been in touch with my colleague Chris Robertson, at Health Protection Scotland, and through him with Jim McMenamin, who I believe you’ve already heard from.

Lead 2A: That’s right.

Professor Mark Woolhouse: And so I was getting a sense of what level of activity was going on in Scotland, and I didn’t get the impression that it was, in my view, treating the situation with the seriousness or the urgency that I felt it needed.

Lead 2A: I see. So did that apply simply to the reaction to the information that was emerging but also to the practical requirements that were – you were recommending needed to be put in place in order to deal with that threat?

Professor Mark Woolhouse: Yes. So in a perfect world I would, in this email, be pushing at an open door, and the reply I would get to that email was “Thank you, Professor Woolhouse, we’re already doing this”. And I believe you heard from Gregor Smith earlier, and – I watched his testimony, and he said, and I’m paraphrasing slightly, “Professor Woolhouse is just telling us textbook stuff, we know all this”. And he’s absolutely right, I was.

Lead 2A: Right.

Professor Mark Woolhouse: But textbook stuff needs to be acted on.

Lead 2A: Yes.

Professor Mark Woolhouse: And the thing that I was particularly concerned about was that although, you know, I’m very well aware of all the systems in place in Scotland and elsewhere to respond to an outbreak, including an influenza outbreak, I was already convinced at this early stage that this was going to be considerably worse, and so I was really trying to push this. But I would have been very happy with a response to this email saying “Thank you, we are already doing this”.

Lead 2A: Right. You say this was your impression. I think from various materials, including your book, you were also in contact with other people in the UK at this time, you’ve mentioned Chris Robertson, you mention Neil Ferguson, Jeremy Farrar, and others, some in Scotland, I think, with whom you were discussing these matters around this time. Were they of a similar view to you? Was there a consensus –

Professor Mark Woolhouse: Oh, yes, absolutely. Absolutely. No question. We were all very concerned –

Lead 2A: Yes.

Professor Mark Woolhouse: – at this point, all those people you’ve mentioned there.

Lead 2A: Lest it be suggested that this was simply your view, this was a view which you had discussed and developed along with other experts in the field?

Professor Mark Woolhouse: Yes.

Lead 2A: You say in your statement at paragraph 186 that:

“Better surveillance, coupled with genomic studies, would have facilitated better advice and better decision making during this crucial period.”

Had these systems been ramped up in late January and into February, as you had advocated, would this have been early enough to allow for the spread of the virus to have been restricted more than it was before the lockdown was imposed eventually in March?

Professor Mark Woolhouse: Yes. So I’m suggesting a programme of gathering data, gathering information. There’s a whole – obviously another rather important layer of what you then do on the basis of that information, but obviously if we have better information, we are better informed, we can make better decisions, which might well have the consequence that you outlined. But I am here concerned with getting the information.

Lead 2A: Of course. There is a theme, I think, which we’ve discussed with some other witnesses, that runs throughout the testimony and the many documents you’ve provided, which is a frustration, which I think you held and pre-dated this period and indeed had been the subject of some correspondence with Dr Calderwood in the years prior to this, about the lack of data access for those like yourself in the research community in order to be able to provide the level of assistance, support, input that you would have liked to have provided in a situation like this.

Could you tell us what the background to that was, broadly, and whether these frustrations remained active at this time?

Professor Mark Woolhouse: Well, the second point, the answer is a simple yes. The first point, that emerges again from experience in Scotland of 2009/2010 influenza, and – you mentioned I was a fellow of the Royal Society of Edinburgh, we did a post hoc report of the management of that incident in Scotland, and we made a series of recommendations precisely about this, that we needed to have the mechanisms of obtaining, sharing and analysing data in place, ready to go, should another pandemic arise. Quite a detailed report. And I already was aware that this report had not really been acted on, so that’s one of the things about my frustration. What I wanted to know – what I wanted to happen here, me and others, through the Royal Society of Edinburgh, had recommended over ten years ago. Not quite ten years, sorry, 2011/12, so getting on for ten years ago.

Lead 2A: Right.

Professor Mark Woolhouse: And it hadn’t happened, hence the frustration.

Lead 2A: I see.

We heard some evidence from other witnesses, including – we heard evidence together from two Health Protection Scotland witnesses, you mentioned Dr McMenamin, I think, and we also heard from Professor Nick Phin, who spoke – although he wasn’t in Scotland at this time, spoke on behalf of Health Protection Scotland, and when they described their attitudes over this period, both, if I recall correctly, were keen to emphasise the previous swine flu experience was a substantial factor in their thinking about the threat, but perhaps in the opposite way to the way in which you were using your experience of previous viral outbreaks. You were drawing on your previous experience, which led to you, I think, suggesting this was a significant threat, whereas it seemed that their evidence was to the effect that the swine flu outbreak was something that was making them more cautious about coming to the conclusion that this was a significant threat.

I wonder if you could comment on that and whether the attitude, as I’ve characterised it, from them was a prevalent one at the time?

Professor Mark Woolhouse: It was, and the reason is fairly straightforward, actually. In the – swine flu turned out to be, by the standards of these respiratory infections, really quite benign. Its case fatality rate, the fraction of people who are infected and die, was somewhere in the order of one in a thousand, which is low. Obviously it’s significant, it’s a public health problem and needed to be managed, but it’s relatively low.

The early estimates of the infection fatality rate for this virus were, and I think that comes later in this email chain, somewhere in the order of 4%. Well, that’s 40 times higher, so you can immediately see that this potentially then is going to be an enormously greater event.

The reason why I personally, unlike my colleagues you’ve mentioned –

Lead 2A: Yes.

Professor Mark Woolhouse: – leant towards the more concerning or alarming –

Lead 2A: Yes.

Professor Mark Woolhouse: – figure, because we knew, again, going back from the – certainly the first half of January, well before this, from genome sequencing studies done on material from China, that this virus was extremely closely related to the SARS-CoV-1 virus. That had a case fatality rate of 10%. So from my point of view we’re in this territory. This is a very, very similar virus to something that had a case fatality rate of 10%. That’s a completely different magnitude of problem than swine flu.

Lead 2A: Yes. Yes.

Professor Mark Woolhouse: That’s why I –

Lead 2A: So you are bringing, I think it fair to say, a number of different experiences of previous viral threats, swine flu, H1N1, and the information that you had, the original SARS, as you’ve just outlined, with its high infection fatality rate, you – your view, bringing all of this evidence together, was not that there was evidence suggesting that this was not a matter for concern, very much the opposite, it was a matter of significant concern?

Professor Mark Woolhouse: Very much the opposite, yes.

Lead 2A: Thank you.

You mention in your email the possibility that there could be mortality amongst vulnerable patients. We’ve heard significant evidence in this and other modules about the fact that Scotland relative to other parts of the United Kingdom had a relatively elderly population with significant health inequalities and comorbidities.

Was it therefore all the more necessary, given this possibility of mortality, against that background, to start to consider doing something to protect that large cohort of vulnerable patients in Scotland?

Professor Mark Woolhouse: Yes. I wouldn’t want to overstate my level of understanding of the situation at this very early stage. We still hadn’t – there still wasn’t good evidence as to what a vulnerable patient was for this. You know, there were indications from previous experiences with SARS and indeed influenza, so we had some idea, but, you know, this was all quite uncertain at that stage. But that, as I said, was, seemed to be the most likely –

Lead 2A: Yes.

Professor Mark Woolhouse: – course this would take.

Lead 2A: But if that possibility did eventuate, that would be a particular problem for the particular characteristics of Scottish society, given the pre-existing –

Professor Mark Woolhouse: Yes, I would not pretend to you that I was thinking at the time that Scotland – at the time – that Scotland was particularly vulnerable to this. Just that Scotland was vulnerable to this, full stop.

Lead 2A: Did that start to become part of your thinking over the subsequent months?

Professor Mark Woolhouse: Yes. I mean, it depends what you compare Scotland with but, yes. The vulnerabilities are one thing – the main vulnerability, as you well know, is age, so very fact that the whole UK population is actually quite elderly, by global standards, is – was a concern.

Lead 2A: Yes, indeed, thank you.

A number of these emails – if we could scroll up through the emails, we could see the reply – scroll backwards, if you like, through the emails, you can see the reply from Dr Calderwood where broadly she says to you that – she acknowledges your email and I think tells you that PHE and HPS, as it was at that time, before the advent of PHS, were “actively considering the detailed surveillance needs and investigations required for this novel virus”, and apparently recognising the value of those surveillance systems.

How did you take that response? Were you satisfied that it sounded like they had things under control, or were you expecting a little more, given what you had said in your earlier email?

Professor Mark Woolhouse: I don’t regard “actively considering” as sufficient.

Lead 2A: Thank you.

If we go again back through the previous emails, we’re going to one on page 4, which is dated 25 January, and you say – you write to Dr Calderwood again, and you indicate there that you have discussed the matter with a number of others, including Jeremy Farrar, Neil Ferguson, as I’ve said, and that they had “independently reached the same conclusions and have advised Chris Whitty accordingly”.

You provide some further information, and then state that based on the case fatality rate, I think, the infection fatality – or case fatality rate you mentioned a moment ago of 4%:

“If you were to put those numbers into an epidemiological model for Scotland (and many other countries) you would likely predict that, over about a year, at least half the population will become infected, the gross mortality rate will triple (more at the epidemic peak) and the health system will become completely overwhelmed. We can formalise those predictions (and there are many caveats to them) but those are the ballpark numbers based on information from WHO. Please note that this is NOT a worst case scenario, this is based on WHO’s central estimates and currently available evidence. The worst case scenario is considerably worse.”

Again, what was the – what were you trying to convey to Dr Calderwood, again, about your developing understanding, your conversations with others and information that seems to have developed in the days since you last wrote a few days before?

Professor Mark Woolhouse: Yes, so the work that we – the actual science that we’ve started to do is – at this stage, this early stage, is trying to understand, like in the context of my team’s work, the scale of the threat to Scotland. And I’m reporting on what we now assess the scale of the threat to Scotland to be.

Lead 2A: Yes. A couple of lines down you say:

“Your reply to my earlier e-mail did not give any indication that here in Scotland we are preparing for a R0=2, CF=0.04 event. And I don’t have the sense that we are from my networks here either.”

So I think you are there conveying the information that the case fatality rate is 4% as you said earlier which is an alarming case fatality rate; is that right?

Professor Mark Woolhouse: Correct.

Lead 2A: And that the R being 2, that is that the R as 0 of the virus, which is an indicator of its transmissibility; is that correct?

Professor Mark Woolhouse: Yes. Actually that one turned out to be an underestimate, so …

Lead 2A: Indeed, but even with those numbers –

Professor Mark Woolhouse: Yes.

Lead 2A: – you are expressing there, as you’ve told us in your evidence, a degree of dissatisfaction with the level of the urgency within Scottish Government?

Professor Mark Woolhouse: Yes, and again we come back to Gregor’s comment that this is textbook. Yeah, it’s textbook. My undergraduates could do this calculation.

Lead 2A: Yes.

Professor Mark Woolhouse: My undergraduates could come up with this assessment. This is not difficult.

Lead 2A: Yes. One might say that that makes the lack of action all the more questionable and perhaps culpable?

Professor Mark Woolhouse: I think I’d better leave that to the Inquiry.

Lead 2A: But in any event, you were, as I say, trying to convey, based – applying basic epidemiology, if that’s correct, to the specific characteristics that emerged from the science, the R0 and the case fatality rate, to you it was fairly obvious that this was going to be a huge problem?

Professor Mark Woolhouse: Yes. And you mentioned the book I wrote. One of the things I put in that as the final explanation in my mind for why this wasn’t landing in Scotland or elsewhere was you put all this very, you know, as I say, fairly basic information together and what you get is an unfolding catastrophe. And I think a lot of people simply couldn’t get their heads round that. Even though, as I say, this is very simple. So you add this number and this number and this number and this number and you get a catastrophe. I think they couldn’t take that final step.

Lead 2A: Yes.

Professor Mark Woolhouse: Put all this information together and what’s going to happen, and …

Lead 2A: I think, therefore, you’re attributing to the medical advisers of the government at least the ability to do the basic epidemiology and arithmetic, but are you suggesting perhaps that, given the number that that came up with, they rather froze?

Professor Mark Woolhouse: Yes.

Lead 2A: Thank you.

Can we look again – go further back in – to page 2, please. This is a further email which you sent on 26 January, so the very next day.

While we’re getting that, one thing that was mentioned yesterday by Professor Sridhar that I just wanted to ask you about, a couple of things about the way in which information is communicated to people like yourself, she mentioned something called PubMed, which, as I understand it, is a source of information about developing epidemics or developing viral threats; is that right?

Professor Mark Woolhouse: ProMED.

Lead 2A: ProMED, I’m sorry.

Professor Mark Woolhouse: Yes.

Lead 2A: Could you just tell us a little bit about what that is and the extent to which that was used by you and others to be able to access information about the emerging virus?

Professor Mark Woolhouse: It’s been around a while. It’s – I don’t know quite what you call it, it’s maybe something a bit like a blog, but it pre-dates even blogs, so it’s a loose association of experts in the field who report to one another concerning events to do with infections, of which in a given year there will be dozens, if not hundreds, around the world. And that I’m inferring that Devi used this as one of the sources of information. I actually didn’t use that one.

Lead 2A: Okay. We’ve also heard some evidence from a number of the witnesses who have helpfully provided our Rule 9 responses of not necessarily at this period but in the period after this, as information started to emerge more, about the use of preprints in analysing the emergence of the threat.

Could you tell us what that is and the extent to which that was used in trying to understand what the threat was and the characteristics of the virus, et cetera.

Professor Mark Woolhouse: Yes. The gold standard for communicating scientific knowledge, of course, is the publication of a piece of research in a scientific journal, which is done subject to peer review. So it’s looked at by experts, it’s judged to be sound and it’s published. And that remains the gold standard. But in very fast-moving situation like this, that whole process – well, quite frankly, it can take up to a year sometimes and, in some circumstances, longer. It’s clearly far too slow.

So preprints is the practice of taking the paper that you’ve submitted or you’re planning to submit, but publishing it immediately. And it’s made very clear on the preprint servers that this is not peer reviewed research, so for that reason it hasn’t been quality controlled but it’s put out there so that the rest of the scientific community can see it. So it’s basically a very fast way of communicating your research outputs, but it loses the quality control element of peer review.

Lead 2A: Thank you. The reason I’ve asked you those questions, Professor, is that a number of other people, including the PHS representatives, suggested that the way in which evidence emerged over these early months, if we put it that broadly, from January onwards about the nature of the virus and hence the nature of the threat, was unreliable or contradictory or difficult to interpret. It doesn’t seem to be the case, even at this very early stage, and in fact you’ve referred to you developing views about this even earlier than this correspondence, that you, although no doubt are taking that into consideration, reliability of the evidence, that is restricting you from reaching the conclusion that this is a very, very significant problem about to happen.

Could you tell us about why it is that you felt confident enough in your professional assessment to be able to express these views, despite those concerns expressed by others?

Professor Mark Woolhouse: Well, one very simple way to do it is if somebody, whether it’s a scientist from China or the UK or anything, is publishing – wants to publish a paper, something they’ve put up as a preprint, in – beyond the preprint someone would have to peer review it, that person would quite likely be me.

Lead 2A: Right.

Professor Mark Woolhouse: So I felt perfectly qualified to peer review the evidence I was seeing myself.

Lead 2A: Yes, so you were able to evaluate –

Professor Mark Woolhouse: Yes.

Lead 2A: – what was in the peer review and use your extensive experience to be able to reach a judgement about whether this was reliable and sufficiently reliable information to be able to communicate these sorts of messages to government?

Professor Mark Woolhouse: Yes. And during the pandemic I didn’t have time to do this for the scientific journals, but it’s a job I routinely do for scientific journals, so I was simply doing it in real time in a different context.

Lead 2A: Thank you very much.

In this message you go back again, as we said this was the next day, and then you set out a number of different scenarios. Could we just scroll down a little bit further in that. There was one aspect of this where – just a little bit further than that, thanks – it’s where you get to:

“The measures we could consider are: …”

You talk there about a vaccine being part of the solution, I think. And what at that stage would you have been thinking? Obviously a vaccine would have been a very useful thing to have, but in terms of planning, what would your realistic expectations have been about when a vaccine might become available, based on your extensive previous experience?

Professor Mark Woolhouse: At that time I think the fastest a vaccine had ever been rolled out from scratch was four years, previously. Obviously there was going to be a great need to accelerate the process. I really got that estimate of a year through correspondence that you already mentioned, particularly with Jeremy Farrar, who is director of Wellcome Trust, and is very well – very, very well connected with the vaccine manufacturing base. So, you know, I agreed with Jeremy, but I think his estimate was much more authoritative than mine, and that was –

Lead 2A: So if we just scroll down a little bit further, you mention antivirals there. Again, you say effectively that’s something, for the time being at least, we’re going to have to live without. So I think you’re then pointing towards the need for what I think are non-pharmaceutical interventions in order to try to deal with the situation, and you mention there a number of different things with which we subsequently became familiar, case isolation, infection control and contact tracing, social distancing, but also the thing I wanted to focus in on particularly was public messaging.

What was it that you thought – you rather there suggest – you hoped that the government was already doing something about that. But what sorts of public messages do you think should have been emanated, sent out from that time onwards, in order to try to manage the balance required between not causing widespread panic but allowing citizens to be part of a bond of confidence with government about how their own health and safety is being managed?

Professor Mark Woolhouse: You summed it up perfectly, that’s exactly what I was worried about.

Lead 2A: Right, so you think that there required to be some level of public messaging that reflected the need to balance those two considerations?

Professor Mark Woolhouse: Yes, and I was doing – as part of my role at the university I would deal in media work, even at that stage, and I was having to walk this tightrope myself, and it would have been very helpful if Scottish Government had actually made some pronouncements that could then be discussed by the media and commentators and so on. So I was tiptoeing around exactly the problem that you –

Lead 2A: I see.

Professor Mark Woolhouse: – identified.

Lead 2A: I see. But is it correct to say, because this is one of things identified here, that a level of engagement of the public appropriately pitched was necessary?

Professor Mark Woolhouse: Yes, but I – and I wanted it to come from government. You know, obviously one thing I could have said in media interviews at that stage was what’s in these emails.

Lead 2A: Yes. Yes.

Professor Mark Woolhouse: For rather obvious reasons I did not want to do that. That should not come from me. But it wasn’t coming from anyone else, that was the problem.

Lead 2A: You were, I assume, speaking to the very person, these emails, from whom you thought it should be coming –

Professor Mark Woolhouse: Yes.

Lead 2A: – the Chief Medical Officer and the ministers whom she advised?

Professor Mark Woolhouse: Yes.

Lead 2A: There was then an exchange of emails, further emails, where you provided more information. Just for the sake of the record, the 31 January email is INQ000103352. Then in a further email which we’ve seen which is INQ000103215, we’ve seen an email which was sent not involving you but it was sent by Dame Sally Davies, who I understand was the former Chief Medical Officer to the UK Government, to Dr Calderwood on 5 February in which Dame Sally Davies, oddly, introduces you to Dr Calderwood. Was that email the result of some contact you had had with Dame Sally Davies about the position?

Professor Mark Woolhouse: Yes. So we’ve discussed my frustration with what I continued to perceive as the lack of action, so – I’m surprised you don’t have the email, but maybe you have it somewhere else. I wrote to Sally, who I knew, and – the email is there somewhere but I’m paraphrasing slightly – I’m saying “Sally, can you get Catherine to listen to me, because she’s not listening”.

Lead 2A: Thank you. Again, I think we have a series of emails again all joined together under this reference. If we scroll up there is a reply on 6 February to that message. You’re copied in to these messages, I should say, in which – indicating that you had emails in the very recent past with some extremely helpful modelling estimates, and she says to you, as you’re cc’d in:

“… let’s find the time to meet face to face.”

You eventually did have a meeting with her, I think, but on 28 February. Is that right?

Professor Mark Woolhouse: Yes, that’s correct.

Lead 2A: Again, did that timescale between your original contact, the need to try to engage the assistance of Dame Sally and the date of the eventual meeting give you the impression that Dr Calderwood was taking on board the level of the threat that you were trying to communicate?

Professor Mark Woolhouse: I – I was less concerned about the actual meeting at that stage. What I hoped that Sally Davies’ intervention had done would be – suggest to the CMO that it might be perhaps wise to revisit my advice and what I’d been telling her and take action accordingly. So I – I didn’t push for that second meeting, I left that to the CMO Scotland.

Lead 2A: I see. Could I just run through some of the things that I understood happened roughly between the time of this email and the eventual meeting on the 28th, just in order to try to get some key indicators of the developing knowledge of things that seem to us to be significant in the elevation of the threat.

A meeting of SAGE took place on 4 February in which it – it stated on the basis of their analysis that asymptomatic transmission cannot be ruled out and transmission from mildly symptomatic individuals is likely. It also indicated that human-to-human transmission outside China had occurred.

Now, obviously you’ve given us a lot of information across the various modules about the significance of asymptomatic or mild transmission. You had in fact predicted that it was at least a possibility, some time before that, that this would be the type of virus which could be transmitted by mild patients, and you’ve explained to us the significance of that.

As at that SAGE meeting of 4 February, what was your view about the reliability of the evidence base that the virus was going to be transmitted by either asymptomatic, presymptomatic or mildly symptomatic patients?

Professor Mark Woolhouse: Thank you for mentioning presymptomatic, because it’s very, very important on this.

The data on this was emerging in a very piecemeal way from China at the time, and me and many, many other epidemiologists around the world were trying to make sense of this data. I was – I had a slight in-built advantage in that in my research group at the time I had two very able Chinese students who were very useful in giving me intelligence and guidance as to what was going on in China and how we should interpret the sorts of information that was emerging. But China, and I believe the WHO, were at the time actively suggesting there was not much undetected cases, mild cases, that this was not the pattern. It was completely wrong but that’s what we were suggesting at the time. So this created a lot of doubt.

Lead 2A: It might be difficult to know how many undetected cases there were because the mild asymptomatic or presymptomatic spread means that it’s hard to detect them?

Professor Mark Woolhouse: Yes, but – they did surveys but they didn’t interpret the results the way I interpreted the results.

Lead 2A: Yes. So at what point over this period did the evidence base, which as you say was not entirely satisfactory, although you had the advantage of two able Chinese students assisting you, at what point over this period did it become apparent to you, based on the kind of judgement that you have explained you apply to evidence and papers, that asymptomatic, presymptomatic or mild transmission was going to be a likely feature of this particular epidemic?

Professor Mark Woolhouse: I don’t think the evidence for that became firm, the sort of evidence you would publish in a scientific journal, for quite some time, I think. I don’t think that happened in February.

Lead 2A: But it was definitely part of the thinking –

Professor Mark Woolhouse: Oh, yes – oh, no, it was absolutely part of the thinking –

Lead 2A: – time –

Professor Mark Woolhouse: – where you’re concerned, but again the evidence hadn’t emerged.

Lead 2A: Indeed.

Professor Mark Woolhouse: There were systems set up which Scotland was involved in, an exercise called the First Few 100 – I think you’ve heard of that?

Lead 2A: Yes, yes.

Professor Mark Woolhouse: And that was designed to provide, among other things, this sort of information. But of course in order to activate something called the First Few 100 – first few hundred cases – you have to have 100 cases here, in the UK or in Scotland – and we were nowhere near that number –

Lead 2A: Yes –

Professor Mark Woolhouse: – of course.

Lead 2A: Well, as far as testing is concerned, that was something else I was going to ask you about.

The earliest record that we have of tests being conducted in Scotland is around 10 February. When was it that a test, in its most basic form if you like, was available?

Professor Mark Woolhouse: Wouldn’t have been long before that, I don’t think that’s – I don’t think there was any – I don’t have any concerns about that.

Lead 2A: Yes.

Professor Mark Woolhouse: I think, you know, that first test date was pretty good.

Lead 2A: Yes. We know that because there were 57 tests conducted that day and all were negative, so were not contributing to positive –

Professor Mark Woolhouse: Yes, but the principle was established, I’m glad it was, that was a welcome development.

Lead 2A: Absolutely, thank you.

You met Dr Calderwood on 28 February. We have a briefing note, which is INQ000103216.

