Transcript of Module 2A Public Hearing on 25 January 2024

(10.00 am)

Lady Hallett: Mr Tariq.

Mr Tariq: Good morning, my Lady. May I please call Rachel Elizabeth Lloyd.

Ms Rachel Lloyd


Questions From Counsel to the Inquiry

Mr Tariq: Could I check that you’re commonly known as Liz Lloyd?

Ms Rachel Lloyd: I am indeed.

Counsel Inquiry: There’s a few preliminary matters I wanted to discuss with you before we get to the substance of your evidence. Can you keep your voice up and can you speak slowly because there is a stenographer that is taking the evidence. If any of my questions are unclear, please say so and I can repeat or rephrase.

You’ve provided two statements to the Inquiry, and both these statements are dated 15 November 2023. The first statement is on screen. This is at INQ000274006, and this is a statement that explains your role in the Scottish Government’s response to the pandemic.

I understand that there was a correction that you wanted to make at, is it to paragraph 13?

Ms Rachel Lloyd: Paragraph 13, yes, there’s a fairly obvious, I hope, typographical error. I have used the date “late 2020/early 2021”, when that should be “late 2019/early 2020”.

Counsel Inquiry: I think it was obvious to the Inquiry that you were talking about 2019 into 2020. So subject to that amendment, can you confirm that this is your statement?

Ms Rachel Lloyd: It is.

Counsel Inquiry: And are you – are the contents of this statement true to the best of your knowledge and belief?

Ms Rachel Lloyd: They are.

Counsel Inquiry: There’s also a second statement that you gave to the Inquiry, which is also dated 15 November 2023. This is INQ000274004, and this is a statement about the use and retention of informal communications such as WhatsApp messages. Can you confirm that this is your statement?

Ms Rachel Lloyd: It is.

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

Ms Rachel Lloyd: They are.

Counsel Inquiry: Thank you.

I wanted to move on now to discussing your professional background before we get to your role during the pandemic. You were employed as a special adviser to the Scottish Government from January 2012 to, I believe, 23 March 2021; is that correct?

Ms Rachel Lloyd: Yes.

Counsel Inquiry: And then after a short break, you were back in post as a special adviser from August 2021 to around 28 March 2023; is that correct?

Ms Rachel Lloyd: That’s correct.

Counsel Inquiry: And you served as the chief of staff to the then First Minister of Scotland, Nicola Sturgeon, from January 2015 to 23 March 2021; is that correct?

Ms Rachel Lloyd: Yeah, that’s correct.

Counsel Inquiry: Then you returned to the Scottish Government, as we’ve said, in August 2021, and this time your role was as strategic political and policy adviser to the First Minister within the special adviser team; is that correct?

Ms Rachel Lloyd: Yes, that’s correct.

Counsel Inquiry: And you remained in that role until the resignation of Nicola Sturgeon as First Minister of Scotland at the end of March 2023, at which point you also chose to leave government; is that correct?

Ms Rachel Lloyd: That is indeed.

Counsel Inquiry: And you now work in the private sector, I understand?

Ms Rachel Lloyd: Yes, I do.

Counsel Inquiry: I now want to turn to ask you about the role of special advisers more generally before we get to your involvement in the pandemic.

There is a special advisers’ code of conduct; is that correct?

Ms Rachel Lloyd: There is, yes.

Counsel Inquiry: And this describes the role of a special adviser as adding a political dimension to the advice and assistance available to ministers, and the code notes that one of the reasons for the role is to reinforce the political impartiality of the permanent civil service so that the political advice can come from the special advisers as opposed to the permanent civil servants; is that correct?

Ms Rachel Lloyd: That is correct.

Counsel Inquiry: Professor Paul Cairney gave evidence in week 1 to the Inquiry, and in his report he says that special advisers are appointed by the First Minister personally and ultimately the responsibility for the management of the special advisers rests with the First Minister. Is that your understanding?

Ms Rachel Lloyd: That is correct. I would say the day-to-day management of the special adviser team is delegated to the chief of staff.

Counsel Inquiry: Yes, but ultimately the –

Ms Rachel Lloyd: Ultimately, it’s the First Minister.

Counsel Inquiry: – responsibility rests with the First Minister.

In your first statement, you say, and I’ll simply quote at this stage:

“Special Advisers are not decision takers but support the decision-making process by supporting ministerial thinking and assist in the application, understanding of and communication of ministerial decisions.”

Therefore, am I correct to understand that the role of a special adviser is not to take the decisions themselves.

Ms Rachel Lloyd: That is correct, yes.

Counsel Inquiry: And there has to be clear boundaries between the decision-makers, such as the Scottish ministers, and special advisers as it’s only the ministers who are elected and therefore accountable to the public; is that correct?

Ms Rachel Lloyd: That’s correct.

Counsel Inquiry: And as special advisers you’re neither elected nor accountable to the public?

Ms Rachel Lloyd: That is broadly correct, yes. I always felt accountable to the public.

Counsel Inquiry: But in terms –

Ms Rachel Lloyd: But not formally.

Counsel Inquiry: Not formally. And your role is generally not meant to be public-facing, unlike the politicians, is it?

Ms Rachel Lloyd: That’s correct.

Counsel Inquiry: And some special advisers can build up close relationships with their ministers, having worked with them over many years; is that correct?

Ms Rachel Lloyd: That is.

Counsel Inquiry: Is it fair to say that your relationship with Nicola Sturgeon was particularly close, having worked as her chief of staff since 2015?

Ms Rachel Lloyd: Yes, yes, and certainly by the time of the pandemic.

Counsel Inquiry: And is it fair to say that you were one of her closest confidantes?

Ms Rachel Lloyd: Yes, I would say so.

Counsel Inquiry: Can we turn to your first statement, which is on the screen now, it’s paragraph 29, and page 8, and here you say:

“My advice during this period was on the general tenor of the actions being taken, managing public response and the communication of the actions being taken. I played a role on the [First Minister’s] behalf in asking clinicians and officials for more and better advice and raising questions on further action and acted as a sounding board/thought partner for the First Minister and others.”

Are you able to tell me what you mean by “thought partner”?

Ms Rachel Lloyd: Ministers, the First Minister, but other ministers as well, would receive advice from scientists, they would be looking at, you know, broader information on legislative proposals, policy proposals, and sometimes ministers need a place or a person where they can essentially think out loud without that being taken as their definitive view. So my role and the role of other special advisers frequently is to engage with them to help them stress test ideas, to talk out what might the consequences of a particular route of action be, help them come to, you know, are there other questions they should ask, do they have all the information they need, and to help them explore, if you like, the advice and information before them.

Counsel Inquiry: So in the context of a particular decision that the First Minister or another minister needs to make, there may be competing considerations, there may be competing almost briefings coming from different interests, whether it be economic, whether it be scientific or medical, and part of the role of the special adviser is to be able to almost stress test the different perhaps conflicting advice so that the minister can make the decision?

Ms Rachel Lloyd: Yes, yes.

Counsel Inquiry: In your statement, and I won’t take you to this particular part, but I think you say that it would be normal for you to attend decision-making meetings with the First Minister where she was in attendance, and this included meetings with the Scottish Government Cabinet, the Scottish Government Resilience Room, the gold meetings, COBR meetings, and the four nations calls with Boris Johnson and Michael Gove. Is that correct?

Ms Rachel Lloyd: That’s correct.

Counsel Inquiry: So it’s fair to say that you were a particularly important part of the Scottish Government’s response to the pandemic until at least March 2021; is that correct?

Ms Rachel Lloyd: That’s for others to judge, but I was certainly there and certainly participating in the response.

Counsel Inquiry: You were there in almost all the –

Ms Rachel Lloyd: Yes.

Counsel Inquiry: – meetings –

Ms Rachel Lloyd: Yes.

Counsel Inquiry: – important meetings and in the rooms where the decisions were being made?

Ms Rachel Lloyd: Yes.

Counsel Inquiry: And you were the thought partner or the sounding board for the First Minister when it came to stress testing perhaps the different conflicting advice that was being received?

Ms Rachel Lloyd: Yes.

Counsel Inquiry: And there would be, I think, is it fair to say, very few people within the Scottish Government that would perhaps be in the room for all the key meetings with the First Minister during the course of the pandemic?

Ms Rachel Lloyd: During the course of the pandemic, it was common for – there would be a few other people that you would see at most of the meetings. So the Cabinet Secretary for Health would be present very frequently, the Deputy First Minister was present a lot, sometimes remotely because, for reasons, he would be working from home, ken Thomson, the Chief Medical Officer, or one of the other medical advisers, but there was a core group who were in St Andrew’s House a lot and in a lot of those meetings together.

Counsel Inquiry: And you were part of that core group?

Ms Rachel Lloyd: And I was part of that, yeah.

Counsel Inquiry: Can we turn to your first statement, and it’s at paragraph 36, page 9. Here I think you say:

“I would not say I advised on the adoption or not of specific NPIs [that’s non-pharmaceutical interventions], that was for the clinicians and officials, but I would have given views at certain points on the interpretation of the data, of public mood and compliance, of communications and where there was politics involved – for example securing the support of other parties or governments or impact on stakeholders such as through border controls – on that aspect.”

So is it your position that you did not advise on the adoption or not of specific NPIs?

Ms Rachel Lloyd: I think when certain NPIs were on the table in that thought partner role there would be perhaps conversations between myself and the First Minister as to which ones – or exchanges as to which ones to use. That could perhaps be considered advice on the adoption, but it was not – I think what I meant is I didn’t decide on the adoption.

Counsel Inquiry: Yes, so you advised but I think your position, I think more accurately, is you didn’t make the ultimate decision?

Ms Rachel Lloyd: Yes, and nor did I sort of say “Here is your selected list of NPIs”, they would come in proposals from the Chief Medical Officer, for example, and we would then discuss the kind of things that were on the table.

Counsel Inquiry: Can we turn to some WhatsApp messages that you have disclosed to the Inquiry between yourself and Nicola Sturgeon. I will come back to the circumstances of the disclosure later on.

Ms Rachel Lloyd: Okay.

Counsel Inquiry: But first of all can we turn to INQ000287766, and we’re looking at page 9. And by way of context, the Scottish Government announced the rules that permitted 20 people at funerals, weddings and civil partnerships, and those rules kicked into force on 14 September 2020, and Nicola Sturgeon was due to announce new restrictions to the Scottish Parliament on 22 September 2020, and in fact the usual briefing time was changed from 12.15 that day to 2.20 that afternoon, and here we have an exchange of messages, this is shortly before Nicola Sturgeon was due to make the announcements about the new restrictions that day, and this exchange relates to a discussion about whether the rules should be changed for weddings, civil partnerships and funerals.

If we start by reading the top message, so Nicola Sturgeon says – and this is on 22 September at 12.09, so shortly before she’s due to make the public announcement:

“We haven’t thought about weddings. They are reducing but not sure what to.”

You reply:

“I think as we only just put them up just leave it.”

Then you go on to say:

“They aren’t including churches etc as far as I know and I think – though will check – that they were higher than us.”

Then you say:

“They had 30….we have 20.”

Then you say:

“They are going to 15.

“And 30 at funerals – I think we stay at 20.”

Does the “they” in this conversation refer to the UK Government?

Ms Rachel Lloyd: Yes, it does.

Counsel Inquiry: So Nicola Sturgeon in this example tells you at around 12.10 the day that she is due to make the announcement to the public, the usual time being 12.15 but this day we see that it was moved to 2.20, she tells that you she’s not sure about what to do and you tell her to stay with 20 attendees, when the UK Government has gone down from 30 to 15, and that ultimately becomes the decision that day, because there is no change to the position of 20 as far as the Inquiry is aware.

So is this not an example of a decision that was made very much at the last minute over WhatsApp between you and Nicola Sturgeon?

Ms Rachel Lloyd: So there are a number of aspects to this exchange. The decision – I don’t view this as the decision because the decision had been taken, so a decision had been taken at Cabinet to go to 20, through the normal processes. And where the First Minister is saying “We haven’t thought about weddings”, there had been significant thought by I think the communities and equalities team about what were the appropriate numbers of people at particular services. So that decision had been taken, that decision had gone through the proper process, and I give my view that I don’t think we need to essentially re-make that decision.

I think the message underneath that says that the statement is being forwarded to her, which is, I think, the Prime Minister’s statement, and had she still wanted to take further action she could have come back on that.

I also think behind this WhatsApp, if you like, I was having an exchange with the lead official to make sure I had the information correct and that the information I was giving the First Minister was the right information.

Counsel Inquiry: Is a decision not to change the rules still a decision?

Ms Rachel Lloyd: I think there had been a positive, if you like, and a proactive decision at Cabinet that the position in Scotland was that there would be 20. There is neither a confirmation or – you know, if the First Minister had come back and said “I agree”, then I would support your view that that was a decision. She actually doesn’t comment and there may be other actions elsewhere. I don’t think it did change, from memory, until later on, but this to my mind is me giving my advice, my thought in that thought partnership role that we stay at 20. If she had wanted to pursue it, to consider it further, perhaps after receiving the statement she may have, there would be exchanges in some other fashion.

Counsel Inquiry: There wasn’t any scientific briefing that you received that appears to have informed your view, let’s stick with 20, was there?

Ms Rachel Lloyd: There would have been on the decision which had very recently, I think that, you know, a day or two before, been taken to set it at 20.

Counsel Inquiry: I believe that the decision to move it down to 20 had been taken around maybe 10 September, and the decision had come into force on 14 September, and what we are talking about is, here, looking at 22 September, and from the documents that have been disclosed to the Inquiry, there – between – the Inquiry’s looked at all of the documents between 10 September and 23 September, and the Inquiry can see no advice being given between these dates about whether the number should remain at 20 or whether it should go up or down.

So is this not an example of a decision simply being made on the hoof, shortly before the First Minister is meant to be announcing restrictions?

Ms Rachel Lloyd: I would think that advising that shortly before the statement on restrictions was about to be made that a decision should be taken to change the limit without seeking scientific advice would have been the on-the-hoof aspect; suggesting that you stick at the decision that had been taken based on information was a more coherent position.

Counsel Inquiry: But we can see that Nicola Sturgeon’s first WhatsApp to you is “We haven’t thought about weddings”, that seems to suggest that there wasn’t really much thought process that had gone into the decision until this exchange with you, which begins at around 12.10?

Ms Rachel Lloyd: No, I think she means we haven’t thought about changing weddings, if you like, in response to the UK Government changing weddings. We had thought about weddings when the decision had been taken positively and proactively in Cabinet to set the limit at 20.

Counsel Inquiry: So is it fair to say that because Nicola Sturgeon comes to you, not being sure what to do, and ultimately, as the Inquiry has seen, that on this date there was no change to the rules, and you were the one that suggests that “we stay at 20”, are you effectively the main driver of this decision?

Ms Rachel Lloyd: No, I don’t think so. If the First Minister has – the First Minister has a strong enough mind that if she had felt that my advice was not the right advice, she would have said so or she would have acted in another capacity, asked for further advice, delayed the position on weddings, she would have acted on that. I am advising. I sought the correct information, if you like, on the factual basis to give that advice, but the decision is very much hers.

Counsel Inquiry: If these messages had been deleted by you – and they haven’t, because that’s why we have them – how would the Inquiry and the public be able to understand how and why the decision was made at this time not to change the number of people that can attend funerals or weddings?

Ms Rachel Lloyd: So as I’ve said in this regard I have recollection of contacting, I think on Teams, the official responsible for the sort of framework documents, if you like, to check my facts, to check what it was. They would be able to see the decision that was made, which was the decision to stay at 20 being made previously, as essentially the decision to set at 20 through the process of advice and Cabinet papers, so that decision would be very – set out in very great detail. The exchange I will have had the official will have said “The First Minister is asking about weddings, what’s the position?”

Counsel Inquiry: But ultimately the public, if this message had been deleted, and the Inquiry, would not know that the decision – ultimately the First Minister, as at 12.10 that day, wasn’t sure what to do and in fact within a couple of hours when she announced the restrictions she’d reached a view that the numbers would not be changed and all of that had occurred within a very short time involving a WhatsApp discussion with you.

That wouldn’t be the sort of insight that the public or the Inquiry would have if these messages had been deleted; is that correct?

Ms Rachel Lloyd: I think there may not be that insight into, if you like, the moment of “Oh, should we think about this?” The sort of – the reflection on “Is the advice that we have at the moment the correct advice?” But they would know why the decision on weddings was that there should be 20 people.

Counsel Inquiry: And the reflection is part of the decision-making process, isn’t it?

Ms Rachel Lloyd: It can be. I think in this it is, “Are the UK doing something that we should be doing?” That will be – I would expect to find in notes from officials providing “This is what the UK is doing”, and considering, in slower time, perhaps before the next update of the regulations, should we adopt any of this. But that split second, if you like, of indecision would not necessarily be recorded elsewhere.

Counsel Inquiry: Could I just confirm, so do you agree with me that this would be an important part of the specific decision that was under contemplation here on this date, this exchange?

Ms Rachel Lloyd: I think if it had been – I don’t want to dispute this too strongly, but I don’t want to over sort of state the importance of this particular position. There had been a – you know, every week there was a review of what the decisions were, what the appropriate steps were, what actions should be taken, and they were done in a very meticulous fashion, and there will be occasions where people have a moment of, “Oh, is that right?” And they might ask a special adviser, they might ask a policy official, they might ask the clinical adviser that happens to be in the room with them. Those moments are quite human. But I wouldn’t want to overstate the importance of this as opposed to the importance of the proper process that was followed that set the limit at 20, because that was a very diligent process.

Counsel Inquiry: Both processes, the formal and the informal, have their place, don’t they –

Ms Rachel Lloyd: They do, they do.

Counsel Inquiry: – in the decision-making process? And part of it is you have the formal frameworks, whether it’s a Cabinet –

Ms Rachel Lloyd: Yeah.

Counsel Inquiry: – but you’ve also got the human side that you’ve touched upon, which is as being a thought partner or a sounding board, where you get to see people’s real maybe struggles with the decisions that they’re making, needing different viewpoints and insights, and together that forms the full context to that decision, doesn’t it?

Ms Rachel Lloyd: Yes, I think there can be moments where a bit of, perhaps, reassurance is required or making sure that we essentially don’t take informal decisions when formal decisions have been taken. So had there been a decision here to change, that would have been a decision based on no scientific advice at all, taken in, you know, the space of 20 minutes. When you have a full, proper process this is essentially deferring back to the proper formal process.

Counsel Inquiry: The formal process which, I think, in this instance, had occurred about 12 days before or –

Ms Rachel Lloyd: Yes.

Counsel Inquiry: – there or thereabouts?

Ms Rachel Lloyd: Yes.

Counsel Inquiry: Can we turn to INQ000287766.

This is again your WhatsApp messages, we’re looking at page 35.

Ms Rachel Lloyd: Sorry, can that be made just a touch bigger?

Counsel Inquiry: I think they will hopefully come on screen a little bit bigger?

Ms Rachel Lloyd: They’re a little blurry.

Counsel Inquiry: We are looking at – does that help?

Ms Rachel Lloyd: Yes, that does help.

Counsel Inquiry: Thank you, helps me as well, so I think we can both read.

So this is a discussion between you and Nicola Sturgeon about the number of people who could meet indoors from March 2021, so if we look at the first message, it’s from you saying:

“When you respond on Cabinet paper – in June – could we make it 6/3 indoors – it’s just much more normal!”

Can I just pause there, what’s the significance of the numbers 6 and 3?

Ms Rachel Lloyd: I believe that would be 6 people, 3 households.

Counsel Inquiry: And then if we – Nicola Sturgeon’s reply is:

“That will be after 4/3 mid may I assume?”

You reply saying:

“Indoors April 4/2, May 6/2….is what I currently have.”

Nicola Sturgeon replies:

“Is that indoors in pubs etc? thought we were waiting til may for indoor households.”

You reply saying:

“We appear to be waiting till June for indoors at home…”

You also reply:

“So in pubs etc it’s 4/2 in April, 6/2 in may …and then in June it should go to 6/3 and we allow you to meet in your own home.”

You reply – you again say:

“Cabinet paper doesn’t actually run all the way to June but my mock graphics do.”

Nicola Sturgeon replies:

“We should bring indoor houses to mid may.”

You reply saying:

“Can you make that your feedback or do you want me to do it.”

And she replies:

“I’ll do it.”

So if we pause there, in this exchange, you are pushing for or maybe advising –

Ms Rachel Lloyd: Advising.

Counsel Inquiry: – that there is a change of the rules on the amount of people who can socialise indoors; is that right?

Ms Rachel Lloyd: So this refers to a proposal, so the numbers 4/2, 6/2, I’m not just pulling those out of the air, this is a proposal and a draft of a Cabinet paper and in a draft set of communications material that I am looking at, and suggesting to the First Minister that I don’t think the final part of the proposal, which is not in the Cabinet paper but is in these communications materials, doesn’t really work, in my view.

Counsel Inquiry: I think your reasoning given is:

“… it’s just much more normal!”

Can you explain what you mean by that?

Ms Rachel Lloyd: Sometimes when you looked at the advice that was given you had to think through what will this mean for people living their lives in practice and how might people want to function, what would people consider a return to normality, if that’s what you’re trying to do. And although we had previously had 6/2 regulations, I think, the year before, I actually think what I was reflecting on here was 6/3 possibly enabled more of a sort of – families to gather in a slightly easier way.

Counsel Inquiry: But I think you accept or would you accept that just – the explanation being “it’s just much more normal” isn’t very scientific, is it?

Ms Rachel Lloyd: It is not, I agree, it is not hugely scientific, but one of the things that you have to do, or that certainly I felt was necessary in this, and this was not a function unique to me, is to think when you have a set of regulations that you’re not – it often felt like they were proposed in the abstract without considering the way in which people function in their real life, and particularly around how people interact with each other, you were seeking to balance caution and protection from the virus with the kind of normality that might be good for people in a more societal sense.

Counsel Inquiry: Was that a consistent theme up until – your involvement till March 2021, that the advice that you were – the scientific and medical advice that you were receiving often seemed very much in the abstract, devoid of kind of the real world and how people live?

Ms Rachel Lloyd: I think – I don’t want to suggest that the people giving the advice were sort of abstract and devoid of understanding, but it was their job to provide, you know, what is the appropriate regulation at a very – on a very strict basis, it was not their job to consider what does this mean for people’s mental health, what does it mean for their family relationships. They were there to consider what will keep the R number to its lowest level, if you like. There were other people who would feed in points about “Well, actually, if you could make a slight tweak to that, does that make it better for people societally or in a mental health sense?” and “What’s the impact of that on – is that – does that have serious consequences?” or “Is that a move we have space to make?” if you like.

Counsel Inquiry: So it wasn’t strictly the case that the Scottish Government was following the science, because the science had a role to play but there was this other element that you, for instance, and other special advisers, and indeed other stakeholders, would bring into the decision that wouldn’t necessarily be science-based?

Ms Rachel Lloyd: The science underpinned everything, and if you suggested changes, if ministers wanted to do something different, there would normally be a sort of referral back to see if we could calculate what that might do, if a minister proposed something that would push the R – or that would be calculated or modelled to push the R number above, then that would likely not be taken forward. So you were underpinned by the science and, if you like, cautioned by the science in how far you could go.

Counsel Inquiry: But not necessarily – science wasn’t the be-all and end-all of the Scottish Government’s approach?

Ms Rachel Lloyd: It was dominant but I don’t think you can take decisions in a situation without being aware of other factors.

Counsel Inquiry: And what we see here in this exchange is that there is a decision to go to Cabinet with, I think, what yourself and the First Minister have discussed and that’s going to be Nicola Sturgeon’s view presented to Cabinet in terms of the change of rules.