This is a note, I think, that you sent her in advance of the meeting. Further down towards the end you sent her a lengthy analysis of the position as of that date as things have developed since your initial correspondence.

Then a bit further down, thanks.

Yes, you say:

“There are two scenarios we particularly want to avoid:

“1. Doing nothing, as that is likely to result in the health system being overwhelmed in a matter of weeks once an epidemic takes off.

“2. Implementing extreme social distancing measures that, sooner or later, have to be relaxed and then, having already paid a high social and economic cost, experiencing a (delayed) epidemic that still overwhelms the health system.”

So there’s a degree of balancing, I think, required there as well.

What was it you were trying to urge, in advance of your meeting in this lengthy detailed briefing note, to – what were you trying to urge upon Dr Calderwood as important things to bear in mind in this overall scenario assessment?

Professor Mark Woolhouse: Yep, exactly what I say there. I mean, it was clear to me at that stage that we were going to have to walk a tightrope between an epidemic that took off basically and overwhelmed the health service or – I didn’t – I wasn’t thinking of lockdown in those stages, but – at that data, quite, but some very severe social distancing restrictions that would be extremely damaging in their own right. We were walking between two very, very unsatisfactory outcomes. This was going to be difficult.

Lead 2A: Yes. What was your view at this point, towards the end of February, about what Scotland could have done in order to try to handle the threat as it was at that point?

Professor Mark Woolhouse: Well, we started to discuss this in the meeting, I think it’s the next day, after this. So it’s … I don’t know if I say it in – using that phrase, in that meeting, but one of the things we’d been working on there was this idea that earlier intervention can be less drastic intervention. So if you want to avoid these very severe social distancing measures, then actually you’re going to have to go – intervene earlier.

But I’m not – I’m not sure I was quite at that stage in my thinking at this meeting. I think that maybe emerged – the first time I did a briefing on that, and I remember that one, was March 4th.

Lead 2A: Right.

Professor Mark Woolhouse: So I may have mentioned it to Catherine –

Lead 2A: Yes.

Professor Mark Woolhouse: – at that meeting, it was certainly in my mind, but I don’t think we’d actually written it up that earlier intervention could be less drastic intervention.

Lead 2A: There is some other email correspondence that we’ve seen – we can take that one down there, thank you very much – relating to the meeting, slightly after the meeting, in which one of the things that you refer to is social distancing measures were very likely to need to be introduced in Scotland, possibly very soon. In your statement you say that meant days, not weeks. And you also point out that there would be a need for a clear exit strategy, and also some level of analysis of the effect of social distancing, economically, socially and psychologically. So you’re setting this out presumably at or immediately after the meeting.

Could we just look at those different components. At that stage, as far as the measures that were concerned, what did you think needed to be done? The second was the exit strategy, and the third was some level of analysis of the effect of social distancing measures, economically, socially and psychologically. If you could explain the significance of those and your position at the time?

Professor Mark Woolhouse: Yes, so it is as you said, I’m setting out the need to balance harms. And this is absolutely fundamental to public health, in public health you’re always balancing harms, even if the harms are just monetary costs, but it’s always a balance you’re trying to strike. My concern here, and this comes back to the scale of the crisis that didn’t seem to be landing in government at that stage, is both harms, the harms that the virus could cause and the harms that the countermeasures could cause, were immense. They were absolutely enormous.

So when I’d been doing this sort of exercise over the years, you know, trying to make an intervention, a health intervention efficient, so not too costly, not damaging in other ways, you know, the stakes were nowhere near as high. You know, there’s a little bit of wiggle room, I mean, you get it wrong this way a bit or that way a bit and –

Lead 2A: Okay.

Professor Mark Woolhouse: – you know, it costs the government a small amount of extra money, but it isn’t – here the stakes are absolutely enormous. And we have to find the right path. If we go too hard or too soft, we’re going to end up paying an enormous penalty, and this was very obvious to me – well, as you saw from – during late February, that we were in this position.

So I’m trying to – I’m trying to lay the ground for this sort of decision-making that’s going to have to happen –

Lead 2A: Yes.

Professor Mark Woolhouse: – if we’re not to –

Lead 2A: And here –

Professor Mark Woolhouse: – damage.

Lead 2A: And I think you tell us or these documents show that you were not aware of any, you’re talking about the other side of the balance, if you like. We’ve heard something, which we’ll come on to later, which I think the Scottish Government introduced after this, in April, called the four harms strategy, the first harm being the harm of Covid itself, the other harms being harms caused by the measures taken to combat Covid, the non-Covid health harms, the societal harms and the economic harms.

Is it your understanding that at this stage within Scottish Government no analysis had been done of the effect of even the social distancing measures short of lockdown, which you were suggesting might be contemplated.

Professor Mark Woolhouse: None at all as far as I’m aware.

Lead 2A: Okay. The other element of what we discussed there was the exit strategy. Why was it important to have an exit strategy?

Professor Mark Woolhouse: Simply because the sorts of interventions, the social distancing, that were being contemplated at that stage were clear, and they’d include things like school closures that were on the table, were clearly very, very harmful, and equally clear they could not be implemented indefinitely. We couldn’t – well, it turned out to be a lockdown in the end.

Lead 2A: Yes.

Professor Mark Woolhouse: We couldn’t lock down indefinitely. So the lockdown had to come to an end, so what would be the strategy, the exit strategy? What would make you decide that you could exit lockdown?

And the reason that’s important is because the exit strategy is going to also determine how long the lockdown is. So what are we preparing for? You know, so you can imagine that came up later, the sort of circuit-breaker type approach where actually the lockdown is just a week or something, or all the way up to an indefinite lockdown until we got a vaccine. So there’s a range of possibilities.

So we – and it’s very difficult to advise on what the best strategy is unless you know what the government is willing to contemplate. I mean, can I give you a very simple example?

Lead 2A: Absolutely, very helpful.

Professor Mark Woolhouse: If the government was willing to contemplate an indefinite lockdown, and forget all the costs and the harms that that would do, they were willing to do that, then my advice would be: right, do it now. Lock down now. That’s the way to minimise the impact.

Lead 2A: Mm-hm.

Professor Mark Woolhouse: But obviously they can’t do that, we’d be locked down for possibly years if we had done that. Completely impossible. So as soon as you accept that the lockdown has to come to an end, then the question arises: well, then when is the best time to do it? And suddenly you’re in a different space. The decision is no longer nearly so easy.

And the reason this is causing us all such concern at that time, and there was a lot of work going on about the best timing and duration of, what turned out to be, a lockdown should be, so the severity of the intervention as well, is because it hadn’t been done before. Because we’d never contemplated lockdown as public health policy at all. This was clearly new.

We ourselves – I mean, you kindly called me an expert in the field, but I’ve never thought about this before, never contemplated it. So I got my team frantically working out how is this going to work, what’s it going to – what’s it going to look like? How long should it be? When should it be implemented? What’s the exit strategy? We’re – we’re working very, very hard to try to understand something that, if we known it was going to be on the table, we would have spent years researching before, so that we understood all the nuances and all the trade-offs and how actually we should do it. But none of that work had been done because no one around the world had ever contemplated lockdown. So we were in – we were frantically trying to catch up.

Lead 2A: Which explains why, I think, that your correspondence at this time isn’t referring to lockdown or anything like it, it’s referring to social distancing measures or even more extreme social distancing measures, because lockdown simply was not part of the narrative and had never been prepared for?

Professor Mark Woolhouse: No – so of course it was on the radar because, at that stage, the city of Wuhan had been locked down.

Lead 2A: Yes.

Professor Mark Woolhouse: Obviously we were very aware of that and discussed – that had been widely discussed. But I think the realisation that something like a lockdown would have to be contemplated for Scotland took rather longer.

Lead 2A: Right.

Professor Mark Woolhouse: And –

Lead 2A: Did you have the impression over this period and up to the point at which the lockdown actually occurred that there was any clear exit strategy in the mind of the Scottish Government?

Professor Mark Woolhouse: In the end, when we went into lockdown, I don’t think they had the faintest idea how long we would be in it for.

Lead 2A: And as regards the matters we discussed, the systematic analysis of the effect of the lockdown or social distancing measures, economically, socially or psychologically, did you have any impression that any such assessment had been done within Scottish Government?

Professor Mark Woolhouse: Absolutely none.

Lead 2A: You met with Dr Calderwood again on 6 March, and there is another email follow-up in the same way as you had done on the previous one summarising your position.

There is one element of this advice at this stage that I’d like to just draw your attention to specifically to ask you questions about.

You see there, there are three social distancing measures, informed by the modelling work of Imperial College, and communicated through SPI-M. It’s the third one I was interested in asking you about, if you could explain. One of the things that you’re suggesting is that there should be a policy of “cocooning” populations about the age threshold that you’ve mentioned. What is cocooning and why was it part of the strategy that you were proposing might be contemplated by the Scottish Government at this time?

Professor Mark Woolhouse: So our understanding has developed considerably by this stage. You pointed to my January 21st email that identified that there would be a sub – likely to be a subpopulation of very vulnerable people. We now had very good data that there was tremendous variation in the risk with age. So the idea then is: well, how do you protect people who are very vulnerable? This seems to me, I have to say, to be actually the absolute number one public health priority for Scotland and everyone else.

We’ve identified a subset of the population that’s at very considerable risk. We spoke about the case fatality rate, and we said that the case fatality rate of 4% was high, but in the elderly and the frail, it’s way higher than that. So these people are very, very vulnerable. So how do we protect them? And we hadn’t – I hadn’t thought of this concept of shielding as it had been – as it eventually was introduced, which is basically asking a lot of people in the community to protect themselves. So we had this idea of actually protecting people by protecting the people around them. So carers, family members, same household. That we had to pay particular attention to this. So that’s what I was proposing, and that’s an idea that we went on to develop –

Lead 2A: So –

Professor Mark Woolhouse: – lot over –

Lead 2A: So cocooning then is protecting not only those vulnerable people but the people who would be likely to engage with those vulnerable people, their carers and so on; is that right?

Professor Mark Woolhouse: Yes. Likely but not – not through choice but through necessity, because elderly people, particularly of course elderly people with other risk factors, other comorbidities, need care, whether it’s in the home or it’s in a care home, some in hospital, this is – this is a subset of the population that really couldn’t socially distance. It’s just not possible, they can’t.

Lead 2A: Yes.

Professor Mark Woolhouse: So clearly that wasn’t going to be – unfortunately was the strategy that was implemented, but – just telling people to isolate themselves – but it seemed to me that we needed to actually – they couldn’t isolate themselves so that wasn’t going to work, so how do we do it, and we do it by cocooning.

Lead 2A: Yes, I see. Was cocooning a policy which ever formed part of the Scottish Government’s response to the pandemic?

Professor Mark Woolhouse: No. And that wouldn’t have mattered had somebody – you know, there’s a lot of very smart people thinking about this problem – come up with a better way of protecting the vulnerable population. But what we got was shielding, in the form that it was introduced in Scotland, which in the community anyway was basically telling people to cut all contacts out.

Lead 2A: Mm-hm.

Professor Mark Woolhouse: Which – you know, there’s lots of evidence now that that didn’t work particularly well, and I can give you chapter and verse as to why it didn’t work if you want, but yeah, that didn’t seem to me, even at this stage, to be a very good approach.

Lead 2A: Thank you.

There’s a comment there as well, just on this particular suggestion, that:

“Gregor [who I’m assuming is the now Chief Medical Officer] raised the point that there might be vulnerable people below the chosen age threshold as well. Personally [you write], I don’t see any reason why risk factors other than age couldn’t be included in a cocooning policy, but it is for the clinicians to advise what those might be.”

So you’ve obviously identified age as the main risk factor on the evidence that you’ve seen, which of course turned out to be absolutely right, but there’s a suggestion made by the then Deputy Chief Medical Officer that we might need to consider other groups vulnerable to the virus as well, and you are open minded about the possibility of doing that because you recognise that there might be such groups who could be protected by a similar mechanism?

Professor Mark Woolhouse: Correct.

Lead 2A: Thank you.

Can we just go down, have the whole email up as well, please – over the page, I think. Yes.

Do you conclude this email by saying:

“One final point, perhaps the most important of all. A lot of work went into making containment work. Quite rightly. But it hasn’t, as was to be expected. A lot of work is now going into making delay work. Quite rightly. It may work, or partially work. But there remains every likelihood that it won’t work well enough to prevent an epidemic that does, sooner or later, completely overwhelm our health systems. This is not a prediction but it is an entirely possible scenario. If it happens, it could happen within weeks. So I do think that we should start thinking about the mitigation phase now.”

Can you summarise for us what you were trying to convey as to the strategy at this stage, what needed to be borne in mind as strategies started to be put in place in the weeks after this?

Professor Mark Woolhouse: Yes, so the UK Government had this strategy: “containment, delay” – there was a research arm, which is a little bit of a diversion, so “containment, delay and mitigation”, and this was – Chris Whitty, I think, was –

Lead 2A: Yes, I think it was part of the UK coronavirus action plan that was launched on 3 March to which the Scottish Government also subscribed.

Professor Mark Woolhouse: Thank you. You’re right. So I’m now trying to tailor my comments to fit in with the actual plan. I mean, there is now a plan, so that’s progress, but I’m trying to tailor my comments to fit in with that plan, but I don’t think that plan is going to work.

Lead 2A: Yes. What is that you’re counselling particularly about the dangers that that plan might not work?

Professor Mark Woolhouse: Well, I mean, what I’m saying is quite clearly that we should start thinking about mitigation, which is basically: okay, how do we deal with the fact that we’re actually going to have an epidemic? We haven’t contained it, we’ve delayed it as long as we can, and here we are, we have a pandemic, what are we going to do?

Lead 2A: Did you understand over this period, did you take the Chief Medical Officer and other medical advisers to the Scottish Government with whom you were speaking to be receptive to your advice in the period from January up until the first lockdown or not?

Professor Mark Woolhouse: Well, we’ve – we have discussed the difficulties I had getting myself heard up until February, so I think the only answer I can give you is: no, I wasn’t. I feel it did change, the tone did change in March, and that coincides with Gregor Smith getting more actively involved in the discussions I’m having with Catherine Calderwood, and I think the pace did pick up in – certainly in the first week in March.

Lead 2A: Was Gregor Smith then considerably involved in the planning as far as you were concerned around that time, it wasn’t simply Dr Calderwood –

Professor Mark Woolhouse: I don’t know, I’m simply referring to his involvement in the correspondence with me.

Lead 2A: Yes.

Professor Mark Woolhouse: And he was starting to ask questions that were the sort of questions I would, you know –

Lead 2A: Yes, we’ve heard evidence from him, for example, that he attended a number of the early SAGE meetings as an observer, where he was gathering information, and he was obviously then part of the discussions with you?

Professor Mark Woolhouse: Yes, but I – I mean, we’ve discussed before here that I don’t think and many other people think that those early SAGE meetings were doing a particularly good job of raising the alarm.

Lead 2A: Thank you.

After this of course you were attending SPI-M-O and you communicated, I think, some messages with information about what had happened at those meetings in early March to Dr Calderwood and Dr Smith; is that right?

Professor Mark Woolhouse: I did, so this became a modus operandi for us that I would brief the pair of them on the outputs of SPI-M-O. And I think – I think that was important. There were, as you well know, there were many sources of information coming in, but, in terms of the sorts of questions that needed to be tackled then, SPI-M-O was absolutely the repository of expertise and knowledge, and so I think it was – I felt it was important that they were fully appraised of what SPI-M-O’s thinking was.

Lead 2A: Okay. We’ve discussed the absence of certain features of the Scottish Government’s strategy before the first lockdown, but in that regard what was your understanding at this time within the Scottish Government of their planning with regard to the way in which Scotland might deal with a second wave of the virus were it to eventuate?

Professor Mark Woolhouse: I … I gave – in my briefings that we have been discussing to Catherine Calderwood, so this is – well, I think actually some of it’s even before we had cases in Scotland, but we’re – we have some idea of the sorts of social distancing intervention we might need. I said then that we were going to get – well, not that we’re going to get, as you well know I don’t do that, but we were very likely to get, should plan for the possibility of a second wave. And … do you want me to give the reasons for that?

Lead 2A: Yes, please, yes.

Professor Mark Woolhouse: Right. The reasons for that is I was acutely aware that lockdown or any combination of social distancing measures up to and including lockdown would not solve the problem. All they would do was delay the problem. And the first manifestation of that delay is, okay, you hit another wave, and then you push that – and I shared this scenario with them – you push that one down, the second wave, which as it happens in the briefings I gave was September 2020, the second wave, so pretty close, and you squash that one down and then you get another one in the early part of the next year. Now, you know, there’s no way you can predict with any precision how something like this is going to unfold over such a long timetable, so we wrote in very big letters in our graphs and briefings on this “This is an illustration, not a prediction”: this is the sorts of scenario that are coming up when we do our work, and we’re sufficiently confident in something like this happening, that the government should be aware of it and should be planning for it. I don’t think they had any understanding, not just in Scotland but in the UK, that they were going to get a second wave, that that was the likelihood, that they should be planning the expectation they’re going to get a second wave.

Lead 2A: Yes.

Professor Mark Woolhouse: I think there was a general belief that we would lock down, perhaps for a few weeks, and somehow the thing would be over. Extraordinarily naive view, but it clearly was circulating in political circles around the UK –

Lead 2A: And – and –

Professor Mark Woolhouse: – temporary measure.

Lead 2A: And indeed contrary, as you said, to the advice you were providing, about your experience of how these things tend to go, in the briefings you were giving directly to the Scottish Government?

Professor Mark Woolhouse: Yeah, more than how they tend to go and based on the best analysis we could possibly do of the data on this particular infection in the UK, in Scotland. So – so, no, not just based on expert guesswork, a lot more to it than that.

Lead 2A: At a general level as well, you say this both in your book and also in the evidence you have helpfully provided to the module, that you had the impression that the Scottish Government’s policy with regard to the management of the pandemic was that no death from coronavirus was acceptable. I’d be interested in knowing how you got the impression that that was the policy, if you like, or the approach, and also why it was you think that that policy caused significant problems.

Professor Mark Woolhouse: So I thought it because the phrase appears in the Scottish Government’s – I’ve got it here, framework for decision-making –

Lead 2A: – April document that I referred –

Professor Mark Woolhouse: – 2020, and because, as I recall, the then First Minister said it, on several occasions. That’s why I thought this was –

Lead 2A: Thank you.

The second part was why, if it is the case at that you consider it to be a problematic approach, it was a problematic approach?

Professor Mark Woolhouse: It’s empty rhetoric. It misleads everybody, it misleads – misleads the public. It gives an entirely false impression of what the future holds, how this pandemic’s going to look. The idea implies by “no Covid death is acceptable” is a world where no one dies of Covid. That had gone. That had gone from December 2019, that was – you know, as it turned out. But certainly I was clear it had gone by February 2020.

And that’s true, because this year, 2024, at current rates, and similar to last year, hundreds of people in Scotland are going to die of Covid. Is that acceptable? Well, we seem to be accepting it. I mean, that’s – there’s no great public health effort going on here to spare those hundreds of lives that are going to die of Covid.

And as an aside, I think we’re now not paying enough attention to Covid right now. It’s a serious infection. It’s killing people.

May I go on?

Lead 2A: Yes, please.

Professor Mark Woolhouse: The second issue is, okay, how are you going to achieve this “no death is acceptable”? The only possible way I could see of achieving it, other than literally some miracle cure, let’s leave that aside, is a zero Covid policy. And as I’ve explained to you before, the corollary of a zero Covid policy at that stage, this is April 2020 we’re talking about, is indefinite lockdown. And it would still fail eventually. You know, this was being discussed at the time, and of course zero Covid did fail globally eventually, and so therefore it was never deliverable.

And the other thing that upset me about this “no death from Covid is acceptable”, it devalues non-Covid deaths. And that isn’t just a sort of philosophical complaint. The intense, very strong advice in Scotland to spare the NHS during – particularly during the first wave, and not bother the NHS if you didn’t absolutely need to, led to a huge spike – well, first of all it led, as you’d expect, to a fall-off from a cliff, and the EAVE project, to what I was a part, studied this, on attendance at A&E or admissions to hospital. They just fell off a cliff.

Most of the hospitals in Scotland had their quietest time in living memory during the first wave, because no one else was going to hospital, and a lot of those people should have been in hospital. And in the UK thousands of them died at home. There was a massive spike in this. In Scotland I think it was probably hundreds, I wouldn’t want to put an exact figure on it. These people died. And so they died because the focus of the government was on preparing the NHS Scotland for Covid, and concentrating on that – because no Covid death is acceptable, other kind of deaths apparently are, and they rose.

Lead 2A: Thank you, Professor.

To put that in the language of the Scottish Government framework, there was a significant focus on harm 1, Covid-related harm and death, but too little concentration on harm 2, non-Covid-related harm and death?

Professor Mark Woolhouse: Absolutely, and – and that killed people.

Lead 2A: And one, it would be reasonable to assume, would it not – you mentioned the death – the non-Covid deaths, but of course there may be many people who have suffered significant morbidity as a result of not attending the hospital, whether that resulted in their death or not?

Professor Mark Woolhouse: Well, indeed. But, I mean, they – the non-fatal health harms went beyond that, and there was – we might come to this, there was a study looking at the sort of health effects of both Covid but also the implications of lockdown –

Lead 2A: Yes.

Professor Mark Woolhouse: – so the indirect effects of the countermeasures, and that showed, by their best estimation – this was done by the Office for National Statistics and the Department of Health and Social Care, across the UK – that actually those indirect harms, not so much during 2020 but accumulating over time, would be considerably greater than the harms that would be caused by Covid.

Sorry, having gone down this route, I must add an important rider.

Lead 2A: Yes.

Professor Mark Woolhouse: That is not a reason not to intervene against Covid. If you don’t, then that side of the scale increases enormously, so – but it is an indication that we haven’t got the balance right. So it’s confirmation, it’s another way of looking at the problem that you just highlighted as – in terms of neglecting harm 2, this is another piece of evidence that said: yes, we’ve neglected harm 2. But not just in the short term, in the longer term too.

Mr Dawson: Thank you.

My Lady, if that’s a convenient moment.

Lady Hallett: Professor, as you know, we take regular breaks for the stenographer. I shall return at 11.30.

(11.16 am)

(A short break)

(11.30 am)

Lady Hallett: Mr Dawson.

Mr Dawson: Thank you, my Lady.

Professor, we were discussing before the break your impression of some of the key Scottish Government policies towards the management of the pandemic and their effect. I just wanted to ask you about one particular thing you say in your statement which is related to the first lockdown, which is at paragraph 240, where you say:

“I do not know what Scottish Government’s understanding of the Covid threat was at the time Scotland went into lockdown, but I don’t believe that they truly accepted that the virus was here to stay. I am concerned that this short-term view of the crisis influenced both the politicians’ willingness to impose lockdown and the public’s willingness to accept it. The politicians were mistaken or misinformed and the public were misled.”

You’ve given some evidence about your general impression already. Is there anything, any element of that – anything you would like to add, based on that comment, in light of what you’ve already told us in this regard?

Professor Mark Woolhouse: Well, I can argue that what I say in that paragraph was correct. The reason I say that is because by the end of the summer 2020 Scotland was flirting with a zero Covid strategy. Well, that tells me that they didn’t accept that the virus was here to stay.

Lead 2A: And you think that was an important error in the way that they approached really the entire management of the pandemic, but certainly over 2020?

Professor Mark Woolhouse: I – sorry, what’s the error precisely?

Lead 2A: Well, the approach that – that their approach to the Covid threat was that they did not accept that the virus was here to stay.

Professor Mark Woolhouse: So I have to say I didn’t understand the Scottish Government’s strategy over the summer of 2020. The emphasis was on a very, very cautious relaxation from lockdown, and it seemed to be important to the politicians that it was more cautious than the one in England, so they were emphasising that. They didn’t articulate in any way that I understood what they thought the public health benefit of this caution actually would be, given what we’ve said about a second wave, and then they segued into this idea that actually the fall in cases in Scotland would somehow continue and we could end up in a zero Covid. So that, to me, was … I’m trying to think of a polite way of putting this. This was not consistent with the evidence that had been available since February 2020.