Ms Rachel Lloyd: Well, this confirms that it’s going to be her feedback to the Cabinet paper. That would create an opportunity, if the clinicians, for example, thought that was inappropriate, for them to come back on her feedback – and this would all be in formal exchanges, if they did this – to say “First Minister, actually we would rather not do that and this is why we would rather not do that”.

Counsel Inquiry: Is it fair to describe the role of the Scottish Cabinet at times as being a decision-making ratifying body as opposed to a decision-making body, so it ratified decisions that had been made elsewhere, whether it’s in informal communications, whether it’s in gold command meetings or in other one-on-one discussions between key decision-makers, and the role of Cabinet was, at times, simply just to ratify those decisions?

Ms Rachel Lloyd: No, I don’t think so. I think everything that went to Cabinet was a proposal and Cabinet ministers would push back sometimes, ask for amendments, ask for changes, some decisions may be deferred because Cabinet members wanted more information or the First Minister wanted more information. There was an extensive process of engagement with clinicians, advisers and Cabinet ministers before the Cabinet paper would come to Cabinet, so there would be opportunities prior the Cabinet for people to feed in, but there would also be genuine discussion at Cabinet.

Counsel Inquiry: Would there often be instances where the ultimate decision was delegated by Cabinet to, for instance, Nicola Sturgeon or John Swinney?

Ms Rachel Lloyd: There were certainly occasions where Cabinet would agree to delegate a decision, yes.

Counsel Inquiry: What sorts of decisions do you recall that were delegated to Nicola Sturgeon or John Swinney during your involvement in the pandemic?

Ms Rachel Lloyd: Decisions that were delegated were, tended to be – sometimes in the relationship to the communications around a decision, sometimes in relation to the timing of the announcement of a decision, and sometimes where an additional piece of information or a piece of analysis was to come in, and Cabinet members would have the chance to put their views in writing or to speak directly to the First Minister but there would not be another Cabinet meeting called. If, for example, you had the Cabinet meeting, say, on the Tuesday and you were looking at something that you might announce on the Thursday and an additional piece of information was requested, you wouldn’t necessarily recall Cabinet, the final decision would be delegated to the First or Deputy First Minister, but Cabinet members would have the opportunity to comment on the additional information that came in in between.

Counsel Inquiry: Was an example of a decision that was delegated to Nicola Sturgeon, or maybe perhaps John Swinney, around the local restrictions? You’ll remember when the levels system came in and decision-making around, for instance, whether Glasgow would remain in level 3 or 2 or whether Edinburgh would go up or down. Is that the sort of detail that was delegated to the First Minister to make?

Ms Rachel Lloyd: You would have a broader discussion around what the levels would be, but the final check, if you like, on the morning of the announcement against that day’s figures would be delegated, so to check that there wasn’t a need to adjust, if you like, what had been agreed in the broader discussion.

Counsel Inquiry: That’s maybe an issue that we’ll explore with further later witnesses.

I wanted to turn to the political strategy behind the Scottish Government’s response to the pandemic. Is it fair to say that you spent a lot of your career, perhaps less so now, strategising about Scottish independence?

Ms Rachel Lloyd: I think supporters of Scottish independence might be disappointed with what my answer is, but not as much as people would have thought or would have liked. A large part of my political career’s been spent strategising about what the Scottish Government does in other policy areas, but yes, I have had a role throughout in the progress of Scottish independence.

Counsel Inquiry: And how many years would you say that you’ve had a role in the strategy for independence?

Ms Rachel Lloyd: Probably from around about 2012.

Counsel Inquiry: Could we turn to the Cabinet minute from 30 June 2020.

If we look at the first page, you will see that this is a Cabinet meeting which is attended by everyone, in terms of the Cabinet secretaries, that you would expect, including the First Minister, and you’re also in attendance, you’re noted as a special adviser.

Can we turn to page 13, paragraph 56(e), and you will see here that one of the Cabinet conclusions is, and if it can be – thank you. If I can read, it says:

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

So this is a Cabinet conclusion, and it’s from 30 June 2020. Are you able to tell us what the significance of a Cabinet conclusion is?

Ms Rachel Lloyd: Yes, so you would have a Cabinet paper, I think in this case it was on EU exit, and at the end of a Cabinet paper there are normally a set of actions proposed, and this would have been one of the actions proposed in the paper on EU exit.

I – the fact that something is in the Cabinet conclusion does not necessarily mean there was an active discussion on that particular issue. So this is (e), so there would have been five points in the EU exit paper. I have – as you know, I have contemporaneous notes of some of these meetings. If we had had a discussion on independence and the constitution, it would have been in my notes, I was the chief political adviser to the government. It is not. So my recollection and what that tells me is that there was no substantive discussion on issues around independence and a referendum at this meeting. There was a discussion around EU exit and this had been included in the paper.

Counsel Inquiry: You’ve already discussed that there’s a place for formal structures and informal discussions within the decision-making process. One can’t get any more formal in terms of decision-making than what’s in the Cabinet minutes as the agreed actions. Do you accept that?

Ms Rachel Lloyd: Yes.

Counsel Inquiry: And it carries perhaps more weight about what the Scottish Government is seeking to do than informal notes that may exist, this being in a Cabinet meeting minutes?

Ms Rachel Lloyd: Normally I would agree with you, and in the other points I do. What strikes me about this point is it was agreed that “consideration should be given”; it wasn’t agreed that we would do something other than think. And the – following this period no action is taken on independence or a referendum during this period, so to the end of 2020. If it had been, I would have been involved in it. There is nothing that I am aware of that the government proactively did. If the government had proactively done something, there would be much evidence of it: there would be published papers, there would be statements and there would be occasions in Parliament. This was a focus on the fact that we were about to leave the EU, which was, during 2020, the dominant constitutional concern of the Scottish Government.

Counsel Inquiry: So when do you say that independence became a subject matter under discussion in the Scottish Government during the pandemic?

Ms Rachel Lloyd: It generally didn’t. So I worked on the pandemic March 2020 to March 2021. One of the first steps we did was suspend work on independence and the referendum. The team that worked on it was disbanded and sent to work on Covid-related activities. There are a few references that I can think of in the programme for government of the following year, so that would be the programme for government 2021/2022, where there’s maybe one or two paragraphs, and they make clear that any action would be contingent on the state of the Covid pandemic. I don’t think anything happens until at least after the 2021 election.

Counsel Inquiry: But there is, from late 2020, some press coverage where other politician parties are telling the Scottish Government to stop talking or concentrating on independence and focusing on the pandemic response. Do you recall those sorts of press coverage starting from late 2020 going into early 2021?

Ms Rachel Lloyd: I think the constitutional position of the Scottish Government, and I don’t mean to be flippant in this reply, but any breath of the word “independence” would lead the opposite parties to say “You are focusing on independence over the pandemic”. You could have been working 18 hours, 20 hours a day on the pandemic, not seen anything on independence for the course of the year, it would not stop an opposition member saying that we were focusing too much on independence.

Counsel Inquiry: We’ll come back to the topic of independence.

Can we look now at your notebook, and this is at INQ000346141. Just before we look at the specific page, can you explain what the purpose of your notebook was?

Ms Rachel Lloyd: I kept notes through most of the year on Covid of Cabinet meetings, of COBR meetings, of SGoRR meetings, in essence to keep myself right in what had been agreed, what had been discussed, what my actions were, what I should be expecting different parts of the government to deliver over the week. It was my way of keeping on top of what was happening.

Counsel Inquiry: Can we turn to the entry on page 142, and you’ll see at the top this is headed “Gold Command” and these appear to be your notes from a gold command meeting that took place on 28 September 2020.

Can we now turn over the page. And if we’re able to increase the size on the second page shown on the screen? Thank you.

Just by way of, I think – so just by way of context, first of all, these are your notes on a discussion of a potential circuit-breaker lockdown around – I think this was being discussed in September going into October 2020; is that correct?

Ms Rachel Lloyd: That’s correct.

Counsel Inquiry: If we are able to look at the – I’m just waiting for – it’s the next page.


Counsel Inquiry: It might be if I can read out –

Ms Rachel Lloyd: Yeah.

Counsel Inquiry: – your notes, that might assist. I think we almost had it, but –

Ms Rachel Lloyd: I can just about read this, so carry on.

Counsel Inquiry: There’s a note that’s written on –

Yes, I think that’s perfect, thank you.

And it reads:

“navigate economy – avoid blunt instrument[s].”

Then it says, I think – is it “FM” or “FH No …”?

Ms Rachel Lloyd: I think that’s FM.

Counsel Inquiry: “FM No finances.”

Ms Rachel Lloyd: Oh, no, sorry, that’s “FH”, the next one down is “FM”.

Counsel Inquiry: Yes, who – could you tell us –

Ms Rachel Lloyd: That would be Fiona Hyslop.

Counsel Inquiry: Fiona Hyslop says:

“No finances.”

And the First Minister says:

“Starting point – how do we reduce impact and spread … [with] minimal [economic] impact.”

And then there’s your handwritten notes:

“Political tactics – calling for things we can’t do to force UK.”

Do you see that?

Ms Rachel Lloyd: Yes.

Counsel Inquiry: So your note suggests that the Scottish Government’s political strategy was to create what might be seen as a public spat with the UK Government to force their hand. What was the political advantages of that sort of strategy?

Ms Rachel Lloyd: It’s not about a spat. This would be about putting pressure on the UK Government. It’s not deliberately falling out; in the ideal world they would have accepted the points that we were making to them.

For – if I can give a bit of context and then get to – this was weighing up how we could put further restrictions on, potentially, a circuit-breaker with minimal economic impact, because the Scottish Government didn’t have the means to provide economic support to individuals or businesses if we went for the full circuit-breaker. What we needed was the UK Treasury to open up additional funding, to extend furlough, to enable us to take actions to do that. And this, I think, is about us setting out very clearly what we wanted to do in public health terms but what we couldn’t do to try to build pressure on the UK Government, who were not amenable to this discussion in private, to force a change of position.

Counsel Inquiry: And you would need to do that publicly, and that’s the reference to the political tactic –

Ms Rachel Lloyd: Yes.

Counsel Inquiry: – is that correct?

We have heard evidence from witnesses, including Professor Devi Sridhar, of the importance of cohesion in the response between the UK Government and the Scottish Government, and this is in the context of public health.

These tactics, whether you can call them political tactics, of going public would create more division with the UK Government, wouldn’t they?

Ms Rachel Lloyd: As I said, in an ideal situation the UK Government would have agreed that funding would be provided so that the Scottish Government could put in place the public health restrictions that we wanted and then there would have been no need for any pressure.

Sorry, the – it’s disappeared from the screen.

The purpose of this is not division, it’s not to have an argument, it’s to be able to put in place the public health restrictions that we were being advised were required at that time. When private discussions do not get you to the place where you have access to the finances that you need to do that, you have to explain to the public why you’re not doing it, and in opening that up it’s to be very clear that it’s the UK Government’s decision not to provide finances that is impacting on your ability to put in place the public health measures that you want. I don’t call that a spat.

Although I wrote “political [tactic]”, it’s not partisan, it’s not about boosting or, you know, knocking support for one government or one party. It’s about trying to do the job that we were trying to do and finding ourselves very frustrated in doing.

Counsel Inquiry: Why did you feel in terms of intergovernmental regulations that you needed to go public with your concerns and you weren’t able to raise these privately with the UK Government?

Ms Rachel Lloyd: I think there would be a number of issues that we would resolve privately but this one was not being resolved privately. We were in this position, the Welsh Government were in this position, the Northern Ireland Government were in this position and we were making no headway, so you reach a point where you have to say to the people you represent why you are not able to do something that you are being advised to do. That means going public on the fact that you can’t afford it, that means going public on the fact that you may have asked the Treasury for money and they were not providing it. It’s not a “we are doing this to stir up political contest”, it’s “we can’t do what we’re trying to do and we need to tell you why”.

Counsel Inquiry: Can we go back to your WhatsApp messages, and this time, my Lady, I wanted to give a warning that there will be some bad language in some of these.

Lady Hallett: I’m used to it.

Mr Tariq: Yes. I think it’s partly for the broadcasters rather than your Ladyship.

Ms Rachel Lloyd: Apologies, I thought I’d been quite restrained.

Counsel Inquiry: We’re looking at page 20.

Ms Rachel Lloyd: Oh, it’s not my language?

Counsel Inquiry: Yes. And just to give some context, on 31 October 2020 at 6.30 pm the Prime Minister Boris Johnson began his address announcing the second national lockdown, and I want to pick up the messages between yourself and Nicola Sturgeon which starts ten minutes into the address.

So if we read the first message on 31 October at 6.40 you say:

“Hitting the 15 [minutes] between the rugby and strictly to lock the country up… let us never do this like this.”

Nicola Sturgeon replies:

“Their comms are behind awful. We’re not perfect but we don’t get nearly enough credit for how much better than them we are.”

She then replies:

“This is fucking excruciating – their comms are AWFUL.”

Then she goes on to say:

“His utter incompetence in every sense is now offending me on behalf of politicians everywhere.”

You reply saying:

“I have a separate whatsapp [the name is redacted] and davie and we are offended on behalf of Spads everywhere.”

Nicola Sturgeon says:

“He is a fucking clown.”

So was there a perception amongst Nicola Sturgeon and the wider Scottish Government that it was doing so much better than the UK Government in the pandemic response around this time?

Ms Rachel Lloyd: I think this refers specifically to the communications aspect of the response. And that’s sometimes dismissed, but communications is very important in a public health situation, people need to know what to do and why and to understand it and to trust in it, and this was the end result of a day that had been quite shambolic in the UK Government, and that has an impact on what people see and think in Scotland about the pandemic overall. So while he was announcing something that was not relevant to Scotland, the sort of chaos that appeared around some of the decisions they took we then had to work hard to mitigate, because people in Scotland see both. So, yeah, we were clearly not very complimentary about their communications handling that day.

Counsel Inquiry: Is it fair to say that the relationship between Nicola Sturgeon and Boris Johnson by this date had completely broken down?

Ms Rachel Lloyd: I think “broken down” to a degree overstates what was there to break. They had met on a number of occasions, there was always a politeness, a business-like approach to it. When Boris Johnson first became Prime Minister and came to meet Nicola Sturgeon in Scotland, they had a discussion that I think has been described pub – as it was more like a debate, you know, two intelligent people engaged in discuss about policy issues.

When we got to Covid, I think it was much harder. It was evident in his exchanges with the Scottish Government, with the First Minister – and I think with the other First Ministers, because we would all be on the same call – that he didn’t want to be on those calls, he wasn’t necessarily well briefed on those calls, and he wasn’t listening to the points we were making on those calls. And so I think engagement with him came to be seen as slightly pointless during this period.

Counsel Inquiry: I think it’s going as early as – it was March 2020, I think, in one of your notes you describe COBR as a shambles.

Ms Rachel Lloyd: Yes.

Counsel Inquiry: Was that the view that you had from very early on, from March 2020, that the Prime Minister wasn’t really wanting to engage with –

Ms Rachel Lloyd: Yes.

Counsel Inquiry: – the Scottish Government?

Ms Rachel Lloyd: Yes.

Counsel Inquiry: How did that then affect, from the Scottish Government, its working relationship with the UK Government and the working relationship between the First Minister and the Prime Minister?

Ms Rachel Lloyd: I think in relation to the Scottish Government and the UK Government in broader terms, there was fairly constant and fairly good communication and co-operation. I mean, particularly in health this is evident, and at times, not always but at times, in the economic space. And I think officials at all levels sort of had discussions that were quite good. But the discussions between the First Minister and the Prime Minister – and other First Ministers, I mean, it was very – it was never bilateral, there were also the First Minister of Wales and the First Minister and deputy First Minister of Northern Ireland on these calls as well – they – they didn’t get us anywhere.

So we started with a very clear approach that we should all try to work together, and moving into lockdown was all done in a co-ordinated fashion, but when you got to what I think the First Minister wanted to be substantive discussions about what direction to go in, a thrashing out of different proposals and different ideas, that wasn’t what we got. We got a Prime Minister who, it certainly felt at the end of the video screen or at the end of the line, was reading a script and would summarise the contributions of the three First Ministers and the Deputy First Minister from Northern Ireland in ways which largely ignored the points that they had made.

Counsel Inquiry: How early on in the pandemic response did you come to that realisation?

Ms Rachel Lloyd: It was difficult – I mean, it was more effective at the beginning, sort of March, although it was obvious that they were not, you know, hugely keen on having us there and being in the room. It was actually quite effective with Dominic Raab for the period in which the Prime Minister was in hospital. And it’s when the Prime Minister sort of re-engages in the discussions that it is evident, as you’re talking about the lifting of restrictions for example, changes in messaging, different approaches between Scotland, Wales and Northern Ireland and the UK, that he is not informed and doesn’t want to be there.

Counsel Inquiry: I think there seems to be kind of a very clear divergence in messaging from around 10 May 2020. You’ll recall that where the UK Government messaging moved to Stay Alert, the Scottish Government remained at Stay at Home. Was that the point, if we’re trying to identify in terms of timeline, where there was now clear divergence in the approach between the two governments, or did it occur earlier than that?

Ms Rachel Lloyd: I think that’s the point where it becomes clear that there is going to be a difference in approach between the two governments, that the approach to lifting restrictions in England is going to be different to the approach to lifting restrictions in Scotland, Wales and Northern Ireland, and that I think the sort of philosophy or ideology behind the lifting of restrictions was coming from a different place.

So that is, I think, the point at which it becomes clear that we’re going to go in slightly different directions and we have to try to work out how to go in different directions within the UK as a whole.

Counsel Inquiry: If the First Minister of Scotland thought that the Prime Minister of the United Kingdom was a clown, or utterly incompetent, that doesn’t really create any sort of functioning relationship between the two leaders of the respective governments, does it?

Ms Rachel Lloyd: I mean, this is later than that point that you raised earlier about May, by which point I can’t think of conversations in this period that were happening directly with the Prime Minister, they were happening with Michael Gove.

Counsel Inquiry: Can we now turn to page 21, and we are now looking – we’ve now moved on to 1 November 2020, and I wanted to look at messages that begin at 6.29 pm. Here you say:

“My reason for setting a timeline for them to answer us on furlough is purely political – especially as we expect the answer to be no, it looks awful for them, and creating that kind of pressure could possibly result in a yes (though agree we shouldn’t bank on it). Think I just want a good old fashioned rammy so can think about something other than sick people.”

Nicola Sturgeon replies:

“Yeah I get it. And it might be worth doing. I’ve sent a rough formulation of what I might say tomorrow – I could for it in there.”

So if we pause there, can you help us, what do you mean by “good old fashioned rammy” with the UK Government?

Ms Rachel Lloyd: I think this is an expression of frustration that we were not able to manage the pandemic at this point in time in the way that we wanted and – I mean, “a good old fashioned rammy” is language I would rarely use, actually, but, you know, is that we needed to have the argument in public. There were a lot of things in Covid where we didn’t have the argument in public, there were a lot of things in Covid where the UK Government did something and we just let it go or they didn’t do something and we just let it go.

I particularly felt this issue of furlough at a time when we wanted to apply restrictions and furlough was ending was – was materially important to the handling of the pandemic. It was a hindrance to our ability to handle the pandemic. And I can’t deny it, I was angry about that position because it really did block our ability to do what we wanted to do. So I think the message reflects that frustration perhaps bubbling over a little bit.

Counsel Inquiry: Yes, I think earlier on we’d looked at your notebook and the entry from the gold command from 28 September and I think you’d said you take an issue with how I characterised it as a public spat. By this stage on 1 November you are looking for a public spat with the UK Government; is that fair to say?

Ms Rachel Lloyd: I am definitely looking – you know, I’m clearly looking to air the issue strongly and publicly, and, as I say, in the vague hope that it might get us an answer, might get us a yes.

Lady Hallett: You were looking for a public spat?

Ms Rachel Lloyd: I’m looking for a public spat for a purpose. A public spat could often deliver results. If the public pressure on the UK Government was there, it had been shown in the past that they would sometimes change their mind if they felt that pressure, and what I want them to do is change their mind.

Mr Tariq: So the discussion is whether the furlough scheme should be available to Scotland, because at this stage England had just entered into the second national lockdown in England, and you’re setting what is effectively a political trap for the UK Government if it refuses to extend the furlough scheme to Scotland it looks awful for them and strengthens the argument for independence, because you need to go alone, or if it extends the furlough scheme to Scotland there is additional funding available to Scotland. Therefore, for the Scottish Government, a good old fashioned rammy with the UK Government is a win-win situation; is that not the essence of the point that you’re making here, that you’re looking at this from purely political perspectives?

Ms Rachel Lloyd: I would absolute that there’s any issue of independence in this. So I am keen, very keen, that we get a yes in this situation and that we are able to enact the restrictions at the time – public health restrictions at the timing the Scottish Government deems appropriate, with the financial support that should come with that.

If there is a no, what looks awful for them is that they are not enabling us to take public steps at the time that we want. If the wider world wants to read constitutional implications into that, that is for them, but I was not making them.

Counsel Inquiry: It was around this time that I think the furlough scheme was extended to Scotland in November; is that correct?

Ms Rachel Lloyd: It ultimately was, there was significant pressure, public pressure, placed on the UK Government. Ultimately it did it because it did it for England, and this was the issue, was that finance decisions that related to mitigating public health measures were not co-ordinated with the decisions each of the four nations might make on those public health measures, they were only triggered, if you like, when England took a decision and Scotland, Wales and Northern Ireland all faced significant difficulties during this period for that reason.

Counsel Inquiry: Can we turn to now page 23 in these WhatsApp messages, and here, just by way of context, what’s being discussed here is efforts to have a four nations approach to restrictions over Christmas in 2020, and you’ll see messages from you that begin at 9.04 pm and you say:

“Gove wants to talk tomorrow – have said to …”

And there is a name redacted.

“… to hold off going back till the morning and suggest waiting for the proposal before agreeing.”

Nicola Sturgeon replies:

“I’ve just seen the email. I’m happy to do call, subject to proposal…but I wonder if we should make clear in advance we won’t agree anything without cabinet approval (and get Wales to sign up to that).”

You reply:

“Yep Cabinet Tuesday is a good marker. Tuesday or [Wednesday] might not be bad days for us to announce either. I am increasingly leaning to just one other household after seeing the poll. But I’m also a grinch about Christmas.”

Then Nicola Sturgeon replies:

“I am too – but on this I (reluctantly) think there’s merit in uk wide position. Let’s see the proposal.”

So Nicola Sturgeon’s reply to you on 20 November, she seems to be emphasising that she’s reluctantly seeing the merit in the UK-wide position. Does this not suggest that by this stage the default position for the Scottish Government was to be different from the UK Government?

Ms Rachel Lloyd: I think it was the default position for each of the four governments to take the decisions that suited their geographical and pandemic-related circumstances. It was not that we would be different to the UK or different to Wales, it was that, in taking the right decisions for the people we were responsible to, the Scottish people in effect, they were not necessarily the same decisions that the UK was taking.

Counsel Inquiry: But Nicola Sturgeon doesn’t appear to be very enthusiastic about four nations approach by this time, does she? She’s almost reluctantly having to sign up to it.

Ms Rachel Lloyd: I think there was a reluctance in general around Christmas positioning. We were essentially bounced by the UK Government into a position about Christmas. Telling people they can’t have it when the UK Government have said you can was a very difficult situation to be put in.

There is a reluctance – and you can see this higher up, you know, subject to the proposal, we’re reading in the public domain that people will be getting some sort of relief from Covid over Christmas. We have not seen a proposal that we are about to go onto a phone call and be asked to agree to. So this again goes to some of that what was to us a chaotic and shambolic sort of approach. So it’s very hard to sign up to something and to enthusiastically embrace something that you have had no input into.

Counsel Inquiry: Were your advisers, whether it be scientific, clinical, medical advisers, advising you about the benefit of having a cohesive approach across the UK around the restrictions over Christmas 2020?

Ms Rachel Lloyd: Yes, to an extent, in part because of travel, and it was travel that led us largely to look for a cohesive approach. What I recall of the advice from advisers around Christmas was, you know: we don’t think this is a good idea, make it as minimal as you can if you have to do it at all.

Counsel Inquiry: I now want to move on in the period to, you left your role as chief of staff in March 2021, and you say that after a short break you came into the role of strategic political and policy adviser to the First Minister in August 2021. I think you say in your statement that you didn’t have any involvement in the pandemic response beyond this date except for COP26, which took place in Glasgow I think, in November 2021; is that correct?

Ms Rachel Lloyd: That’s correct.

Counsel Inquiry: On 7 September 2021 Nicola Sturgeon announced that work would start again on the second independence referendum campaign. Does this announcement or did this announcement coincide with your change of position from chief of staff to becoming the chief political adviser and strategic –

Ms Rachel Lloyd: It broadly coincides in date terms but it doesn’t coincide in reason. I did not take a post – my post was not involved in any move on independence. I attended the odd call, but it was not – it was far from the principal purpose of my job.

Counsel Inquiry: What was the principal purpose of your job after August 2021?

Ms Rachel Lloyd: Initially it was the COP26 summit and to lead the sort of Scottish Government’s policy work in preparation work in preparation for that. It was then to focus – and this was something I had felt as chief of staff we were missing, was to step back from the frontline, from the media, from the Parliament, from the day-to-day, and to focus on some of the long-term commitments that we had as a government and that we’d made in the 2021 election around moving to renewable energy, around reaching net zero, around tackling child poverty. So I worked on things like the new economic strategy, the draft energy strategy, the resource spending review. I attended some of the constitution secretary’s independence meetings but I did very little work on it. It was not my purpose.

Counsel Inquiry: Just so I understand, in your role as strategic political and policy adviser to the First Minister, and this is around the same time that there’s movement towards a second independence referendum, your position is that you didn’t actually do very much work on independence?

Ms Rachel Lloyd: I didn’t. There was a delegated special adviser whose role was the constitution, he covered Brexit, primarily, and the development of the work on independence. I think it might be useful to say I had not been in government over that summer and I think – there’s has been a reference or material provided – a BBC article sort of headlining this independence issue on that date in September that you remembered – or cited, which is, again, the publication of a programme for government. I had had no involvement in the writing of that programme for government. Unusually. It was the first one in probably ten years that I hadn’t been part of.

And it has maybe a page’s worth of references to independence in a 180-odd page document. It was a programme for government that set out, as we had in the election, a number of key policy objectives within government and I had moved to lead on those policy objectives because I had a reflection, which the First Minister had shared, that you needed a special adviser who could work across portfolios, with her confidence, to try to inject some energy into them.

Counsel Inquiry: Did the move towards pushing for a second independence referendum, did that reflect a change of priority for Nicola Sturgeon away from the pandemic response and to the second independence referendum campaign in the middle of 2021?

Ms Rachel Lloyd: At that time, no, for her. I mean, I wasn’t there day to day, but my recollection of her in that time is that she remained incredibly focused on the Covid pandemic. You can think about more than one thing at a time when you’re First Minister, but she devoted vast amounts of time to the Covid pandemic during this period, so …

Counsel Inquiry: Was she devoting vast amounts of time to the independence strategy around this time?

Ms Rachel Lloyd: It was largely led by the Cabinet Secretary for the Constitution.

Counsel Inquiry: I wanted to move on to another area, and this is around the public health messaging during the pandemic.

You say in your first statement, and I don’t intend to bring this up, that you’ve considerable experience in public communications. Is it fair to say that until at least March 2021 you played an important role in the Scottish Government’s communications strategy in relation to the pandemic?

Ms Rachel Lloyd: Yes.

Counsel Inquiry: And this included leading on, for instance, the preparations for the daily media briefings; is that correct?

Ms Rachel Lloyd: I would share that responsibility with the head of the Covid briefing unit, but yes.

Counsel Inquiry: And in fact we’ve seen some WhatsApp messages that you were actually one of the people that would decide, for instance, which adviser would appear on any given day. Does that accord with your recollection?

Ms Rachel Lloyd: “Decide” is possibly strong. I would suggest who would come on what day, they would tell me what days they were and were not available and we would work out how we going to cover the whole week, in co-ordination with the health communications desk.

Counsel Inquiry: Were you the one effectively choosing, at least before checking their availability, who would be the one that would front a particular media briefing?

Ms Rachel Lloyd: I generally sought to simply just share it around and consider what each of them was working on and what we were likely to be speaking about. So if we were going to be speaking about a, you know, piece of Public Health Scotland work that had come out, I would probably look for Professor Smith, Dr Smith, to do that. If it was we need to give people a general update on a reminder about behaviours because the polling maybe shows that behaviours were slipping, I would look for Professor Leitch to do that.

Counsel Inquiry: So in broad terms what was the Scottish Government’s strategy around public health communications, at least until the period that you were in position?

Ms Rachel Lloyd: It was to be honest, to be clear, to trust people and to try to build cohesion amongst the public about the actions we were asking them to take. There was a lot of focus on explaining to people why we were asking them to do certain things, because that would boost the compliance, helping people understand the situation they were in and that we were in, and encouraging the behaviours that we needed people to undertake in order to mitigate the spread of the virus.

Counsel Inquiry: I think you said honest – to be honest with the people, to be clear, to trust the people and try to build cohesion amongst the public so that the public – you were able to explain to the public and the public understood why they were being asked to comply with –

Ms Rachel Lloyd: Yeah.

Counsel Inquiry: – various measures; is that correct?

Ms Rachel Lloyd: Yeah.

Counsel Inquiry: Can you tell me the importance of honesty, trust, being clear and transparent with the public in terms of public health communications strategy?

Ms Rachel Lloyd: When – I think to ask people to do something as extreme as, you know, stay at home, was something that was very unusual and unprecedented in people’s lives. They had to have confidence that the people who were asking them to do that were asking them to do that for the right reasons and that it was something that we were asking of everyone, and part of that was helping them to understand why it was necessary and the impact it was hoped that following that rule would have.

Counsel Inquiry: Could there be sometimes good reasons not to be open or candid or transparent with the public, and if so what sort of scenarios would there be where you wouldn’t be open or transparent with the public?

Ms Rachel Lloyd: I think I can perhaps identify where you’re taking me here. There would be occasions around patient confidentiality, particularly early in the pandemic, when, not at the time but subsequent to, there have been arguments that people should have known more, that we should have said more to the public about certain events and certain cases. That is an argument that has been made afterwards, and I think we can say very clearly we told people about cases. We perhaps didn’t tell everybody about the personal circumstances of individual cases. So I think that that may be where you’re heading. I think those are the main – that is the main issue where you would keep something confidential, is if there was harm that could be caused to an individual, or to the process of managing Covid itself, by making something more public.

Counsel Inquiry: I think you probably were able to anticipate where I wanted to go. I wanted to ask you some questions about the Nike conference –

Ms Rachel Lloyd: Yeah.

Counsel Inquiry: – which took place between 25 and 27 February 2020.

Can we look at INQ000225995, and what this is is it’s a chain of emails in which – it’s between yourself and Dr Catherine Calderwood, and you will see that other people copied in include the First Minister’s office and indeed the Cabinet Secretary for Health.

If we look at what has been discussed here is whether to disclose the link between the conference and the first outbreak of Covid-19 in Scotland.

If we see, this is an email from you saying:


“Cab Sec, FM and Gregor …”

If I can pause there, is that Gregor Smith?

Ms Rachel Lloyd: Yes, it is.

Counsel Inquiry: “… (who can discuss directly what we’re looking for) – are conscious that a number of Scotland’s cases now connect to one event – and that we are at a point where that could be reassuring information for the public around the increase in numbers, demonstrate we’re still at containment, that contact tracing works and be a legitimate public interest matter.

“Ahead of the update to numbers at 2pm can FM and Cab Sec receive as full information as possible about that event, what’s been done, the contract tracing, success etc. And can consideration be given with comms as to what can be said around it.”

So I asked you about Professor Smith. Does this indicate that he was providing advice, information and advice, on the Nike conference around this time?

Ms Rachel Lloyd: I think what happened, not specifically on the conference, I think the reason I’m referring to cab sec, FM and Dr Smith at the same time is, from my recollection, he had come from a meeting of SAGE to report to the Cabinet secretary and the First Minister what had been discussed and to update them, and so they were all in one room at this point. At the same time we were becoming aware that I think it was the second case and then a couple of subsequent cases of Covid originated with a particular event. I can’t say at the time that I knew it was a Nike conference until the following email, and in a discussion with the three of them we collectively thought, “Well, perhaps we should – if we tell people about this, it might reassure them that we don’t have Covid springing up in lots of different places”, although perhaps in hindsight we did, but that these three or four cases, I think it was, are all from one event.

Counsel Inquiry: So at least your email seems to suggest that you and potentially the First Minister, the Cabinet Secretary for Health Jeane Freeman and perhaps even Professor Smith were in favour of telling the public about the link between this one event and the number of Scotland’s first known cases of Covid-19; is that correct?

Ms Rachel Lloyd: Yeah, I think the Cabinet secretary, the First Minister and myself were – and Dr Smith was asked, you know, do you think we can and had advised that yes he thought we could, hence why I’m saying he can discuss directly what we’re looking for. He had given us a bit of advice on – verbally on, you know, there will be limits, but yes.

Counsel Inquiry: So he had given you advice saying that this can be – the link can be –

Ms Rachel Lloyd: That’s my recollection.

Counsel Inquiry: – disclosed to the public?

If we then turn to page 1, which is a reply from Dr Catherine Calderwood, and you will see that this is on 6 March and I wanted to look at the final two, the end of that first page, her response is:

“My strong advice would be not to say anything here specifically naming the conference risks breaching patient confidentiality as a delegate list will be available.”

So you’ve received some advice from Gregor Smith saying that he thinks that this can be disclosed, and then the CMO at the time, Dr Calderwood, says her strong advice is not to disclose.

At the time, did you think Dr Calderwood’s advice about not saying anything was the correct position?

Ms Rachel Lloyd: I suppose I didn’t think it was necessarily for me to judge the correct position, I would still have favoured making information available, but she was the doctor, she was the senior clinician, and she cited patient confidentiality, and ultimately the First Minister accepted that advice.

Counsel Inquiry: Would it not have been entirely possible to tell the public about what had happened without breaching patient confidentiality?

Ms Rachel Lloyd: That was, if you like, the purpose of my request in the email, to say “Can we have some advice with comms about what can be said?” I think is how it’s framed, something like that. Well, sorry, that’s – “What is the boundary of what we can say? What is the limit?”

Dr Calderwood I think probably had a concern heightened because the first case of Covid in Scotland had had media on their doorstep and had, you know, not been named as an individual but it was quite well known who that person was. This was cases, you know, 2 and 4 and 5, I think. So I think there was – her concern was that it is quite easy to find people in Scotland and she didn’t want to open that prospect up. I – that’s my speculation as to why she was so strong on the patient confidentiality issue here.

Counsel Inquiry: Does this not give the impression of a cover-up? Because the link only becomes known to the public after a BBC Disclosure documentary in 2020, and that’s when we’re still in the first lockdown. Does this not impact the public’s level of trust in the Scottish Government’s attitude?

Ms Rachel Lloyd: As I’ve said, my preference was to say that there were a number of cases connected to a conference. I don’t think this is as you’ve described it, because the cases themselves are publicly identified. Like, not identified as individuals but the fact that there is an increase in Covid cases, that there have been four or five cases, is not kept within the government. That is published in the statistical update that went out every day. So that is known, as are the health boards in which those individuals are located.

If – I think I understand why people think, you know, oh, we should have said this was a conference. I thought that at the time. But I can also see the view that Dr Calderwood had, that actually you had people who were in quite a vulnerable position and you could be putting undue pressure on them at a time when they were unwell.

Mr Tariq: My Lady, I’m conscious of the time. Would this be a good time to break?

Lady Hallett: Certainly.

Just I have one question on – I confess I don’t quite understand Dr Calderwood’s advice. The delegate list would, what, be hundreds on it?

Ms Rachel Lloyd: I can’t recollect the size of the conference.

Lady Hallett: The chances are, if it’s an international company like Nike, it’s going to be –

Ms Rachel Lloyd: I honestly can’t – I think that is actually contained somewhere in this Freedom of Information request, but I can’t recollect it.

Lady Hallett: I do understand what you say about easier to find people in Scotland, I just can’t make the link between a delegate list being available and the patients being identified. But did you or the First Minister not challenge that assertion?

Ms Rachel Lloyd: I can’t remember. This would – is a question that you would need to put to the First Minister, that there may have been a conversation after this advice, but this was at a time when I think if you were told this was patient confidentiality, you didn’t necessarily feel like you could challenge that. And, you know, the next day there were five, ten more cases and it quickly moved on.

Lady Hallett: I think you could challenge it, but there we go.

Right, I shall return at 11.30.

(11.17 am)

(A short break)

(11.30 am)

Lady Hallett: Mr Tariq.

Mr Tariq: Good morning again, my Lady.

We had just finished speaking about the Nike conference.

I now wanted to move on to INQ000346141, which is again your notebook that we looked at in the morning session. Can we look at page 37 you will see that this is an entry that’s undated but if you see at the top it says:

“Not to be public.

“French national – other conditions.

“Limited factual [information].”

Do you see that?

Ms Rachel Lloyd: Yes.

Counsel Inquiry: There was an article in the Edinburgh Evening News suggesting that the first death from Covid-19 in Scotland was a Frenchman who had attended our rugby international, I think it was a Six Nations, between Scotland and France on 8 March 2020. Why were details not publicised at the time that – the fact that this person had travelled from France to Edinburgh to watch the rugby?

Ms Rachel Lloyd: So what was publicised at the time was that an individual had died and that they had another condition. This refers to advice – I can’t remember who I was being given it from, but it’s clearly a note of somebody telling me that we are not to release the fact that they were French. Again, this is not an issue about trying to avoid disclosing the fact that they had been at the rugby. I think, from memory, though my recollection’s not entirely clear, that this was either about family contact or an issue to do with the French consul and their sort of involvement in the fact that the person was French and needed – repatriated. It was not anything to do with the fact that they had travelled from France to the rugby. It was some element of the procedure around the death.

Counsel Inquiry: I think Dr Calderwood had said at the time that the patient was an older man who died under the care of NHS Lothian. Did that not give the impression to the public that the first person to die from Covid-19 in Scotland was a local person and not a Frenchman?

Ms Rachel Lloyd: It may have.

Counsel Inquiry: And had the Scottish Government told the public that the first person to die from Covid-19 in Scotland was a French national who had travelled from France to Edinburgh to watch the rugby, would this not have led to some uncomfortable questions for the Scottish Government’s role in allowing the match to proceed in the first place on 8 March 2020?

Ms Rachel Lloyd: It may have but that was not the reason for not disclosing the fact that they were French as far as I can recall. There was no discussion about, you know, did this or did this not relate to whether or not the rugby should have gone ahead, this was an issue about the patient, the person who had died and, as far as I can recall, either their family or the procedures around working with the French Government.

Counsel Inquiry: But telling the Scottish public that a French national had died would not breach patient confidentiality when there’s potentially hundreds, if not thousands of people travelling to the rugby from France, would it?

Ms Rachel Lloyd: It would not. And again I would say I did not know the individual was connected to the rugby until shortly – a few days afterwards, from an external source.

Lady Hallett: Also, if it was to do with the contacting the family and the French consul, surely it would be “not to be public until family informed” or something of that kind, wouldn’t it?

Ms Rachel Lloyd: It may have been, that may have been just shorthand, but the death was to be announced kind of straightaway. The French part was not to be public, certainly, at that time; I can’t recollect if there was a “you can say this afterwards”. But I did not know in this note that they were connected to the rugby, so the issue of not revealing the rugby was not a consider –

Mr Tariq: But that became –

Ms Rachel Lloyd: – in my mind.

Counsel Inquiry: – known pretty soon to the Scottish Government –

Ms Rachel Lloyd: Yes.

Counsel Inquiry: – didn’t it? And there was no decision made that “we need to be honest” – I think your words – “honest, clear with the public, trust them, and tell them that the first person that died from Covid-19 was in fact a French person who had entered Scotland to watch our rugby international”, that the Scottish Government hadn’t tried to stop?

Ms Rachel Lloyd: I think it became known to me certainly that they were from the rugby at the same point it became known to the public through other means. I don’t disagree with what you’re saying. The circumstances at the time were that we were – a lot of the time you were simply just chasing your tail and you moved from one thing to the next very quickly. The moments of reflection that you’re perhaps suggesting would have led us to say “Oh, actually, that death from two days ago, we can now confirm this” just didn’t occur.

Counsel Inquiry: Could another way of looking at it be that this is another example of a Scottish Government trying to cover up what might be seen as uncomfortable information during the early months of the pandemic?

Ms Rachel Lloyd: That would be an inaccurate way of looking at it.

Counsel Inquiry: Before the break I’d asked you about what good reasons could exist for not telling the public, not being honest with the public about events happening during the pandemic, and I think you had said – you had identified patient confidentiality, which we’ve discussed, but you also said it might be that one can’t tell the public because – for the purpose of the process of managing Covid itself, by making something more public. Can you explain what you meant by that?

Ms Rachel Lloyd: One of the issues around the Nike conference, and I think it was perhaps the subsequent line of Dr Calderwood’s email, was the contact tracing, and that you – or certainly clinicians, quite often, at the very beginning, wanted this to conclude and to be done in a contained way rather than to create some sort of panic, if you like, around people who would not be contact traced because they hadn’t, in their view, been exposed.

Counsel Inquiry: But does that not contradict what you said earlier on about the values of public health communication, being clear with the public, trusting the public?

Ms Rachel Lloyd: It is a balance. So you lean towards always putting the information in the public domain – there has to be a reason to not put the information in the public domain and that reason has to be, you know, clinical, scientific, you know, proven to be worth it. But these are, you know, a very small number of examples, and I can think of no others, to be honest, where information about Covid cases that we had, particularly in the early days – once you got to larger numbers the detailed information was not something that, you know, we had, unless there were specific outbreaks – was not put in the public domain.

Counsel Inquiry: Does this not suggest that there wasn’t really a kind of concrete strategy that “We have to be honest, candid with the public, transparent at all times”, but it was just a matter of discretion whether the Scottish Government felt perhaps “This is a matter we should not disclose” –

Ms Rachel Lloyd: No.

Counsel Inquiry: – “and this is a matter that we should”?

Ms Rachel Lloyd: No, the principle was that you were honest and transparent and put as much information as – put in the public domain as you could. My understanding, and I’m not the doctor here, my understanding of patient confidentiality is that is an obligation on clinicians, so when they say that they don’t want you to release something under patient confidentiality you – I appreciate you said earlier, my Lady, that you could push back – you do feel obliged to take account of that.

Counsel Inquiry: I now want to move on to a different topic, and that’s the use and retention of informal communications relating to the pandemic, these being, for example, relevant WhatsApp messages, and I think it’s important I place in context my questions.

You voluntarily provided the first batch of your WhatsApp messages with Nicola Sturgeon along with the first draft of your statement in July 2020; is that correct?

Ms Rachel Lloyd: That’s correct.

Counsel Inquiry: These were messages between yourself and Nicola Sturgeon dated between 1 September 2020 and 16 March 2021?

Ms Rachel Lloyd: That’s correct.

Counsel Inquiry: A period of about six and a half months. We’ve already looked at some of those messages this morning and those were the first messages that had been provided by anyone involved in the Scottish Government’s response to the pandemic to this Inquiry.

Then in November 2023, in response to a further request by the Inquiry, you provided a page of additional messages between you and the First Minister, and these were dated over one day, this being 31 August 2020 and 1 September 2020.

At the same time you provided some additional messages between yourself and Jeane Freeman, Kate Forbes and Shirley-Anne Somerville, and these messages were provided after the Inquiry had raised, publicly, concerns at the preliminary hearing about the disclosure of informal communications from the Scottish Government, and at that stage, when those concerns were raised publicly, you were still the only person who had provided any WhatsApp messages from the Scottish Government to this module.

Then, in response to another request to Nicola Sturgeon for her messages relating to the pandemic response, she provided in November 2023 copies of the same first batch of messages that you had provided to the Inquiry in July 2023, and I think she had said that those messages were not retained on her phone but she held copies.

Did you discuss with Nicola Sturgeon that you were going to voluntarily disclose some of the WhatsApp messages between you and her to the Inquiry, and if so what was discussed?

Ms Rachel Lloyd: I told her that I – so I received the Inquiry’s request. I told her that I had messages that I was submitting them to the Inquiry when I submitted them to the Inquiry. I also submitted them to the government and asked the government to pass them to the former First Minister. I asked the government to do the same with the messages I submitted from Ms Freeman, Ms Sommerville, Ms Forbes.

Counsel Inquiry: Were you aware at that stage that she had deleted all the messages from her phone when you submitted your messages to the Inquiry and then passed them to the Scottish Government for her?

Ms Rachel Lloyd: Yes, I think I had become aware at that point that she didn’t have the messages any more.

Counsel Inquiry: And are you aware of how then Nicola Sturgeon came into possession of those messages? Was it through the Scottish Government?

Ms Rachel Lloyd: Yes, I asked the Scottish Government to pass the messages to Ms Sturgeon.

Counsel Inquiry: Why is it that you retained these messages but she has not?

Ms Rachel Lloyd: I can’t speak for her, I’m not going to speculate on the reasons here, with the one exception of saying that, in this conversation between us, I am the official and – she can answer if this is the case – she may have had reason to think, “Well, Liz has them, that’s the official part taken care of”, because I am the official in that exchange.

I – to be clear, all the sort of relevant, salient, Covid management stuff in those emails is in the system in government – sorry, WhatsApps – in other forms. I retain messages for my reference, initially. You know, it’s good to be able to look back – similar to my notebook, you know, I can go back and check: have things happened as and when they are supposed to have happened? I then thought I should keep them because of the nature of this Inquiry.

Counsel Inquiry: So just so I’m clear, we’ve looked at some of these messages and I think we’ve agreed, tell me if I’m incorrect, that they place important context on some of the decisions that were being made; do you accept that?

Ms Rachel Lloyd: I do.

Counsel Inquiry: And those messages would be important to understand the how, the whys, the whens, the wheres of how the Scottish Government came to make certain decisions during the pandemic. Do you accept that?

Ms Rachel Lloyd: I think that they are important but I think that the how, why, where decisions are made is contained in the official record, or it certainly should be.

Counsel Inquiry: But they’re important context.

Ms Rachel Lloyd: Yes.

Counsel Inquiry: And they’re part of the decision-making process. They may not be the only part of the decision-making process but they’re part of the process; do you accept that?

Ms Rachel Lloyd: Yes, to an extent, yes.

Counsel Inquiry: You were her chief of staff –

Ms Rachel Lloyd: Yes.

Counsel Inquiry: – during – up till March 2021. Was it your understanding of the Scottish Government policies that these sorts of messages showing the decision-making should be retained?

Ms Rachel Lloyd: I think I, in the second submission to the Inquiry, have set out my knowledge of Scottish Government policies in this regard. In relation to records management policy – and I’m going to have to talk about the two policies to give the full context here. In relation to the records management policy it has always been my understanding of the need, whatever form the communication takes, to put salient material into the official records. It’s useless on my phone, it achieves nothing sitting on my phone, it needs to be somewhere in the government system to have any form of effect or to inform government’s broader thinking. I, to the best of my recollection, was not familiar with the mobile messaging policy.