Lead 2A: So there’s two elements, I think, to that period. One is whether it was the best way to approach things to release the lockdown in the gradual fashion that the Scottish Government did, and secondly, whether the zero Covid policy that you understood to have existed within Scottish Government showed a misconception about whether that could be achieved and sustained.

So if we could try to take the two, one after the other. Just to put the first in context, you give an analogy at paragraphs 16 to 17 of your report, which I think attempts to try to explain your views on this, and I just want to try and unpack it a little, to do with a seesaw, whereby you talk about there being a difference between how far you go in relaxing restrictions and how quickly you get to that point.

Could you please explain your views about that in the context of the Scottish Government’s policy over that period which you’ve described?

Professor Mark Woolhouse: Yes. As I say, I didn’t – I don’t think the goals of the policy were clearly articulated. Not so much the immediate goals, they were laid out. I mean, May 2020 there was what was called a route map. So, I mean, that was clear, that was absolutely clear. But my concern, and had been for so many months, was: but what is the long-term plan? Where do you see this going? Where are we going to end up? And as you well know I was expecting to end up pretty much where we are now in 2024, but they didn’t seem to be thinking that way.

So the seesaw analogy is this: the emphasis on caution was somehow the idea that you could unlock – I think they – well, I’ll come back to this – all the way, you could come out of the pandemic by going very, very slowly, and the seesaw analogy is you’re standing, just you, on the one end of a seesaw, there’s a fulcrum in the middle of the seesaw, a tipping point, and the tipping point is actually the value R greater than 1, and the argument is – that I think the Scottish Government were making – is that if you go slowly enough along the seesaw you can go past the fulcrum and keep going. No. You can’t. It’s going to tip down. And I don’t think they understood that.

And I didn’t, I didn’t use the seesaw analogy at the time because I wasn’t absolutely sure that that’s Scottish Government thinking. But it became very clear to me it was when we got into the second Scottish lockdown, in January 2021, and repeatedly we heard that “We’re going to come out of this lockdown very, very slowly and cautiously, because we made that mistake before”. Well, no. That’s not – that’s not correct.

So what you have to avoid – what the strategy should have been was this: you can go as far as you can up the seesaw as quickly as you like, makes no difference at all if you take two great steps and get there, as long as you don’t go across it. If you want to go across it, then you have to do something else, you have to basically reduce the R number in other ways.

So what I wanted to see was two things. So one was immediate, much, much quicker than the Scottish Government did it, relaxation of restrictions that were not clearly going to take us to the tipping point – and do you want examples –

Lead 2A: For example, please, yes.

Professor Mark Woolhouse: Well, I can give you three.

Lead 2A: Yes.

Professor Mark Woolhouse: And there’s very, very good evidence for three now.

The stay-at-home orders, the fact that we were asked to stay in our homes. That was not contributing much, and – well, this is – this is getting complicated now.

Lead 2A: Okay.

Professor Mark Woolhouse: We can perhaps go back to a graph in the Scottish Government’s framework Covid document that shows this, but what that graph shows is essentially the R number coming down before we were told to stay at home. And when we were told to stay at home it didn’t actually come down any further. And actually it’s worse than that in Scotland, there are more ramifications –

Lead 2A: Just to pause at that point, what you’re telling me is that your scientific view was that the policy of gradually easing the lockdown didn’t make a great deal of sense to you, didn’t have scientific rationale?

Professor Mark Woolhouse: No, it –

Lead 2A: In particular – just take it stage by stage – in particular because your view was that you could get to the tipping point, ie release restrictions to a point where there was a degree of stability in the situation, and if you moved quickly towards that point rather than gradually, you would offset some of the ill effects of the countermeasures more quickly than a gradual release; is that broadly correct?

Professor Mark Woolhouse: Correct. I mean, the effect of the stay-at-home measures really – and they weren’t, I don’t think, released until May or June. I mean, it was ages before –

Lead 2A: And what I think you’ve identified is that there were a number of particular measures that you think could have been released more quickly?

Professor Mark Woolhouse: Two more.

Lead 2A: Yes, we’ll get on to the others, but just to take it stage by stage, Professor.

There were three particular types of restrictions that we all lived with that you think, based on that previous general rationale, should have been released more quickly, which would not have had a significant effect on the R number, and would have significantly released some of the other harms related to those restrictions being in place?

Professor Mark Woolhouse: Yes, not had no effect on the R number but at – given our understanding at that stage, we could be very confident they wouldn’t take us past the tipping point.

Lead 2A: Yes. The tipping point being?

Professor Mark Woolhouse: R becomes greater than 1.

Lead 2A: Yes, thank you.

Professor Mark Woolhouse: So one was stay at home, the second one was –

Lead 2A: Could we just deal with the first one quickly, just to be sure that we’ve understood this, because, Professor, it’s extremely interesting and important evidence and a number of people will be listening to this who perhaps need to be taken through it a little bit more slowly, just so we absolutely understand everything you say.

The first thing that you suggest could and should have been released more quickly, from a scientific perspective, in your analysis, was that the stay-at-home order could and should have been released earlier and you say that there is scientific evidence to say that that would not have tipped the R above 1?

Professor Mark Woolhouse: Yes, I mean, I would take that further, the stay-at-home order was never necessary.

Lead 2A: Right.

Professor Mark Woolhouse: The job was already done by the measures – and I say there’s actual evidence in the Scottish Government’s own report that that was the case.

Lead 2A: Yes, yes. So that is based on evidence which shows that the R was starting to decline even before the lockdown?

Professor Mark Woolhouse: Yes.

Lead 2A: Did that result from the fact that people were voluntarily imposing on themselves a degree of social distancing such that the R was starting to be brought under control without the need for that severe imposition of a lockdown?

Professor Mark Woolhouse: That’s my inference, and I think a good inference. There may be other explanations but that’s the one I would –

Lead 2A: Thank you.

Professor Mark Woolhouse: – highlight.

Lead 2A: And you were going to tell us what the other two significant restrictions were that you think could and should have been released more quickly?

Professor Mark Woolhouse: Outdoor activities. We had very good evidence coming back from China that the novel coronavirus transmits very poorly outdoors. Very poorly. So there was pretty much zero public health benefit to keeping us indoors. That was never required at all. We never needed to do that.

There are caveats, like if people are outdoors and being intimate, well, yes, okay, that’s something, but –

Lead 2A: Outdoors per se?

Professor Mark Woolhouse: Yes. There was never any need for that. And the evidence for that –

Lead 2A: Could I just dwell on that before we get to the third one, again.

Professor Mark Woolhouse: Yes, sorry.

Lead 2A: Just to understand, the restriction to stay indoors was something then that you say should have been released faster and earlier, in fact shouldn’t have been there at all –

Professor Mark Woolhouse: Correct.

Lead 2A: Would it be fair to say that had there not been restriction ongoing out of doors, that would have perhaps contributed to counterbalancing some of the other harms, such as the mental health harms or the physical harms that people might have started to suffer from being inside so much?

Professor Mark Woolhouse: Absolutely. But I heard or saw very, very little consideration for those harms when we went into lockdown. To be fair, they were, I think, fairly quickly recognised by Scottish Government, but when we took that decision I don’t think that was at the forefront of people’s minds. There was a lot of concern about how well people would tolerate lockdown, but that was an unknown. But I felt that discussion was more in the vein of, well, how long and severe a lockdown could we get away with, that the public would tolerate, rather than actually looking at evidence of components of it and saying we didn’t need them.

Lead 2A: Okay.

Lady Hallett: Professor Woolhouse, sorry to interrupt. When you talk about outdoor activities, are you meaning things like going for a walk in the park, or are you talking also about outdoor activities like football matches?

Professor Mark Woolhouse: Football matches were on the – on the cusp.

Lady Hallett: Well, because a lot of people are gathering, they’re going there by public transport, they might go to a pub together, all those different variables?

Professor Mark Woolhouse: Yes. That would – I mean, you would need to do, you know, a fairly detailed public health appraisal of where you drew the line. But we, in the UK, arrested people for going on solo walks in the mountains. It’s utterly absurd. That devalues the whole idea of social distancing, that anyone can see this is nonsense. But it was done.

May I?

Mr Dawson: Absolutely.

Professor Mark Woolhouse: Another good example, there was an absolute outcry in the summer of 2020 that people were going to beaches. There was never ever an outbreak of Covid-19 anywhere in the world linked to a beach. It was fine. People could go to the beach. But nonetheless we were very resistant to that.

Lead 2A: Thank you, Professor.

The third element that you were going to tell us about that could, should have been released more quickly was?

Professor Mark Woolhouse: So this is not in the category of things we knew well enough not to include them in the first lockdown.

Lead 2A: Yes.

Professor Mark Woolhouse: The first two we never needed.

Lead 2A: Should never have been –

Professor Mark Woolhouse: Yep. Third is schools. And it quickly became apparent through April and May 2020 that schools were contributing a little to the spread of the virus, but so little that there was essentially no danger that re-opening schools would take us past the tipping point.

Lead 2A: Just to pause there, I think – because you said it very quickly – I think you said there the closure of schools; is that correct?

Professor Mark Woolhouse: Yeah.

Lead 2A: It just wasn’t quite picked up by the stenographer.

Professor Mark Woolhouse: I beg your pardon.

So closing schools I accept as a – potentially as a precautionary element of the first lockdown, because, let’s face it, we were practically panicking at that stage, it was necessary, or justifiable, but we should have realised much, much more quickly, based on the evidence emerging from around the world, that this was not an essential element of our lockdown.

So in my view, and I – well, we’re going to this, I argued it repeatedly and frequently over that whole summer, schools in Scotland could have re-opened in May 2020, just as they did in Denmark.

Lead 2A: What about school closures as part of the second lockdown, which also occurred?

Professor Mark Woolhouse: One of the positive elements of the way the pandemic was managed in Scotland was that we were the first nation to re-open schools when, particularly in England, there was a lot of resistance to it. I think we did that partly – at least partly on the basis of the advice that came out of the Scottish Covid Advisory Group, which I was a part. I think that advice was too slow to pivot to it’s safe to re-open schools, but it did get there and we opened them in August. And I thought that was a real success story: an evidence-based decision by Scotland that was safe and so important to do.

Lead 2A: Mm-hm.

Professor Mark Woolhouse: And I was feeling that actually being an adviser was quite a good thing, that actually we could get things done that really helped. And then when we had the January lockdown, schools were closed again, arguably, because this was now the Alpha variant and there was more uncertainty, as a precautionary principle, yes, but it very quickly became apparent in that second wave that schools did not need to remain closed and we could still control the virus, and yet they weren’t fully re-opened here until May 2021. This was unnecessary. The – well … forgive me, this is one of the aspects of the pandemic management that I – I really feel very strongly, what we did to the children. And it would be bad enough if there was a detectable and measurable public health benefit to this, but there wasn’t. This wasn’t necessary, and we did it anyway.

Lead 2A: Could I just clarify one – it could be applied in connection with the schools, the evidence you’ve given, but it could be applied more generally. When you differentiated between the first two categories, which you say should never have been in place, and schools, which you accepted would have needed to have been in place but for a much shorter period than the restrictions actually applied, that is based on the position in which Scotland found itself when the lockdown was announced on 23 March; is that correct?

Professor Mark Woolhouse: It’s based on the evidence that was available when that decision was taken.

Lead 2A: Yes, but is it your position, if one takes it further back in our narrative that we have been discussing, to the discussions that we had about the warnings you were trying to convey to Scottish Government, if we were trying to assume a hypothesis which worked on the basis of those being heeded in the way that you had hoped they would be, would it have been possible to have avoided that happening in that scenario and, indeed, avoided a lockdown at all?

Professor Mark Woolhouse: Yes. May I hark back to Module 2?

Lead 2A: Yes, abs – if it puts it in the context which is required for Scotland –

Professor Mark Woolhouse: Yes.

Lead 2A: – that would be very welcome, thank you.

Professor Mark Woolhouse: So, Module 2, Mr O’Connor, who interrogated me quite hard about the difference between my maxim for managing this pandemic, of go early so you don’t have to go hard, and he pointed out Patrick Vallance’s counter, so – it’s that you should go harder than you want, earlier than you want, wider than you want. And Patrick Vallance, when he gave evidence after me, to Module 2, addressed this and he said “Well, yes, but how hard? You know, Professor Woolhouse says you don’t have to go so hard but you still have to do something, so is that not pretty much the same thing?” That was his argument. Well, my counter to that is no, it’s not, for the reasons we just gave.

So if we had gone earlier and done all the things, apart from the three I mentioned, and seen them working, we would never have had to close schools, we would have seen it wasn’t necessary. So I don’t accept Patrick Vallance’s counter to that at all. You know, his – his strategy led to us closing schools, mine would have let them stay open the whole pandemic.

Lead 2A: Thank you.

Could I address another general concept which flows through all the evidence I think that you’ve given, which we’ve touched upon, and again, to try to use the – developing a theme we’ve talked about earlier in the context of zero Covid policy, to use the language of the framework, the area that I’d like to explore with you is the extent to which the – what you perceived and understood the greater focus on harm 1 to be resulted in harms 2 to 4 being much worse than they really should have been.

Broadly speaking, can you explain, Professor, your view as to whether the Scottish Government policies took adequate account of the – we’ve already covered non-Covid health harms, but wider societal and economic harms?

Professor Mark Woolhouse: Very simply, in my view, no, they did not. But then we get into this very difficult territory, which the politicians exploited a lot, if you don’t intervene as hard, more people will die. And since they were working on this maxim that no Covid death is acceptable, clearly that’s not something they’re going to do. So, in order to counterbalance these relaxations you have to do other things. And not only me but Scottish advisory group was very clear on the other things you could be doing to keep the R number low but still allow you to relax restrictions and therefore avoid a lot of the harms that were being caused, harms 2, 3 and 4 as you say.

Lead 2A: We have evidence available to us from Scottish Government that during the course of 2020 for differing periods at different times a number of advisory bodies separate from the body to which you were affiliated, the Scottish Covid Advisory Group, were set up in order to try to provide advice and evidence, information, to the Scottish Government about a wide variety of things, including things that might broadly be described as falling in harms 2 to 4.

The remits of those groups are all set out. But if your position is that ultimately, in terms of effect, the Scottish Government’s policies failed adequately to recognise those harms over the course of the pandemic, must it be the case that those systems were ineffective, in that the ultimate impact from harms 2 to 4, as I understand your evidence, was larger than it should have been?

Professor Mark Woolhouse: I think to a large extent the four harms policy, which – when the four harms were first mentioned I was greatly encouraged.

Lead 2A: Yes.

Professor Mark Woolhouse: I was thinking – it was rhetoric, it was rhetoric. The emphasis was overwhelmingly on harm 1, even when, particularly during summer 2020, the public health benefits of continuing to suppress the virus were extremely small.

Lead 2A: Thank you.

I’d just like to focus in, we’ve talked about it already, the period when the cases started to rise again which eventuated in the second lockdown. Is it your view, in relation to any of the harms, frankly, that – the harm that you’re focused on, harm 1, or any of the other harms – that you think the Scottish Government learned lessons about the experience of the period up till, say, September 2020, as regards how best to manage the pandemic, or that they repeated the same mistakes?

Professor Mark Woolhouse: I think – now, the second lockdown in Scotland of course was January.

Lead 2A: Yes.

Professor Mark Woolhouse: And cases rose in the autumn, as you said, in the second wave, but also came down without a full lockdown in Scotland.

Lead 2A: Yes.

Professor Mark Woolhouse: So that – and that was a big difference from England. And may I –

Lead 2A: Just to be clear, there were – there was not a full lockdown, what’s known in the other nations as a circuit-breaker lockdown, but there were significant restrictions at times –

Professor Mark Woolhouse: Yes –

Lead 2A: – over the –

Professor Mark Woolhouse: – and I think – sorry, I’ve completely diverged from your original question, can I address this point and then come back to –

Lead 2A: Absolutely, thank you very much.

Professor Mark Woolhouse: Right.

I think one of the reasons that we didn’t, in lockdown – sorry, didn’t in Scotland go into that November lockdown was it would have been counter to the advice coming out of the group I was on, Covid-19 Advisory Group. We were not in favour of a lockdown at that stage. And, as I say, we had proposed many other interventions that would reduce. But even though most of those weren’t taken up, in fact we didn’t need the lockdown in Scotland.

Lead 2A: Just to be clear, Professor, you mentioned November, which is obviously when the English lockdown –

Professor Mark Woolhouse: Yes.

Lead 2A: – took place, there were other lockdowns, over that whole period, really from September onwards, there was consideration of a circuit-breaker; did it remain the Scottish Government Covid Advisory Group’s position that they didn’t recommend a circuit-breaker over that whole period?

Professor Mark Woolhouse: Correct.

Lead 2A: Thank you.

Professor Mark Woolhouse: Yes, and again harking back to Module 2 I’m afraid, I know the Inquiry was given evidence from a number of very distinguished scientists and advisers about the inevitability that this second lockdown in England was absolutely essential for controlling the virus. Well, we didn’t have one in Scotland and we controlled the virus. So I have to say I think that simple fact rather discredits all the evidence the Inquiry’s heard on this point before. Scotland proved what I have been claiming, that that second lockdown in England was unnecessary. It wasn’t necessary here, it wasn’t necessary in England either.

Lead 2A: Thank you. As regards the second lockdown in Scotland?

Professor Mark Woolhouse: Right, the second lockdown in Scotland was – was January. And yes – you asked me if Scottish Government had learnt some lessons. They learnt some. So the restrictions that were imposed on us during that lockdown were definitely less severe, the very strict stay-at-home orders, the amount of time you could spend outside, those were relaxed in that second lockdown. So that’s fine. And again proof of principle, even with a more infectious variant of the virus we didn’t need them, we still controlled it, so that proves what I was saying about the first one, we didn’t need those elements, but sadly they did close schools and kept them closed, so they didn’t –

Lead 2A: Which we’ve –

Professor Mark Woolhouse: Yes, but – well, I don’t understand how we went from the position of actually being quite evidence-based about decisions on school closures to suddenly forgetting all that in early part of 2021. It baffles me.

Lead 2A: And if I might ask again a question, a broad question, about the approach to the period thereafter, because the Inquiry has heard significant evidence about, as a result of Delta and then subsequently Omicron towards the end of the year, Scotland having very significant cases, even in comparison, obviously, the infectiousness of Omicron was higher, but the numbers compared to the rest of the UK being highest in Scotland, Scotland suffering a significant mortality, almost to the same level as the first two waves, in what one might describe as the third wave, and the NHS being driven to the point of procedures having to be cancelled, the military having to be called in to provide assistance.

One of the things that we noticed was that from June 2021 that the group that you sat on, with a considerable amount of expertise, sat much less frequently in that period. Other than a cluster of meetings around about December 2021 it sat really monthly, we think, from June 2021, at a time when the cases started to rise again as a result of Delta.

Do you feel that at that stage, although you’ve pointed earlier to there being a focus on harm 1, that there perhaps was an insufficient focus by that period on trying to control what was going on, such were the consequences which we’ve seen?

Professor Mark Woolhouse: I do. We’re now at that stage learning what living with this virus looks like, and it’s not pretty. It’s a serious infection, it’s causing a lot of disease, some death, it’s causing Long Covid as well, it needs to be managed. That doesn’t mean we have to lock down, close schools again, but it means we do need to manage it.

This is not a public health problem that has gone or is ever going away, we’re going to need to manage it for the foreseeable future.

Lead 2A: And do you think that given certainly the comparative levels of infection and mortality that it was mismanaged over that period?

Professor Mark Woolhouse: It’s your word, not mine, I hadn’t used that before, but I – the phrase I use, that I don’t think we paid sufficient attention to it throughout there. But, I mean, of course, attention was reactivated during the Omicron wave, and now we’re back to a stage where we’re not paying much attention to it.

Lead 2A: Thank you.

Could I ask you just one further series of questions. You were a member of the Scottish Covid Advisory Group, as we have established.

Professor Mark Woolhouse: That’s correct.

Lead 2A: As a member of that group or in any other capacity, did you have any means by which you could contact Scottish Government ministers directly?

Professor Mark Woolhouse: I don’t – I mean, I imagine I could have done if I’d wanted to, but I had – I wasn’t – there was no channel set up for me to do it. I could have cold called them, I guess, but I did not do that and I – I wouldn’t have done it at that time because there was now a formal advisory structure that I was part of.

Lead 2A: Did you contact or have any means of contacting any government ministers by email, telephone or other informal messaging systems?

Professor Mark Woolhouse: I never looked to see if I had their email addresses, it never – it never came up. I think I had the First Minister’s office email address because we actually – my group did a dashboard that – among other recipients of that was her office. But, so I suppose I could have contacted her through that way, but I didn’t do it.

Mr Dawson: I’ve no further questions, my Lady. I’ll just check. There are no core participant questions.

Questions From the Chair

Lady Hallett: I have just one question, I just want to make sure I’ve got down your evidence correctly, Professor Woolhouse.

Going back to the very cautious approach to the Scottish Government to relaxing restrictions, you said that the Scottish Covid Advisory Group were very clear on the other things that could have been done rather than just being very cautious, which you said wasn’t necessary because of the seesaw effect.

What other things do you think could have been done as opposed to being very cautious about relaxing restrictions?

Professor Mark Woolhouse: So the Scottish Government strategy didn’t pay no attention to this at all, it put all its eggs in one basket, as far as I could see, really, which was Test – what we called here Test & Protect, so – and it – it didn’t prove sufficient by itself, as we saw during the second wave, to really keep on top of any possible resurgence, but – so there were three …

So Scottish advisory group wanted to strengthen that, and there were two mechanisms for doing so. First of all, to increase compliance with the need to self-isolate. There was evidence that there was a lack of compliance, so we wanted to do that. I was very concerned about the fact that even in the second half of 2020 in Scotland we were only finding half the cases. We only knew this because of the Office for National Statistics surveys that started up, but we were only finding half the cases. If we could find the other half, we could obviously strengthen the whole Test & Protect system enormously. So that was something.

I had introduced into the discussion as early as March 2020 that we needed mass testing, and the advisory group repeatedly referred to the potential of mass testing all the way through that summer and into the autumn. It was trialled in England in November of that year but it wasn’t rolled out in Scotland for another year, the Omicron wave, so we didn’t do it.

And the final thing that we wanted to do was, going right back to almost the beginning of this discussion, was do more to protect the most vulnerable, because Scottish Government never embraced fully the idea that you could do more to protect the vulnerable, and that would just directly save lives. It doesn’t matter what else your strategy is, it could be anything – you know, we don’t have to argue about the strategy – just the plain fact of if you protect people who need protecting, fewer people will die. And they never embraced that, and yes, that was a big disappointment.

Lady Hallett: That’s not as straightforward as just saying “We’re going to put an iron curtain around a care home”, for example, because care home workers move between different care homes and the like, and they themselves obviously get infected, you have a shortage of staff, so it’s not as straightforward just to protect the vulnerable, is it?

Professor Mark Woolhouse: No, protection of care homes was better in the second wave, considerably better. So it’s not straightforward – so – and you’re right, if you want to avoid the harms of restrictions, all the way up to lockdown, you have to do the work, you’ve got to put the effort in, you’ve got to invest the resources, the time. And most importantly of all, you’ve got to see it coming and plan ahead. And when we have a government here that, in whenever it was, July/August was talking about zero Covid, they have clearly – clearly – not got their minds on preparing for future waves that will necessitate these alternative interventions, they’ve got – their thinking is completely in the wrong direction. So it’s not going to happen, is it? And we didn’t. We didn’t make the investment in all those alternatives.

Lady Hallett: So although you accept it wouldn’t be easy, you think there are ways, if people had put enough effort and planning and resources into it, it could have been done?

Professor Mark Woolhouse: Oh, absolutely. And actually though the most effective of these was the mass testing, which I’ve said I have been advocating for so long. I see that as – coupled with a vaccine, which is obviously important, but the reason why we managed to bring Omicron under control without going back into lockdown, and lockdown was being talked about in that period, that – it was the mass testing, I think, that kept us out of lockdown. Well, if we’d introduced it in Scotland and elsewhere in late 2020, when we had the technology, we knew it worked, we wouldn’t have needed a second lockdown here. We could have tested our way out of it. But we took another year to roll that out.