Counsel Inquiry: Do you know, as Nicola Sturgeon’s chief of staff, whether she was familiar with the mobile messaging policy?

Ms Rachel Lloyd: I couldn’t speak to that.

Lady Hallett: So you weren’t aware of the policy that others have told me about where they claim the policy was to delete, “a bedtime ritual”?

Ms Rachel Lloyd: I have no recollection. I can’t be categoric because a lot of things in government would pass through my inbox, but I have no recollection of specifically reading that policy at any point in time.

Private secretaries would, you know, occasionally remind you to, you know, manage your inboxes, manage your email. Mine frequently breached the government limits so, you know, there would be a need to make sure you were keeping the right stuff, get rid of extraneous material, not relevant material. But no, I have no recollection of having seen that policy. I can’t say 100% that I didn’t, but –

Lady Hallett: Even if you had seen it, would you have deleted matters that might have been subject to an FOI request?

Ms Rachel Lloyd: No, I don’t think I would.

Lady Hallett: No.

Ms Rachel Lloyd: Or certainly not intentionally.

Mr Tariq: I think you’ve said that it was your practice that the salient, perhaps, messages would be recorded on to the corporate record; is that correct?

Ms Rachel Lloyd: Yes.

Counsel Inquiry: So some of the WhatsApp messages that we’ve seen which show some of the context or some of the decision-making process, was it your habit to then record those messages into an email so it could be uploaded on to the corporate record?

Ms Rachel Lloyd: Yes, largely. It would not – and I think I set this out in my evidence – it’s not that I would write an email saying, “I have had a WhatsApp exchange with Nicola Sturgeon and …” It might be “I have been in discussion with” or, you know, “I have had an exchange with”.

It’s reflective of the way in which I would have handled a conversation in the pre-Covid world and actually during Covid where we were in the same place is you have a conversation or an exchange of discussion, information, with the First Minister and for that to be useful to anyone, including me, it has to go into the system somehow. It has to be communicated to an official, to her private office, I might ask her private office to put it in, I might email an official.

Some of this might have been – so if we go back to the weddings example, I think I would have been on Teams to the relevant official saying, “FM’s asking me this question, can you provide me with information?”

I think you can see from the exchanges that they are very much about immediate issues. You know, they tend to be about things that are happening that day, the next day, and are about co-ordinating some of those things, and so me simply knowing that does not facilitate the business of government. It needs to enter the record to facilitate the business of government.

Counsel Inquiry: But using that example of the number of people that can attend funerals or weddings, would it have been your practice that you would have recorded that there had been potentially a decision or a view reached that the number should remain at 20 in a formal – or an email or some other form of written communication to somebody else?

Ms Rachel Lloyd: On that specific one there’s, I would expect, some form of written communication between me and an official checking the facts saying “FM’s asking”. If there had then been a push for, you know, “I want more, she wants more information or she wants to question this”, that would have had to have gone again into the formal record to say, “Can the First Minister get fresh briefing on this point” or “Can you ask the CMO to consider this point for the First Minister?”

So it may not have been in that case that I provided – you know, I provide the First Minister with information and she doesn’t ultimately respond to the point, then I said “I gave her to information and there’s nothing back so let’s stick with it”, but I would certainly have said “She’s asked me for this” so there is no awareness that the First Minister is asking a question about this. And I note in that exchange I then say the note from the Prime Minister is coming to her – you know, the Prime Minister’s statement is coming to her, so I would expect it to be in an exchange of “Do we know what they’re doing, can we have it” –

Counsel Inquiry: But a lot of the context of that decision and whether it’s a decision, a positive decision, or one not to change the restrictions would be – was within the WhatsApp messages and, if I understand your practice correctly, that context would not be uploaded on to the corporate record?

Ms Rachel Lloyd: No, I think that context would have been there because it would have been the engagement with the official, and the subsequent note going to the First Minister about the Prime Minister’s statement would have been in the context of the “Prime Minister’s making a statement today, the UK are doing this, the FM is asking this”, et cetera. That would, I expect, all be clear in – whether it was an email exchange or a Teams exchange, that would, I expect, all be clear.

Counsel Inquiry: But not the communications between those two events that would place context on how ultimately –

Ms Rachel Lloyd: I think if you’re –

Counsel Inquiry: – the Scottish Government came to a decision not to change the numbers?

Ms Rachel Lloyd: I think if you’re asking did I, you know, transcribe verbatim, no. I treat those messages in the same way that I would have treated a conversation with the First Minister and input the material parts of the discussion to the system in order that they could facilitate the business of government or, you know, be recorded in some way.

Counsel Inquiry: I now wanted to move on to a related matter. In your first statement, you said, and I’ll quote this, I won’t bring the statement up:

“I have indicated to the Scottish Government that I expect all messages to be submitted.”

Why did you feel the need to tell the Inquiry that you had indicated to the Scottish Government that your expectation was that all of your messages would be disclosed to the Inquiry?

Ms Rachel Lloyd: I think the timing of this correlates to a UK Government case about whether they had to provide messages that were not Covid related, about who got to do the, you know, redacting, if you like, and the Scottish Government had said to me that I could wait for the conclusion of that before deciding whether to give you everything or who was going to do the redactions and my view was: just give them it.

Counsel Inquiry: The messages that you have produced between yourself and Nicola Sturgeon cover, as I said, a six and a half month period, and that’s between 1 September 2020 and 16 March 2021, and then there’s the later additional messages spanning one day.

Is it fair to assume that you were in WhatsApp communication with Nicola Sturgeon about the pandemic before 1 September 2020?

Ms Rachel Lloyd: Yes, it would be, I think at a lesser extent and, for the record, I would like to say that I regret not being able to give the Inquiry those messages. I thought I had them, I had sourced them, I have done everything that I am able to do, as far as I can, to find them. I thought I had retained them and they’re not there.

Counsel Inquiry: Why do you say that you would be in communication with the First Minister before 1 September 2020 over WhatsApp to a lesser extent –

Ms Rachel Lloyd: We were –

Counsel Inquiry: – when we would be going through the first lockdown, for instance?

Ms Rachel Lloyd: Because we were in the same place more than we were at a later date. So I think I attended St Andrew’s House the vast majority of days, including Saturdays and Sundays. Every day there would have been a briefing. I would have been there from early in the morning until late at night and so would she.

So, during that very intense period, the majority of the discussion that she and I would have about thrashing out what we were going to do would have been happening in person but there would be some messages. I think a lot of them would have been logistical around the briefings, who was going to be there, the BBC are offering you an address to the nation, that kind of thing, if I had been in a different room, for example.

Counsel Inquiry: But there would also be, for instance – you weren’t working with her through every night, but there would be – you would both go home, there would be messages that would continue, the conversations would continue sometimes over on WhatsApp. In fact, we’ve seen many of your messages that are late into the night, and those would be messages, for instance, around March 2020 that would shed perhaps some light on decision-making around the first lockdown?

Ms Rachel Lloyd: I genuinely do not think there would be much of significance around early March 2020 in the WhatsApp messages between us and around the decision-making on lockdown because those discussions and decisions, and I remember them very clearly, happened in St Andrew’s House, normally with Dr Calderwood, Jeane Freeman, and, if you like, at that point, you know, yes, we did go home but I think there was very little time left in the day by the time I was going home in those occasions.

Counsel Inquiry: What happened to those messages that you’re not able to provide to the Inquiry?

Ms Rachel Lloyd: As I’ve said, I genuinely don’t know and I regret that I thought I had them. I’m not the best administrator of devices. I wish I did have them and I can’t say what happened to them. They’re not there. I can’t say whether I actively deleted them. I can’t say whether they got lost. I don’t know.

Counsel Inquiry: What efforts have you made to retrieve those messages?

Ms Rachel Lloyd: I have used that phone, the phone I have now. There are two previous phones with that number. I have sort of revived them and searched on them. I have used every online tool that tells me how to extract from WhatsApp that may be there. I can’t get to them and, I mean, as I’ve said in my evidence, I haven’t gone to the lengths of handing them to somebody to forensically source, but I’m content to do that if the Inquiry wants me to.

Counsel Inquiry: Were those messages held on a personal device by you, a personal mobile phone?

Ms Rachel Lloyd: Yes.

Counsel Inquiry: Did Nicola Sturgeon also use a personal mobile phone to communicate with you?

Ms Rachel Lloyd: I … I believe so, but I’m not aware of the sort of details of what phone she had and what from, who provided it.

Counsel Inquiry: You were her chief of staff, weren’t you, for about six years?

Ms Rachel Lloyd: Her phone would be a matter for her private office, not for me.

Counsel Inquiry: Did she have a government-issued phone?

Ms Rachel Lloyd: Again, I think she only had one, and who provided that phone is not something I can answer.

Counsel Inquiry: If she had one phone, and we hear evidence that it was a personal phone and that she never had a government-issued phone, did she use that one phone to conduct government business with you?

Ms Rachel Lloyd: Evidently we had discussions about government business on the phone that she had.

Counsel Inquiry: As her chief of staff, did you ever advise her that it might be a good idea to use a government-issued phone to conduct government business?

Ms Rachel Lloyd: I don’t know that I did. I am aware that on ministers’ personal phones the government installs a sort of secure app, so I would be less concerned with the device and more concerned with the security.

Counsel Inquiry: Did Nicola Sturgeon also use an SNP email account for government business?

Ms Rachel Lloyd: Not really, no. I’m aware of the exchange with Dr Sridhar – Professor Sridhar – the other day. I do know that those exchanges entered into her formal accounts. People can send – what people externally send you something on is for them rather than you, if you like. The obligation on you as a government member or a civil servant is to then put that into the system.

Counsel Inquiry: But if you’re openly – or did she openly volunteer her SNP email accounts to others to use to be –

Ms Rachel Lloyd: You would need to ask the First Minister – former First Minister these questions.

Counsel Inquiry: There was one further question I wanted to ask before I believe that there is a question from one of the core participants, and this was around the – the question is around advisers straying into, perhaps, political space. There was a few instances, for instance, during the pandemic. I think at one stage Jason Leitch got into a Twitter exchange with Richard Leonard who was part of, I think – he was the leader of Scottish Labour at the time. And I think we’ve seen WhatsApp messages where I think there is reference to you and Nicola Sturgeon speaking to Jason Leitch and telling him to stay out of the political space. Do you recollect that?

Ms Rachel Lloyd: I do. It’s in, I think, the exchanges of Ms Freeman.

Counsel Inquiry: And there’s also – there were instances where I think Professor Sridhar spoke about independence and how independence would have led to the Scottish Government being able to better address the pandemic response. Do you remember those sorts of press articles?

Ms Rachel Lloyd: I do.

Counsel Inquiry: And occasionally I think there was some push-back from opposition parties about the fact that an independent adviser to the Scottish Government was straying into constitutional arguments.

Was the distinction between politics and medical or scientific or clinical advice always clear to the Scottish Government’s advisers?

Ms Rachel Lloyd: I think it was. So just – I had no conversation with Professor Sridhar about her articles or any of her contributions. I think it is clear, I think it was clear. I think Professor Leitch and Dr Smith, they took on a communications duty that they were not used to, and they made themselves incredibly available to all forms of media, and again they weren’t used to that, and I think their, if you like, enthusiasm to try and give the public answers sometimes led to them accidentally overstepping a line that they would not be as well versed as I might be in seeing.

So I would occasionally have conversations with Professor Leitch, for example, if there was a political issue running in the day and he was going on the radio, to say “If they raise this, you have nothing to say, this is not a matter for you, and you refer them back to the government or to a politician or to me”. And he would sometimes ask ahead of things, if he knew that something was running today that was political, “How do I get away from this subject, because this is not one that I should speak to”, but occasionally – and I think this is clear from the messages with Ms Freeman – they succumbed to the pressure, I think, of being asked questions and feeling that they had an obligation to answer because they were out there to try and inform the public.

Counsel Inquiry: And that would create issues, potential issues, around trust of Scottish Government communications if some of the messaging coming from scientific advisers or medical advisers or clinical advisers was seen to be – whether it’s party political, it was perceived to be that way, that would create issues of trust, wouldn’t it?

Ms Rachel Lloyd: I have, I think, more faith in the Scottish public than some people do that they are able to differentiate what is political from what is medical and clinical, and they watched a lot of information during that time. They watched these people give public statements a lot during that time and I think the public knew. I don’t think those instances had particular impact on trust.

Mr Tariq: My Lady, there’s no further questions from me.

Questions From the Chair

Lady Hallett: Just before Ms Mitchell asks a question, can I just go back to – I’m afraid I do not have the Inquiry number for the document – the Cabinet meeting of 30 June 2020, where there was a reference – and I appreciate you weren’t part of the conclusion, you were there taking notes, observing, advising, whatever – but there are some people who might see the conclusion:

“Agreed that consideration should be given to restarting work on independence and referendum reflecting the experience of the coronavirus and EU exit”.

Oh, well done, thank you. I can’t remember what page it is.

Ms Rachel Lloyd: 13, I think.

Lady Hallett: Well done to you too.

Ms Rachel Lloyd: Sorry.

Lady Hallett: No, not at all. I always accept help, thank you.

Some people might argue that looks as if the Cabinet members who agreed to that conclusion were going to use the work on the experience of the coronavirus crisis as part of an argument for advancing independence and therefore using it politically? When you see it’s associated with EU exit, which obviously a lot of people in Scotland who didn’t want to leave the European Union reckon reflects badly on the UK Government, it does look a bit as if – politicisation of the coronavirus pandemic, doesn’t it?

Ms Rachel Lloyd: I think the fact that this says “consideration should be given”, my recollection, my view, my understanding, my experience of all of this period is that the consideration given was: we’re not doing this right now. There is subsequently much after this, you know, there has been a lot said and reflected on about the way in which people in Scotland looked to the Scottish Government to provide the leadership in the Covid pandemic and what they then felt about the constitutional situation, but our actions were not designed to produce that result. If the public were making their own decisions on that, we were not driving it through our actions on the pandemic.

Lady Hallett: It’s not the point of my question, really, which is that –

Ms Rachel Lloyd: Sorry.

Lady Hallett: Well, I understand why you answered in the way you did but my question is: doesn’t it look as if at least some members of the Cabinet, and eventually the Cabinet agreed, to capitalise on the pandemic to advance the cause of independence? Doesn’t that look –

Ms Rachel Lloyd: So, as I say, the consideration given to this was this was not done at this time.

Lady Hallett: No, but –

Ms Rachel Lloyd: I think if you take the discussion that we had earlier about the difficulties of funding and financing the mitigations required for applying public health interventions, that was, at times, not in our presentation of it at that time but it did show, and arguments could be made at a later date, that there was a hampering that would not have been there had we been independent.

But I would be at lengths to say to you that this was not done at this point in time. I have no recollection, no notes, no work. If anything had been done in this period, it would be publicly available. There would be, you know, reams of evidence of the Scottish Government going out and selling independence during this period, and there just isn’t.

Lady Hallett: Thank you.

Ms Mitchell.

Questions From Ms Mitchell KC

Ms Mitchell: I’m obliged.

Ms Lloyd, I appear as instructed by Aamer Anwar & Company on behalf of the Scottish Covid Bereaved.

I’m obliged to my learned friend for his questioning, which raises a lot of issues the Scottish Covid Bereaved are interested in, but I would just like to ask you one thing, and it relates to paragraph 42 of your statement. I don’t need that brought up but I’ll just read it out so you can understand the question that I’m asking. You say:

“Communication within Scottish Government and the stakeholders whilst strong and effective under considerable pressure could at times have been improved, particularly around the application of the framework and the application or the lifting of restrictions. Teams within [Scottish Government] did not always appear to be hearing each other, particularly on the interaction between economic and Covid harms, and economic teams did not seem equipped or prepared to explain to stakeholders why certain restrictions were in place and why decisions were taken not to lift them.”

Now, can I ask you to expand upon that. In particular, why do you think that was, and my second question is: if that being so, what could be put in place to improve it?

Ms Rachel Lloyd: When your role, I think, as a civil servant, as a policy official, is to engage with stakeholders, it often becomes your job to listen to them rather than to make arguments back as to why the government is doing a particular thing. I think that’s something I’ve experienced in the Scottish Government frequently, and the economic officials I found in particular – and they worked incredibly hard, I don’t want to cast any sort of aspersions on them – when they were engaging with economic stakeholders, I felt, and had reports back from some of the calls, that they would not explain why certain things were happening. They would listen to why stakeholders perhaps didn’t want certain things to happen but they would not make the argument for.

I know that the clinicians who were often on these calls felt that they were sort of left to be the bad guys, if you like, explaining why we cannot open your pub this week, or we cannot allow shops to open just yet, and the balance of the virus. In that particular case, I think this was – this was a very difficult situation because you were taking actions to save people’s lives but they impacted people’s livelihoods, and, you know, you had to acknowledge that was a very difficult balance to strike.

I’m not sure what can be put in place to deal with it. I think there are broader reflections on the government’s engagement with economic stakeholders, which I think the relationship was not great going into it, so it deteriorated during it. But I’m not sure you can put that in place other than a sort of building the confidence of the officials that you are asking to explain the situation in the information that you’re asking them to explain.

Ms Mitchell KC: The reluctance of those people whose job it was to explain that and sort of pass that over on to those who were the scientists, as it were, is that a reflection of the anxiety about the information or just an unwillingness to be the ones who were breaking the bad news?

Ms Rachel Lloyd: I think it’s a reflection of the pressure you can feel in government. When a group of people are telling you that they disagree strongly with the actions that you’re taking, to be the one that has to then stand up for those actions, explain them, defend them, that can, I expect – and I think I understand this – feel like quite a burden on somebody. If you are in a call and there are 15 people telling you that they’re wrong – that you are wrong, they may be right and you have a duty to listen to them and to feed that back.

Ms Mitchell KC: Indeed, but –

Ms Rachel Lloyd: But if you’ve been given information to put out there, it’s your duty to put that out there, and I think people tended to step back a little bit when confronted with arguments against the actions we were taking.

Ms Mitchell KC: Indeed, one would think it would be an important part of the communication between government and stakeholders that they listened to what they were saying, and if there was a good argument, which no doubt the Scottish Government would contend that the argument was good, to give that to them so, even if they didn’t accept what it was, they understood and what you are saying was that was lacking within the ministers –

Ms Rachel Lloyd: I’m not saying they didn’t do it, I’m not always convinced it was done with a level of detail, understanding, explanation, that was helpful. It didn’t help bring people to a better understanding of what was happening.

Ms Mitchell: My Lady.

Lady Hallett: Thank you, Ms Mitchell.

Further Questions From the Chair

Lady Hallett: Just before you go, Ms Lloyd, may I ask you to help me on another matter, in relation to M2.

As you may have followed, I heard a certain amount of evidence about the role of special advisers in Number 10 and the role of Mr Dominic Cummings as an example. You talked about the – there’s a special

advisers code that applied to you. I think technically

what happens is that special advisers, as you were and

Dominic Cummings was, are technically part of the civil

service but they don’t answer to any of, as it were, the

governance or management structure of the civil service,

they answer to the minister or the First Minister or the

Prime Minister?

Ms Rachel Lloyd: Yeah.

Lady Hallett: I just find that a bit troubling. I, mean,

don’t you end up with a conflict then between …?

Ms Rachel Lloyd: I think it’s how you do it. I don’t think I ended up

with a conflict. The special adviser code sits

alongside the Civil Service Code. You are governed by

both, with an exemption from certain parts of the Civil

Service Code that enables your political activities, and

you are appointed by the First Minister.

I think if you are conscious that the civil servants

around you have to comply with the Civil Service Code,

and they have obligations on them, then a conflict

doesn’t arise. And whilst the First Minister is, if you

like, my line manager, the person that appointed me, the

person that could fire me, I was cognisant of the senior

officials in the Scottish Government and my relationship

with them. So as much as I was sort of on a par, if you

like, I knew that, you know, I needed to be aware if they were unhappy, perhaps thought a special adviser was stepping over the line. That is a back and forth relationship. That’s a relationship that exists because you build that relationship.

But I don’t think I found a conflict, and I don’t think such a conflict existed in the Scottish Government.

Lady Hallett: So it’s not a question of improving structures or anything, you think it’s a personality matter?

Ms Rachel Lloyd: My views on the operation at Number 10 are available in my notebooks. I don’t think I should particularly comment on the relationship between Dominic Cummings –

Lady Hallett: I’ve probably pressed you too far.

Thank you very much indeed, Ms Lloyd, very grateful for your help.

(The witness withdrew)

Lady Hallett: Right, I think the next witness is the First Minister, who has other demands on his time, and I think the hope is that he will be here by about 1/1.15, so we’re going to have to take the usual –

Mr Tariq: 1.45.

Lady Hallett: – 1.45 start –

Mr Tariq: Obliged.

Lady Hallett: – so everyone has a longer lunch.

Thank you.

(12.11 pm)

(The short adjournment)

(1.45 pm)

Lady Hallett: Mr Dawson.

Mr Dawson: Good afternoon, my Lady. The next witness is

the Right Honourable Humza Yousaf MSP.

Mr Humza Yousaf


Questions From Lead Counsel to the Inquiry for Module 2A

Lady Hallett: I appreciate the other demands on your time,

obviously, and I can guarantee you that everyone is

under strict instructions we’ll finish by 4.30 at the


The Witness: Thank you, my Lady.

Mr Dawson: You are Humza Yousaf?

Mr Humza Yousaf: That is right.

Lead 2A: You have helpfully provided two statements to

the Inquiry, if we could just look at these, the first

is INQ000273956. It’s a statement dated

2 November 2023. Is that your statement?

Mr Humza Yousaf: That is.

Lead 2A: Have you signed the statement?

Mr Humza Yousaf: I have.

Lead 2A: Can you confirm to her Ladyship that the contents of the

statement remain true and accurate as at today’s date?

Mr Humza Yousaf: I can confirm that is the case.

Lead 2A: You provided a second statement, I understand, dated 16 November 2023; is that correct?

Mr Humza Yousaf: That is correct.

Lead 2A: It’s under reference INQ000273973, is that your statement?

Mr Humza Yousaf: That is.

Lead 2A: Have you signed the statement?

Mr Humza Yousaf: I have.

Lead 2A: Do the contents of that statement remain true and accurate as at today’s date?

Mr Humza Yousaf: They do.

Lead 2A: Thank you.

You are the current First Minister of Scotland?

Mr Humza Yousaf: That’s correct.

Lead 2A: You explain in your statement that you are responsible for leading the Scottish Government with the support of Cabinet secretaries and ministers; is that correct?

Mr Humza Yousaf: That is correct.

Lead 2A: You became First Minister on 29 March 2023, taking over the role from former First Minister Nicola Sturgeon; is that correct?

Mr Humza Yousaf: That is correct.

Lead 2A: During the course of the pandemic, you held two Cabinet secretary roles, as I understand it; is that correct?

Mr Humza Yousaf: That is correct.

Lead 2A: The first role was Cabinet Secretary for Justice, which you held from 26 June 2018 to 19 May 2021?

Mr Humza Yousaf: That is correct.

Lead 2A: And the second, following the Scottish Parliamentary election in May 2021, you took over the Health and Social Care portfolio, you took that over from Ms Jeane Freeman, who had held the role during the earlier stages of the pandemic. Is that correct?

Mr Humza Yousaf: That is correct.

Lead 2A: And you held that portfolio until you became First Minister on 28 March 2023?

Mr Humza Yousaf: Absolutely correct.

Lead 2A: Could I just clarify that when Ms Freeman held the role, prior to the election, I understand the role was entitled Cabinet Secretary for Health and Sport, but when you held it, Cabinet Secretary for Health and Social Care; is that correct?

Mr Humza Yousaf: That is correct.

Lead 2A: Is there any significance in the change of name with regard to the portfolios that you covered in your ministerial Cabinet secretary role?

Mr Humza Yousaf: No, I don’t think there would have been much of a change, although having taken sport out of the title and replaced it with social care, I did have a minister that took on the title of sport in her title, but ultimately, as the Cabinet secretary, I would have been responsible for the entirety of the portfolio.

Lead 2A: So you and she were both responsible for health, including public health?

Mr Humza Yousaf: That’s correct.

Lead 2A: And you and she were both responsible for social care?

Mr Humza Yousaf: That’s correct.

Lead 2A: Thank you.

I’d like to ask you some questions about some of the decision-making structures which existed within the Scottish Government during the course of the pandemic. Some of these are things we’ve heard about, but we think you might have some insights into how they operated.

We’ve heard some talk, and you mention in your statement, of a group or decision-making body called “gold” or “gold command”. Are you aware of what that group did?

Mr Humza Yousaf: I am.

Lead 2A: I understand that you attended that group, not always but sometimes?

Mr Humza Yousaf: Correct.

Lead 2A: Am I correct in understanding that this was a selected group of Cabinet ministers which would tend to include – it would always include Ms Sturgeon and sometimes include others, including Mr Swinney, yourself, Ms Forbes at various different times?

Mr Humza Yousaf: Absolutely correct.

Lead 2A: Thank you. Could I have a look, please, at paragraph 35 of your statement where you provide us a little bit more detail about this. You say at paragraph 35 that:

“In relation to how decision-making could have been improved during the pandemic, I believe there were times when a decision made by the former First Minister or discussed within Gold Command was not cascaded to the rest of Cabinet or all Ministers due to the fast nature of decision-making during the pandemic. We did our best to explain the rationale of decision making but the feedback from some groups, in particular the hospitality industry, was that the rules were changing too often, with decisions made before guidance was available. On reflection there may have been instances where we could have worked with industry on guidance before making a final decision on restrictions. I believe this could have been improved. In relation to advisory structures, my experience is that the advice was always ready and available when needed.”

What do you mean when you suggest that decisions were made by the former First Minister which were not cascaded to the rest of Cabinet?

Mr Humza Yousaf: With my Lady’s permission, before I answer the substance of that question, I just wonder if I can begin, before I respond to the first substantial question, by acknowledging the trauma and the grief that so many families and individuals faced and continue to face during the course of the pandemic, particularly those who have been bereaved by Covid. I want to offer my condolences once again to every single person who has been bereaved by Covid. However, let me also acknowledge that it is not sympathies that they require from witnesses but straight answers to straight questions, which of course I endeavour to give during the course of the next few hours.

In relation to the substance of the question that you have asked, Mr Dawson, for me, given the fast paced nature of what we were dealing with, therefore the need for urgent decisions to be made, decisions were sometimes delegated to the former First Minister. Cabinet would agree to that and the former First Minister was then entrusted to make those discussions.

And there were – there was the rare occasions where sometimes a decision was made, again responding to a particular development, and it was therefore not cascaded to the rest of Cabinet until that decision was announced, and that happened on the rare occasion, but we were often – I know special advisers, I know government officials worked hard to ensure that Cabinet was informed of decisions when they were made as opposed to once they were announced.

Lead 2A: So I think you’ve identified there situations in which decisions were made by the First Minister, the former First Minister, based on a delegated authority from Cabinet. That’s one type of decision-making process; is that right?

Mr Humza Yousaf: That’s absolutely correct.

Lead 2A: And there were other times when I think you characterised them as being – because of the pressures of the pandemic, decisions were taken by the First Minister where there had not been that delegation but that that process was necessary because a decision needed to be made immediately; is that right?

Mr Humza Yousaf: That would be correct.

Lead 2A: So therefore it is the case, I think, that you’re saying that some decisions were made in those circumstances which did not have the approval of the Cabinet?

Mr Humza Yousaf: So, again, there would have been some decisions that may have been made in that way. For the most part Cabinet would agree decisions that had to be made. There may well be times when the exact detail of a decision, so for example if we were to – if Cabinet agreed to impose restrictions around household numbers mixing indoors, there may be not be a final decision on the number of households or the number of people from a certain number of households, and therefore we would seek to delegate that decision to the First Minister, to the Deputy First Minister, Cabinet Secretary for Health to make. And that may well be because the decision was going to be announced in a couple or a few days’ time and of course the situation could develop in terms of the epidemiology of the virus and factors such as the R number, so we would – there would be times when we would entrust the former First Minister to make that decision, on delegated authority.

It would be unusual, rare, very rare, I think, for the former First Minister to make a decision without either that delegated authority or without informing Cabinet. The decision was made before it was announced.

Lead 2A: Were decisions made in Cabinet or were they made by the First Minister and/or within this gold command structure?

Mr Humza Yousaf: A variety of all of those. Decisions were made at Cabinet, and of course the Inquiry has a number of documents in relation to Cabinet minutes and meetings. So discussions were engaging in Cabinet. There was sometimes differences of opinion, as you can well imagine, but decisions were made often at Cabinet. Gold command, though, was there for a reason because the situation could of course change between one week’s Cabinet meeting and the next, given the fast paced nature of the virus that we were dealing with.

So gold command was an important structure and ultimately also the First Minister, we knew, was doing daily briefings, virtually every single day, and therefore there was also that delegated authority, should she have to make a decision because of a development in the virus that particular day.

So I think it is, to answer your question, a mixture of all of those.

Lead 2A: We’ve heard evidence about the constitutional structure within which the Scottish Government purports to operate, from a political expert, Professor Paul Cairney. He confirmed that the basic structure is that decisions are to be made in Cabinet, as is the case within the UK Government, and that there are good constitutional reasons for that.

Do you accept that as a matter of principle, as the way in which decisions are meant to be made within our constitutional system?

Mr Humza Yousaf: Yes, I agree that, absolutely, that Cabinet is an important structure for decision-making.

Lead 2A: Because within Cabinet there are a number of voices that are able to approach important questions from a number of perspectives, and if there is real discussion and debate within that forum, those perspectives can all be given the respect that they deserve, such that better decisions can be made; would that be a fair summary of why the system is as it is?

Mr Humza Yousaf: That is a fair summary, and as somebody who has had a number of Cabinet secretary positions in the past and is now in the very privileged position of being First Minister, there is very good reason for decisions being made at Cabinet, and that is how decisions are made on most occasions, particularly during normal times. We were not of course in normal times in the course of the pandemic, and therefore there will often be more delegated decisions made during the pandemic than you would make in normal times.

But I, as First Minister, also will ask Cabinet for delegated authority of decision-making, most recently done in the course of the budget last year, where I asked the Cabinet to delegate final decision-making to myself and the finance secretary, and Cabinet approved that.

Lead 2A: But, to be clear, you’ve told us that there were occasions on which the First Minister either with or without the benefit of discussions within gold command took decisions without the delegated authority of the Cabinet?

Mr Humza Yousaf: Again, I think those times would be very rare, very rare occasions. Often the former First Minister would seek Cabinet’s delegated authority, but I think there was an understanding in exceptional cases, where the epidemiology of the virus had changed, if there had been a sudden spike in cases in 24 hours and therefore a decision had to be made there and then, that there was an understanding that, given this was not normal times, that such decisions could be made by the First Minister.

Lead 2A: You suggested, I think, in your evidence that there was a certain regularity with which Cabinet met. Was it not possible to convene Cabinet meetings at short notice in those urgent situations?

Mr Humza Yousaf: Of course it could, gold command, in essence, was a tighter cast list of Cabinet secretaries that were necessary to make a particular decision. Gold command and the attendance of gold command, of course, would change depending on the decision that was required to be made. I attended some gold command meetings in my various Cabinet secretary roles and in other I did not, because it just depended on the decision that was required to be made.

Lead 2A: Cabinet minutes are a record of discussions taken at Cabinet meetings and they are published, are they not?

Mr Humza Yousaf: That is correct.

Lead 2A: Discussions within gold command were not generally minuted and published; is that correct?

Mr Humza Yousaf: My understanding was that gold command meetings should have been minuted, but if that was not the case, then that would not have been the usual protocol for government meetings, they should be minuted, and of course be available should there be the appropriate request.

Lead 2A: If an interested citizen of Scotland wished to know what discussions had taken place within gold command that had led to significant decisions which impacted upon people’s most fundamental freedoms, such a citizen would be generally entitled to be able to see how those decisions had been made; would you agree?

Mr Humza Yousaf: Yes.

Lead 2A: If it transpires to be the case that gold command meetings were not minuted, it would be difficult for such a citizen to access that information, wouldn’t it?

Mr Humza Yousaf: It would be difficult, but of course there could also be requests for information of discussions at Cabinet, or indeed, of course, any other documentation that might be necessary and might have been relevant to any decision that was made.

Lead 2A: Was the Scottish Cabinet during the pandemic a decision-ratifying body rather than the main decision-making body?

Mr Humza Yousaf: No, I wouldn’t agree with that characterisation. For my attendance at Cabinet meetings there was good engaging conversation, as I said at times disagreement on the approach that was to be taken, but our Cabinet meetings were a good discursive fora by which to have those discussions. We weren’t there simply to ratify. As I say, I can think of instances where challenge was brought forward and what was in the original submission or advice from officials was therefore amended accordingly depending on the decision that was then taken.

Lead 2A: Was it the former First Minister’s practice to take important decisions as a result of discussions with a close group of ministerial colleagues, whether in gold command or not, not calling upon Cabinet or the wider advisory structures available to the Scottish Government?

Mr Humza Yousaf: Again, it will be for the former First Minister of course to answer exactly how she would make decisions, but in my experience as a Cabinet secretary who served under her, in a variety of roles, she found great value in the discursive nature of Cabinet, of gold command. But also, equally, if Cabinet as a whole did not have to be brought together, given the very precise nature of a decision that had to be made, then gold command was the – I think the appropriate fora by which to make that decision.

Lead 2A: Could I have you – you’ve provided to the Inquiry a number of WhatsApp exchanges in which you were involved from the period of the pandemic, as requested by the Inquiry; is that not correct?

Mr Humza Yousaf: That is correct.

Lead 2A: Thank you.

Could we have a look, please, at INQ000334792.

This is a record of some WhatsApp exchanges between yourself and Professor Jason Leitch, who was the National Clinical Director; is that correct?

Mr Humza Yousaf: That is correct.

Lead 2A: In fact, I think this comes from the very day on which you were appointed as Cabinet Secretary for Health and Social Care; is that right?

Mr Humza Yousaf: I think that is correct.

Lead 2A: Yes. There’s some discussion here which we’ll get on to in a bit more detail about you arriving at your desk, approaching the new job and immediately getting stuck into some of the difficult decisions that you had to engage in, in particular the context is that you are discussing figures which have arisen relating to concerns about the rise in cases in the Glasgow area and in particular East Renfrewshire, which seemed, on your analysis, to be indicating a cause for concern as the cases were going up. Is that a fair summary of the context?

Mr Humza Yousaf: That is fair.

Lead 2A: You are seeking Professor Leitch’s input and counsel on that decision; is that right?

Mr Humza Yousaf: That is correct, yeah.

Lead 2A: And you refer at 11.52, wrapping up, I think, your discussion with Professor Leitch on that subject, that you’ll be “on the deep dive”, and then Professor Leitch replies:

“Good. There was some FM ‘keep it small’ shenanigans as always. She actually wants none of us.”

This is Professor Leitch giving you guidance and advice on your first day in the new job; is that right?

Mr Humza Yousaf: Yes.

Lead 2A: And he refers to the First Minister’s “‘keep it small’ shenanigans” and that “She actually wants none of us”. Was this an indication in fact that the First Minister really took decisions in connection with the pandemic herself or at least would have preferred it that way?

Mr Humza Yousaf: I think that was, as Jason said when he gave evidence to this very Inquiry, an example of him perhaps overspeaking. I don’t doubt of course that there were times when the former First Minister needed a tighter cast list and wanted a tighter cast list to make a decision on a very specific issue, but I think this was a classic example of Jason perhaps overspeaking.

Lead 2A: When you talk about the “tighter cast list”, are you talking about the gold command or something similar?

Mr Humza Yousaf: Yes, generally gold command.

Lead 2A: So in essence, as I suggested to you earlier, the practice was that the decisions would be made by the First Minister gathering around her a small number of close advisers rather than putting the matter to Cabinet or exposing herself to the wider advisory structures of the Scottish Government; is that correct?

Mr Humza Yousaf: No, I would say that, again, a number of decisions were taken at Cabinet, particularly in terms of the overall direction in which the government was going in relation to restrictions – or any decision in fact connected to the pandemic. It may well be that the finer detail of that decision was then delegated to the First Minister or indeed other Cabinet secretaries and that’s where gold command could often come in or gold command may well come in, when there was a development in the virus and a decision had to be made either that evening or indeed the next day.

Lead 2A: So to put this in this particular context, because one sees in the period of you being Cabinet Secretary for Health and Social Care a number of exchanges of this nature where you are trying to take the counsel of Professor Leitch in particular around the question of levels that different areas should be applied – should be put into, when you say the principle would be agreed by Cabinet but the finer detail delegated, in this context would that mean that the Cabinet had said there should be a levels system but the First Minister and her close group would decide which levels would be applied to which areas?

Mr Humza Yousaf: So, forgive me, I couldn’t tell you exactly the – how the final decision on this particular –

Lead 2A: I’m talking more broadly about that type of –

Mr Humza Yousaf: Yes –

Lead 2A: – decision –

Mr Humza Yousaf: – answer that question.

It would often be the case that we would come to an agreement in Cabinet about exactly what level a particular area would be in. There would be some areas where, given the thresholds that we’d look at, in terms of whether a local authority was in one level or another, that they might well be right on that threshold or close to that threshold, so there would be the decision to delegate the final decision on East Renfrewshire or Glasgow or Moray to gold command or to First Minister to make that very final decision.

Lead 2A: So in essence it was the small group and the First Minister who made the decision, which is important, which is which level the particular area something into?

Mr Humza Yousaf: Not always. As I said, on a number of occasions Cabinet would agree the exact level for the exact local authority to have to go on. There was always going to be, within 32 local authorities, some that were perhaps on the cusp of going into level 3, some on the cusp of level 2. And ultimately, before a decision was made, it was right that that final decision was delegated, be it to the First Minister, the Cabinet Secretary for Health or others, with the most up-to-date information on case numbers, the R number and test positivity.

Lead 2A: The Inquiry has heard significant evidence about the principles of transparency and accountability in documents such as the National Performance Framework. These are principles to which the Scottish Government is committed; is that correct?

Mr Humza Yousaf: Yes.

Lead 2A: We have also seen these principles reiterated throughout documents relating to the pandemic response itself. For example, the four harms framework of April 2020. Is that correct?

Mr Humza Yousaf: That is correct.

Lead 2A: And that tells us that the Scottish Government’s position, as far as its public-facing aspect was concerned, was that it wished to apply those important principles in the way that it handled the pandemic; is that correct?

Mr Humza Yousaf: That is correct.

Lead 2A: And indeed there have been a number of opportunities for yourself and others on behalf of the Scottish Government to reiterate your commitment to those principles with regard to your participation in this very Inquiry; is that correct?

Mr Humza Yousaf: That is correct.

Lead 2A: On 29 June you said to the – in response to a question in the Scottish Parliament:

“It is important that I abide by the rules of the UK public inquiry and the Scottish public inquiry … to ensure that there is simply no doubt whatsoever, any material that is asked for – WhatsApp messages, emails, Signal messages, Telegram messages or whatever – will absolutely be handed over to the Covid inquiries and handed over to them in full.”

Has that always been your position?

Mr Humza Yousaf: That has been my position, yes.

Lead 2A: This remains your position?

Mr Humza Yousaf: Yes, that any messages we have should be handed over in full.

Lead 2A: It is important, is it not, not just for the very important purpose of engaging with subsequent public inquiries such as this and the Scottish Inquiry, but also, during the course of a public emergency which does not derive from a single event but is continuous, that material relating to the way in which decisions were taken must be retained so that proper lessons could be learned and a better response to the pandemic developed; is that correct?

Mr Humza Yousaf: That is correct. And perhaps on this issue of informal messaging, including of course WhatsApp messages, let me reiterate what I have said in the Chamber just a couple of hours ago. Let me unreservedly apologise to this Inquiry but also to those who are mourning the loss of a loved one, that was bereaved by Covid, for the government’s frankly poor handling of the various Rule 9 requests in relation to informal messaging, messages. There is no excuse for it, we should have done better, and it’s why I reiterate that public apology today.

Ministers are – and there is awareness amongst minsters, amongst Cabinet secretaries, regardless of the medium of communication, that any key decision that is in relation to government business should be recorded in the corporate record, and the salient points recorded on the corporate record, and that’s usually done via the private office or via government officials. But I’m afraid for a long time the corporate mindset of the government – the organisational mindset of the government was, because the corporate record had those key decisions and salient points, that was the only thing really that was required to hand over to the Inquiry, when the Inquiry made it clear, of course, that you were seeking more than that.

And there is a gap – regardless of the Records Management Plan, the mobile messaging policy, there is clearly a gap that exists in relation to how material in informal communications should be retained in relation to a statutory public inquiry, and that’s why I’ve instructed an externally-led review to look at this issue and other issues such as what ministers and Cabinet secretaries should do should they, for example, change device in the midst, particularly, of an emergency such as a pandemic or anything that is analogous to that.

Lead 2A: Thank you.

In answering questions about this area, one of the senior civil servants, Ms Fraser, from the Corporate directorate general, accepted that it was important in the interests of transparency and accountability to the Scottish public that information about how decisions were reached should be retained. Do you agree with her?

Mr Humza Yousaf: I do.

Lead 2A: You mentioned in your response there the requirement, as I understood you, to retain information within the system about key decisions that were made. Would you accept that both the policy in existence at the time and indeed the principles of transparency and accountability require there to be careful record-keeping of how decisions are made, meaning that discussions leading to decisions also require to be recorded?

Mr Humza Yousaf: Yes, and again our record management policy will make clear that it’s not just the decision that has to be recorded but – I think the wording is used, “the salient points of any decisions that are made should also be recorded for the corporate record”.

Lead 2A: There’s a difference, though, perhaps, it might be quite subtle, but the salient points of a decision is one thing, but the salient government business involved in the process leading to the decision is another. Do you accept that both categories require to be retained in order to fulfil the ultimate objective of transparency and accountability?

Mr Humza Yousaf: Yes, and I accept the point that you’re making. I would say, of course, our Records Management Policy is important for a couple of reasons: one, of course, for all of the reasons that you have just articulated in relation to transparency, good governance, but also for record management. We cannot possibly, as an organisation, keep every single piece of documentation that is produced by the organisation, it would be very, very challenging and difficult to do so, so there is a need for that Records Management Policy, and ultimately there will be a point where it is for the interpretation – the interpretation of the receiver of that information to decide whether or not that should be recorded in the corporate record or not.

Lead 2A: But those principles of transparency and accountability should aid in that interpretation?

Mr Humza Yousaf: They should, of course.

Lead 2A: Because if there’s material relating to discussions in the business of government, it would be necessary for an interested member of the Scottish public to be able to access that material in order to know how decisions were taken and ultimately to know whether decisions were taken in a way with which they were satisfied?

Mr Humza Yousaf: Yes, I think that’s fair.

Lead 2A: As far as your production of WhatsApps and other informal messages to the Inquiry is concerned, I think it is apparent, is it not, and I think you have accepted this, that you are a heavy user of WhatsApp as a means of communication?

Mr Humza Yousaf: I use it on a daily basis.

Lead 2A: Is it the case that you used your own personal phones, plural, for WhatsApp messages during the course of the pandemic rather than a government-issued phone?

Mr Humza Yousaf: Yes, that’s correct.

Lead 2A: And I think it has transpired from the material you have provided that you in fact had multiple phones over the period from January 2020 to April 2022?

Mr Humza Yousaf: Both personal and government devices, yes.

Lead 2A: Yes.

Could I ask you, please, to look at INQ000319509.

This is a table that we went to with some previous witnesses, which was very helpfully produced to us by the team with whom we are dealing within Scottish Government, in connection with our enquiries about the usage of materials – of informal messaging systems, and amongst other things in this table what we see is the Scottish Government’s response as to what was used during the course of the pandemic, and it says there, as regards your WhatsApp, other informal communication systems, that you:

“Used WhatsApps with Nicola Sturgeon and John Swinney to discuss matters. Any decisions made were recorded through the appropriate channels as per Scot Gov guidance. No other informal communications platforms were used.

“Communicated with Kevin Stewart and Maree Todd through WhatsApp.”

Just to pause there, they were ministers who were working with you in the time as health secretary; is that right?

Mr Humza Yousaf: That’s absolutely right, yeah –

Lead 2A: Yeah –

Mr Humza Yousaf: – ministers in my portfolio.

Lead 2A: Thank you very much.

“WhatsApp used to discuss information and advice relating to Covid-19, more frequently at the beginning of the pandemic due to restrictions on in person meetings. Deleted all messages after a month for cyber security purposes as per their understanding of the Scottish Government Mobile Messaging Apps Usage and Policy. Does not recall being part of any decision making via WhatsApp.

“Part of ‘Health 4 Nations’ WhatsApp administered by Matt Hancock, and this was disbanded after Matt Hancock left office. Used for information sharing as opposed to decision making, such as number of Cases, R number etc. Messages not retained.”

This document is dated 13 October 2023. This is what the Scottish Government represented to us as being your position as at that time, to the effect that you had retained none of the messages, although that you had used WhatsApp to discuss information and advice relating to Covid-19. Is that an accurate representation of your position as at that time?

Mr Humza Yousaf: Of course that position developed –

Lead 2A: We’ll get on to that, I just –

Mr Humza Yousaf: Sure –

Lead 2A: – this particular –

Mr Humza Yousaf: Sure, mm-hm.

Lead 2A: Is that right, then, this is an accurate representation of your position?

Mr Humza Yousaf: Yes.

Lead 2A: When you say that – in the opening paragraph – “Any decisions made were recorded through the appropriate channels as per Scot Gov guidance”, does that indicate that your understanding of the Scottish Government guidance or policy was that only decisions made required to be recorded through the appropriate channels?

Mr Humza Yousaf: No, decisions and salient points in relation to decision-making should have been recorded in the corporate record.

Lead 2A: Thank you, so the reference to decision there is really a shorthand for that wider group that we discussed earlier; is that correct?

Mr Humza Yousaf: Yes.

Lead 2A: When you say “recorded through the appropriate channels” is that another of way of saying – we’ve heard this expression before, from Ms Fraser and others – that that material has been recorded on the corporate record?

Mr Humza Yousaf: Yes.

Lead 2A: And how, as a matter of practice, would you have gone about transferring the salient points of discussions relating to important decisions onto the corporate record as a matter of practicality?

Mr Humza Yousaf: Yes – and forgive me, I said that this was a statement that was correct as per 13 October, there’s probably some areas that were obviously updated thereafter which would abrogate some of what is in here, but I assume –

Lead 2A: I am – to be absolutely fair, what I’m trying to do is just understand your position at that time. I will take you to the developments thereafter, I won’t –

Mr Humza Yousaf: Of course.

In terms of how that was recorded, if there was a discussion of salient points or a decision that was made over any informal communication, then it would often be for one of the Cabinet secretaries or ministers to inform their private office or another government official, who would then put it into the corporate record. No decision could be actioned, of course, unless it was in some way in the system, and that was usually done through private office.

Lead 2A: And your position is you did that in connection with all of the communications that you had but then you deleted the actual original messages; is that right?

Mr Humza Yousaf: Some messages would have been deleted, still recoverable but not – but may well have been deleted.

I have to confess in the midst of a global pandemic and the issues that we were engulfed in at that point, deleting messages routinely was not always the top priority.