Mr Dawson: Thank you, my Lady. There’s just one matter I was going to bring up. The professor earlier talked about email correspondence he had had with Dame Sally Davies, which you will recall led to Dame Sally contacting Dr Calderwood, and he suggested that we had access to his email to Dame Sally, which indeed we do. Just to read it into the transcript for others who may be interested, the reference is INQ000352401.

Thank you.

Lady Hallett: Thank you very much indeed, Professor Woolhouse. I don’t know if I can say I’m not going to ask for your help again, but thank you very much for the help you’ve given so far.

The Witness: Thank you, my Lady.

Lady Hallett: Thank you.

(The witness withdrew)

Mr Dawson: The next witness, my Lady, will be Professor Stephen Reicher. Ms Arlidge will be asking the questions.

Professor Stephen Reicher


Questions From Counsel to the Inquiry

Lady Hallett: I hope we haven’t kept you too long, waiting too long, Professor Reicher, I’m sorry if we have.

Ms Arlidge: Thank you, my Lady.

You are Professor Stephen Reicher; yes?

Professor Stephen Reicher: You almost pronounced it correctly. Yes, I am.

Lady Hallett: If you do it, then.

Ms Arlidge: Please, yes.

Professor Stephen Reicher: “Reicher”.

Counsel Inquiry: My apologies. A good start, isn’t it?

You’ve provided the Inquiry with two witness statements, one for Module 2 purposes, you didn’t give oral evidence in Module 2, and obviously Module 2A, where you are here today.

The reference for Module 2A, dated 13 December 2023, is INQ000370347. That’s hopefully come up on your screen in front of you and is a familiar document to you.

Professor Stephen Reicher: Yes.

Counsel Inquiry: Page 79, we won’t need to turn to it, has your signature and statement of truth. Are you happy that the statement remains honest and true to the best of your knowledge and belief?

Professor Stephen Reicher: It does. I mean, I have done a little homework since and gleaned a little more evidence since, but I think it only confirms the broad arguments I’m making in the witness statement.

Counsel Inquiry: Thank you.

For reference for those who are interested, we don’t need to bring it up, the INQ for the M2 statement is INQ000273800.

You are a professor of psychology at the University of St Andrews; is that right?

Professor Stephen Reicher: That is, yes.

Counsel Inquiry: I think you’re regularly referred to in the phrase of “behavioural scientist”, but as I understand it, that’s not a term you prefer?

Professor Stephen Reicher: Yeah, I’ve never been quite clear what “behavioural scientist” means, I have to say, and I think sometimes it’s a term that we like to get science in to make us sound a little bit more credible. I’m perfectly happy with being called a psychologist and, more specifically, a social psychologist.

Counsel Inquiry: As a social psychologist, your primary interest is in how humans interact with one another and in a social setting; is that right?

Professor Stephen Reicher: Yes, I mean, my research has been, on the whole, on group processes and collective behaviour, and so on the one hand I’ve covered a number of issues relevant to the pandemic, issues like social influence, social solidarity and leadership. Most specifically I have done work on human behavioural emergencies, mass behavioural emergencies, and I think it’s that expertise which led me into the weird world of pandemic advisory committees.

Counsel Inquiry: Broadly speaking, is it right to say that the science or the behavioural science is a matter of understanding the impact, in terms of the context of this, of the pandemic, understanding the impact of human behaviours on how the virus is spreading and then also how to influence the spread because of the knowledge gained in respect of how it spreads?

Professor Stephen Reicher: Well, the way I saw the advisory committees working was that it is for the medical scientists to tell us what sort of behaviours are likely to spread the virus. I’m not an epidemiologist or a virologist, as will become abundantly clear, so I can’t tell you what behaviours are necessary, but once they can say to me “Look, these are the types of behaviours that increase transmission”, I can begin to think about, well, how might we be able to change those behaviours so as to reduce transmission.

So it’s very much, to use a medical term, a biological term, a symbiotic relationship, where each depends upon the other. We very much depended upon them, I think they also depended upon us.

Counsel Inquiry: So to put it with an example, the epidemiologists will come to you and say the evidence suggests that the virus spreads as a result of close contact within 15 minutes – within a metre of one another for 15 minutes or more, and you as a behavioural scientist, to use the phrase that you don’t like so much, say “Well, how do we think about how we influence behaviour, what do we do to make people not stay within a metre of each other for 15 minutes in unventilated areas?”

Professor Stephen Reicher: To a large extent, although I would make a couple of points in relationship to that. The first is I think the whole dilemma of the pandemic and the reason why it’s so difficult is that the core thing we needed to do was to keep people physically apart at a time when we know that being socially together is critical to human wellbeing. And early on in the pandemic, in 2020, we wrote a book called Together Apart, and I think it’s in the evidence, which tried to summarise the nature of that dilemma. We’re trying to deal with something that’s really, really difficult.

The second thing is, and again this is going to be critical to the points I shall, I think, be making subsequently, depending on your questions, it wasn’t us making people do anything, it wasn’t us telling people to do anything, it was how can we engage with the public and jointly do something. And I think as long as we see things in a top-down manner actually we get things grievously wrong.

Counsel Inquiry: Again sort of applying what you’ve just said, in times of – humans are inherently social creatures, as it were?

Professor Stephen Reicher: Yeah.

Counsel Inquiry: And no doubt in times of strain and stress require more social interaction or would be expected to have more social interaction and sort of community support at exactly the time when that social interaction was causing illness, the spread of the virus and ultimately death and –

Professor Stephen Reicher: Well, you see, I think – that wasn’t necessarily true, but I think we made a huge mistake early on in the pandemic when we talked about “social distancing”, and that phrase became virtually universal, we talked – “We’ve got to socially distance”. Actually, we didn’t have to socially distance, what we had to do was physically distance, because physical proximity led to the transmission of the virus that could kill you. We didn’t want to socially distance people, we wanted to keep them together. And the fact we talked – conflated the two, we talked about everything as “social distancing”, meant that we didn’t put enough effort into asking the question: how can we keep people socially together, how can we keep people connected, especially more marginalised social groups, during the pandemic?

So it wasn’t a natural contradiction, I think we turned it into a contradiction by failing to recognise that distinction between physical and social distancing.

Counsel Inquiry: When did you start to see that contradiction really coming to the fore, in terms of the use of “social” –

Professor Stephen Reicher: Well, as soon as the phrase was used. As I say, we wrote a book – academics are rather slow creatures, as you might have discovered – we managed to write a book in I think two months because we felt this is such a critical issue. Such a critical issue. In fact there is a whole psychological literature which I’ve been involved in which shows the importance of social connection not only for physical but for mental health. Feeling part of a community. I could go through a long list, and I won’t, of the various ways in which it benefits you.

So I was acutely aware of this tension right from the start and a lot of my work has been around how mass gatherings, collective behaviour, which is often seen in negative terms, is actually rather good for us in fostering a sense of community and improving our physical and mental health.

Counsel Inquiry: We’ll come on during the course of your evidence to sort of specific examples but we’ve started down this path a little so let’s continue.

So you recognised early on, as soon as the phrase “social distancing” – was an issue, it created its own issue. Was this something – was this advice that you were feeding into SGCAG and more broadly, beyond – although I appreciate, having written a book, you might suggest it’s out there, as it were?

Professor Stephen Reicher: Well, I think the core psychological issue for me is this: I’ve already made the point that, for me, one of the major implications of the pandemic as a whole is it told us behaviour matters, it doesn’t just matter at an individual level, it’s not just a matter of interpersonal relations, it matters at a systemic and societal and policy level. One of the first times that people thought of psychology and policy together.

But that then raises the question of what sort of psychology do you use?

Now, my work in general and on disasters as well shows the importance of bringing people together as a community with a sense of shared identity, a sense of “we-ness”. Often when you look at the popular representation of crises, there is this notion that we panic. In other words, in a crisis we act individually, we all rush for the exits, we trample others, we turn a crisis into a disaster. Actually the evidence that I have been involved in, my colleague Professor John Drury, who’s also on SPI-B, has been involved in, shows that what tends to happen in a disaster is that you have a common faith, a common experience, and people come together as a community. It’s a frail sense, it can be undermined by government action, but that sense of shared community is absolutely critical in the pandemic response, in a number of ways.

First of all, it means people care for others. The early polling, for instance, showed that the major factor in adherence to measures was wanting to come out of this as a community, and our own research shows the key factor in adherence is not your individual risk, it’s the collective risk, it’s the risk to the community. So effecting a sense of community increases adherence. It increases solidarity in practical terms. We saw that 12 to 14 million people became involved in mutual aid groups, probably more if you include – we’ve heard a lot about WhatsApp, but informal, street level WhatsApp groups where people looked out for neighbours. And also that sense of community is good for our physical and mental health.

So in a sense, if I had one message, it was: don’t fear the public, don’t fear their frailty, don’t see them as a problem, rather understand that if you bring the public together as a community and, what’s more, that they see government as being with and for that community, then the public become an absolutely key resource. They’re not the problem, they’re the most precious resource you have.

And all my interventions in a sense was about how do you achieve that, how do you scaffold that, how do you support that, how do you create that sense of community.

So this was one aspect of that absolutely key critical message that I was trying to get over in all the various places that I spoke.

Lady Hallett: Could you speak a little more slowly, please.

Professor Stephen Reicher: Oh, I’m sorry. That’s slow for me.

Lady Hallett: Oh, is it? I know the feeling, I speak too quickly.

Ms Arlidge: We have a stenographer who is typing away frantically.

Professor Stephen Reicher: I’m sorry, stenographer.

Counsel Inquiry: Could we – in light of what you were saying about public adherence, could we look at paragraph 63 of your witness statement, please.

I think this is what you were taking us through, but I just want to sort of orientate ourselves. You talk about the – sort of, how the – the factors of public adherence to – guidance, legislation, we’ll come on to that shortly as well, but you say that the factors that have been seen before Covid came along were actively applied, remained the same in terms of the actual – in the Covid response, despite the fact that of course Covid was somewhat unprecedented and rather different, no doubt, to the studies that had been in terms of disasters otherwise in terms of longevity and acute issues.

So you say that the first issue or the first factor is risk perception. So by that do you mean explaining to people and making everyone aware that this is a big deal, people can die, people can become very sick, or is it a broader sense of risk perception in that regard?

Professor Stephen Reicher: Okay, so I’m glad you’ve brought up risk perception, because I think it’s an absolutely key issue, and I think there has been much misunderstanding of what was said around risk perception.

One of the criticisms made of SPI-B and of behavioural science in general is that we wanted to use fear to frighten people into adherence, but there is a huge difference between making people realistically aware of threat, so they can do something about it, and fear, which makes you feel “Well, we’re doomed, there’s nothing we can do”.

Counsel Inquiry: The equivalent of –

Professor Stephen Reicher: The point is – sorry.

Counsel Inquiry: The equivalent of shouting “Fire!” in a room but not having fire exits that –

Professor Stephen Reicher: Well, the analogy that I’ve used is, you know, I don’t say to my child “The world is a terrible dangerous place, if you go out you’ll be killed”, I say to them “Look, there are some real risks out there, like crossing busy roads, so be careful, this is what you do, you obey the green cross code and you will be fine”. So if you give people realistic risk information combined with information about how to mitigate it, actually it doesn’t increase fear, if anything it decreases fear because it empowers people.

And the core concept for me here is empowerment. You disempower people either by not telling them what’s going on – to hide risks from people doesn’t empower people, it disempowers people. And you also disempower people just by talking about threat without mitigations. If you want to empower you do the two together. And that’s what we were saying time and time and time again. You need to make people realistically aware of the threats, because if there’s no threat why should you do anything. Right? If the virus either isn’t there or can’t harm us, why would you do anything from getting vaccinated, to keeping distanced or whatever? And there is ample research – both from previous pandemics, the H1N1 pandemic, lot of research in Hong Kong, but equally in this pandemic – that making people realistically aware is important.

Now, if I can just finish by going back to my previous point. If you have a sense of the public as psychologically frail, unable to deal with information, you say to yourself “Well, I can’t tell them anything because they’ll panic”. Right? But if you actually have respect for people and are open with people, and not only give them information but the wherewithal to deal with that information, actually you can be really effective. And that’s why that general attitude that the public are a problem, the public will be – will panic, gets in the way of doing the things you need to do in order to be effective.

Counsel Inquiry: And you say in your statement, I think, as hopefully not paraphrasing too much on this, that the third element or the third factor is that social identification. So there’s a sense of “all in it together”, and that is part and parcel, is it not, of “we can do something, we can move forward if we’re all in it together and we’re all pulling for the same team, as it were”; is that what you mean by that?

Professor Stephen Reicher: One of the problems of the pandemic generally is people talked in terms of binaries, it’s either this or it’s that, it’s this factor or it’s that factor. Of course when you deal with human behaviour there are always multiple factors.

Now, we tend to like lists of three, so I think I’ve given you three factors there, I’m not saying these are the only factors, however there was a hugely influential paper, probably one of the most influential papers in the whole pandemic in terms of behavioural science, which was published in Nature on harnessing behavioural science, and there we made the point that when you look at the research on disasters, this sense of shared social identity, of “we-ness”, is absolutely critical. And Nature has just published an analysis which looks at all the literature that came out of the pandemic which confirms the importance of doing this. This only came out a month or so ago so I’m not sure if it’s in the bundle, but the point is this: if I am young and relatively healthy – sadly I’m not that young, but if I’m young, and I’ll have my son in mind, he might say to himself if he was thinking individually “Look, I might as well go out during Covid because the risk to me is relatively minor”, and the cost of staying in at 18 or 19 with your elderly parents is huge. Okay? So you do the cost-benefit analysis and you think “Well, I might as well go out”. If you think in collective terms, right, now not the risks and benefits to myself as an individual but to the community, I say to myself “If I go out I might spread the disease and I might kill somebody who is elderly or vulnerable or whatever”, and so the risk calculation flips over completely.

So thinking in terms of “we”, having a sense of “this matters to us”, becomes absolutely critical. And we’ve confirmed that with a paper published at the beginning of this year, which is that sense of collective identity and I care about the community.

And one of the things that worried me a lot was that as we went through the pandemic we started off and nearly everybody was saying that. Certainly as we shifted to notions of personal responsibility we began to help develop a notion of “I’m all right, Jack”. And I think that undermined the response. I think it undermined it practically. I think also morally and ethically we produced a society which is less concerned about its more vulnerable members, and I think that is equally corrosive.

Counsel Inquiry: Might an example of that be, for instance, the vaccine passport that you speak of in your statement, in terms of all of a sudden you’ve got this – you’ve been vaccinated so you’ve got a – you’ve got your own thing to prove you’re fine. And there is a risk, is there not, in those circumstances of forgetting the collective, as it were?

Professor Stephen Reicher: Okay, so I think vaccine hesitancy – you’ve gone straight to the heart of it, that’s a brilliant example of these issues and allows me I think to illustrate them very, very clearly.

Counsel Inquiry: Before you go any further, I suspect our stenographer is still going to be struggling, because – so if you could keep it slowly –

Professor Stephen Reicher: Oh, I –

Counsel Inquiry: – politely, I’m sorry.

Professor Stephen Reicher: Do help me by telling me to go more slowly.

Counsel Inquiry: Thank you.

Professor Stephen Reicher: There are two broad ways in which you can deal with vaccine hesitancy. One is to say people don’t take the vaccine because they are too stupid or too immoral to care, they’re selfish. So you can say there’s something wrong with those individuals. Now, the problem with that is that when you look at the figures, the statistics on vaccine hesitancy they are much larger amongst certain groups, more deprived groups, ethnic minorities, in particular black British people, much less likely to get vaccinated.

Now if you go down that individualistic route, you then come up with conclusions like black people are either less intelligent or less moral than others. And hopefully none of us want to go down that route.

An alternative approach is to say it’s not about the information itself, it’s about our social relationship to the source of that information, do we trust those who are giving us this information? Do we trust those who are giving us this Information? And there is good reason to understand why certain groups have less trust in government, because historically they have been treated differentially. There was a report, for instance, that came out at almost the same time that those statistics came out, from the House of Commons, the House of Lords, which showed that 60% of black people felt that the NHS did not that take their priorities as its priorities. So the key issue becomes not the intellectual or moral abilities of the individual, it becomes the issue of building trust. And how do you build trust? Well, one of the ways you build trust is not to say there’s something wrong with you if you have questions. You should have questions if somebody wants to inject something in your body. It’s perfectly reasonable. So you shouldn’t treat people in negative terms, you should engage with them, you should have dialogue with them, you should work through their communities. And in fact early on we wrote a paper on community engagement showing historically it had been massively successful around the world, especially with minority communities.

So vaccine hesitancy shows us some of the pitfalls of that individualist “there’s something wrong with the individual”, rather than that issue which says “what’s primary are the issues of social relationships”. How do we get people to see government as being on their side? Vaccines introduced for them rather than something done to them? How can we make people see government part of us rather than standing outside and waving fingers or – that, or punishing or bearing down upon us?

Counsel Inquiry: We’ll move on in a moment to enforcement issues and around legislation, but just coming back to the vaccine passport in particular, because in your statement I think you raise concerns about, paragraph 105 and 106, that – just the concept of vaccine passports. And I don’t want to get into the detail about how it all worked in practice –

Professor Stephen Reicher: Yeah.

Counsel Inquiry: – I’m sure the Inquiry will be dealing with that in due course, but what I’m interested in is the messaging surrounding that and how that fed into Scottish Government decision-making, because you say in your statement, don’t you, that you had – you were opposed to certification. Why was that?

Professor Stephen Reicher: Okay. So again we published a paper which showed that especially amongst groups who do not trust government, then vaccine certification increased or gave traction to the anti-vaxxer narrative of “They’re trying to control us, they’re trying to do something to us”, and thereby decreased their willingness to get vaccinated.

It did have some positive effects, so for instance for people who didn’t have that distrust, who hadn’t got round to it, then if there were going to be consequences then they might as well do it. What that means is you would more rapidly, in a sense, vaccinate all those willing to be vaccinated, the problem is you would do that at the expense of widening the pool of those who were more resistant to getting vaccinated.

So my feeling very strongly was we should focus on engagement, we should focus on working with those communities, on listening to people. There are some very nice examples of that engagement in fact from Israel, where in Tel Aviv they took trucks to the downtown area of Tel Aviv, Dizengoff, and, you know, people could come in and they could have a snack, they could have a drink – not alcoholic – and they could get vaccinated. At the same time they did that in religious communities but there they didn’t give them drinks and snacks, they gave them cholent, which is a stew that you – that religious communities – and so once you understand the different communities, what matters to them, how you engage to them, how you go to them rather than wait for them to go to you, you have a hugely effective intervention. And that to me was the way to go. Always respect people, listen to them, engage with them.

And so it’s true of vaccine hesitancy, it’s true more generally: respect people.

Counsel Inquiry: You say at paragraph 105 that one of your concerns about it, about vaccine roll-out and vaccine passports per se again was leading to a sense of invulnerability and loss of caution.

Professor Stephen Reicher: Mm.

Counsel Inquiry: Is that – to bring it full circle to where we started this discussion, is that – the risk of something like a vaccine passport gives rise to the breakdown in the social identity, as it were?

Professor Stephen Reicher: Okay, so there has been a lot of discussion about if you make people safer in one dimension will they become less safe in another dimension. If you give people a Volvo, which is supposed to be – I’m told, I’m not advertising here, but it’s supposed to be the safest of cars, or at least was, do people drive more riskily? So risk compensation is the concept.

Actually the literature nowadays shows that it – it’s not clear there is risk compensation, what is critical is to give people clear messaging about what things do do and what people don’t do.

Now, there is a danger again that if you don’t respect people, if you think people are intellectually impoverished, you try to make things terribly simple. You either say a vaccine is perfect or others say it’s completely useless. Okay? Actually I think the important message is to say, “Look, a vaccine is far, far, far better than not a vaccine, it does these various things for you, but it still doesn’t do everything for you, so you still need to be careful, you still need to keep your distance, you still need to, you know, self-isolate if you’re infected or whatever it might be”. And the danger is – again, it’s this general attitude if you don’t respect people, if you have a sense of the intellectual frailty of the public, it leads you to simplify and not do the messaging that you need to do in order to avoid risk compensation.

Counsel Inquiry: And how receptive was Scottish Government to your particular concerns in respect of vaccine passports and the risk of antivax, all that sort of thing?

Professor Stephen Reicher: In general terms, and I think I’ve given a number of examples of this, nobody’s perfect, we all learn and we all make mistakes, but what is undeniable, I think, is that the Scottish Government did far more, both in terms of this general notion of treating the public with respect and as a partner, than the UK Government did. And in my statement, for instance, I have compared and contrasted certain statements at the same time by the Prime Minister and the First Minister showing how, on the one hand, the Prime Minister tends to tell people off and to threaten to punish them, the First Minister tends to recognise the difficulty people have, the efforts that they are putting into compliance, and encourages them to continue with those efforts for the sake of the community.

So by and large, comparatively at least, I would say that the Scottish Government did better than the UK Government.

Counsel Inquiry: You talk in your statement at paragraph 12, the concept of Scottishness.

Professor Stephen Reicher: Ah.

Counsel Inquiry: I’ll just allow a moment for this to be brought up. I’m jumping around rather unhelpfully.


Counsel Inquiry: Thank you. So it’s the second half:

“In the Scottish context it is possible to draw on the idea ‘We are Scotland’ because Scottishness is more likely to be …”

I’ve lost my note there.

“… understood in ‘civic’ terms (as including all those living in Scotland and committed to Scotland whatever their background) while ‘We are England’ is more problematic and more likely to be understood in ethnic terms (hence excluding those from ethnic minorities). Consequently, the advice as to how to build cohesion and solidarity was different – and indeed in … Scotland I had the pleasure of working with the ‘creatives’ in crafting public health adverts rooted in norms/values of Scottishness.”

I’d just like to explore that with you briefly before the lunch break.

Professor Stephen Reicher: Yeah.

Counsel Inquiry: What do you mean by Scottishness in “civic” terms, and how that impacted the advice you were giving to Scottish Government and their creatives in the messaging?

Professor Stephen Reicher: That was a very dangerous question to ask an academic.

I mean, I’ve worked on national identity. A number of years back, we wrote a book on national identity, on the Scottish identity, called Self and Nation – available at all good booksellers – and I could talk for a long, long time, but I won’t, I promise you, and I’ll try to say this slowly.

I think there are a couple of key issues here that are really important. One is a broad conceptual point, that when I think about human psychology I think we are all equally human and the basic psychological processes we have are the same everywhere. But the way those play out is fundamentally different in different contexts, different cultural contexts. Okay?

So I am interested both in the general process – I might say that if you create an inclusive social identity people will support each other within that broad community, but how you achieve an inclusive social identity depends upon the cultural resources and the cultural history that you may or may not have.

The second general point – and I have been listening to you on the TV channel, and so I’ve heard various times people asking “Why on earth did we need a Scottish advisory group? I mean, surely it’s the same pandemic so why did we have to have a different advisory group?” And the point is again that the context of Scotland is different at a number of levels. People have focused on geography, we are more dispersed, they have focused on comorbidities, we have more comorbidities in various areas, but it’s also psychologically different.

So when you look at the notion of nationhood, people – this is too simplistic, but people broadly draw a distinction between ethnic and civic nationhood. Ethnic definition is where I come from. Okay? By that definition I personally am not Scottish because I was born in England, my parents came from Russia and Germany and Poland. Okay. But if I look to my future and my commitments, right, I can call myself Scottish, because I’m – live in Scotland, I’m committed to Scotland, my son was born in Scotland. So civic is very much about your future and your choice over your future, ethnic is much more to do with where you come from.

Now, in England, Englishness historically has been seen as more ethnic. You know, so for instance far-right groups use the flag of St George to denote an England which is defined in terms of whiteness. And the empirical evidence shows that ethnic minorities would find it very difficult to say, for instance, “I am Pakistani English”, they might say “I’m Pakistani Mancunian”, because they can relate it to a locality, but not to a nationhood. That’s not true in Scotland, because over the last 20 or 30 years – and these are balances, I’m not saying it’s entirely one way or another but the balances move towards a notion of Scottishness which is to do with being here and committed to the nation.