Lead 2A: But your understanding of the policy was that what you needed to do was to record the information on the corporate record through that mechanism, your private office, and that there was then an obligation to delete the messages for cybersecurity reasons a month after that, and in between the material would be communicated through your private office and put on the corporate record by whoever it was in your private office?

Mr Humza Yousaf: That was the guidance in the mobile messaging policy.

Lead 2A: So at that stage you hadn’t produced any messages to us because they had by that time, 13 October, been deleted in accordance with the practice that you have laid out?

Mr Humza Yousaf: They were no longer available. Or so I thought of course.

Lead 2A: Yes, indeed.

So after that, there were discussions – there was a development in your position, as I understand it, and you provided a supplementary statement to the Inquiry explaining what the process had been, because although your position as at 13 October was that you didn’t have any messages because they weren’t available to you, you found a phone on – where the messages were ascertainable; is that right?

Mr Humza Yousaf: I wouldn’t say I found, I retained a handset, my previous handset, that I used up until about the middle of March –

Lead 2A: Sorry, of?

Mr Humza Yousaf: Of last year.

Lead 2A: So you were aware that you still had in your possession that handset before 13 October; is that right?

Mr Humza Yousaf: Yeah, that’s correct.

Lead 2A: Had you not checked that when you said that all the messages had been deleted?

Mr Humza Yousaf: I had. And because I had migrated my WhatsApp account on to the new device, so same number, migrated it on to the new device, when I went back to the old handset, when I went back to WhatsApp, there was just – there was no messages at all, it was blank. Now, of course I’m happy to talk to the fact that messages were recoverable, thankfully, by – not any amazing technical wizardry but actually by logging out of the WhatsApp account in my current handset and logging back in on the old handset. Because those messages were still on the phone storage, they would be able – they were fairly easily recoverable.

Lead 2A: So you were under the impression that the messages had been deleted previously in accordance with an existing government policy, but in fact it transpired that they had not been deleted and that they were in fact recoverable relatively easily?

Mr Humza Yousaf: Yes.

Lead 2A: The position then was that you were able to provide us with a large number of messages, including, for example, with a number of other people, but including extensive exchanges between yourself and Professor Leitch, of the nature that we’ve looked at already, so that there was a large number of messages on that handset, although in some way embedded within it in a way that you couldn’t originally access; is that correct?

Mr Humza Yousaf: In a way that was – I didn’t realise I could access when I changed device, yes, that’s correct.

Lead 2A: Thank you.

Your position is, I think, that those messages were – or the salient business points relating to discussions or decisions, were uploaded to the corporate record at or around the time when they were exchanged before the 30-day deadline expired –

Mr Humza Yousaf: Yes.

Lead 2A: – is that right?

So we have recovered, as you have said, during the course of your evidence and, you have said, in other fora, a significant amount of documentation which the Scottish Government has provided to us which relates to decision-making discussions relating to the way that the Covid-19 pandemic was managed in Scotland; that’s correct, isn’t it?

Mr Humza Yousaf: Yes.

Lead 2A: Given the fortuitous revelation of the messages which were unavailable to you but became available when you followed the process that you’ve set out, it would now be possible, would it not, for us to conduct a comparison between effectively what the government has given us, the corporate record relating to these matters, and your messages, in order to ascertain whether in fact you had recorded the salient points on the corporate record?

Mr Humza Yousaf: Yes, although I would make the point that salient points as – is open to interpretation. Key decisions of course and salient points relating to that decision should be noted in the corporate record, but you’re absolutely right, you could cross-reference.

Lead 2A: And we’ll find there, will we, that the salient points of the business you conducted over WhatsApp will be included within the corporate record?

Mr Humza Yousaf: Key decisions and salient points related to that decision should, of course, be recorded, and it was my practice to then inform my private office of those key decisions of any salient points related to that. And if I did not do that then of course those decisions would not be taken forward.

Lead 2A: Just to be clear, again, slightly terminology but it might be important, again you’re talking about decisions and salient points of decisions, but what I think you accept you were required to put on the corporate record was also discussions relating to decisions, so will that be included on the corporate record?

Mr Humza Yousaf: I think salient points would be recorded on the records, salient points, and that includes decision-making but any other salient points in relation to that decision.

Lead 2A: Will that include the types of discussions or the tenor of the types of discussions that you have been having with Professor Leitch in the exhaustive messages that you have now sent to this Inquiry?

Mr Humza Yousaf: So not every sentence, full stop, apostrophe, would be recorded, nor would it be required to be recorded, but if a decision was made and – any of the salient points related to that decision being made, they should be of course recorded on the corporate record.

Lead 2A: Because, of course, you’re now telling me that they should be recorded but you represented previously that they were on the corporate record; is that right?

Mr Humza Yousaf: I would always endeavour to put them on the corporate record, yes.

Lead 2A: Yes.

Mr Humza Yousaf: If there was any times that that was not done then that would have been a mistake made by a Cabinet secretary, by a minister, if they did not do that, but of course the guidance is that those decisions made should be recorded and the salient points in relation to that decision also.

Lead 2A: And in your case they were so we should find them on that corporate record?

Mr Humza Yousaf: Certainly that was always my intention to do that.

Lead 2A: But just to be clear, I’m not asking you about your intention, my understanding is that you have told us in your evidence and also previously that you did make sure that the stuff, the relevant material was on the corporate record?

Mr Humza Yousaf: Yes, we would always, when decisions were made, record on the corporate record, as per the Records Management Policy.

Lead 2A: In any event, First Minister, given the fortuitous discovery of these many messages – which we’ve read with great interest, and we’re obliged to you for producing them subsequently – we can carry out a comparison between these two bodies to ascertain whether that’s correct.

Could I ask you, you also provided some WhatsApp messages, not – although Professor Leitch is a frequent correspondent, there are others with whom you corresponded via that mechanism. One of them was the former First Minister, and you helpfully provided us with some messages. Helpfully because the former First Minister’s position is that she does not have access to any of those messages conducted – the WhatsApp messages – involving conversations with you or indeed anyone else.

Did you discuss the production of your WhatsApp messages to this Inquiry with the First Minister, the former First Minister?

Mr Humza Yousaf: No.

Lead 2A: We noted in your WhatsApp messages with Professor Leitch that there were frequently voice notes received from him. Was that a frequent practice of his, do you recall?

Mr Humza Yousaf: It was certainly on occasion and I would also occasionally use voice notes as well.

Lead 2A: Were the contents of those voice notes, in so far as relating to significant decisions made in the course of the pandemic or discussions around them, transcribed or copied into the corporate record?

Mr Humza Yousaf: Again, if there were salient points from those voice notes, then they would – and decisions that were made in those voice notes, then of course we would always seek to record them on the public record, on the corporate record.

Lead 2A: You would say you would seek to do so but can you tell me whether that did happen or not?

Mr Humza Yousaf: Again, when so many decisions were made in the course of the pandemic, it would always be the practice that we would seek to do that, government ministers, Cabinet secretaries would seek to do that. If there was occasions when that did not happen – that, I would hope, would be the very rare occasion but it should not happen – it should be the case that every single minister, Cabinet secretary, myself included, would ensure that those decisions and salient points related to those decisions were indeed on the corporate record.

Lead 2A: As you used your personal phones, because there were multiple phones, for conducting these exchanges, and you’ve explained to us the process by which the corporate record would be updated by you passing material to your private office, who would then include it in the corporate record, was it your habit then to give your phone, including these messages and voice notes, et cetera, to your private office to undertake that process?

Mr Humza Yousaf: No, because – that would not be the usual practice, because, again, it wouldn’t be the case that we would expect every word verbatim, full stop, apostrophe, to be recorded, it’s the salient points. So if I had a voice note from the former First Minister about a decision that we had made and it was for me to action, then I would make sure that I would inform my private office about the decision that was made after discussion with the former First Minister, and if there are salient points to record as well as that decision, then I would pass them on usually through an email in to my private office or indeed through a telephone call or a face-to-face exchange.

Lead 2A: So the process by which the information was passed was by email, so those emails should also exist showing how the –

Mr Humza Yousaf: Emails or face-to-face or telephone calls. Granted, less face-to-face during the early parts of the pandemic, given the restrictions, but there could be a number of ways of communicating the decision, or indeed the salient points, it wouldn’t just be by email. Certainly it was not done by handing a phone over or copying and pasting a whole WhatsApp exchange. It would be, again, the decision that was made and the salient points thereafter.

Lead 2A: Okay. But on the occasions when you did pass that information by email, those emails would still exist and we would be able to look at those emails to understand what you had passed on?

Mr Humza Yousaf: Yes, and I hope they would be passed on to the Inquiry already if requested.

Lead 2A: Sometimes the exchanges – a good example actually is the exchange you had on your very first day, where you’re trying to get to grips with some of the complex information, you were discussing things, thoughts with Professor Leitch. He is giving you some advice. There are numerous such exchanges. They can be quite complex and the thinking expressed within them can be quite complex.

Are you certain that where you conveyed the information to your private office verbally, as you said sometimes happened, although perhaps not in the early stages of the pandemic, it was conveyed such that all of the salient points relating to the discussion made their way onto the corporate record?

Mr Humza Yousaf: Again, where there was decisions that were made, absolutely certain of that, and if there was any misunderstanding from my private office they would usually seek clarification. If Jason and I were having a conversation because I was asking his advice on case numbers, trajectory or a particular area of clinical expertise that he had, it’s not necessary that that would be fed back into the private office or the corporate record. If there was a decision that was made or a salient point relating to that decision, then that was recorded on the corporate record.

Lead 2A: These processes are an important part of the Scottish Government and its key ministers upholding the principles of accountability and transparency upon which their bond of trust with the Scottish people is based; is that correct?

Mr Humza Yousaf: Yes.

Lead 2A: If it were to transpire that the material which we can now see in the messages has not been put onto the corporate record and therefore would not be available for a citizen to see on the corporate record, would that bond of trust have been broken?

Mr Humza Yousaf: No, I would disagree with that characterisation. I think it’s important that we record the decisions that are made and any salient points related to that decision. We cannot, I don’t think, reasonably be expected as a government to record every single sentence, as I say, every full stop or apostrophe, nor is that required of us. I think what’s really important in terms of that bond of trust, and this was exceptionally important for issues around public compliance with restrictions, was explaining the rationale for why we made certain decisions. And that was done regularly. It was the former First Minister’s practice to, almost daily, do a briefing with the media, to explain – they were well watched, as the Inquiry will know, and therefore exceptionally important that we demonstrate the rationale for the decisions that were made. That isn’t always done through the corporate record, maybe it will be done through ministerial statement, through daily briefing, through questioning from journalists or parliamentarians.

Lead 2A: Thank you.

I’d like to ask you some questions about the Cabinet Secretary role you held in the early pandemic, that was the Cabinet Secretary for Justice. I think you were able to be – you were present at a number of the early meetings which took place in February of 2020 when information about the emerging threat had started to come through and the Scottish Government was trying to put together some element of co-ordination of its response; is that right?

Mr Humza Yousaf: That’s correct.

Lead 2A: For example, you attended a meeting of a body called SGoRR, the Resilience Room, about which we’ve heard other evidence, on 17 February. Is that right?

Mr Humza Yousaf: That is correct.

Lead 2A: One of the responsibilities you had was for policing; is that right?

Mr Humza Yousaf: That is correct.

Lead 2A: Could I have paragraph 143, please, of the statement up, where you helpfully give us some information about this situation. You say:

“In February 2020, my awareness of the number of people likely to be infected with Covid-19 in Scotland and in the UK (including details of any reasonable worst-case scenario (RWCS)) was dependent on the advice that we received from the CMO in terms of the forecast numbers of those affected. The SGoRR paper dated 17 February 2020 noted the RWCS figures and this was discussed at Cabinet the day after SGoRR met on 18 February 2020. These figures were clearly alarming and only underlined the rationale for the Government’s focus being dominated by its response to the pandemic.”

At around this time, can you tell us what steps you took to try to prepare the justice system for this clearly alarming situation, in particular because within the document that was prepared for that very meeting criminal justice is an entire section that is highlighted as something likely to be impacted by the threat?

Mr Humza Yousaf: Yes, there was immediate discussions of course with my officials, and they focused – and with stakeholders, some external and some as part of government bodies and agencies. They were predominantly focused on three areas: on the court system, what might be the impact, although that came slightly later on than this; clearly in relation to prisons, and that’s where some of the early focus was if this virus spread throughout a prison population, which I’m afraid to say was and continues to be overcrowded; and with police.

And again I think conversations with the police came slightly later than this, but those were the areas of focus for me immediately, once we received this reasonable worst-case scenario modelling paper.

Lead 2A: Well, that’s a very helpful summary, because I was going to ask you about the prison situation as well, because that was another thing within your portfolio; is that right?

Mr Humza Yousaf: That’s correct.

Lead 2A: You’ve touched on the very issue which I wanted to address with you, which was prisons, for example, weren’t discussed at Cabinet until 17 March. Is it the case that as far as policing and prisons were concerned, it was predictable that this alarming threat would require action both in terms of policing for enforcement but also in terms of the real risk that it posed to the prison population, given their particular circumstances, by this virus?

Mr Humza Yousaf: I think it was immediately clear once we had detail of the significant threat of Covid how damaging it could be to a prison population and there was European examples of where prisons had seen the virus rip through it, through the prison estate, and therefore that was one of the earliest conversations I had with my prison officials and, where necessary, with the Scottish Prison Service.

Lead 2A: Given that there was no discussion of prisons until 17 March does it suggest that perhaps Scotland was a little slow off the mark to deal with the policing and prison situation?

Mr Humza Yousaf: No, no, just because it wasn’t discussed at Cabinet, that didn’t stop or inhibit Cabinet secretaries and myself, as Cabinet Secretary for Justice, from having those conversations earlier, be it with officials or indeed with the bodies themselves, be it Police Scotland or the Scottish Prison Service.

Lead 2A: But what systems were – discussions, obviously, but what systems were put in place, first of all, to deal with what I would suggest would be the inevitable requirement for the police to be involved in some level of enforcement of rules, but also the very real threat that would be posed to the prison population? The prison population not, in some ways, being that different from the type of situation one saw with the Diamond Princess; although it wouldn’t necessarily have an elderly population, it would involve people in confined circumstances where the virus may spread rampantly.

Mr Humza Yousaf: I think this is exactly the point, there was no need for Cabinet to sign off the Scottish Prison Service looking to, for example, create extra capacity so they can try to introduce some sort of measure of be it social distancing or, for example, to see if they could remove people from double cells into single cells if possible, and those decisions wouldn’t require a Cabinet decision to have to be made.

Similarly discussions with police. When it came to issues of potential enforcement when it comes to legislation being introduced to the Scottish Parliament and being passed by Scottish Parliament, it wouldn’t necessarily require a Cabinet decision in relation to the operational independence of the police, Police Scotland had operational independence to make decisions based on any legislation that was passed and the subsequent enforcement action.

Lead 2A: So these matters were, you explain, not necessarily matters that Cabinet would have to decide but they were within your remit to decide; is that right?

Mr Humza Yousaf: They were my remit to have an overview. I should stress the point about operational independence for the police. I mean, it would absolutely a matter for the Chief Constable to determine how they enforced and the four Es approach that they took was an example of a decision that was made very much by the Chief Constable.

Lead 2A: What concrete plans were put in place with regard to the police and prisons at this early stage in March?

Mr Humza Yousaf: The discussions were held around – with clinical experts to understand what needed to be done to try to slow the transmission of the virus in a setting such as a crowded prison estate. So at the time the Scottish Prison Service tried to use whatever capacity it had, whatever additional space it had, to try to create, for example, social distancing measures. We were, of course, in the early, early days of trying to see what testing was available, at that stage, of course, in its development phase.

And then regular discussions with Police Scotland – and I instructed regular discussions with Police Scotland in order to determine what actions we could take collectively in relation to enforcement when – when that became apparent.

Lead 2A: Another area which I think from your statement you had responsibility for was travel restrictions in that post; is that right?

Mr Humza Yousaf: For a period, yes.

Lead 2A: Yes – for a period? Over what period was that?

Mr Humza Yousaf: Yes, I think it should be, I hope, in my statement but there was a point where later, after a number of months, I think the transport minister ended up taking responsibility for measures – forgive me if I don’t have the exact date before me –

Lead 2A: Yes, I think that may be in the statement, First Minister, but what I was interested in was the way in – over the period for which you were – when you were responsible for this, the way in which that worked. In particular you mention in your statement that there was a requirement for you to engage in discussions at a four nations level to deal with travel restrictions. It’s an area in which we have an interest. You explain in your statement that the engagement was primarily at the UK Government level for the transport minister but that you did have limited engagement with Mr Jack, who was the Secretary of State for Scotland.

Was the – what role did Mr Jack play? Because in our assessment one might have expected in an area like this, where there is an obvious need for UK four nations cross-border co-operation to the extent that it could be achieved, for the Secretary of State for Scotland to play some sort of role more than what you describe as limited engagement?

Mr Humza Yousaf: Yes and I can’t obviously speak for the Secretary of State for Scotland in terms of what engagement he had with his UK counterparts. I can only speak for the fact that when we’re on these four nation calls, his engagement was very limited and there would often be meetings where he wouldn’t say anything at all, and perhaps he was there to observe what was said on the meetings as opposed to necessarily contribute, but of course I couldn’t speak to the discussions he was involved in privately with colleagues and UK counterparts behind the scenes.

Lead 2A: Constitutionally would you have expected the Secretary of State for Scotland to have played a more prominent role in these discussions, given the importance, I think you’ll accept, of the need to try to come so some sort of consensus over travel restrictions?

Mr Humza Yousaf: I was curious at times why he was on the calls if there was no contribution that was being made, call after call, if that was the case. But no, ultimately there was a devolved responsibility for us in the Scottish Government and there was devolved responsibility to other governments in terms of their jurisdictions, England, Wales and Northern Ireland. With travel it was always going to be more difficult for those other nations outside of England because whatever decisions were made by the UK Government for England were largely going to impact the decisions that we made in Scotland, particularly around international travel –

Lead 2A: This is what I wanted to focus on, because our understanding from the evidence given by Mr Kenneth Thomson, who you will know was a senior civil servant, was that Scotland always – the Scottish Government always had responsibility for external borders, the external border of Scotland, because of the fact that public health was a devolved matter, and that was effectively a public health decision, even although the question of borders, as far as immigration and nationality is concerned, is a reserved matter.

So as far as we understand the position, from the very beginning Scotland effectively controlled its own borders, but – is that correct, is that your understanding?

Mr Humza Yousaf: It’s a very complex matter, and complex issue, just as you have articulated it. Ultimately if we – when we got to the phase of decision-making when we were looking at international travel corridors, we were looking at various different lists, whether countries should be on a green list, an amber list, a red list, you’re absolutely correct, Scotland could have made a decision and there was occasions when we made decisions where we put countries on a different list to the UK Government, for example, but that was rarely done because ultimately there was implications when the UK Government made a decision to put a country – England – on a green list, ultimately if we went – put that country on an amber or red list, people may well just arrive into a port in England and come up to Scotland, therefore we would be at a disadvantage both in terms of the virus but also in terms of our airports as well.

So we could make decisions around inbound travel and what lists countries were on. Immigration of course mattered. It was still a reserved matter and remains that way.

Lead 2A: So would you say that in practice and constitutionally the question about who ultimately controlled the borders was a blurry distinction?

Mr Humza Yousaf: Yes, to an extent I think that’s right. I think it was known that we could – when it came to determining whether countries were on a particular list, we could, as a Scottish Government, make a decision, and that decision could be different to other nations in the UK, and vice versa, but I think it was also well understood that if there was divergence then ultimately the decision that was made by the UK Government for England, that was going to have an impact on Scotland, Wales and Northern Ireland, given the ports of entry.

Lead 2A: Yes, so for the reasons you just discussed, which I think was people could arrive in England and travel to Scotland, and therefore Scotland would still have the public health detriment, if you like, of that, so there was a need –

Mr Humza Yousaf: – and economic detriment –

Lead 2A: Yes, yes indeed, the detriments.

I think, therefore, that – is it correct to say that this was an area in which there was a requirement for good intra-governmental relations to try to be consistent about the policy, to try to do the best for the people of Scotland to protect them from any of these threats?

Mr Humza Yousaf: Yes, it certainly required collaboration in the – in the interest of public health.

Lead 2A: Did you find you got that collaboration?

Mr Humza Yousaf: It was frustrating at times. For me, in my engagement with the UK Government – and if you’re asking me specifically around international travel –

Lead 2A: Yes.

Mr Humza Yousaf: – I had a good working relationship, a professional relationship. Personally and politically, of course, often differences, but we had to just put that aside and work collaboratively as best we could in the interests of public health. But there were occasions, particularly in relation to international travel, where I was deeply frustrated with the fact that either information coming to us – and it was usually information from the JBC, the Joint Biosecurity Centre, or other sources – was coming to us at the absolute last minute before a meeting, five, ten minutes before a meeting was to start, or we were reading about an announcement of a decision already being made by the UK Government – which, again, was their prerogative, it was their right to make a decision about what countries were on what list for England, but that undoubtedly had an impact on decisions that we were then going to have to make.

Lead 2A: You say as a result of that phenomenon, at paragraph 53 of your report, that:

“… if the UK Government had decided unannounced, in relation to international travel restrictions, that a country was on the green list, the Scottish Government would often have to follow the decision made by the UK Government, as international travellers could arrive in England and travel domestically to Scotland otherwise. This is also an example of decision-making by the UK Government which was driven by an England-only understanding of policy issues.”

So from that assessment and the analysis you have given about the way in which these decision were often announced before the Scottish Government knowing anything about them in the press, it does tend to suggest in this regard that there was not a good working relationship over this important issue; is that your position?

Mr Humza Yousaf: No, again, it was done on occasion and that was frustrating but ultimately I found that where we had to work together, where we had to collaborate with the UK Government, in the areas where I had responsibility, as Justice Secretary and as Cabinet Secretary for Health and Social Care, often we could collaborate in the interests of public health. But, to be frank, it could be frustrating on occasion.

Lead 2A: What responsibilities did you have in that post for the internal border, the border between Scotland and England?

Mr Humza Yousaf: Could you say that again?

Lead 2A: Sorry. What responsibilities did you have in that post for the border between Scotland and England, the internal border?

Mr Humza Yousaf: Yes, for the internal border, again, where decisions were made, and there was periods throughout the pandemic where decisions were made around cross-border travel, the responsibility I would have would be liaising with Police Scotland, but ultimately it would be an operational decision for Police Scotland to determine how they might well enforce any ban that may have existed between cross-border travel. So my real role was with interaction with Police Scotland, accepting of course it was an operational decision about how many resources or assets they deployed to the border, but yes, my main interaction would be with Police Scotland in that regard.

Lead 2A: We understand it was certainly reported in December 2020 that there was a ban from the Scottish Government side on travel between Scotland and the rest of the UK; is that right?

Mr Humza Yousaf: Yes, I think that’s the correct date.

Lead 2A: And you would therefore – you detail in your statement you had very regular contact with Police Scotland throughout this and the whole of this period; was that something that you discussed with them as regards how that would be enforced?

Mr Humza Yousaf: I discussed the decision that was made and the Chief Constable informed me of his intention, in terms of how to react. My memory, and of course I will correct it if I’m wrong, was that he was going to double the number of patrols that were near the border at that point.

Now, there would be no checkpoints and he was very, very clear about that, but he was looking to increase the number of police assets near the border to effectively act as a deterrent.

Lead 2A: So when you say there was a ban, it seems that there was a reluctance on the part of Police Scotland to do very much about enforcing it; is that correct?