It’s beautifully expressed by Willie McIlvanney when he used the term the “mongrel nation of Scotland”. What makes Scotland is we’re not pure breeds, we are a mixture of all sorts of things. That’s what makes us Scottish. So when you say “We are Scotland”, you include ethnic minorities, you include people who have come from elsewhere. When you say “We are England”, you are more likely to exclude and create a sense of division.

So it’s a beautiful example of the social differences and the way in which you can use Scottishness to create a sense of an inclusive social identity which includes everybody and brings them together as opposed to an ethnic identity which divides people and which could exclude people and at worst can even lead to hostility against minorities.

Counsel Inquiry: You spoke about – well, you were a member of SPI-B in the UK set-up, as it were, and then you joined SGCAG, as we call it, in April – March 2020, April 2020, just after the lockdown. You joined that – you joined SGCAG, I think, as a result of – you reached out and said “Hang on a minute, you’re not – I think I can help and I can bring some expertise”. What was your understanding about the Scottish Government and CMOs et cetera – using the original title of SGCAG – what was your understanding about the Scottish Government’s recognition of behavioural science and behavioural management, as it were, in that sort of regard? Is that why you said “Come on, I can help, I can bring something to bear here”?

Professor Stephen Reicher: The simple answer to that is I have very little understanding of the workings of government. I’ve always been an academic trying to understand various processes. I have worked with various groups with – my work on crowd behaviour has influenced public order policing for instance, and I have been on one or two advisory groups about behaviour in emergencies. But by and large my understanding of the workings of government come more from Yes Minister and Yes, Prime Minister than any privileged knowledge.

I reached out to Rebekah Widdowfield, because she was then the general secretary of the Royal Society of Edinburgh, in which I was heavily involved, but I knew Rebekah from the past, from some of her directorates, talking about, if you like, the behavioural dimensions of environmentalism, resilience, and so on.

I passionately believe, and the important message I want to get over, is that behaviour matters at that systemic level and we need to understand that and learn that, both so we can contribute but also so that we can be involved. And so I knew nothing about the Scottish Government but I thought if anybody might help in making the case for behavioural science being involved in the debate, Rebekah would, because she had been doing that previously when she’d worked for the Scottish Government.

Counsel Inquiry: When you joined SGCAG you were the only, again to use the wrong phrase as it were, behavioural scientist on the –

Professor Stephen Reicher: A little lonely, a little lonely.

Counsel Inquiry: – start. How did you feel your voice was heard in that room, as it were?

Professor Stephen Reicher: There’s always a danger if you think you’re going to sound as if you’re gushing, okay, but one of the things I learnt, and I learnt many things from my involvement, was how to chair a committee. I think Andrew Morris was remarkable. There was a – he included everybody. He wanted to make sure that everybody had spoken. He defined a good meeting. He’d often say, “It’s been a good meeting” – everybody had spoken. He wanted to make sure that everything was covered. And so I got a really strong sense – in part because of the others, because I think people recognised that symbiotic relationship I’ve spoken of, and it was facilitated both by Andrew and by the civil servants we worked with. I was very lucky to meet and work with such people.

Counsel Inquiry: Did you feel like the issue of messaging and the issue of recognising or seeking to influence human interactions and human movements in the context of the pandemic was something that was adequately recognised from the outset?

Professor Stephen Reicher: Okay, so people often when they think of behavioural science they talk about communication, okay. Now, I think communication is an aspect of it but I think the core issue was understanding the centrality of positive social relationships and in fact, and this is utterly key, a social relationship of trust both within the population and between the population and government. And Andrew used a phrase which I really liked when he talked about that “social contract of trust”, and he was aware that that was utterly central to everything we did.

I used to say at the beginning, as many people did, that behavioural science would be important until vaccines come along, but I was wrong. The reason why I was wrong is that vaccines achieve absolutely nothing as long as they’re in the bottle. It’s getting vaccinated that makes a difference. So as soon as you have a vaccine, you have a new behavioural set of questions, which we’ve addressed in part: how do you get people to get vaccinated?

So it’s not as if, you know, the pharmaceutical is primary, it will be the cavalry charging over the hill after which everything else becomes irrelevant, it’s that at every single stage the behavioural and the medical need to go together, and absolutely key to addressing that is creating that social contract of trust. And in some ways – as I say, that phrase came from Andrew, I think he understood it really well.

Now, as to whether others understood it, I don’t know, because my experience was in the advisory group. I mean, I don’t walk the corridors of power, I don’t know what, you know, what ministers say to each other in private. But I do know that within that group I was deeply impressed by the extent to which it was seen as a community of equals from different disciplines.

Ms Arlidge: Thank you.

My Lady, would that be a convenient moment?

Lady Hallett: Yes, certainly. I shall return at 1.45.

Ms Arlidge: I’m grateful, thank you, my Lady.

(12.48 pm)

(The short adjournment)

(1.45 pm)

Lady Hallett: I gather we may have had a problem with the live feed this morning.

Ms Arlidge: Used to be, my Lady.

Lady Hallett: It’s resolved by the sounds of it. Anyway, apologies to anyone who was watching and was affected by the problem.

Ms Arlidge: Thank you, my Lady.

Professor, before the lunch break, we were talking about influence – using messaging to influence behaviour. In a world of social media disinformation and people simply not engaging with mainstream media, with the news, how do you get the message out to those people who are perhaps less likely to comply in the first place with that guidance?

Professor Stephen Reicher: That’s a really important question, I think, and again I would want to go back to this core issue of social relationships and trust.

You see, when people deal with misinformation, the obvious starting point is to ask about the nature of the information. But imagine a situation where, you know – and actually it’s a situation that happened to all of us, that you are sitting there, you’re being asked to take a vaccine, to inject a vaccine into your body, and some people are saying to you, “This is really important, this will keep you safe, this will keep your community safe, it’s a personal and a social responsibility to do it”, and others are saying to you, “Don’t trust them, they are not concerned with your wellbeing, they are trying to control you, and this vaccine hasn’t been properly tested, it hasn’t been properly developed, it’s dangerous”. Right?

Now, we’re not vaccinologists, so in the end you’ve got to ask: who do I trust? Who do I think is on my side? Who is giving me this information to help me, who is giving me this information in order to control me?

So when it comes to that issue of information – and it’s not just about disinformation, the question is: why do we believe any information we’re given? It’s not the information itself, it’s our social relationship to the source of that information that is often absolutely critical, and that’s why trust is absolutely at the core of how you respond.

Counsel Inquiry: But how does that work in practice in terms of Scottish Government and when the First Minister, for instance, stands up to –

Professor Stephen Reicher: Okay.

Counsel Inquiry: – describe what’s happening; how do you use that to get –

Professor Stephen Reicher: I think it has to be in the context of that wider policy of engagement. So if – you know, there you are, you’re going for vaccination, and somebody says to you – and you ask a question, you know, “What effect will this have on me if I’m pregnant?”, “What is the impact on sickle cell disease?” These were questions to which non-experts wouldn’t know the answer.

Do you on the one hand treat that person as dishonourable, as a fool, as – label them as vaccine hesitant? Or do you say to them, “Really good questions” – right? “Really good questions, we’ll talk to you, we’ll listen to you, we’ll engage with you”. So whatever that Scottish minister says, it will work better in a context where you are building trust, you are showing respect, you’re engaging with people, and you’re taking their concerns seriously, rather than just dismissing them as fools who are victims of disinformation.

Counsel Inquiry: But to what extent does the existence of those issues in terms of people who don’t want to engage affect the decision-making, the – the principles behind the decisions that are being made in government to say “We need to do this, we need to do that” and give advice – and building up that trust relationship? To what extent is, in your view – were Scottish Government aware of the impact of that sort of issue on the efficacy of their decisions?

Professor Stephen Reicher: Well, I mean, as I’ve said to you many times, you know, I’m an academic who sat in the advisory group. I don’t sit in the corridors of power, I don’t chat to ministers. I don’t know. I mean, I genuinely don’t know what there – with – what was going on.

In our advice, we said to them the key issue here, as everywhere else, is to do things in an overall context of everything you do of showing – of building trust.

Now, one way you could build trust, for instance, would be for ministers to acknowledge the fact that this is complex and this is difficult and people are right to have questions, and then to build in processes where people can ask those questions. And also the types of initiatives I spoke about that happened in Israel – not just in Israel, they happened in the UK as well, actually, working with black health workers – to build those structures of engagement.

And the final point is in many ways actually you do far better not if a minister gets up but if respected members of a community gets up. If an imam, for instance, says to you “It is perfectly legitimate to take, you know, a vaccine”, take a vaccine, you know, at particular times of year and so on. Work through communities. And the way you pose the question, “What does a Scottish minister do?”, in a sense presupposes it’s the Scottish ministers to do it themselves rather than to engage and facilitate communities doing things for themselves.

Counsel Inquiry: You talk about the need to build trust but in your statement you also – of course it’s – in terms of compliance, there are two sides to it, isn’t there, there is building the trust but then there’s people being able to actually comply with the guidance or the rules and things happening, so –

Professor Stephen Reicher: Let me start off with the word “compliance”, because the problem with compliance is it’s a very top-down term. “You will comply with what I do”, right? Whereas actually it has to be much more of a dialogue.

Counsel Inquiry: Well, let’s take it in stages –

Professor Stephen Reicher: Okay, yeah.

Counsel Inquiry: – because I need to take this quite shortly, and I don’t – I apologise for the timing, but I do need to take it in stages.

You have the – you mention in your statement about the need for support quite regularly throughout the statement, and I won’t take you to all the references but I’ll take you to one in a moment, but it’s right, isn’t it, that the reality is, irrespective of the communications and the trust that can be built up, there will always be people who simply, as you say in your statement, as a result of the lack of support, are just not able to comply – or not able – whether the word “comply” is – or adhere, and that cuts then into the way decision-making is made, is undertaken, because, for instance, if you don’t have sufficient funding, support, money in the bank, as it were, and you know that if you get a test and you test positive, you have to self-isolate so you can’t go to work, you might be less likely to take the test in the first place. If because you are unable to – you don’t have the money in the bank to buy your groceries at the end of the week, you might not be able to go into lockdown because you’re – with a positive test, with self-isolation, with a positive test, because you can’t – you will say you can’t afford.

Now, in terms of the legality, the use of laws, in your statement you say that laws have – the imposition of legislation is actually quite helpful in a lot of regards. But the simple point or the simple question I want to ask is: in circumstances where you – as you say at paragraph 125 of your statement, that the Scottish Government “did little to heed the continuing calls for enhanced support”, so effectively the carrot, as it were. In the presence of – those people who are not complying with that legislation are likely to come from sections of society – lower socioeconomic groups, perhaps less engaged in the trust process as well.

So in circumstances where the laws can mandate behaviour, and punish non-adherent behaviour, is there not a very strong risk that there will be an unequal, disproportionate impact on groups who are less able to comply with the laws than general public?

Professor Stephen Reicher: So that’s a wonderful question, and you need to be careful, you’re turning into a behavioural scientist, if you’re not careful you’ll be up here.

I learnt many things during the pandemic, and one of the pleasures of being involved in the advisory process was learning by the other experts, and when it comes to behaviour my focus has always been on the motivational dimension, okay, so what is it that make people want to do adhere – to do things, and I talked a bit, probably too much, about that today.

Others point to the fact that adherence depends upon three things: it depends on motivation, certainly; it depends upon in a sense having the capabilities, the information, so you know what to do; and it depends critically on the opportunity to support to do it.

So early on there was a study, I think it was in the spring of 2020, which showed that ethnic minorities and deprived groups are three to six times more likely to break lockdown. Nothing to do with motivation. Nothing to do with motivation, everything to do with the difficulties of more deprived and marginalised groups to stay at home and put food on the table.

So support was critical, and it was critical from day one of the pandemic.

So on day one of the pandemic, a new word entered the vocabulary, the word “Covidiots”. It was the first time it was used. And this was the problem of people going out and congregating in parks. And if you remember, photos of people in parks, “Covidiots, look, they’re congregating”. Now, number one, those people were told that they were allowed to go out. Number two, if you’re in an urban setting and you don’t have your own garden, the only place you can go out is to the local park. And if there are aren’t enough parks then you’re going to cram.

So what is your response? If it to call people Covidiots, “You’re an idiot”, or is it to say “Actually, let’s support people to be able to do something that the good for health”, to go out, “and be distanced by opening more public spaces”?

SPI-B and I myself argued time and again: support people, support people so they can do what you’re asking.

And it has a double benefit. Number one, it allows them to do it. But number two, if I ask you to do something which you can’t do because of your practical circumstances, all it does is alienates you from me. It says: these people making the rules don’t understand our lives, they tell us to do these things and we can’t do them. So it undermines that social relationship fundamentally.

So the issue of support, time and time and time again, was absolutely critical. And time and time and time again it was: we weren’t given enough support.

So the key issue here, because it’s a key issue as you’ve heard from many witnesses, was self-isolation. The whole point of the testing system, the billions spent on it, was not to test people, not to trace contacts, but to get people to self-isolate. And if you didn’t get them to self-isolate, you were wasting your money. Okay?

Now, the figures showed that people did quite a lot of things, and they adhered very highly in some areas. If you looked at the figures on self-isolation it was as low as 18.2%, and the reason for that is it’s an extremely difficult thing to do. And after saying “support, support, support”, in the end the UK Government brought in a scheme, the £500 scheme, right, which (a) was a small amount of money, (b) only one in eight workers qualified for it, and (c) 67% of people who applied didn’t get it. So it was a tiny amount of support.

In other places like New York they had a wraparound system whereby not only did you give people more money, you offered them hotel accommodation, you even offered them support to walk the dog – because that’s quite important; if you’re isolated, what are you going to do?

So there was a critical need for support.

Now, the Scottish Government did a little bit more and – but it didn’t do enough. Now, whether that was an ideological issue or a financial issue, that given the financial settlement they couldn’t afford to do it, I don’t know, but I would argue that if I look out, one of the major failures, in Scotland but in the UK as a whole, we didn’t give enough support.

And I just want to make one final point, very briefly. Jeremy Hunt, before he had his present exalted position, was chairing one of the parliamentary committees, and he asked Matt Hancock the question that we’ve been asking: why was more support not given for self-isolation? And Hancock’s response was: because we were afraid that people would game the system.

So again this disrespect, this lack of confidence in people, as being immoral and intellectually disabled, stopped us doing the – I wouldn’t say the one thing, but an absolutely critical thing we should have done in order to make adherence higher in the most critical area of adherence.

Counsel Inquiry: And to be absolutely clear, you were giving that advice to Scottish Government through SCAG on a regular basis, weren’t you?

Professor Stephen Reicher: You’ve already pointed out that at times I’m like a stuck record, and we were like a stuck record on SPI-B. If I give you every quote when we talk about isolation, it would be that long, and the same would go from the Scottish Government – uh, the Scottish advisory group.

Ms Arlidge: Thank you. Just bear with me for one moment, please.

My Lady, I think my time is up.

Lady Hallett: Thank you very much, Ms Arlidge.

Thank you very much, Professor. Your passion comes through quite plainly. Thank you for your help.

The Witness: Thank you.

(The witness withdrew)

Ms Arlidge: My Lady, I’m going to do some musical chairs now with Mr Tariq. Thank you very much.

Dr Pablo Hidalgo


Questions From Counsel to the Inquiry

Mr Tariq: Good afternoon, my Lady. May I please call Dr Pablo Grez.

Could I confirm that you prefer to be called as Dr Grez?

Dr Pablo Hidalgo: That’s correct. Thank you.

Counsel Inquiry: Thank you for your assistance to date with the Inquiry. There are a few preliminary matters. Could you please keep your voice up, and speak into the microphone so that a stenographer can record your evidence. If any of my questions are unclear, please say so, and I will rephrase.

You’ve provided a statement to the Inquiry dated 12 December 2023. The statement is at INQ000369759, and you’ll see that it’s on the screen before you.

Dr Pablo Hidalgo: That’s correct.

Counsel Inquiry: Is this your statement?

Dr Pablo Hidalgo: Yes, it’s my statement.

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

Dr Pablo Hidalgo: Yes, they are.

Counsel Inquiry: I now want to turn to your professional background before we get to the substance of your evidence. You’re currently a lecturer in public law at the law school at Strathclyde University; is that correct?

Dr Pablo Hidalgo: That’s correct.

Counsel Inquiry: And you hold an undergraduate law degree from Chile?

Dr Pablo Hidalgo: Yes.

Counsel Inquiry: A PhD in law from the University of Edinburgh and a Master’s in public law from University College London; is that correct?

Dr Pablo Hidalgo: That’s correct.

Counsel Inquiry: You were previously a research associate at Birmingham Law School; is that correct?

Dr Pablo Hidalgo: That’s correct.

Counsel Inquiry: During your time at Birmingham Law School you worked on a project called the Pandemic Review: Rights and Accountability in COVID-19 led by Professor Fiona de Londras; is that correct?

Dr Pablo Hidalgo: That’s correct, I was part of a research team.

Counsel Inquiry: Who were the other members of the research team?

Dr Pablo Hidalgo: Well, Professor Fiona de Londras was the principal investigator and Dr Daniella Lock, currently at Oxford, and myself were research associates to that project.

Counsel Inquiry: If you could keep your pace slower so that your evidence can be noted.

That project that you were involved with led to the establishment of the Covid Review Observatory; is that correct?

Dr Pablo Hidalgo: That’s correct.

Counsel Inquiry: Are you able to tell me about the Covid Review Observatory and the aims of that project?

Dr Pablo Hidalgo: Yes. So, the research project was mainly focused at looking at the ways how the different parliaments in the UK, either the Westminster Parliament, Holyrood, the Welsh Senedd or the Northern Ireland Assembly to the extent to which they were holding governmental responses to Covid pandemic to account.

There were a set of criteria we were interested in, we wanted to look whether these processes of review were evidence-based, whether they were participatory, and whether they were taking into account the human rights impacts that the responses led by the governments had for the rights of individuals.

Counsel Inquiry: We will come to your research shortly, but the project led to a number of publications; is that correct?

Dr Pablo Hidalgo: Yes.

Counsel Inquiry: And I think is it five academic journal articles, 20 blog pieces, 16 submissions to the UK parliamentary committee inquiries, six to the Scottish parliamentary committee inquiries, two to the Welsh parliamentary committee inquiries, and two submissions to the UK and Scottish Government’s consultation processes; is that correct?

Dr Pablo Hidalgo: Yes, that’s right.

Counsel Inquiry: Can we now turn to your statement. It’s at page 3, paragraph 6 and 7. I wanted to look at paragraphs 6 and 7. Paragraph 6 says:

“In my view, the Covid-19 pandemic is a textbook, of legitimate use of emergency powers, including delegation of emergency law-making powers to the executive. A pandemic requires an effective, fast and flexible response that keeps pace with the ever-evolving nature of the virus. The legislative process is designed to slow the pace of law-making by requiring a series of readings that prompt reflection, debate and improvements in the quality of legislation. Hence, the normal pace of the legislative process may not be suited for situations of emergency, although as I explain below an emergency may evolve, thus enabling a more paused law-making process.

“7. A framework of emergency powers must strike a balance between the need for an effective response to the emergency and the demands of constitutional principle. Among the latter is a requirement to secure parliamentary scrutiny of the governmental response. Parliament must hold the government to account for its Covid-19 policies, for instance to ensure that the response is evidence led, that, whenever reasonably practical to do so the government has consulted with relevant stakeholders, and that it fulfils the human rights requirements, while also not having a disproportionate and unequal impact on those rights.”

At a very kind of high level, what purpose does parliamentary scrutiny of the government serve in our democratic system?

Dr Pablo Hidalgo: Well, the starting point is that in this jurisdiction this is a jurisdiction that abides by the idea of a constitutional democracy, and Parliament performs a key role in legitimising the exercise of powers in this jurisdiction, either exercise by Parliament itself or by any other bodies, including, certainly, the executive.

It is the role of Parliament to hold ministers to account for their policies, their extending, and the implementation of their policies, and that certainly takes place in the context of normal circumstances, but it should also take place in the case of exceptional circumstances such as a pandemic.

Counsel Inquiry: In the context of exceptional circumstances, can the balance between the need to pass laws fast and the need for Parliament to scrutinise those laws change over the course of, say, a pandemic?

Dr Pablo Hidalgo: So, when we are in the context of an emergency, there might be competing considerations at stake. Although we might want to protect to the extent that it’s possible the idea of parliamentary accountability, compromises may be needed in order to accommodate the situation of urgency.

Our view in the Covid Review Observatory, after looking at the literature, the evidence and the way how the pandemic developed through time is that the balance between these considerations of expediency and effectiveness on the one hand and constitutional principle on the other is dynamic.

We know that pandemics manifest themselves in waves, and there are moments where the virus spreads quite quickly and moments when that spread is more slowly, and there is room for the freedoms.

Using an analogy, we could say also that this balance also manifests itself in waves, and at different stages of the pandemic you can have different balances.

We argue that at the very initial moment of the emergency response, the balance quite heavily shifts towards the need for an effective, fast and flexible response, and therefore unfortunately there might be a compromise in terms of the level of scrutiny that Parliament MSPs or MPs might be able to perform.

But our view is that as we go along in the pandemic, as we gain further knowledge of how the pandemic develops, as we gather further evidence, as we learn from our previous responses, this situation of emergency can shift towards a situation of crisis management, and in the crisis management the demands of constitutional principle might weigh more significantly than those of effectiveness and flexibility.

Counsel Inquiry: So at the initial stage of the pandemic, at an emergency situation, the balance between the need to enact fast legislation, the balance might be different in terms of – with the constitutional principles of parliamentary scrutiny and oversight, but as we move from that initial phrase into crisis management, say, for instance, summer of 2020, the balance perhaps changes, it’s dynamic; do I understand that correct?

Dr Pablo Hidalgo: Yes, yes, that would be an appropriate summary of what I’m trying to say.

Counsel Inquiry: I want to turn to the Scottish Government’s legislative response to the pandemic.

The response, the Scottish Government’s response was enacted by way of primary and secondary legislation. Are you able to explain to me the difference between primary and secondary legislation?

Dr Pablo Hidalgo: Yes. So, both primary and secondary legislation are different forms of law-making. From the point of view of constitutional principle, we could say that primary legislation is a superior form of law-making, because it enables full scrutiny of the policies that the government is trying to push forward and implement through legislation. Through us, in the statement that you quote, was explained, through a series of readings, which are designed in order to prompt reflection, paucity(?) in law-making, engagement with potential stakeholders or individuals that might be affected by the legislation, and then taking into account all of this contribution as well as the potential impacts that these measures might have on the rights of individuals.

By contrast, secondary legislation is a form of delegated legislation whereby ministers are able to draft legislation and to enact legislation subject to a lesser form of parliamentary scrutiny or maybe we can also call it “light touch” parliamentary scrutiny.

Counsel Inquiry: As far as the Scottish Government’s response to the pandemic, the core of that response, in terms of public health measures and international travel restrictions, that was enacted through secondary legislation, this being Scottish statutory instruments; is that correct?

Dr Pablo Hidalgo: Yes. So in terms of the enabling framework, as you rightly mention, there are pieces of primary legislation coming from the UK Parliament, the Coronavirus Act, there are also two core pieces of primary legislation enacted by the Scottish Parliament, and exercising the powers contained in those pieces of primary legislation, the Scottish Government enacted public health regulations which are those regulations that introduced most of the lockdown measures or any other restrictions that we all experienced, such as mask wearing, restrictions on gatherings, restrictions on businesses, et cetera, et cetera. And on the other hand there was another piece of Scottish legislation which you also mentioned, the Public Health etc (Scotland) Act 2008 which enabled the Scottish Government to introduce measures to restrict international travel from Scotland.

Counsel Inquiry: So before we turn to the legislation that was passed, could you describe to me the key milestones in the life cycle of a Scottish statutory instrument, this being the form that was used to enact most of the public health restrictions?

Dr Pablo Hidalgo: Okay. So we were distinguishing between two types of legislation: primary and secondary. Secondary legislation is legislation where most of the burden is on the shoulders of ministers, who have these powers to enact regulations. They are subject to different sort of procedures, and therefore we distinguish different sorts of secondary legislation, secondary legislation which is enacted through what is called the affirmative procedure, whereby the minister drafts the legislation and then lays the legislation before Parliament, Parliament has 40 days to approve that legislation, or to reject that legislation, and that legislation won’t be – won’t enter into force unless Parliament approves it.