Mr Humza Yousaf: Again, I think there was an understanding also from the Scottish Government that police resources were very, very stretched. Nobody expected there to be a mass deployment of police resources down at the border. We understood how busy Police Scotland were and they were very integral to our response to ensuring public health at the time of the pandemic.

Lead 2A: Thank you.

While we’re on the subject of enforcement, I had a few questions for you about that as well. The government, the Scottish Government chose to enforce the regulations such as the stay-at-home requirements by way of fixed penalty notices; is that correct?

Mr Humza Yousaf: That is correct.

Lead 2A: And we understand from your statement that the level of the fixed penalty notices were a matter which you decided upon; is that right?

Mr Humza Yousaf: Yes, that’s correct.

Lead 2A: A fixed penalty notice is, in essence, an on-the-spot fine typically issued by police officers in respect of minor breaches of the law which does not count as a criminal conviction but is recorded on police systems and may be disclosed via an enhanced disclosure application within a certain period of time; is that your broad understanding?

Mr Humza Yousaf: Yes, that is correct.

Lead 2A: Why was it that you chose to enforce – the Scottish Government chose to enforce the regulations in that particular way?

Mr Humza Yousaf: Can I say that I understand that there would be very different viewpoints on the use of fixed penalty notices and, from a government perspective, we had to have some sort of deterrent once the regulations were in place, we thought that was important in relation to compliance, but understanding that the vast majority of compliance would take place without any police interaction whatsoever.

In fact if I went a step further, even when it came to police interaction or police activity, the vast overwhelming majority of that would be done without enforcement. The police had their four Es approach, with enforcement being the very last E that they chose to deploy. And my understanding from the figures that I’ve seen is that police activity during this period – 94% of police activity didn’t require an FPN, a fixed penalty notice, whereas only 6% required that level of enforcement action.

Lead 2A: Did you or the Scottish Government more broadly give consideration to the possibility of seeking to enforce the regulations without using the fixed penalty notices?

Mr Humza Yousaf: I think our – my recollection is that our concern would be that if we used anything else, so, for example, a recorded warning, that it would not have the same impact or effect or understanding. I think we were very conscious that people understood what a fixed penalty notice was, people may have had it for speeding, littering and so on, so it was an understood – well understood system. Whereas a formal police recorded warning might not have the same impact or effect. So it was the government’s view that a fixed penalty notice was the right mechanism to use for deterrence purposes.

Lead 2A: Was it – was that not precisely potentially the problem with fixed penalty notices in this circumstance? Because whereas they might be used and there is an existing administrative system to process them for things like speeding, speeding offences are relatively cut and dry, whereas the question as to whether someone is breaking one of these regulations by, for example, not being at home without a reasonable excuse, is a much more difficult and nuanced question to answer?

I’m interested in whether consideration was given within the Scottish Government to alternative means of trying to ensure that the rules were followed other than the FPN system?

Mr Humza Yousaf: Forgive me, I would have to look over previous Cabinet discussions, but certainly I know that there was certainly an understanding that there was other systems available, such as formally recorded police warnings. I think for the confidence that we had in police officers was that every single day, I suspect, police officers have to try to exercise judgement. You’re right, there are some issues which are just cut and paste, they are dry, they are black and white, you understand exactly whether or not an offence has been committed and therefore a fixed penalty notice must be issued, but Police Scotland, police officers I think every day probably are in that area where they have to make a judgement about whether an offence has been committed or not, so there was certainly a belief in Police Scotland’s ability, if it was necessary to issue a fixed penalty notice, that they would do that in the correct and appropriate manner.

There was also an understanding amongst all of us, government, Police Scotland, that enforcement such as a fixed penalty notice would only ever be the absolute last resort, therefore we did not expect there to be a significant amount of fixed penality notices issued.

Lead 2A: The Inquiry has heard some evidence from Professor McVie on the subject of enforcement. In her statement at paragraphs 8.1 to 8.2 she suggests that internal Scottish Government correspondence suggests that Scottish ministers took the lead from the UK Government on offences and fixed penalties.Government.

At paragraph 13 of a separate document which she relies upon, she also suggests that the decision also administratively, as you’ve suggested, fitted in with an existing system of anti-social behaviour legislation.

What I’m interested to try to explore, First Minister, is the extent to which any real consideration was given to the possibility of not using this method of enforcement or whether it was simply adopted because it was the approach the UK Government had decided upon?

Mr Humza Yousaf: I think our default position was to go down the fixed penality notice route, so Professor McVie, whose evidence I’ve read, and summary of her work I’ve also read, makes some very important points for us to absolutely reflect on as a government. I think it was our default to go to the FPN – down the FPN route because it was well understood and all of our behavioural scientists would tell us that, in order to get greater levels of compliance, those decisions, regulations, guidance, all of that, should be well understood. And if it’s well understood, then there’s a greater chance of compliance.

There were some differences in terms of the FPN structure in Scotland and England, I think we had different levels of fines. If I remember correctly, our fine level slightly lower than – than what was in England, so slightly different – slight differences, but ultimately, yes, the FPN route was the default.

Lady Hallett: I’ve just had a – the transcript’s got “(Webinar freeze)”. Has that transcript got “(Webinar freeze)” at the bottom? I’m wondering whether we ought to take the break now.

Mr Dawson: We’re very close to the break anyway, my Lady, I think that sounds like a good option.

Lady Hallett: Sorry about this, but it’s obviously important. I don’t know if that means that people aren’t following it – able to follow it online.

Mr Dawson: We can look into that, of course, my Lady.

Lady Hallett: Thank you. I shall be back in – provided everything is up and running – at 3.10.

(2.57 pm)

(A short break)

(3.10 pm)

Lady Hallett: I gather we’re back up and running, Mr Dawson. If it happens again, I will continue on the basis that we can still have a transcript made, because obviously although I have a duty to make sure these proceedings are as accessible as possible, there are limits when technology fails us.

Mr Dawson: Thank you very much, my Lady.

First Minister, if I could just return to a point we were discussing a little bit earlier in the conversation, it’s been brought to my attention by the Scottish Government legal team, it related to our discussion about publication of Cabinet minutes.

We were discussing matters on the basis that Cabinet minutes would be accessible, and they’ve asked me to clarify or point out, perhaps, that in fact automatically Cabinet minutes are not released until after a period of 15 years. Is that your understanding?

Mr Humza Yousaf: Yes, we just released a whole tranche of papers, in fact –

Lead 2A: Yes, but – but for our purposes in our discussion, I think the material point is: do you accept that documents which exist are susceptible to a Freedom of Information request by an interested citizen, documents which do not exist are not, isn’t that right?

Mr Humza Yousaf: Yes, yes, and I think I, in answer to your question, referenced FOI, because that’s exactly how somebody might be able toll obtain some documents. Of course exemptions do apply to FOI legislation, but yes, that’s correct.

Lead 2A: Thank you very much.

We were talking before the short break about the process which had been undertaken to try to work out how Scotland would go about enforcing the relations, and you told us about some of the processes. You intimated that Scotland had some differences, although the fixed penalty notice system was broadly similar to that in England.

One other matter which has been brought up with other witnesses is the fact that one difference was that Scotland’s FPN system applied to 16 to 18-year olds. This was a matter which, again, was covered with Professor McVie.

What active consideration was given to that difference between the UK Government system and the Scottish Government system such that younger people would be caught by the FPN system in Scotland?

Mr Humza Yousaf: Yes, it’s my recollection, though, again, I’ll be happy to be corrected if wrong, but that of course was changed by regulation –

Lead 2A: It was changed subsequently, yes.

Mr Humza Yousaf: Yes – and pretty early on after regulations were passed, in order to bring us into line with our requirements in relation to the United Nations Convention of the rights of the child, so it was raised to 18. The reason why that was perhaps not given consideration early on was the thinking that if this was to act as a deterrent, it should capture as many people as possible in order to then subsequently have the public health benefits. But on reflection that wasn’t the right calculation to make, or the right factors to consider. The correct factor in relation to those who are 16 to 18 is, of course, their rights, and that’s why we made the change, as I say, to align us more closely with the UNCRC.

Lead 2A: So the change was made, you’re absolutely right, First Minister, it was – the Coronavirus (Scotland) (No.2) Act amended the existing regulation 9 to raise the age to 18, which came into effect on 27 May 2020. However, what I’m interested in is the extent to which consideration was given to Scotland’s – the Scottish Government’s international obligations with regard to children in setting the age at 16 at the start. Was that considered?

Mr Humza Yousaf: Again, my recollection is that the default position that we landed on at the beginning was FPNs to include 16 to 18-year olds, so we were always, throughout any decision that was made, always trying to balance a number of rights. So, again, I would have to look over previous discussions and minutes. I would be surprised if we did not consider whether or not we should raise the age at that point, but decided on balance not to. But of course that was again subsequently changed upon further reflection and representations made by the likes of the Children’s Commissioner, Scottish Human Rights Commission and others.

Lead 2A: In her report Professor McVie suggests at paragraph 8.3 that there is no available evidence to suggest that Scottish or UK lawmakers gave consideration to equality issues in respect of the decision to use fixed penalties. Is that a correct assessment of the position?

Mr Humza Yousaf: It is technically correct, although we used EQIAs, equalities impact assessments, across a range of different decisions. I don’t think –

Lead 2A: – I’m interested in –

Mr Humza Yousaf: – specifically on the issue around fixed penalty notices.

Lead 2A: So there was no such assessment and Professor McVie’s impression is correct?

Mr Humza Yousaf: Her impression is correct.

Lead 2A: Thank you very much.

In January 2021, as we know, the Scottish Government introduced a new stay-at-home order and some consideration was given around that time, as I understand it, to the way in which the enforcement should continue over that period, and you were involved in that at that time; is that correct?

Mr Humza Yousaf: Yes, that’s correct.

Lead 2A: Could I look, please, at INQ000214456. I’m looking at paragraph 20, please.

Excuse me just one second.

Yes, sorry, I think I have – I think it’s subsection (h). This is from the minutes of 4 January. It says there – obviously there was a question about how enforcement should work in the second lockdown, effectively. You said – where it says:

“Mr Yousaf undertook to speak to the Chief Constable to ensure that enforcement actions were being taken forward with due speed and rigour, based on a ‘maximalist’ approach, and that it was likely this would be met with a call for increased police resources. In addition, Environmental Health Officers, with appropriate police support, would need to enhance their monitoring of compliance with local restrictions.”

“Maximalist approach” appears in inverted commas; was that your expression?

Mr Humza Yousaf: I don’t recall if it was my expression or another Cabinet secretary’s expression, but I certainly associated myself with the remarks and with that approach.

Lead 2A: Whether you used that exact word or not, what was meant by that approach?

Mr Humza Yousaf: Yes, what was meant by a maximalist approach was – and, again, setting the context exactly as you have already done – that we were dealing with the resurgence of the virus, I think at that point a new variant of the virus recently having been discovered, more transmissible than the previous, real concern around the spread of that virus, and therefore a real need to ensure that restrictions were abided by. So “maximalist approach” meaning, I suppose, what is said in – in the rest of that sentence, that there would be a greater police resource allocation towards enforcement of the regulations, and again that enforcement always took that four Es approach, with enforcement being the very last resort.

Lead 2A: Does it not suggest that there should be more emphasis on the enforcement element rather than the other Es in the policy?

Mr Humza Yousaf: No, not necessarily. It’s a maximalist approach, so trying to cover – I think it’s trying to cover geographically as much of the country as we could but also the various sectors and elements of the society where regulations impacted and affected, and therefore a greater coverage of police resource may well be required, hence the rest of the sentence:

“… likely that this would be met with a call for increased police resources.”

As opposed to any additional focus on the enforcement element. That was never a conversation that was had. The Chief Constable was very, very – the former Chief Constable was always very, very keen to stress to me that he did not want the policing by consent model to be diluted in any way, shape or form, and that he and his officers would always put an emphasis on the first three Es, the engage, the explain, the encourage, before they would end up at the enforcement space.

Lead 2A: What equality impact assessment was done of your proposal that there should be a new maximalist approach?

Mr Humza Yousaf: I don’t think there would be an EQIA on a decision to, for example, increase police resource. There will have been EQIAs in relation to the regulations themselves, but you wouldn’t necessarily do an equalities impact assessment on an approach, an operational approach, that was perhaps taken.

Lead 2A: It would be important in order to try to adhere to the four Es approach that you’ve referred to that people should be able to understand the regulations clearly; is that correct?

Mr Humza Yousaf: That is correct.

Lead 2A: What was done at this time in particular to try to ensure that people understood precisely what the regulations were?

Mr Humza Yousaf: A whole range of activity. Of course, the well watched media briefings were going to be important. There was communication that would have gone out from the government, where necessary from Police Scotland as well, and that would be materials not just on the television, on the radio, social media assets would be deployed as well. So we always endeavoured to do our best to ensure that there was as wide understanding as possible of the regulations and indeed the guidance, and we know that at times and on occasion that could be particularly complex.

Lead 2A: The rules required to be clear so that people could comply with them; is that correct?

Mr Humza Yousaf: Yes, as clear as they could be would help in relation to compliance, yes, that’s correct.

Lead 2A: Could I go to INQ000334792, please.

This is from a later period when you had moved into your new position as the Cabinet Secretary for Health and Social Care. I would like to ask you some questions about an exchange in this page, on 19 November 2021, from 19.58. Again, this is one of your regular conversations with Professor Leitch. You ask a question of Professor Leitch:

“… I know …”

You refer, in the blank passage, to an event that you’re going to attend, and it says:

“… I know sitting at the table i don’t need my mask. If I’m standing talking to folk need my mask on?”

You ask.

Professor Leitch says:

“Officially yes. But literally no one does. Have a drink in your hands at ALL times. Then you’re exempt. So if someone comes over and you stand, lift your drink.”

And then you say in response to that, after a couple of further comments, at 20.05:

“That’s what I’ve been doing at the other events I’m at…!”

When you, the Cabinet Secretary for Health and Social Care, feel the need to clarify the rules about face masks, what chance do others have in understanding the rules?

Mr Humza Yousaf: Look, again, as – let me try to wrap some context, if I can.

As the Cabinet Secretary for Health and Social Care I didn’t just double check the rules, triple check them, I would quadruple check them if I had to, because the intensity of the public scrutiny that we were under, as politicians of all stripes and colours, but particularly as the Cabinet Secretary for Health, I knew that I would always be under scrutiny to make sure that I was absolutely following every regulation and every guidance. And so it should be thus, that is absolutely right and I’m not complaining about that. So it would not be unusual for me to check in with either the National Clinical Director, Professor Leitch, or the CMO to, as I say, double, triple, quadruple check my understanding of particular nuances in relation to guidance. I always wanted to make sure that I was absolutely complying. And this was a nuance in particular guidance.

And I also can’t deny, Mr Dawson, that there was times when the rules were complex and we got ourselves into a position, I remember, during the course of the pandemic where we were talking about things like “vertical drinking”. I mean, these were phrases that we hadn’t used before, didn’t mean much to folk, and we were responding in real time to events, trying to balance the four harms as best we possibly could.

So I would say on the vast overwhelming majority of cases when we produced regulation and the associated guidance they were well understood, but clearly – I believe one of the lessons we could and should learn is that in a development of that guidance could we have taken a bit more time, engagement sometimes with industry, be it hospitality or others, and was there more that we could have done to simplify some of the more complex guidance, as this was.

But look, my ultimate assertion is that for the vast overwhelming majority of cases the rules were well understood, aided by media briefing, aided by additional marketing, social media campaigns, et cetera.

Lead 2A: The requirement to wear a face mask in certain circumstances was a part of the Scottish Government’s strategy towards fighting the virus at this time?

Mr Humza Yousaf: Yes.

Lead 2A: It was an important part or else it wouldn’t have been part of the strategy; isn’t that right?

Mr Humza Yousaf: That is correct, yes.

Lead 2A: Was it a matter of concern to you that the National Clinical Director informed you that “literally no one” follows this particular rule?

Mr Humza Yousaf: Again, for those that know Jason, I think by his own admission he would perhaps have a casual way of speaking and perhaps overspeak, as he described it. So when he says “But literally no one does”, that to me suggested that yes, on this particular nuance, when it comes to being at a dinner or a reception, that when standing speaking to people there wasn’t people wearing masks as per the guidance we had.

Lead 2A: You were seeking his counsel as regards what the rule was; isn’t that right?

Mr Humza Yousaf: Yes.

Lead 2A: And, as you said already, as the Cabinet Secretary for Health and Social Care, you were under particular scrutiny to follow the rules to the letter; isn’t that right?

Mr Humza Yousaf: Yes.

Lead 2A: Professor Leitch was giving you a loophole or a work-around to try to enable you not to comply with the rules; isn’t that right?

Mr Humza Yousaf: No, again, I was asking if I – just a clear clarification on how to comply. He was of course telling me how to comply. If someone comes over to you and you stand and you lift your drink, so if you have a drink in your hand, if you’re sipping, taking a drink, then obviously you cannot do that with a mask. I never asked for a work-around or how not to comply, and neither would I suggest that he was giving that.

For me, it was important, given the public scrutiny, in my role, that I absolutely double and triple checked the rules, and I did that on occasion with Jason, sometimes with others as well.

Lead 2A: Thank you, First Minister.

I’m sorry to jump around in the time, in the chronology, but I would like to ask you a question about something which happened again in your first role, before the election.

Could I look at INQ000334682, please.

This, again, is in a slightly different format, I think, some of the WhatsApp messages that you helpfully provided to us. It’s a WhatsApp exchange. The one I’m looking at is between yourself and Mr Swinney. I’m looking at 19/6/2020 at 10.26.

Mr Swinney says to you that you have just caught up with the “latest insight into SPF thinking”.

Is that the Scottish Police Federation?

Mr Humza Yousaf: That’s correct.

Lead 2A: And you reply:

“They’re a disgrace. Right through this pandemic they have shown an arrogance and retrograde thinking, Chief was livid last night.”

Can you explain, please, in what regard the Scottish Police Federation were, in your view, a disgrace?

Mr Humza Yousaf: Well, again, this was me expressing my frustration in a – what would have been a private conversation with a colleague, and sometimes you – when you are venting those private frustrations to a colleague, you use language that you regret.

Look, I had a good relationship with the Scottish Police Federation. We didn’t always get along, the previous leadership of the Scottish Police Federation – in fact I think it’s fair to say at times we would have very robust disagreements.

My concern in this particular instance, if I remember correctly, was that I didn’t think that they were being supportive of the Chief Constable, and police officers more generally, in relation to enforcement of regulations, and I thought that the way they articulated that was deeply, deeply unhelpful.

Lead 2A: These were the people upon whom you relied, the police officers, to enforce the regulations which the government had imposed; isn’t that right?

Mr Humza Yousaf: Police Scotland of course and police officers, as part of Police Scotland, were the ones that we relied on. Of course the Scottish Police Federation were the professional body that represented police officers. But my concern was not with police officers or individual police officers, far from it, I had the greatest amount and continue to have the greatest amount of respect, they were absolutely integral to our public health efforts. My concern was with the leadership, at the time, of the Scottish Police Federation, with whom, as I say, had a good relationship, one where we spoke on – on regular occasion had robust exchanges. But at this point, as I say, venting a frustration to a colleague in a private space.

Lead 2A: Thank you.

I’d like to ask you some more questions, please – again, sorry to jump around in the timeline – about the period during which you were Cabinet Secretary for Health and Social Care. It might be helpful, first of all, to try and place your appointment in some degree of context before we do so in terms of what happened over the period but in particular what the state of the pandemic was at the time of your appointment.

In April of 2020, Scotland’s R number – sorry, 2021 – had fallen for the first time in four weeks, dropping from between 1 and 0.8 to 0.7 to 0.9.

On 25 April free lateral flow kits had been made available for anyone without symptoms.

On 26 April there had been a significant opening up, with non-essential shops, gyms, swimming pools, pubs, restaurants and cafés allowed to re-open, while travel between Scotland and the rest of the UK was also permitted again.

On 6 May, which was the day of the election, you’ll recall, First Minister, public health officials warned in that Moray they were experiencing an uncontrolled sustained community transmission of Covid-19, with a case rate of 81 in 100,000.

On 17 May most of mainland Scotland, with the exception of Moray and Glasgow, moved from level 3 to level 2 restrictions, allowing pubs and restaurants to open for indoor service.

And indeed, as I think we’ve seen from some earlier messages, there was a concern – really at almost exactly the point of your appointment, First Minister – about cases started to rise in the Glasgow area.

Does that give a fair description as to the background of the situation that you walked into, or are there any other salient features of the pandemic that you would wish to point out?

Mr Humza Yousaf: No, I think that’s a fair description of the point by which I was appointed. I think the only thing I would add to that is there continued to be extreme pressure on the health service as well –

Lead 2A: Yes.

Mr Humza Yousaf: – and usually by spring, outwith the pandemic, you could begin to see some sort of easing, though you’d tend to have respiratory viruses sometimes during the Easter holidays, but you would tend to see a bit of easing. That was simply not the case. Other than that, I think you’ve covered the salient points.

Lead 2A: Looking prospectively during the period in which you did serve in the post up to April 2022, the period in which we are interested in this module –

Mr Humza Yousaf: Yeah.

Lead 2A: – would it be fair to say that your period in office was characterised by very considerable rises in the number of cases, broadly speaking, from around about the summer of 2021?

Mr Humza Yousaf: Yes, there would be fluctuations, of course there would be, but at the time that I was appointed there was a number of waves of the pandemic and of course in 2021 we also then had to deal with the Omicron variant.

Lead 2A: Yes, if we just take it in a stepwise fashion, we’ve seen some evidence from some statistical experts that in the summer of 2021, not long after your appointment to this post, cases started rising significantly and that was associated with the Delta variant of the virus; is that your broad recollection?

Mr Humza Yousaf: Yes, it is.

Lead 2A: And as you say correctly, cases remained high, they were up and down, but they remained comparatively high in Scotland compared with the rest of the United Kingdom over that period. Do you remember that being the case?

Mr Humza Yousaf: Over what period?

Lead 2A: The period from the summer till the Omicron arrival towards the end of the year that you described.

Mr Humza Yousaf: Yes, cases were fluctuating, rising often. In terms of how they compared to the rest of the UK throughout that period, from the summer till the arrival of Omicron, there will have been, I’m sure, periods where case numbers in Scotland – the R number may well have been lower than other nations in the UK, but, for a period, absolutely, were higher.

Lead 2A: I’m simply seeking to paint a broad picture, First Minister, we have been through the detail of it with other witnesses, but, as you say, what then happened towards the end of the year is it was a further wave of the Omicron which was a much more transmissible variant of the virus, resulting in huge increases in the number of cases in Scotland; would that be broadly fair?

Mr Humza Yousaf: Yes.

Lead 2A: We’ve seen some statistics that would suggest that at the peak of the Omicron wave 8% of people in Scotland were infected whereas at the peak of the first wave only around 1% were infected, based on analysis of retrospective figures. So there were huge numbers of infections to deal with. And is that broadly, again, your recollection?

Mr Humza Yousaf: Yes, absolutely.

Lead 2A: Again over this period we’ve seen evidence that although the Omicron variant was generally deemed to be less virulent, it was much more transmissible, but it also resulted in Scotland, in this third wave combined, in very nearly as many deaths as had occurred in each of the first two waves, with somewhere around about 5,000 deaths having occurred in each wave, broadly. Again, is that broadly your recollection of the experience that you had as Cabinet Secretary over that period?

Mr Humza Yousaf: Yes, I couldn’t swear by the exact number, but broadly – broadly that’s –

Lead 2A: I’m simply seeking to illustrate that, even although Omicron was less virulent, it was way more transmissible.

Mr Humza Yousaf: Way more transmissible, highly transmissible.

Lead 2A: Which resulted in the same number of deaths in this third wave as there had been in each of the first two waves; was that broadly your recollection?