Then you have the negative procedure, which is a procedure whereby ministers enact legislation and Parliament has a window of opportunity to reject those instruments, but if they don’t approve it, that’s okay, it can become law anyways.

And there is also the made affirmative procedure, which is a very prominent procedure in the context of the pandemic, whereby ministers are able to make legislation that can enter into force even before Parliament approves it, but legislation that will lapse unless it is approved by Parliament within 28 sitting days.

Counsel Inquiry: So you’ve described three types of different procedures that can be used, there’s the affirmative procedure, the negative procedure and then the last procedure you touch upon is the made affirmative procedure?

Dr Pablo Hidalgo: That’s correct.

Counsel Inquiry: And it’s the made affirmative procedure that seems to be most prominently used by the Scottish Government across the pandemic; is that correct?

Dr Pablo Hidalgo: Yes.

Counsel Inquiry: I think the made affirmative procedure is described in some of your academic work as an extreme example of light touch parliamentary oversight, even more so than the other procedures; is that correct?

Dr Pablo Hidalgo: Yes, and that’s correct for a number of complex reasons. These procedures are a bit difficult to understand, and digest, but I guess that the simple way to put this is to imagine that a Scottish minister drafts public health regulations which contain a series of measures that, for instance, prevent people from going outside their homes, they must stay at home, and that legislation enacted by a minister can enter into force almost immediately after being made, without the need for Parliament to discuss whether this is an appropriate measure or not, and to either manifest its approval to that decision or its decision to reject that measure, and the measure will enter into force immediately and can last for up to 28 sitting days, as I said, unless there is an approval by Parliament.

Counsel Inquiry: So the way that made affirmative procedure works is that a minister – and we’ll come to this shortly – decides to use that process, the regulations come into force almost immediately without there being a parliamentary debate or a vote, and then within 28 sitting days there has to be a parliamentary vote on whether to approve the regulations or not?

Dr Pablo Hidalgo: Yes.

Counsel Inquiry: And if the regulations are voted down at that point, they no longer remain in force; is that correct?

Dr Pablo Hidalgo: Yes. And you said that our view was that it was an extremely light touch procedure, and the reason for that is that, as you just mentioned, by the moment where Parliament will have a say on this set of regulations the regulations would have been in place, being in force, being followed, being in the media, for days, weeks and, according to our research, even months before Parliament has an opportunity to have a say about the details of those regulations. And if that is the case, then we might want to wonder what would be the point of parliamentarians voting down a set of regulations that have been in place for days, weeks and months?

If I may expand on this, regulations come to Parliament under the made affirmative procedure as a fait accompli. The police have been enforcing these regulations for a long time. Guidance has been produced in order to illustrate citizens about their duties and obligations under this set of regulations. So it could be that – and it might well be, if the pandemic is evolving, quite rapidly, that those regulations are about to be superseded by a new set of regulations or there might be a change in the policy which might require those regulations to be amended. And that puts parliamentarians in a very difficult position.

On top of that, parliamentarians might have other substantive reasons to be concerned about amending or rejecting – sorry, about rejecting those regulations. It might be that by rejecting regulations they may undermine the real(?) response of the government to the pandemic, or it might be that they have a specific point of concern about a certain specific regulation or rule, but they are happy with the overall content of the set of regulations that is put to a vote, and they don’t have the power to amend regulations, they can only accept them or reject them as a whole.

Counsel Inquiry: I think we’ll come to some of the challenges that were faced by a parliamentarian when having to vote on regulations that have been in force for at least 28 days. Before we turn to that, as far as I’m aware, the made affirmative procedure had been fairly – had been rarely used in the Scottish Parliament up to the pandemic. I think the Scottish Parliament’s Delegated Powers and Law Reform Committee says that between 1999 and 2019 the procedure had only been used on average once or twice a year. Is that correct?

Dr Pablo Hidalgo: That’s correct. It was very rarely used, and by contrast it became the normal way of law-making during the pandemic.

Counsel Inquiry: If we are able to turn to your statement, and it’s at page 11, paragraph 36, and I think you say it became the normal way of making legislation during the pandemic, this says:

“To employ the [made affirmative procedure], Scottish ministers must ‘consider that the regulations need to be made urgently’ … A similar test applies in section 122(6) of the Public Health etc (Scotland) Act 2008. The test is subjective, in the sense that there is no objective threshold or criterion, rather it is about whether the Scottish minister thinks there is an urgency situation. On the other hand, during the ‘specified period’ [and for us that’s January 2020 to April 2022] there was no ministerial duty to give reasons, for instance in the form of an oral statement before Parliament or a set of explanatory notes attached to the [Scottish statutory instrument] when laid. Nor a duty to provide evidence in support of the ministerial assessment. Scottish ministers enjoyed discretion to decide whether on a given situation the urgency test has been met.”

Can we then turn to paragraph 9, which is on page 3, I think, or is it page 4? Page 4. Here you say – if we can go to the last five lines of paragraph 9, you will see there’s a sentence that begins:

“The [made affirmative procedure] applies when a Scottish minister thinks that an SSI [that’s Scottish statutory instrument] needs to be made urgently. The consistent use of the [made affirmative procedure] throughout the pandemic indicates that the Scottish government took the view that there was a more or less constant condition of urgency. In other words, from their perspective, there was never a shift from emergency response to crisis management.”

If we can take that off screen, thank you.

Do you think that the Scottish Government overused the made affirmative procedure throughout the pandemic when there was other procedures such as the affirmative procedure that was available?

Dr Pablo Hidalgo: There’s no easy answer to that question. As far as the enabling frameworks are concerned, the default position is that public health regulations should be made under the affirmative procedure. The made affirmative procedure is only available when a minister takes the view that there are situations of urgency justifying the use of this very exceptional procedure. If you look at the figures, the figures that are contained in our sample of Scottish statutory instruments that we looked at and the way that they had been handled and approved, or if you look at the data, the actual – this Inquiry has gathered, it looks like the – what was supposed to be under the framework, the exception, became the rule. Because there is only one Scottish statutory instrument containing public health regulations that was made under the affirmative procedure.

In other words, the made affirmative procedure was the default position. All – almost all of the public health regulations were made under that procedure.

Counsel Inquiry: I think you’ve touched upon the research that you carried out. Can you explain to me – I think it was a sample size of 64 Scottish statutory instruments that you looked at. Can you explain to me how those were selected and which period they covered during the pandemic.

Dr Pablo Hidalgo: So we covered since the very beginning of the pandemic, I think that the first instrument dates from 26 March of 2020, until I think that the end of November of 2021, and throughout that period we were only looking at how law-making had taken place in terms of the public health regulations made under schedule 19 of the Coronavirus Act 2020, which are what we could call lockdown regulations or in general restrictions to individual liberties.

Counsel Inquiry: Of the 64 regulations that were within your sample size, how many had been made using made affirmative procedure?

Dr Pablo Hidalgo: 63.

Counsel Inquiry: I think we’ve already touched upon the discretion that the Scottish ministers had to use the made affirmative procedure. What was the Scottish Government’s practice towards providing reasons for using this made affirmative procedure during the pandemic, and did that practice change as we moved into 2021 and into 2022?

Dr Pablo Hidalgo: (Pause). There was no statutory duty to provide a statement of reasons, as you’ve mentioned, justifying to Parliament why there were reasons of urgency justifying the making of these instruments through the made affirmative procedure.

There was a practice, though not consistent, of a Scottish minister providing a letter to the presiding officer of the Scottish Parliament with a brief indication of why it was, in the view of the Scottish ministers, justified to make those instruments through the made affirmative procedure. But it was not a statement that was attached to the instrument itself.

The Covid – the Delegated Powers and Law Reform Committee took the view that throughout the period of the pandemic at least five statutory instruments had been made through the made affirmative procedure without a clear justification as to the necessity of using this very exceptional procedure. So here is one indication from Parliament that there might be instances where it was not justified.

From our point of view, the very fact that there are alternative ways of making statutory instruments that are more respectful of the opportunities for Parliament to hold the government to account for its policies in the pandemic, that very fact suggests that a different approach could have been taken at different stages of the pandemic.

In particular, we do understand the necessity of exercising the made affirmative procedure at the very early stages of the pandemic, but as we go through the pandemic we think that there were less compelling reasons for exercising in the pandemic which, even though might satisfy the view of the Delegated Powers and Law Reform Committee, maybe from the point of view of constitutional principle were insufficiently justified.

If I can give an example of this, when the Scottish Government publishes its policy frameworks outlining new strategies for approaching the pandemic, that provides a broad indication of what the direction of travel in terms of coronavirus regulations might be for the future, and therefore it would have been desirable that once the policy had been designed also the draft instruments could have been provided to Parliament, because eventually it would be through a draft – through a statutory instrument that those draft policies would be implemented in detail.

This is not only our view, this is also the view of parliamentary committees of the UK Parliament.

Counsel Inquiry: We’ve touched upon the 28-day period. What did your research show about whether there was in fact a 28-day period by which the regulations were brought before Parliament for a vote, or was it often more than 28 days?

Dr Pablo Hidalgo: So we took this sample of 68 statutory instruments and we identified certain milestones in the life cycle of a statutory instrument, being those when the instrument is made, when the instrument enters into force, when the instrument is approved, and debated, if it is debated.

What we found, in terms of your question, is that in the – only there were very, very exceptional circumstances where the Scottish Government did not comply with the 28 sitting – 28 rules – 28 days rule.

A different question is whether there was always adherence to the spirit of the rule. The spirit of the rule is to bring those statutory instruments to a parliamentary vote as soon as it is reasonably possible to do so, and there were instances where that didn’t happen.

Counsel Inquiry: One of the issues, I think, you’ve raised in some of your writings is the risk that it’s possible to chain regulations together so that – by one extending the expiry date of the other, so in effect you have one regulation which is due to expire on a certain date and it requires a vote and then it’s superseded by another set of regulations which extends the expiry date, so the concrete set of regulations or rules remain in force for longer than the 28 days by chaining regulations together, and all of this being without subject to a parliamentary vote.

Are you able to explain that concept in more detail?

Dr Pablo Hidalgo: Yes. So we would have to imagine a situation where a Scottish minister makes a set of regulations on day one and from that day that set of regulations will have – will enter into force potentially immediately or at the day that the minister might designate, but it would have to be approved by Parliament before 28 sitting days otherwise it will lapse and it will no longer be in force.

We identified one situation where that had happened and before that 28 sitting days period had lapsed, and before that instrument had entered – had been approved by Parliament, a new instrument, instrument 2, had been made which extended the lifetime of the first instrument. Therefore the 28-day sitting day period will be reset, and it will be a new 28 sitting days period that will be operating now.

So potentially, theoretically, one weakness that this finding unveils is the possibility of constantly evading parliamentary scrutiny through enacting a set of regulations and then extending the expiry date of that set of regulations through different new regulations that will renew the 28-day period.

We don’t argue that this possibility was abused by the Scottish Parliament – by the Scottish Government, I’m sorry. There were specific reasons why that had to be the case in that specific example that you mentioned. However, it does indicate that there might be a weakness in the procedure itself that might need to be dealt with in future legislation.

Counsel Inquiry: I now want to turn to the issue of debate, so when one of these regulations is brought before the Parliament.

Can we turn to page 17 of your statement at paragraphs 56 and 57. So if I can read paragraph 56:

“The [made affirmative procedure] had a significant impact on the Chamber’s ability to retrospectively scrutinise public health measures. When motions to approve [Scottish statutory instruments] were moved, MSPs were asked to consider public health regulations that had been in force for weeks, if not months in some cases. By the time the vote took place, the Scottish government had already published guidance to communicate the content of the regulations to the public, which was further communicated by the media. Hence, people, business and workplaces were abiding by these regulations, and the police enforcing them. For this reason, at the CVRO we argued that [Scottish statutory instruments] made under the [made affirmative procedure] came before Parliament as a fait accompli.”

“57. I think there may have been other reasons why MSPs refrained from voting against [Scottish statutory instruments]. For instance, MSPs could take the view that voting down an [Scottish statutory instrument] could confuse the population as it would require a new set of regulations to be put in place very quickly; it could undermine the overall pandemic response and the trust of the public in governmental decision-making; and/or it could be that they only had specific objections concerning some but not all of the rules enacted by a set of public health regulations, and an ‘all or nothing’ vote on the [Scottish statutory instrument] did not accommodate those distinctions.”

The final point there is when it comes to a vote there isn’t an ability to amend the regulations, is there?

Dr Pablo Hidalgo: That’s correct.

Counsel Inquiry: So it’s a binary choice that you either vote to keep the regulations in force or you vote to withdraw the regulations; is that correct?

Dr Pablo Hidalgo: That’s correct.

Counsel Inquiry: In your research, in the sample size that you used, of 64 Scottish statutory instruments between March 2020 and November 2021, were any of the Scottish statutory instruments made using the made affirmative procedure voted down by a majority of the Scottish Parliament?

Dr Pablo Hidalgo: No. Our finding is that during the pandemic Scottish statutory instruments containing public health regulations were virtually invincible because they would never be voted down.

Counsel Inquiry: I think in your research it shows that only 9% of the regulations in your sample size were debated in the Chamber of the Scottish Parliament; is that correct?

Dr Pablo Hidalgo: Yes, that’s correct. Regulations containing public health measures were very rarely debated. For a regulation to be debated there would be a need for a MSP to raise a point of concern about the broader policy containing that set of regulations or about the content of the regulations themselves, and there were a few examples of MSPs concerned about the procedure as a whole and trying to make a point by promoting a debate.

Counsel Inquiry: In the 9% of these regulations in your sample size that were debated, what was the typical length of the debate?

Dr Pablo Hidalgo: Well, debates were quite short, they would last between five to ten minutes.

Counsel Inquiry: And I think you say in your statement that in total the Scottish Parliament spent 35 minutes debating the 64 Scottish statutory instruments; is that correct?

Dr Pablo Hidalgo: That’s correct.

Counsel Inquiry: So that’s 35 minutes debating the regulations in your sample size that were passed between March 2020 and November 2021?

Dr Pablo Hidalgo: Yes. That’s as far as the Chamber is concerned.

Counsel Inquiry: The Inquiry understands that from autumn 2020 there were concerns about the lack of parliamentary oversight of the regulations that had passed, particularly these are regulations pertaining to the first wave of the pandemic from March 2020, and parliamentary and government officials engaged in conversations to enhance parliamentary scrutiny. What package of measures were introduced from autumn 2020 to tip the balance more towards parliamentary scrutiny?

Dr Pablo Hidalgo: So there were two main types of measures, and the first and maybe the more important one, I would say, were those that were trying to design or craft a system that would enable MSPs to conduct what we could call pre-enactment scrutiny of statutory instruments made under the made affirmative procedure, and the dynamic that was agreed was one where the Scottish Government will commit to make a policy announcement regarding public health regulations on a Tuesday afternoon. Usually they will reconsider whether changes were needed on that very Tuesday in the morning, then they will make available to Parliament the draft set of regulations that will be later made under the made affirmative procedure on a Wednesday, then the Scottish ministers and senior civil servants will be made available to attend the session at the – either COVID-19 Committee or the COVID-19 Recovery Committee, depending on whether we were in session 5 or 6 of the Scottish Parliament, to give evidence and answer questions arising out of this draft set of regulations which would be then made into law either on Thursday evening or on a Friday, and might potentially enter into force the next day.

Counsel Inquiry: So could you explain in a bit more detail the role of the committees, this being the COVID-19 Committee of the Scottish Parliament, which later became the COVID-19 Recovery Committee, in terms of parliamentary oversight?

Dr Pablo Hidalgo: The Scottish Parliament, being a unicameral Parliament, relies quite heavily on the contribution of its select committees to perform scrutiny, not only of policies, and its implementation, but also of legislation. The scrutiny of primary legislation and synergy of secondary legislation relies significantly on the work that these committees perform. The Delegated Powers and Law Reform Committee performs technical scrutiny, it looks at the vires of the instrument, it looks at any other technical issues that might arise such as lack of clarity and aspects of a similar nature, and then there is a lead committee, which is usually the one that, in terms of the policy, matches the remit of the committee, which will look at the policy implemented in that instrument.

During the pandemic, the Scottish Parliament decided to create a bespoke Covid-19 committee which would look at the policies in terms of the pandemic, and it was that committee the one that was in charge of scrutinising those instruments in more detail.

Counsel Inquiry: There is a particular instance of the Scottish Government’s use of the made affirmative procedure which I want to explore with you.

In summer 2021 the Covid-19 vaccination certificate scheme was being considered, and the certificate scheme policy was announced in Parliament by Nicola Sturgeon on 3 August 2021. Then on 9 September 2021 the Chamber in the Scottish Parliament debated for around two hours a motion on the Covid vaccine certification scheme, and the motion provided very broad guidelines on how it was proposed that the policy would work, and in addition the government had published, I think it was, a plan or strategy with the proposals.

So it was at a very high, general level about how the policy would work, and the debate was a clear indication that the proposal was fraught with difficulties, because the Scottish Conservatives, Scottish Labour and the Liberal Democrats all voted against the motion.

However, despite this being an issue that was fraught with controversy and difficulty, the Scottish Government used the made affirmative procedure on 30 September 2021 and the regulations came into force on 1 October 2021. I think speaking about some of the improvements that had been made to parliamentary oversight, the government had shared a draft of the regulations with members of the Scottish Parliament to scrutinise only one day in advance of the regulations being made, that was 29 September.

So what we have here is a policy announcement made on 3 August 2021, there seems to be quite a lot of political controversy, and then the regulations are introduced using made affirmative procedure and they’re introduced, that’s the operational regulations, with all the details of how the scheme would work in practice, all without an ability of the Scottish Parliament to debate the details of the policy.

What was the urgency that, between 3 August and the end of September, required this procedure to be used as opposed to, for instance, the affirmative procedure?

Dr Pablo Hidalgo: Well, the example that you provide is a case in point of the tensions that in terms of parliamentary scrutiny arose, and the dissatisfaction that at certain points in time, rightly, members of the Scottish Parliament had powers, the way how law-making was takes place in the pandemic. There had been a policy announcement more than a month in advance of the detail of the implementation of that policy being put to Parliament, and there was also, as you say, a debate on the policy which had been preceded by a publication of a more fully fledged policy document outlining the content of the policy, and the Scottish Government was aware of the fact that there was some dissatisfaction, certainly among certain political parties in the Scottish Parliament represented, over the policy. So it is hard to understand why those regulations containing the details of that policy that had been controversial had not been shared in advance with the Covid committee and other members of the Scottish Parliament.

What you mentioned at the very end shows that what they did was to apply the measures, the enhanced scrutiny measures, but it was clear that a different approach was possible because that policy had been worked out by weeks at that time.

Counsel Inquiry: Overall, should the made affirmative procedure be used or exercised with caution and self-constraint, because of the extremely light touch parliamentary scrutiny that exists if you use that procedure?

Dr Pablo Hidalgo: I would agree with that claim. I think that the governments in general should exercise more caution when deciding whether to make certain sets of regulations through the made affirmative procedure or whether to opt for a different procedure.

In fact, you were referring to the example of the Covid certificate scheme. When the Covid certificate scheme was amended, since it had been controversial, those amendments were introduced through a statutory instrument that was made under the affirmative procedure. And although there were still certain considerations of urgency that needed to be taken into account, an agreement was reached between the government and the COVID-19 Recovery Committee to have an accelerated timetable to introduce those amendments through the affirmative procedure. So the standard affirmative procedure provides 40 days for Parliament to approve regulations in draft; in this case it was agreed that it would have only four days.

Counsel Inquiry: Before we turn to lessons learnt, in the context of the pandemic, where the governments and then parliaments were having to consider legislation that was perhaps some of the most draconian that people have ever had to live through, is that the sort of scenario where in fact even more caution and self-restraint is required with comes with more parliamentary debate so that better legislation can be passed that is evidence-based?

Dr Pablo Hidalgo: I will go back to the idea that there needs to be a compromise and we need to look at on the ground what the circumstances are in order to assess whether we need an emergency procedure for the making of legislation in a given context and circumstance.

There might be circumstances where we need a rapid response, where the virus is evolving too quickly or there are many uncertainties, and therefore there is justification for using the made affirmative procedure. There might be other situations where that might not be the case. The made affirmative procedure should be in the toolkit, I would argue, but, as you said, should be exercised with caution.

Counsel Inquiry: I think that’s a distinction that you’ve made between the initial phase of the pandemic and then moving into the crisis management phase where there is a little bit more time and scope to have better parliamentary scrutiny; is that correct?

Dr Pablo Hidalgo: Yes.

Counsel Inquiry: I want to finally turn to lessons learnt, and the Inquiry understands that from June 2022 the Scottish Parliament passed the Coronavirus Recovery and Reform (Scotland) Act 2022, which reflects some of the lessons learned during the pandemic. Are you able to outline the main changes that now exist from the legislative framework that existed at the start of the pandemic?

Dr Pablo Hidalgo: So during the first semester of 2022 the Scottish Parliament had the opportunity to discuss different ways of improving the enabling framework. It was a decision of the Scottish Government to make the powers granted by the UK Coronavirus Act part of Scottish legislation for future pandemics and, in the context of introducing that legislation, some improvements were made. The first and maybe more noticeable improvement is to demand from Scottish ministers in the future to make a statement of the reasons that support the urgency of making regulations under the made affirmative procedure, a requirement that was absent during the pandemic, and that the COVID-19 Committee advocated very strongly in favour of.

On top of that, to trigger these emergency powers, now the Scottish Government has to do a declaration of public health emergency, which is subject to a vote in the Scottish Parliament, so now there needs to be a say for MSPs in order to trigger this set of emergency powers.

And there are duties to consult relevant stakeholders whenever it is feasible or possible to do so before enacting public health regulations.

And finally, wherever Scottish ministers exercise their powers to make public health regulations under the made affirmative procedure, there is a duty to introduce a sunset clause, so that the regulations expire at a certain point in time.

Counsel Inquiry: So you would welcome all of those changes in terms of striking a better balance.

In your statement I think you say that your view remains that more can be done to achieve a better balance in use of these procedures in a future emergency situation. I think you identified two alternative pathways which you recommend for consideration.

The first is, in terms of preparing for a future emergency, to amend the statutory framework so that different levels of public health response are outlined in primary legislation with delegation to trigger these powers through secondary legislation.

Can you explain that suggestion in more detail.

Dr Pablo Hidalgo: So I think that during this Inquiry a lot has been spoken about pandemic preparedness from the point of view maybe of material resources, but we can also think about pandemic preparedness for the future in terms of the legislative and regulatory measures that might be in place in the future. A lot has been learned in terms of whether the sort of broad responses or broad principles that should govern the emergency response for future pandemics, and perhaps there is therefore an opportunity to not only improve our procedures, but also to give Parliament a say or an opportunity to reflect on how the substantive response should look like.

And we envisage at least two ways in which that could be possible. One way would be to incorporate into primary legislation some core elements or principles of, for instance, a tier system of lockdown regulations, certainly providing certain flexibility for the government to tailor the specificities of that response to the circumstances that are at hand.

Or, alternatively, to draft future public health regulations that are subject to scrutiny. We have some information that the Coronavirus Act took some elements of legislation that had been drafted in the context of Cygnus exercise, so perhaps a similar effort can be made to draft regulations. Or, alternatively, we can think of different ways of accommodating the affirmative procedure to a more constrained timetable but providing an opportunity for Parliament to have a say before regulations are made and entered into force.

Counsel Inquiry: Your second recommendation was to incorporate a ministerial duty on the exercise of emergency powers every two months. Are you able to explain that proposal?

Dr Pablo Hidalgo: The Scottish Government developed a quite robust, I would say, practice of reporting on the exercise of the powers under the UK Coronavirus Act and the two Scottish Coronavirus Acts. Those reports provided information of what measures had been taken, how many statutory instruments had been made, when they had been made, what evidence had been taken into account to support those measures, and also – I would say also a significant engagement with the human rights impact of those legislation. Each of those reports were preceded on publication by a statement made by a relevant senior member of the Scottish Government to Parliament which would introduce very briefly what the content of the report was, and that there would be opportunity for questions. And on top of that the COVID-19 Committee had the opportunity to scrutinise in more detail those reports.

Parliamentary accountability, to be possible it needs to be enabled by the government. Transparency and information about what the evidence is, what the impacts of the measures are, et cetera, et cetera, are essential to enable the MSPs to hold the government to account. And in that sense I think that this was a practice that should be kept in mind and should be operating in future pandemics because it was of a good quality.

Mr Tariq: My Lady, there are no further questions from me, I understand there are no live Rule 10s, so if I, on behalf of the Inquiry team, can just thank you, Dr Grez, for your evidence today.

Lady Hallett: Thank you very much, Dr Grez, very helpful.

(The witness withdrew)

Lady Hallett: Thank you, I shall return at 3.15.

(2.58 pm)

(A short break)

(3.15 pm)

Lady Hallett: Mr Tariq.

Mr Tariq: Good afternoon, my Lady.

May I please call Professor Susan McVie.

Professor Susan McVie


Questions From Counsel to the Inquiry

Lady Hallett: I hope we haven’t kept you waiting too long, Professor, I’m very sorry if we have.

The Witness: Not at all.

Mr Tariq: Good afternoon, Professor McVie.

There are a few preliminary matters I wanted to touch on. Can you please keep your voice up and speak into the microphone so that your evidence can be recorded by the stenographers; is that okay?

Professor Susan McVie: Yes, that’s fine.

Counsel Inquiry: If there is any question that I ask which is unclear, please say so and I will rephrase or repeat the question.

You’ve provided the Inquiry with a witness statement dated 12 December 2023. The statement is at INQ000369767. You have the statement on screen. Can you confirm if this is your statement?

Professor Susan McVie: Yes, it is.

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

Professor Susan McVie: Yes, they are.

Counsel Inquiry: I now wanted to turn to your professional background, Professor McVie. As I understand it, you’re a professor of quantitative criminology in the School of Law at the University of Edinburgh; is that correct?

Professor Susan McVie: That is correct.

Counsel Inquiry: You have held that position since 2010; is that correct?

Professor Susan McVie: Yes.

Lady Hallett: I know about criminology – there’s a surprise! – but quantitative criminology, what’s the difference?

Professor Susan McVie: Well, I mainly focus on large research projects involving quantitative data, large administrative datasets, surveys, that sort of thing.

Mr Tariq: And I anticipate coming to some of that data.

Lady Hallett: Okay. Sorry if I pre-empted your question, Mr Tariq.

Mr Tariq: Prior to this, you were, I believe, a research fellow and then senior research fellow in the criminology branch of the central research unit in what was at the time the Scottish Office and is now the Scottish Government between 1992 and 1997; is that correct?

Professor Susan McVie: That is correct.

Counsel Inquiry: Then you became a senior research fellow at the law school at Edinburgh University from 1998, before you ended up in the position that you currently hold; is that correct?

Professor Susan McVie: That is correct.

Counsel Inquiry: So you have had over 25 years of experience in academia; is that correct?

Professor Susan McVie: Yes.

Counsel Inquiry: And you have many publications in the field of criminology, including policing policy and practice and crime trends and patterns; is that correct?

Professor Susan McVie: Yes, that’s right.

Counsel Inquiry: You have been involved in many advisory committees for governments in Scotland, the wider UK and internationally, and this includes membership of two prior independent advisory groups on Scottish policing on the topic of stop and search powers and police use of biometric data; is that correct?

Professor Susan McVie: That is correct.

Counsel Inquiry: In the context of the pandemic response you became a member of the Independent Advisory Group on Police Use of Temporary Powers related to the Coronavirus Crisis in Scotland, from the inception of the group in April 2020; is that correct?

Professor Susan McVie: That is correct.

Counsel Inquiry: And you remained in the group until it was formally disbanded in May 2022; is that correct?

Professor Susan McVie: Yes.

Counsel Inquiry: We are going to come back to the work of the independent advisory group, but you’re also the principal investigator for a research project titled “Policing the Pandemic in Scotland”; is that correct?

Professor Susan McVie: Yes.

Counsel Inquiry: Are you able to tell me about this particular project?

Professor Susan McVie: Of course. The project arose out of the work that I’d been doing for the independent advisory group where I had been tasked with using police data to analyse patterns and trends and the characteristics of individuals who had been subject to enforcement. At the time there was a funding opportunity for rapid response projects that would be used to help inform policymakers and ministers about the impact of the pandemic, so I was fortunate enough to receive funding, and I conducted research with a small team of colleagues looking at a detailed analysis of the data that we had around police use of enforcement in Scotland.

We conducted interviews with a number of police officers, and we conducted interviews with a small number of members of the public who had been issued with fixed penalties, but that particular piece of research didn’t work very well because we didn’t have very many people willing to take part. But we’ve also done research that involves linking police data with health data, which has allowed us to look in a bit more detail at the underlying health vulnerabilities of those who were subject to enforcement.

Counsel Inquiry: I will come to that piece of specific data shortly. But I think you’ve said that in the context of your project you’ve interviewed members of the police; is that correct?

Professor Susan McVie: Yes.

Counsel Inquiry: Was that in relation to policing during of the pandemic?

Professor Susan McVie: Yes.

Counsel Inquiry: And this is in the context of Scotland; is that correct?

Professor Susan McVie: Yes.

Counsel Inquiry: Do you know roughly how many police officers you would have interviewed in the context of that project?

Professor Susan McVie: I think we interviewed around 30.

Counsel Inquiry: And you’re also – and we’ll come back to the project, but you’re also, in terms of your current roles, are you a consultant, to the National Police Chiefs’ Council, on the police use of enforcement in England and Wales?

Professor Susan McVie: I was given a consultancy to do work on producing a report for them on their data on police use of enforcement, yes.

Counsel Inquiry: Having set out your background, I wanted to turn to the independent advisory group. This is the Independent Advisory Group on Police Use of Temporary Powers related to the Coronavirus Crisis in Scotland.

This advisory group was established by Scottish Police Authority at the request of the Chief Constable of Police Scotland; is that correct?

Professor Susan McVie: Yes.

Counsel Inquiry: Are you able to explain to us between the Scottish Police Authority and Police Scotland?

Professor Susan McVie: So the Police Service of Scotland is the single unitary police force for the country. It was previously eight legacy forces which were merged together into one single force in 2013, and at that time the Scottish Police Authority was established as the scrutiny body to examine police, police activity, police use of its powers, and to monitor how policing was being operationalised and developed in Scotland.

Counsel Inquiry: So this independent group was effectively set up by this oversight or monitoring body, this being Scottish Police Authority; is that correct?

Professor Susan McVie: Yes. The Scottish Police Authority was the – provided the secretariat to the group and the independent advisory group reported back to the SPA, but Police Scotland were very core participants in the group.

Counsel Inquiry: In general terms, what was the remit of the group?

Professor Susan McVie: Our terms of reference were specifically to look at the police emergency powers that had been issued, so the powers of enforcement, and we were asked to examine the policing of the pandemic in the context of human rights, and also to ensure that enforcement had been administered in line with policing values and principles in Scotland.

Counsel Inquiry: Why was there a need for this group?

Professor Susan McVie: I believe that the Chief Constable – of course I mentioned that Police Scotland had only existed since 2013, and in its short lifetime there had been a number of fairly high profile inquiries into specific aspects of policing, including two advisory groups that you’ve already mentioned on stop and search and police use of biometrics and data. I think the Chief Constable was acutely aware that it was likely there would be scrutiny around police use of these new extraordinary powers, because the police were being asked to enforce activities that, under normal circumstances, would be completely law-abiding behaviours. So he was keen to ensure that there was an independent group that would provide scrutiny, public transparency, and enable the organisation itself to learn from any aspect of the policing work that was being undertaken.

Counsel Inquiry: So one of the purposes was to effectively learn in real time what was happening and what could be improved during the pandemic?

Professor Susan McVie: Yes.

Counsel Inquiry: Who were the other members of the group?

Professor Susan McVie: The group was chaired by John Scott KC, now Lord Scott, and he invited a range – or in fact it was David Crichton, who was the chief executive of the Scottish Police Authority at that time, invited a range of individuals to join the group so that it would have quite a broad membership. Do you want the exact list? Because I can refer to my notes for that, or I can try and remember them off the top of my head.

Counsel Inquiry: I don’t need a complete list –

Professor Susan McVie: Okay.

Counsel Inquiry: – it was just trying to get a range, of what range of experience or expertise was on the group.

Professor Susan McVie: Okay, so Police Scotland and the Scottish Police Authority I’ve already mentioned, there was a representative from public health, a representative from the Crown Office, the Crown Agent, sat on the group, the chief inspector of constabulary sat on the group, there was membership from a range of third sector organisations including the Glasgow Disability Alliance and Scottish Women’s Autism Network, and there were representatives from a number of human rights and equalities organisations, in addition to myself, and Mr Anwar was a member of that group.

Counsel Inquiry: How frequently did the group meet during the pandemic?

Professor Susan McVie: In the early days of the pandemic it met very frequently, at least twice a week, sometimes more frequently than that if there were specific issues to be discussed. Over time, we met less frequently, although at least once a week up until around the end of 2021, and then beyond that we met a bit less frequently until the group was formally disbanded in May 2022.

Counsel Inquiry: Did the group receive regular updates or input from senior police officers about some of the issues that they were facing during the pandemic?

Professor Susan McVie: Yes, it did. Deputy Chief Constable Will Kerr attended certainly regularly at the beginning of the pandemic, a bit less so later on, but he was a frequent attender, and Assistant Chief Constable Gary Ritchie was present at the vast majority of meetings. There was also a police presence. We quite often had senior representatives from different divisions as well, usually, at chief superintendent level, and we were also furnished with a secretariat called the OpTICAL Group, don’t ask me to repeat what OpTICAL stood for, because I’ve forgotten, but it was essentially a group that was providing us with data, information or any intelligence that we needed in terms of our work.

Counsel Inquiry: How did the group report its findings or recommendations to the police?

Professor Susan McVie: We – internally within the group we produced a number of reports. Different members of the – of the independent advisory group produced reports on specific themes. I, for example, produced quite a number of data reports. And the chair of the group, Lord Scott, was responsible for reporting back to the Scottish Police Authority.

So all of the work that we undertook and the detailed reports that were produced by Lord Scott and any other work we’d conducted, such as some of my data reports were formally presented to the Scottish Police Authority through their board meetings, and so they were discussed by the SPA and Police Scotland.

Counsel Inquiry: In your statement you explain that – I think you say you were the only academic on the group, which meant that you took on a role of amassing evidence and advising on research which could help to inform policing practice. You also say that you examined the police use of these new powers under the coronavirus regulations from an empirical perspective, and I think you say that there was a significant amount of data for you to use. What were the sources of data that you used in your research?

Professor Susan McVie: So do you mean the research project or the work of the independent advisory group?

Counsel Inquiry: The work of the independent advisory group.

Professor Susan McVie: In the independent advisory group, the – well, Police Scotland had – with a great degree of foresight, I might add – had decided to create a coronavirus intervention system to measure the extent of the encounters it was having with members of the public. In one of my previous groups I had been involved in advising around the collection of data and the publication of data on stop and search, so having good data and knowing what the data was telling them about their own activities I think was something that was quite high on their radar.

The coronavirus intervention system, as it was called, or CVI system allowed us to analyse the relative use of enforcement compared to other aspects of activity. I can speak to the four Es approach later if you wish. But the purpose was to understand to what extent were officers engaging with members of the public around the coronavirus regulations and how often were they resorting to use of enforcement.

I also had access to individual-level data about individuals who had been issued with a fixed penalty notice, so I had personal information about – not about their identities but about their age, their sex, their ethnicity, that sort of thing.

Counsel Inquiry: And all of that allowed you to pull together a series of reports that you produced as a member of the independent advisory group; is that correct?

Professor Susan McVie: Yes, that’s right.

Counsel Inquiry: I want to turn to the use of fixed penalty notices, because it’s a subject of, I think, a significant number of reports that you’ve produced, along with others, and I’m talking about the use of fixed penalty notices in the context of enforcing public health restrictions in Scotland.

Just to be clear, a fixed penalty notice is an on-the-spot fine, it’s not a criminal conviction, but they are recorded on police systems and may be disclosed via an enhanced disclosure application within a certain period of time; is that correct?

Professor Susan McVie: Yes.

Counsel Inquiry: So are you aware of the rationale for using fixed penalty notices as a means of enforcing public health restrictions in Scotland during the pandemic?

Professor Susan McVie: Well, I’m aware of the kind of – the general rationale for using fixed penalties at the level of why they were considered expedient and a good model. It’s less clear how they were – what the purpose of the fixed penalties was supposed to be. That’s never really been properly explained in terms of: if you were to have a metric of success, for example, it’s difficult to know what that metric would be. Is it the speed of the spread, is it the number of individuals who have the virus or who have sadly passed away?

Lady Hallett: You could say that about a lot of sentencing within the criminal justice system.

Professor Susan McVie: Indeed, indeed.

But in terms of the rationale, it was explained by Kit Malthouse MP, who was the UK Government minister for policing, it was explained as a kind of expedient model of using enforcement that would be familiar to the public.

It had a number of appealing aspects to it: it has an established level of legitimacy, the public know what an on-the-spot fixed penalty is, they understand it, they accept that these types of penalties exist.

As you mentioned, it means you don’t criminalise people because you don’t get a criminal record. It represents a relatively minimal administrative burden for both the individual who receives the fine and also for the police themselves, and it keeps people out of the criminal justice system, which was important in the context of the pandemic.

I think more people being kept out of the system was considered important, and actually it did because the data in Scotland specifically show that only 121 people, I think, were subject to criminal proceedings up to March 2022 under the coronavirus regulations and only five went to prison.

In relation to why were they used in Scotland specifically, that is because they were proposed by the UK Government and, at the beginning of the pandemic when there was a discussion about the extent and the nature of the regulations that would be put in place, there was a high level of commitment from Scottish Government to be part of a four nations approach; so they were proposed by the UK Government and they were accepted. There’s not really anything in any of the correspondence that I’ve seen to suggest there was ever any question as to their use.

Mr Tariq: I think you say in your statement that fixed penalty notices are most suitable for clearly defined objective offences that involve minimum discretion on the part of police officers.

Professor Susan McVie: Yes.

Counsel Inquiry: One example might be, for instance, speeding.

Professor Susan McVie: Yes.

Counsel Inquiry: It’s a binary issue of whether you were speeding or not.

You say that their use to enforce public health restrictions during the pandemic was a departure from this traditional model.

Can you explain why it was a departure from this traditional model?

Professor Susan McVie: It was a departure because, as you say, fines are typically used for well defined – either well defined, low level offences including speeding, or they might be used for antisocial behaviour offences, which can be broader but there’s a lot of case law, so there’s a good understanding about what is and isn’t an offence in relation to antisocial behaviour.

The issue in relation to the Covid fines was that the extent to which the fines might be used and the types of behaviour that they might be issued for was not necessarily always clearly defined, it changed a lot over the course of the pandemic as the regulations changed, and it was not always clear to either members of the public or police officers themselves what was a breach of the law, and what was merely a breach of guidance, for example.

So it was problematic from the point of view that neither the individual nor the police officer might have a clear view of whether an offence had actually been committed.

Counsel Inquiry: What would have been the alternatives to using fixed penalty notices as part of the pandemic response?

Professor Susan McVie: Well, I certainly wouldn’t have advocated for anything further into the criminal justice system. Formal warnings could have been used.

We’ve seen from the data, if you look at trends over time in the use of police fixed penalty notices, they’ve been going down for the last decade or so, both in Scotland and in England. I mean, they declined quite markedly by something in the region of 80% to 90%, whereas the use of formal warnings or community dispute resolutions – in England – have been increasing.

So it felt a bit strange for us when we were looking at the decision to introduce fixed penalties, that that was against the prevailing trend of summary justice measures in Scotland. But of course, because they were following the English model, then that would explain that, but they have been going down in England as well.

So a formal warning could have been used. That has been recommended in some literature in the US, that warnings are a better – a better approach because the vast majority of people only had contact with the police once, and so therefore a formal warning wouldn’t have resulted in some of the inequalities that are inherent in a financial penalty.

Counsel Inquiry: We will come to those inequalities.

In your research, have you seen any evidence as to the additional benefits of using sanctions in addition to guidance such as in terms of public compliance with the measures?

Professor Susan McVie: So we haven’t specifically researched that, and it would be quite difficult to research that in the Scottish context, because of the blurring of – between rules and guidance and because of the multiple changes to the rules over time, it’s actually quite hard to disentangle what would have made a difference.

We – the vast majority of countries did follow a sanctions based model, and I think that probably is one of the reasons that the UK Government decided to go down that particular route.

There are not very many countries that have focused only on guidance. South Korea is one, but it’s a very, very compliant population –

Counsel Inquiry: I think you give the example of, is it Sweden –

Professor Susan McVie: Yes.

Counsel Inquiry: – in one of your research that focused not on the sanctions model but on the guidance model?

Professor Susan McVie: That’s right, and Sweden is often used as a comparator to Scotland because we’re, you know, similar hemispheres, similar population. Sweden decided not to use sanctions, they didn’t introduce a lockdown, they introduced – they banned large gatherings, travel, and social – they recommended social distancing, they didn’t lock down the schools immediately, they didn’t introduce face masks immediately. They took a much more kind of what you might describe as lenient approach to managing the pandemic.

It wasn’t without controversy in Sweden, and many scientists were critical of the government for not introducing some kind of enforcement, and claimed that the lack of enforcement would lead to an increase in the death rate. However, a study that’s been conducted fairly recently has identified that the death rate in Sweden was relatively low compared to other comparator European countries including the UK, it’s almost half the rate in Sweden that it was here.

So there’s evidence – there’s no clear evidence to suggest that you need enforcement in order to make people comply. It was considered more of a –

Lady Hallett: Could I interrupt?

Professor Susan McVie: Yes.

Lady Hallett: You say comparator countries. I mean, I’ve been down this road before. Comparisons are very difficult to make.

Professor Susan McVie: Yes.

Lady Hallett: Sweden’s population, probably far more dispersed, don’t have as many major cities where people are densely … it’s really difficult to make a comparison between the two countries.

Professor Susan McVie: Yes. Absolutely, and actually the level of social support for individuals who may have struggled to comply in Sweden would have been higher.

So, I mean, I think what I would say is it’s very difficult to know within the UK context whether a guidance only model would have worked, but in the event it was never really considered.

Mr Tariq: In your report – and we’re going to come to the report shortly – I think you say it’s been very difficult to tease out the effect, if any, that enforcement had on preventing the spread of the virus or saving lives. You say that as a principal reason for introducing new policing powers during the pandemic, this does raise questions about testing the efficacy of an enforcement-based model to reduce the spread of the virus.

Does that still remain your view and, if so, can you explain your position?

Professor Susan McVie: Yeah, so the position is based on the original statement that was made by Priti Patel MP when the enforcement was introduced, and she made a statement regarding the use of enforcement, and she specifically said that the use of enforcement would help to reduce the spread of the disease, protect the NHS and save lives, which was the kind of mantra at that time. And it’s – we don’t really have the data that would be necessary to try and determine the cause and effect of the use of police enforcement on patterns of death, but I have mapped it, and what you see is that the – as the death rate increased, the number of fixed penalties increased, and then as the death rate reduced, the number of fixed penalties reduced.

So it tracks pretty closely up until about February 2021, at which point the beneficial effects of the vaccine kick in and the death rate drops down quite considerably but the rate of enforcement continued to be high for another couple of months.

There’s no evidence that more enforcement led to less – less deaths and less spread, and in fact from a logical point of view the police couldn’t know where the virus was or how it was spreading or where it was spreading any more than anyone else could.

I think the police role was really more about kind of, you know, trying to mitigate potential negative effects of people being in close proximity together rather than a specific impact on the death rate.

I mean, and, for example, if a police officer was faced with two individuals, one of whom had a reasonable excuse and wasn’t issued with a fixed penalty, and another didn’t have a reasonable excuse and was, the officer had no way of knowing which of those two individuals may, if any, have Covid.

So I think it was a kind of false impression to link that kind of public health impact with the enforcement itself.

Counsel Inquiry: I understand – I’m turning to a new topic – that one of your colleagues on the project sent a Freedom of Information request to the Scottish Government.

Professor Susan McVie: Yes.

Counsel Inquiry: And what your colleague was seeking to do was looking for correspondence, notes and briefings relating to the decision to include fixed penalty notices as a penalty for breaching coronavirus regulations.

I don’t intend to take you through each of the pieces of correspondence, you’ve produced them to the Inquiry, but in general terms what did the correspondence show in terms of the Scottish Government’s thinking around the use of fixed penalty notices?

Professor Susan McVie: So the correspondence showed that the Scottish Government were committed to a four nations approach. So when the UK Government provided their model of enforcement, the Scottish Government were predominantly interested in considering whether it could be operationalised within Scottish legislation and within the model that operates in Scotland. Information was shared with Police Scotland, with the Scottish Courts tribunal and with the Crown Office, so there was a view from the criminal justice organisations in Scotland as to how appropriate it was.

The main discussions in terms of questions to ministers were around the value of the fine, whether to stick with the existing antisocial behaviour legislation and model the fine around that, whether to retain the value of the fines for antisocial behaviour or adopt the proposed value from the UK Government, because the values were slightly different; and also there was an issue around the – whether fines should be issued to 16 or 17-year olds, because the UK Government had proposed that fines be issued to individuals aged 18 or over but the antisocial behaviour legislation in Scotland allowed for 16 and 17-year olds to receive fixed penalties.

Counsel Inquiry: I understand from what you say in your statement, and looking at some of the correspondence, that at the start of the pandemic there was a difference between Scotland and the rest of the UK in terms of – this is regulation 9 of the health protection regulations in Scotland, that allowed fixed penalty notices to be issued to people aged 16 or over, whereas the position across the rest of the UK was that fixed penalty notices could only be issued to people 18 years or over.

In those documents that seems to be a conscious decision, a deliberate decision that’s made by the Scottish Government to use the existing model of the antisocial behaviour so that these penalties can be issued to 16-year olds. Is that correct?

Professor Susan McVie: Yes. I think the decision to – the decision to model the Covid fixed penalty on the existing legislation was partly a practical one, the police were used to issuing antisocial behaviour fines so therefore using the same kind of broad model made sense. If they were in a position where they were having to issue some fines to 16, 17-year olds and not others, I think there was a feeling from Police Scotland that, you know, that would cause some confusion. And also I think it was expressed in that particular document that Police Scotland were concerned that younger people may pose a problem in terms of being in large groups and potentially spreading the disease. So in some ways I think Police Scotland had quite a big influence on the decision to maintain that – to maintain 16, 17-year olds within the legislation as opposed to the English legislation.

Counsel Inquiry: And the Inquiry understands that the Coronavirus (Scotland) (No.2) Act then amended regulation 9 to raise the minimum age to 16, and that Act came into effect on 27 May 2020. So within a couple of months of initially deciding to go with the age of 16 years, this was increased to 18 years; and I think in that time there had been calls from the UN to ensure children’s rights were being safeguarded during the pandemic in Scotland, and it was thought that this change would bring in line with the UN Convention on the Rights of the Child.

Professor Susan McVie: Yes.

Counsel Inquiry: Was that the key driver, the concern from organisations such as the UN which led to the increase of age from 16 to 18?

Professor Susan McVie: I think there certainly was messaging from the UN, but actually a primary driver in Scotland, and I should’ve ment – they’ll be upset with me for not mentioning them – the Scottish Children’s Commissioner, or the Commissioner for Children and Young People, was quite vocal in the discussion around 16 and 17-year olds.

It was: having 16, 17-year olds in the legislation felt out of kilter with the prevailing direction of sanctions for children and young people. We’ve seen a big change in the way that we deal with children and young people who are involved in offending in Scotland, we have a new whole-systems approach, we have a new Bill that’s been trying to keep 16, 17-year olds out of the criminal justice system, and the Scottish Government is heavily committed to the UN Convention on the Rights of the Child.

So when the legislation was passed and when our advisory group was established, the Scottish Children’s Commissioner was quite vocal about the fact that this felt out of kilter with the way that we usually did things.

And I think, looking at the freedom of information documentation that you mentioned earlier, I’m struck by the fact that no equalities impact assessment was conducted by the Scottish Government on that specific issue.

I think Joe Griffin, who’s already given evidence to the Inquiry, has spoken to the fact that there wasn’t time to do proper equalities impacts assessments of the legislation as it came in at the start of the pandemic, and that’s certainly true.

I think in my evidence I produced two documents of equalities impact assessment that haven’t looked specifically at enforcement but, as far as I’m aware, enforcement hasn’t been covered in any subsequent equalities impact assessments. If it had been at the time, I think the 16, 17-year old point would have been picked up and that wouldn’t have been allowed to go through.

Counsel Inquiry: I think you say in your statement that there’s data which shows that there was 256 fixed penalty notices that were issued to people under the age of 18 prior to the introduction, or the amendment to regulation 9.

Professor Susan McVie: Yes.

Counsel Inquiry: I think you also say that data also shows that there was a further 220 fixed penalty notices issued to people under the age of 18 after the amended regulation 9. Why would that be?

Professor Susan McVie: I don’t know for sure, but I think it’s probably – I mentioned earlier – the confusion between having one type of fixed penalty notice that can be issued to 16 and 17-year olds and one that can’t, so it may well be that police officers were unaware or had forgotten that the change in the law had been made; if they had already been used to issuing fixed penalty notices to 16, 17-year olds, it may just have been an oversight during operational practice.

I think the other issue is that it’s not always clear at the time when an officer is dealing with a person actually what their age is, so it could well be that it was just that they didn’t – they weren’t aware at the time they were 16 or 17.

I think it’s highly likely – well, I think it’s almost certain that any fixed penalty that was issued to a 16, 17-year old after the legislation had been changed would have been rescinded.

Counsel Inquiry: I wanted to ask you about equality impact assessments.

In your statement you say that:

“There is no available evidence to suggest that the Scottish … law-makers gave consideration to equality issues in respect of the decision to use fixed penalties. In Scotland, Equality Impact Assessments published for the Coronavirus (Scotland) Bill … and the Health Protection (Coronavirus) … Regulations 2020 … made no reference to the new policing powers or police use of enforcement. Nor can we find evidence that retrospective Equality Impact Assessments considered this issue.”

Had there been equality impact assessments at the time, what would those – what sorts of issues would those have identified?

Professor Susan McVie: I think I’ve mentioned the 16, 17-year old, they would almost certainly have picked that up.

The other issue I would have expected them to have picked up is that the – in a quirk of the coronavirus regulations they introduced an incremental fining system. Now, I mentioned earlier that Mr Malthouse had stated that, you know, introducing Covid fixed penalties was, you know, a known science, that people were familiar with them, that they understood them, that they were easily accepted, and he gave examples of things like littering and dog fouling.

What he didn’t mention was that, under the new incremental fining system issued through the regulations, that if an individual committed a second offence under the coronavirus regulations, their fine would double, if they committed a third it would double again, and so on up to a maximum of five offences which would result in a fine of £960.

So that is not the kind of light touch, kind of low-level fixed penalty that the public are used to in Scotland or the wider UK, so I would have expected an impact assessment to have picked up on that.

You have to also bear in mind at this point there was very little parliamentary scrutiny of regulations, things were happening so quickly. What we did have in Scotland was the Lord Advocate intervened. So when it was observed that there could be a potential for police officers – and remember a fixed penalty is an on-the-spot fine issued, you know, in terms of the discretion of the officer, officers dealing with new regulations, very unfamiliar with them, sometimes making, you know, good faith mistakes. If officers were issuing fines of up to £960, that would have been out of alignment with the level of fine that could be issued with a Procurator Fiscal in Scotland, which at that time was a maximum fine of £300.

So the Lord Advocate stipulate – issued guidance to say that police officers in Scotland could only issue a fine of up to £480, so that’s a maximum four fixed penalty notices, and at the same time legislation went through – I think on 7 April 2020 – which increased the size of a fine that the Procurator Fiscal could issue as a fiscal fine from £300 to £500, so that brought the police and the Procurator Fiscal powers in terms of their use of fixed penalties into alignment at that point.

Counsel Inquiry: I now want to turn to the data that we’ve discussed kind of in a very high level, and I want to look at the report that you produced. This is the report from the Scottish Centre for Administrative Data Research titled “Police Use of Covid-19 Fixed Penalty Notices …”, and it’s at INQ000369770.

Is this a report that you produced for the independent advisory group?

Professor Susan McVie: This one, August 2022, so the independent advisory group by this time had been disbanded in May of that year, so – but I continued to work on the data that I had been using as part of the independent advisory group, it was shared with members of the advisory group and we did have a meeting with some of those members to discuss it.

Counsel Inquiry: We can see, perhaps at the top left of the top page, it says “Policing the pandemic in Scotland”, so this is with your follow-up project after the work of the independent advisory group?

Professor Susan McVie: Yes, that’s right.

Counsel Inquiry: And I think this report analyses over 20,000 fixed penalty notices that were issued by the police to enforce non-compliance with public health restrictions introduced during the pandemic, and I think the dataset is between March 2020 and May 2021; is that correct?

Professor Susan McVie: That’s right, yes.

Counsel Inquiry: Can we look at page 16, figure 3, please. Thank you. You will see that this breaks down the number of police interventions in Scotland between May 2020 and May 2021 by reference to the four Es. Are you able to explain the different stages of escalation? First of all, are you able to explain the four Es strategy and then the different stages of escalation?

Professor Susan McVie: Yes, of course.

The four Es strategy was introduced very early in the pandemic, in kind of late March, early April 2020, by the College of Policing and the National Police Chiefs’ Council, and it was intended as an easy to remember strategy that would minimise the potential – any potential negative consequences or impact of the introduction of the new police powers. I think there was a genuine desire by policing organisations to ensure that any impact that policing might have in the context of the pandemic would be as minimal as possible on the basis that there was an understanding there might be wider inequalities.

So the four Es strategy requested that if an officer was to encounter someone that may be breaching the coronavirus regulations, they were to engage with them first and talk to them, find out a little bit about what was happening. If it was clear that the individual was not following the regulations, the officer was to explain – wasn’t aware of what the regulations were, then they were to explain what the regulation was to the individual. If the individual was potentially doing something that was in breach of the regulations, the police were to encourage them to stop doing that and make sure they didn’t do that again. And only in the case of individuals who were flagrantly or deliberately or persistently breaking the regulations were they to move to enforcement.

So that was the four Es strategy, and the data that you can see there was extracted from the coronavirus intervention system that I mentioned earlier that was constructed by Police Scotland as a way of measuring encounters, and it takes every encounter that was entered on to the system by police officers and it broadly maps on to those four Es. They use slightly different words in the system, but informing people was essentially the kind of engagement and explanation, and then instructing and removing them was essentially the kind of encouragement part.

Counsel Inquiry: Can you talk us through what the data shows in terms of the escalation to enforcement?

Professor Susan McVie: Yes.

So the data essentially shows that in the vast majority of cases where the police had encountered someone under the potential for a breach of the coronavirus – in the vast majority of cases they relied only on the first three Es, so they didn’t move to any kind of formal intervention. In around 11.6% of cases they reported issuing a fixed penalty notice, and in 0.7% of encounters they noted that an arrest had taken place, so that’s around just over 12% of all recorded encounters involved enforcement. So that led us to be confident that the police in Scotland were following the four Es strategy. It’s not possible to compare it with any other police force because no one else measured it, but I think it was a really valuable tool that was introduced by Police Scotland.

Counsel Inquiry: So it’s one in eight –

Professor Susan McVie: Yes.

Counsel Inquiry: – roughly, interventions or encounters that led to enforcement?

Professor Susan McVie: Yes, that’s one in eight recorded encounters.

Counsel Inquiry: Yes.

Professor Susan McVie: I suspect there was probably a lot of other informal stuff that was never really recorded, so I would say that that was a conservative estimate.

Counsel Inquiry: I think what this shows is even where there was enforcement, the vast majority of incidents only involved the issue of a fixed penalty notice?

Professor Susan McVie: That’s correct.

Counsel Inquiry: And only a very small minority of cases required escalation to arrest?

Professor Susan McVie: Yes.

Counsel Inquiry: Can we then turn to page 25 and figure 11. I’m looking at figure 11 at the bottom of the page, now it’s on the screen. Are you able to talk us through your findings as shown in this figure?

Professor Susan McVie: Yes.

So this was an analysis of the fixed penalty notices that had been issued, and we were interested to see what the ethnic profile of individuals who had been fined was. The vast – on the left, you can see the total absolute number of fixed penalty notices that were issued to individuals from different ethnic backgrounds, and you can see that by far the vast majority were issued to people from a white background, which includes white minorities including people from Gypsy, Traveller backgrounds. It’s one of the main ones in Scotland. And that – at a kind of high level, that maps on to the Scottish population, which is predominantly white.

However, in order to determine whether there might be any potential disproportionality, you have to take the population figures and then calculate a rate per head of population for enforcement. So that’s what you can see on the right, it’s the estimate – we’ve called it the estimated rate because we used the most up-to-date population data but there’s always some level of uncertainty around population numbers that can change. So the estimated rate per 10,000 individuals within each of these ethnic categories. So you can see that actually when you look at population size that individuals from black African or Caribbean backgrounds had the highest rate overall, and people from white backgrounds had the lowest rate per head of population.

Counsel Inquiry: I think overall does this show that people from ethnic minority backgrounds were 1.4 times more likely to receive a fixed penalty notice than those from a white group during the pandemic?

Professor Susan McVie: That was correct yes.

Counsel Inquiry: And I think that figure rises to 1.8 times more likely for somebody from an African black or Caribbean background by reference to white popul –

Professor Susan McVie: Yes, that’s right.

Counsel Inquiry: Are these differences explained by differences in, for instance, compliance rates with public health restrictions amongst different ethnic groups, or do these figures show that there was disproportionate policing of people from black and minority ethnic backgrounds?

Professor Susan McVie: We’ve been very careful in the reports that we’ve published to say that the analysis that we’ve done cannot be used to determine whether there was disproportionate or bias in actual policing. So, in order to know whether there was bias in policing, you would need to know the level of compliance within each of these groups, you would need to know how many of those individuals had been encountered by the police, and then you’d need to know how many of them they fined. We simply don’t have that information.

So it’s impossible to say that there was any disproportionality in terms of the way in which the police were approaching.

Lady Hallett: Can you just pause there, please?

Professor Susan McVie: Yes.

Lady Hallett: Mr Tariq, this is a really important topic, I’m just not sure it’s one within my terms of reference.

Mr Tariq: Yes, I was going to move on, my Lady. I’m perhaps just following up on an interesting topic that’s –

Lady Hallett: It is extremely important and obviously an interesting topic, and I do understand that the professor can give us a great deal of help. As I say, I just think we’re straying.

Mr Tariq: Yes.

I wanted to move to some of the policing challenges –

Professor Susan McVie: Yes.

Counsel Inquiry: – during the pandemic, and these stem from Scottish Government regulations.

Perhaps if it’s possible to take the report off screen.

In your statement I think you state that in research interviews conducted with frontline police officers they identified with difficulties with keeping up with frequent changes in the regulations that were being enacted by the Scottish Government, and some of these were made very much at the last minute.

Are you able to provide specific examples of difficulties that this presented in terms of policing the pandemic?

Professor Susan McVie: Yes, indeed, and I think it is important to say that this wasn’t unique to Scotland. In fact Tom Hickman has produced a lovely paper called “Abracadabra Law-Making …” where he describes producing regulations like pulling rabbits out of a magician’s hat. So it wasn’t unique to Scotland.

It caused problems for policing mostly at an operational level. So when we were working with the IAG, it was a frustration of senior officers that the speed and frequency of the regulations was coming through without – I mean, it wasn’t that the Police Scotland weren’t consulted at all through the process, but things were happening so quickly and quite often they weren’t consulted until quite late on in the process that their – the level of input that they could have to that was relatively small.

Lady Hallett: I heard in a module in London that sometimes they got a matter of hours’ notice before the regulations changed. Was that the same here?

Professor Susan McVie: There was at least one occasion I can remember that the regulations had been enacted before the police even saw them, so … and actually this is –

Lady Hallett: No notice?

Professor Susan McVie: No notice at all, and there’s one really great example in the justice – Holyrood Justice Sub-Committee meeting where the Chief Constable is being interviewed by the convener of the justice committee and happens, during the meeting, to have something passed to them to say that there’s new legislation coming in around introducing new police powers of entry so that the police can go into properties where parties are happening. And the convener puts this to the Chief Constable in terms of the level of, you know, the detail and the Chief Constable, I think in quite uncomfortable terms, states that, although he’s aware of it and has seen drafts, he wasn’t – he didn’t know what was in the final version.

So, yes, it was a frustration of senior officers that they didn’t always have sight of things.

From an operational point of view, it causes problems when you’ve got a police force with over 17,000 officers and you have to roll out training and instruction to frontline officers who are then going to go out and implement these new regulations.

Now, I have to say that certainly in Scotland, Police Scotland took a very pragmatic approach to changes in regulations and they never wavered from emphasising the four Es approach and trying to minimise potential impact of any new regulations. But when we interviewed frontline police officers, they talked about, you know, the difficulties of going on annual leave for two days and coming back to a completely new set of regulations and they didn’t understand what they were doing. We talked to supervisory officers who said their staff were coming to them for advice on specific incidents and issues, and they didn’t know how to advise them. Frontline officers also talked about trying to find – they were being – information was being dripped down internally within the organisation, although it wasn’t anything like the kind of training that officers would normally receive. Normally they’d have months, if not years of preparation, and they didn’t have anything like that. So they were going to Scottish Government websites to try and find out the information, but the Scottish Government website itself was blurring the difference between what was regulation and what was guidelines, so that didn’t always help either.

So, yeah, there were a lot of operational difficulties.

Mr Tariq: I think you say in your statement, and then I think you’ve touched upon this earlier in your evidence as well, that the distinction between law and guidance –

Professor Susan McVie: Yes.

Counsel Inquiry: – was often not clear, not just to decision-makers or the media but also police officers. Is that based on the information you were given in research interviews and indeed your work on the independent advisory group?

Professor Susan McVie: Yes. What police officers said was that during the first lockdown, when it was really – when the instruction was really clear, stay at home, then it was easy to operationalise the regulations. I mean, so that’s not to say there weren’t some issues, particularly at the very beginning before the four Es strategy really kicked in, but it was clear to the public what they were supposed to do, it was clear to the police what they were enforcing.

As time went on and things started to be – you know, ease up and new regulations are brought in that provided for different circumstances or an increasing range of reasonable excuses or, you know, when they were introducing things like the – when they were talking about the – there’s a good example I want to give you of the First Minister talking about the exercising once a day.

Now, there was a lot of discussion about exercising once a day, not just in – by Scottish ministers. It was only ever a law in Wales, it was never a law here, it was guidance. And when Nicola Sturgeon on the – if I get my dates – in May 2020, on 11 May she said at one of her daily briefings:

“The only change we’ve made here in Scotland is to the guidance on exercise. As of today we have removed a once a day limit on exercise. It is one very minor change to the existing rules.”

So in her own statement she conflates guidance and rules. And of course, taking their cue from her statement, it was widely reported in the media that the rule of one exercise a day – you know, exercising once a day – had been relaxed.

Now, it might not sound like a very big thing, but to those individuals who were trying to follow the rules to the letter and who, you know, who really stuck to things and were careful, seeing someone going out for a walk twice a day and thinking that was a rule and not guidance would have caused some problems within communities. We know that, you know, a lot of the calls that came in to Police Scotland around people breaching the regulations were neighbours looking over the fence or the garden wall and clipeing on their other neighbours.

So, you know, it did make a difference that there should be clarity between what is rule and what is guidance.

Counsel Inquiry: Operationally, this would’ve – if the First Minister is using language that blurs between guidance and rules, that operationally must present challenges to the police when they’re trying to work out where they can enforce and where they can’t?

Professor Susan McVie: Yes. We didn’t – we weren’t able to get access to data on the reasons that fixed penalty notices were rescinded. So rescinded is when the police withdraw the ticket and it’s not pursued. But we are aware from discussions with – through the independent advisory group that a lot of the reasons for rescinding were where an officer had in good faith issued a fixed penalty notice for something that was guidance and not rule.

Counsel Inquiry: In your statement you say that during meetings of the independent advisory group there were discussions with Police Scotland about new regulations that were considered very difficult to enforce, and you provide the example of regulations around quarantine restrictions on return from overseas travel as being something that was difficult operationally for the police to enforce. Can you explain what you were told about this issue in the independent advisory group?

Professor Susan McVie: Yes.

So in the independent advisory group, one of the reports that we would receive on a regular basis was an update on some of the issues that were facing Police Scotland. They would quite often tell us about difficult cases, and they gave us a running report on issues relating to certain types of fixed penalty, one being travel and another being quarantine. And the difficulty that they faced with the quarantine regulations was that – so the quarantine regulations were really managed by Public Health Scotland, and if they could be dealt with satisfactorily through Public Health Scotland then there was no recourse to the police. I think it was really only in cases where Public Health Scotland had tried to contact someone and hadn’t been able to do that, that it was passed on to the police. Now, the police in these meetings told us that quite often the information that they were passed was incorrect, you know, phone numbers that didn’t work, addresses that either didn’t exist or the person wasn’t there. But actually a bigger problem was that by the time Public Health Scotland passed the data on to the police to deal with, the period of the quarantine had elapsed, so there was really no point in the police taking up valuable resource to follow it up in any case.

Counsel Inquiry: You also say in your statement that travel restrictions, you’ll recall, the Scottish Government introduced in late December 2020 which banned travel between Scotland and England; that was another example I think you provide of where it wasn’t practical to enforce. Was that an issue that arose in the independent advisory group?

Professor Susan McVie: Yes, and it was discussed both in the independent advisory group and John Scott and myself presented to the Holyrood subcommittee on justice and it was discussed there too.

Essentially this was a ban on travel, cross-border travel between Scotland and England that was introduced on Boxing Day in 2020, and the specific concern was about the spread of a new variant in England which hadn’t really reached Scotland at that point, and I think that the idea was we have a travel ban so that people don’t bring this nasty new variant here. Although they also made changes to the local levels at that point, so it was actually quite a complex regulatory shift.

So the First Minister announced this at the daily briefing on 19 December 2020 and stated that this travel ban would come in and they would be “asking Police Scotland and transport operators to consider how the enforcement of this can be strengthened in the period ahead”. So the insinuation is there’s going to be pretty heavy enforcement of people crossing the border.

Now, this is another example of where there’s a tension between what the government wants to articulate through its messaging, and I can fully understand the intention in terms of trying to make people understand the seriousness of what this might do but tension between that and the practicalities of policing.

So almost immediately Alan Speirs, Assistant Chief Constable at the time, released a statement from Police Scotland to say that they would be continuing to focus on the four Es, that they were encouraging people to take personal responsibility, and they would not be routinely stopping vehicles or setting up roadblocks.

On the day that the law came in, the Chief Constable reiterated that again, saying that the restrictions were preventative, and they did double the police presence on the border but they made it very clear they would not be proactively stopping vehicles. And when John Scott presented to the Holyrood justice subcommittee, he described it as a restriction that was simply impossible to enforce, it’s an example of something that’s unworkable, and he gave an example of roadblocks that had been used set up in Melbourne in Australia which had caused absolute chaos and had not had the desired effect.

So, yeah, so that was another example of something where a bit more communication between government and the police might have led to more harmonious press releases.

Counsel Inquiry: I now just want to more on to lessons learnt. I’m nearing the end.

Lady Hallett: Just before we do, before you go to lessons learned, Mr Tariq, can I ask this.

I heard in England about the drafting of some of these regulations and it was – the drafting went to the Department of Health in England, whereas normally it would be the Home Office responsible for drafting criminal justice regulations, and I suspect partly as a result I had a look at some of the offences. I’ve got a background in criminal law, so … and they were nonsensical. I mean, they wouldn’t have made sense to, I suspect, a criminal law professor, let alone the poor police officer or alleged offender.

What were the regulations like here? Were they better drafted?

Professor Susan McVie: Well, I’ve not compared – I’ve not, you know, done a big study of –

Lady Hallett: Right, (inaudible), don’t –

Professor Susan McVie: – but there are examples of some of the regulations where it was absolute gobbledegook.

Lady Hallett: That’s what –

Professor Susan McVie: There’s one classic example of an explanation in a policy memorandum which is trying to explain – it’s the rule of six, and it’s trying to explain how many adults can meet and how many children there can be and what the ages of the children can be, and it’s about two or three sentences long and it is absolutely impossible to fathom; and, again, this is – kind of speaks to another issue of very fastly drafted legislation.

I can see the intention was to try and be clear about, you know, “In this circumstance, based on our legislation, you can have these people”, but it was impossible for people to understand, and you can – you can see why police officers and members of the public would have been very confused about whether they were committing an offence or not.

Lady Hallett: And who did the drafting here?

Professor Susan McVie: That I do not know because I wasn’t involved –

Lady Hallett: Maybe we can find out some other way.

Professor Susan McVie: Yes.

Lady Hallett: Thank you.

Mr Tariq: It’s an area we can explore with subsequent witnesses, my Lady.

I now wanted to just turn on to lessons learned.

In a future pandemic situation, is there a more proportionate response than using sanctions to enforce public health restrictions, in your opinion?

Professor Susan McVie: Well, if you want to include a sanction, the only level down from a fixed penalty notice – which is reasonably proportionate, if you keep them at a low level that the public expect. You know, there’s an inherent inequality in financial penalties. A fine of £60, which is the minimum, a fine of £60 for a government minister might be a small amount of pocket change, but that might be quite a large amount of money for someone who’s experiencing financial hardship. And remember that the person that commits the offence doesn’t need to pay the fines, so there are individuals who did have fines paid for by other people, including a number of well-heeled students.

So that inequality is offset by the fact that these sorts of on-the-spot fines are relatively pretty small, but when you start to ratchet up the fines to hundreds of pounds, that’s not a small fine any more and that inherent inequality is quite large.

So – sorry, I’ve forgotten the original question, but …

Lady Hallett: What’s the proportionate response?

Professor Susan McVie: I mean, if you kept the fines low level, you continued with the 12 – the 12 Es? I’m sure we could find a few more – the four Es approach and you improved lots of other things like more consistent, clear legislation that was distinct from guidance, and focused on supporting people to follow the rules rather than punishing them for not following the rules, then if you were to move away from a fixed penalty then a formal warning would be the next level down.

I think you have to remember that laws are there for the majority – for the most part to deter the law-abiding majority, and in the context of the pandemic most people were the law-abiding majority. You know, we’ve talked about enforcement today, but in Scotland less than 0.5% of the population were subject to enforcement. So in the grand scheme of other inequalities and impacts the pandemic had, enforcement might seem quite a small thing, but it did impact on thousands of people and it impacted disproportionately on people from more deprived backgrounds and individuals from certain social groups.

So I think it’s always important to try and minimise the effect of any sanctions in the context of a public health emergency, where there are lots of other inequalities that are going to be impacting on these individuals. And very often the inequalities intersect, so the people who were subject to repeat fining, for example, were highly likely to be people who were also impacted in terms of health and economics, potentially education as well.

Mr Tariq: My Lady, there’s no further questions from me, and I understand there’s no live Rule 10s.

Lady Hallett: Thank you very much indeed, Professor, I’m very grateful. As you say, there are many people where the impact was dreadful, but one of the lessons to be learned is that when you impose what are essentially criminal sanctions, even if you don’t end up with a criminal record, you’ve got to make sure you get it clear and right. And maybe if we’d been better prepared, all of us, before, we might have had some draft bills or offences that we could have implemented, who knows. But thank you for your help.

The Witness: You’re very welcome. Thank you.

(The witness withdrew)

Lady Hallett: I think it’s 10 o’clock tomorrow. For those who were interested in seeing the evidence of Alister Jack MP, for reasons that are not his fault, they are not the Inquiry’s fault, I’m afraid we can’t call him tomorrow, I understand, so we’ll start with Elizabeth Lloyd. We hope to call Mr Jack next week.

Mr Tariq: Thank you.

(4.22 pm)

(The hearing adjourned until 10 am on Thursday, 25 January 2024)