Mr Humza Yousaf: Yes.

Lead 2A: And another characteristic which you touched upon yourself of this period was that, in many areas, hospitals started to become overwhelmed; isn’t that right?

Mr Humza Yousaf: Extreme pressure on our hospitals, yes.

Lead 2A: Many health boards required to suspend non-urgent surgery at different times?

Mr Humza Yousaf: That is correct. Particularly in the run-up to winter they had to make the really difficult decision of stopping elective care, in some cases, altogether.

Lead 2A: The military required to be called until at times to assist?

Mr Humza Yousaf: Yes, we made MACA requests at times, in relation to ambulance services in particular.

Lead 2A: You described at one point over this period as Scotland – the situation as Scotland facing a perfect storm; do you recall that?

Mr Humza Yousaf: I do.

Lead 2A: Given that NHS capacity had been such a priority in the strategy which had been adopted in connection with the first wave of the virus, why was it that hospitals were allowed to become overwhelmed in this wave of the virus?

Mr Humza Yousaf: It wasn’t the case that they were “allowed to become overwhelmed”, we had a perfect storm of issues and factors that came together. We had, as you have very well articulated, a highly transmissible variant of the virus. We had, of course, been opening up society; that was right because of the vaccination programme. We had some element of other respiratory viruses, although flu didn’t hit in as big a way as it did in 2022. And of course we had the other peak pressures that you tend to see during the winter period.

But when you have a highly transmissible variant, as Omicron was, way more transmissible than previous variants, hitting you at about the winter time, where of course not just where you often see other respiratory viruses but people tend to mingle more, go to social events more often, Christmas parties, New Year functions, then all of these factors coming in together made the pressure on the NHS extreme.

Lead 2A: You say in your statement at paragraph 23 that you were provided with advice, information and evidence from a myriad of clinical and scientific experts, Scottish and intergovernmental advisory groups and stakeholders. Then you say at paragraph 63 that there wasn’t a risk of information overload or repetition for key decision-makers.

Would it be fair to say that the main person to whom you turned for clinical, rather than medical, advice was Professor Leitch?

Mr Humza Yousaf: Yes, and the CMO, who would attend virtually every Cabinet, but I probably spoke to the National Clinical Director more than I spoke to another clinical expert.

Lead 2A: But on a day-to-day basis the WhatsApps, which you helpfully provided, show you interacting with Professor Leitch on a regular basis?

Mr Humza Yousaf: Yes.

Lead 2A: Sometimes several times an hour in relation to queries which have arisen from your analysis of the paperwork or the issues and seeking counsel from him. Was that your default position, to use your own expression?

Mr Humza Yousaf: Yes. It would depend also on the nature of the advice that was required, but yes, I would turn to Professor Leitch as the health adviser and a clinical expert when I needed that health advice. And you’re right, that could be multiple times a week, it could be multiple times a day, depending on what was going on at the time.

Lead 2A: You say it would depend on the type of advice that would be required as to when you would turn to Professor Leitch or perhaps others. What advice would you seek from others that you wouldn’t seek from Professor Leitch?

Mr Humza Yousaf: So, for example, if there was issues particularly in relation to – to medicines, to antiviral treatments, I may well go to Alison Strath, who was the Chief Pharmaceutical Officer at the time. So dependent on what was needed or what was required, it’d depend who I’d go to.

But I’m not arguing with your assertion, your assertion is correct, but in terms of my health advisers – which I have to say were excellent throughout the course of the pandemic – I would most often go to Professor Leitch.

Lead 2A: We have looked at the paperwork for the Scottish Covid Advisory Group over this period, of which you’ll no doubt be aware and we’ve heard evidence from a number of its prominent members. One thing which is perhaps striking about the frequency of the meetings of that group is that they became very less frequent in the period when you were in this particular position. From June 2021 they met only monthly, although they had met much more frequently previously, with the exception of a cluster of meetings in December of 2021 in connection with the Omicron threat that we’ve discussed.

Was it the case that very much less advice was sought from that expert group and more reliance was placed on the in-house medical and clinical and scientific advisers, given the fact that over this period attention had turned away from managing the threat of the virus and towards managing the recovery from Covid?

Mr Humza Yousaf: I think from my perspective it was only natural that the C-19 advisory group would be relied on more heavily in the early days of the emergency phase of the pandemic, while we’re still trying to grapple with the epidemiology of the virus, the characteristics of the virus, and of course work was still ongoing in relation to a vaccine, what can you do in relation to NPIs – non-pharmaceutical interventions in advance of a vaccine, so the reliance on an advisory group that would often engage with the CMO or would give written submissions to Cabinet secretaries or the government as a whole, the reliance on that group would have been far greater when the group first set up and in that real emergency phase of the pandemic.

You’re right to point out that the frequency of the meetings increased when the Omicron variant came in, and that stands to reason, because during the recovery phase by this point, by just kind of pre-Omicron, we would have had a good handle on understanding the characteristics of the virus, we would have had, of course, our vaccination programme under way, we would have understood the non-pharmaceutical interventions and the impacts that they would have on the virus and containment and delay of the spread of the virus. But where we needed that C-19 group, for example, if a new variant came on, and to understand its impact and effects, then we knew we could always rely on the C-19 group.

And there was, of course, other groups, which I know the Inquiry is well aware of. Some are UK level, SAGE, NERVTAG and the Joint Biosecurity Council(sic), UKHSA, and some, of course, at a Scotland level that we could rely on too.

Lead 2A: Eight times as many infections as in the first wave, almost 5,000 deaths, hospitals overwhelmed, the military called in. Why was this not an emergency phase of the pandemic?

Mr Humza Yousaf: The emergency phase that we tend to talk about, I think, was pre – when the virus first came and arrived into the UK and therefore the very first non-pharmaceutical interventions had to be considered. In my experience, and I said this, I believe, at the time, this was an emergency in relation to our health service, there was no doubting that, but you yourself have used the phrase that this was seen as the recovery phase. I think that’s right, we were generally seen as being in that recovery phase at this point. But was it a health emergency? Was it a health crisis? For sure. We were facing the most extreme pressure that the NHS had seen at that point in its over 70-year existence. I think, again, up until that point, the winter of 2021, I don’t think the NHS would have had a more difficult winter in its history.

Lead 2A: In the period before your appointment we’re aware of a number of what were called “deep dive” meetings taking place – there were a number of deep dive meetings in a number of different areas but the deep dive meetings with the Covid-19 Advisory Group?

Mr Humza Yousaf: I was aware of them.

Lead 2A: On various issues, testing and the like?

Mr Humza Yousaf: I was aware of them.

Lead 2A: In the period when you were Cabinet Secretary only one such meeting took place as far as we’re aware, right at the end of the period in which we’re interested, to do with the future of Covid.

Is it the case that in this significant health emergency, more reliance should have been placed on that expert group in order to assist with the response?

Mr Humza Yousaf: Not necessarily. And the example that you gave I think is very pertinent. You mentioned the C-19 group did a deep dive, I think you said testing or the like. So that’s right by this point of course we’d have had a testing system, Test & Protect, well established, up and running, well under way, a vaccination programme well understood, well established, well under way, so we wouldn’t have to call the C-19 Advisory Group back in to begin to do deep dives into well-established protocols.

Given the Omicron was another wave of the virus, although I absolutely accept fully that it was a more highly transmissible variant of the virus, we knew what we had to do in – when we were hit with waves: we knew we had to look at NPIs, we had to look at the route map, we had to look at the four harms considerations that we had to take, and we had to make decisions on what action we were going to do based on the four harms, protecting people’s health, the indirect health issues, societal impacts and of course the impact on the economy as well. But the C-19 group I always knew was available should it be required during any point in the pandemic.

Lead 2A: It may have been available, what I’m suggesting to you is you didn’t use it.

Mr Humza Yousaf: But again I go back to the point of why it wasn’t used as often. Now, the C-19 group would often engage with the CMO. The CMO would then – I would have regular engagement with the CMO and then regular engagement – sorry, the CMO would attend Cabinet virtually every single week during this phase. My point being is that the C-19 group, as you yourself said, was there to help with deep dives into things like testing. These were already established. I wouldn’t have to bring the C-19 group back in to have a deep dive into testing established, vaccination established, and so on and so forth. But, again, there was advisers available within the C-19 group should I have needed them bilaterally as well as part of a group.

Lead 2A: Even although systems were in place, would that C-19 group not have been able to assist with the strategy in this further emergency phase of the pandemic?

Mr Humza Yousaf: I think, again, advisers took advice from clinical advisers, from the Chief Medical Officer, from the chief executive of the NHS, from health boards directly, from experts in social care, a range of experts and advisers, but I think we knew, given that we were facing this highly transmissible variant, one of the pieces of advice that we got was that we had to increase quite significantly the booster vaccine programme, and that’s why the decision was taken to implement what was known as the “boosted by the bells” programme, effectively, getting as many people their booster vaccination before the end of the year.

Lead 2A: What briefing did you receive on taking the post about the role that vaccination was likely to play in the pandemic in Scotland in that period?

Mr Humza Yousaf: When I first came into role – again, I would have to look back over of course paperwork, but there was no doubt at all even before I was in the role as health secretary that we all knew what a game-changer the vaccination was.

Now, the question when a new variant always came into play was whether or not it had what was termed at the time – it’s still used, the terminology – immune escape, and for me there was no doubting at all when I had my first briefing with the Chief Medical Officer, with the National Clinical Director and others that vaccination was the game-changer in how we respond to the virus and open our society back up as best we can in the face of Covid-19.

Lead 2A: In her evidence Professor Devi Sridhar, she was of course a member of the Covid-19 Advisory Group, she explained that at the time when the vaccination programme started, which was towards the end of 2020 increasing into the beginning of 2021, that her advice, her role in providing advice relating to what was known within the four harms strategy as harm 1, the harm caused by the virus, diminished, on the basis that her role had been more prominent in fighting the virus in the period before that.

Was it the case that your impression of the vaccine being a game-changer resulted in the fight against the virus, harm 1, getting less attention than it ought to have done?

Mr Humza Yousaf: It’s not my impression at all. And maybe I’m saying this as the person who was Cabinet Secretary for Health and Social Care, but harm 1 was always the one that was at the forefront of my mind. Harm 1 and harm 2 are probably the ones that were the most forefront of my mind, given that I was Cabinet Secretary for Health and Social Care from May 2021 to – the period of interest to you. So for me there was never any dilution, diminution of harm 1, it was at the forefront of our minds as a government constantly throughout the course of the pandemic.

Lead 2A: As far as harm 2 is concerned, which you’ve mentioned, obviously that would fall within your remit as well because although it’s not Covid harms – there’s other health harms –

Mr Humza Yousaf: Yes.

Lead 2A: – to remind people – what information were you provided with in order to try to manage the extent of that harm?

Mr Humza Yousaf: Again, I think when we had conversations, we were alive and alert to obviously all four harms. In respect to harm 2, particularly the impact on mental wellbeing, the most important thing that I could do was speak to those who were directly impacted, or represented those who were directly impacted, by harm 2, in particular if I think about the mental wellbeing aspects that people suffered, or chronic illnesses that they suffered, then I would often engage with those representative groups or indeed those with lived experience directly – as well as getting the usual briefing. There would always be briefing made available. When you first come into position you’re given multitudes, plethora of briefing to get your head round, but the best briefing, if I could put it that way, that I received in relation to harm 2 was undoubtedly the engagement with those that had been impacted not by the direct effects of Covid-19 but the perhaps indirect health consequences.

Lead 2A: Given the significant consequences which occurred over this period within the health service, non-urgent healthcare having to be cancelled in a number of health boards, is it not the case that, irrespective of the efforts that you have described as having taken with regard to harm 2, significant non-Covid harm was caused to the people of Scotland over this period?

Mr Humza Yousaf: There’s no doubt at all that when you cancel elective surgery people waiting on a waiting list is not a benign act, there’s completely – there’s absolutely an impact –

Lead 2A: So the discussion – sorry.

Mr Humza Yousaf: So there’s undoubtedly an impact on their health. It may be chronic health, it may be that hip replacement that Mrs Smith needed and that she now had to wait a year later would undoubtedly mean further deterioration, deconditioning and then impacting the quality of her life. That was absolutely a harm that we had to try to balance, and that’s why nobody took the decision at that health board level, government level or any other level, to stop elective care lightly at all. We absolutely understood that if we took these decisions to protect people from – and protect their lives in relation to the first harm, harm 1, then that would have an impact potentially on other aspects, including those that fall under the bracket of harm 2.

Lead 2A: During the period when you were Cabinet Secretary for Health and Social Care, significant harm under harm 1 was done, the virus was rampant, thousands of deaths, and record levels compared to the rest of the pandemic and the rest of the UK as regards the number of infections; is that correct?

Mr Humza Yousaf: Well, I would say that the emergence of Omicron, and of course the Delta variant that was more transmissible than the Alpha variant before it, that was the reason why we had high levels of infection, and in terms of Covid deaths that was a result of course of the Omicron variant, not because – and I would contend – of particular policy choices that I made as Cabinet Secretary for Health and Social Care or indeed that the government made. We were dealing with a highly transmissible virus that you have rightly described in your earlier contributions as being far more transmissible than the previous variant.

But yes, that resulted, I’m afraid, in a number of people losing their lives.

Lead 2A: As far as harm 2 is concerned, again I think the position is there was record levels of harm under harm 2 because of the hospital closures and pressures; is that not correct?

Mr Humza Yousaf: Again, your definition of “record levels” but there were certainly people because we took decisions to stop elective care then they would be added to the waiting list. Of course we took action to try to increase, for example, spend on mental health, as best we possibly could, to try to make sure that we dealt with some of the harm 2 impacts, such as on people’s mental wellbeing.

Lead 2A: One of the aspects of the management of the pandemic over this period was a number of issues and questions that you had to address with regard to large scale events; would that be fair?

Mr Humza Yousaf: Yes, absolutely.

Lead 2A: There were issues that arose about the Euros and the opening of fan zones in particular –

Mr Humza Yousaf: Yes.

Lead 2A: – is that right?

Mr Humza Yousaf: That’s correct.

Lead 2A: And there was also the issue of COP26, which has come up a few times in our evidence, and the management of infection around that, given the number of people involved and the fact that that was obviously an unusual event; that’s also correct, isn’t it?

Mr Humza Yousaf: That is correct, yes.

Lead 2A: Could we look, please, at the Euro fan zone position, again some WhatsApps, please.


This is an exchange between yourself and Jason Leitch again in which there is some discussion, as one sees this regularly, between the two of you about what you were going to do and what the solution is, and at 13.39 you – just get that up, yes, thank you, you say:

“At its lowest over the last 7 days we saw Glasgow case numbers dip to around 87 new cases, obviously now seeing an increase over the last two days – test [percentage] remaining relatively stable?

“Understand FM’s worry about losing the dressing room, but can’t do anything other than leave Glasgow in Level 3 for now.

“Big question (and opposition are asking it, not unreasonably) what is the way out? Are we doing enough here to break the community transmission. Instead of just targeting the hotspots does enhanced testing/prioritising vaccines etc need to be done city-wide?”

Then there’s a further discussion about all of this.

And then at 14.02 this is particularised in relation to the question about whether the Euros should be allowed to – well, whether events relating to the Euros should be allowed to proceed.

Jason Leitch says:

“And I agree. If trajectory continues and doesn’t accelerate everyone down a level. That would allow EUROS.”

He then says:

“Cancelling crowds and the fanzone would be VERY difficult.”

14.04, you say:

“That’s the danger though. Football is on, pubs open, lots of people mingling indoors including in households to watch the game, all the while Glasgow is still picking up 100-odd new cases a day…”

And there’s some surprise .

Then over the page, at 14.07 you say:

“All that said, we will lose the dressing room. People want to watch the match with friends and family, after waiting 23 [years] for Scotland to qualify.”

Further exchanges, and then you say at 14.11:

“To mitigate the surge in cases, we will possibly see as a result of the Euros, not better keeping Glasgow in Level 3 as long as possible before the first game…fanzone makes that tricky right enough.”

Then at 14.29 Professor Leitch says:

“So more testing. Case finding. Exactly what we want. As trump said, the problem with you public health idiots is if you do tests you find disease.”

So this is a discussion between the two of you about the case rises in Glasgow and the extent to which it would be wise to continue with the planned fan zone in Glasgow to allow people to watch the Euros; is that right?

Mr Humza Yousaf: That’s absolutely correct.

Lead 2A: And I think your position here, as I understand, is that you are quite concerned about whether these events could be allowed to go ahead, given the fact that the background is there’s high levels of cases, and you are rightly debating that with Professor Leitch; is that right?

Mr Humza Yousaf: Very concerned.

Lead 2A: Could we then go to pages 12 to 13. I think it’s the same exchange, yes, 4792, pages 12 to 13.

This is now on 10 June, I’m looking at 10/6/2021 at 11.45. Just up at the top there you can see Professor Leitch says:

“And it still goes on…FM wants more advice. Her instinct says cancel fanzone. Her office will write back (which Ken is writing) to ask for more and then Ken will gather the legal etc to reply.”

Then there’s a further exchange. You indicate that there’s been some attention paid to the cost of cancelling the event, which might be £6 million. You raise the question of whether that would or would not include compensation for those who have lost money.

And then at 11.55 Professor Leitch says:

“Yep. I think that’s costs not profit.”

In the £6 million analysis.

And then he says:

“She needs to do it before or at FMQs if at all.”

And you say:

“I’ll tell you what, from knowing her for 15 [years], it is not often her instincts are wrong.”

And ultimately I think the position is that the fan zone is allowed to go ahead.

Does this exchange show you being very concerned, understandably, about the situation in Glasgow, but ultimately there being a reliance on the First Minister’s instincts as to what to do?

Mr Humza Yousaf: No, I think the exchange is an understanding that this is not an easy call. You’ve got high case numbers in Glasgow, you’ve got a huge footballing event, for which Scotland have qualified for the first time in over 20 years, and you’ve got to make a decision about whether or not a fan zone, which is an outdoor fairly regulated space, and I went to the fan zone to see it myself, hand hygiene systems in place, one-way systems in place, six – and so on, we put other mitigations which I can talk to as well. Do you have that highly regulated space? And if you don’t have it, then do more people go into spaces which are more conducive to the transmission of the virus, ie into pubs or in each others’ households, less ventilation, less regulation of the space? And which one do we go with?

And ultimately I remember the First Minister was asking questions to which, to be frank, you would not be able to answer: if you close the fan zone, how many people, extra people end up in pubs? And therefore this was – I think the message exchange demonstrates that this was not an easy decision to make, and saying that: yes, the First Minister who – the former First Minister had shown very good instincts, I believe, in relation to decisions being made in regards to the pandemic. There was ultimately a decision that had to be made here and we had provided her clinical advisers and I had also spoken to her, of course, about the fan zone and given my view, but it was not an easy decision to make at all. I think ultimately the right decision was made, given the mitigations that we were able to put in place in relation to testing and so on and so forth.

Lead 2A: My question was whether ultimately it was a matter which relied – this very difficult situation with lots of different considerations, financial, health, moving picture – ultimately that relied on an instinctive judgement by the First Minister?

Mr Humza Yousaf: No, didn’t rely on that. Her instinctive judgement was important but it relied on, I think, being – all of those involved in the decision being confident that the appropriate mitigations were in place and understanding the impacts and potential effects of cancelling the fan zone and what that would mean for public health as well as other issues too.

Lead 2A: There is a further exchange at page 17, which is a little bit later, I think after, perhaps, the fan zone has, at least to some extent, been in existence. This is now on 24 June, looking at the exchange, which starts at the 24th at 12.26.

You are discussing, I think, the position with regard to the numbers and you say:

“I was certain we’d be well above the 3,000 mark…

“Just doesn’t feel right that we aren’t effectively able to do anything in the immediate and short term to drive those numbers down, other than imposing restrictions, which as the FM says the public just wouldn’t stand for.”

Professor Leitch says:

“Keep your fingers crossed it [is] a temporary Euros phenomenon.”

The expression “keep your fingers crossed” is one which appears on a number of occasions in these exchanges. Is it the case by this stage that you were relying on instinct and luck to manage the pandemic?

Mr Humza Yousaf: No, I would reject that charge in its entirety.

Look, I’m – I was the Cabinet Secretary for Health and Social Care, I was always going to be the guy in the Cabinet that pushed for us to go the hardest, the fastest, to do more in terms of NPIs and restrictions I suspect that is true of every health secretary right across the United Kingdom. That was often our position, and my position as Cabinet Secretary for Health was no different.

So there was occasions in Cabinet and in gold command other fora where I would be pushing harder, but ultimately it became a collective decision and in this case, for example, the First Minister, the former First Minister’s belief that if we had imposed restrictions, particularly during the Euros, the public just would not accept it. And that, of course, would be dangerous for compliance and then we would not just lose the public, which was important in relation to future compliance, but we’d also have no impact on the virus either.

Lead 2A: You used the expression in one of the passages I went to there, the possibility of “losing the dressing room”, that expression features on a number of occasions in your exchanges with Professor Leitch. Again, at this stage, are you effectively suggesting that although there is good evidence to suggest that more needed to be done, the concern was that you would lose the confidence of the public such that you just allowed the virus to run rampant?

Mr Humza Yousaf: No. You see, it’s not a case of simply losing the dressing room, or the public won’t stand for it. What that in effect means, of course, is that we don’t – we will not have compliance, and that is the worst of both worlds. So you end up in a position where people aren’t complying, they just won’t stand for it – at this point we’d been living with the virus for over a year and people have been through numerous restrictions – so you get the worst of both worlds: they don’t comply and then that therefore means that you continue to get increased levels and numbers of cases.

I think that was particularly – it was more difficult, I think, to bring forward the NPIs, the non-pharmaceutical interventions, when we had a vaccination programme also well under way and a testing system that was well established as well.

But I go back to the central point in this exchange, that we were facing an incredibly difficult set of circumstances, with not just the fan zone but, generally speaking, having lived for over a year with this virus people’s patience, understandably so, with restrictions wearing relatively thin.

Lead 2A: But at this stage was it not possible to try to mitigate the possibility of losing the dressing room by using strategies you suggested were used early in the pandemic: explaining things to people, explaining what the data was, explaining why it was in their interests to adhere to the restrictions. It seems here that there is a discussion about those risks, a discussion about that data, but you simply give up and rely on instinct?

Mr Humza Yousaf: No, again, I don’t agree that we gave up. There was first and foremost at this point restrictions in place. It’d be wrong for anybody to suggest there wasn’t any level of restriction in place. But what we also did was we took additional measures, particularly in relation to the fan zone but also of course, you’ll be aware, in addition to the fan zone there was some matches being played at Hampden, with a reduced capacity, so we made sure that significant mitigations were put in place in relation to testing availability, test kits being sent out to people, mitigations around hand hygiene, one-way systems, and so on and so forth. We took a number of mitigations. So this wasn’t a case of, “Look, we’re not going to take any action, we just have to live with what will happen”.

And ultimately of course the data demonstrates that, when we look at the Public Health Scotland Covid-19 statistical report of 28 June 2021, that between 11 and 28 June, 1,991 people in Scotland with a Covid diagnosis were identified as having attended one or more Euro 2020 events during the infectious period, but they were tagged in terms of what events they attended, and nearly two-thirds of the cases, 1,294 people, reported travelling to London for a Euro-related event and game. When we look at those who were tagged for the fan zone, out of the 1,991, 55 cases came as part of the fan zone or travelled to the fan zone, and the Scotland match against Croatia, 38 tags, and the Scotland match versus the Czech Republic, 37 tags.

So really a small proportion of those positive cases went to the fan zone or indeed attended a game at Hampden, and that, to me, says that the mitigations we put in place were relatively effective.

Lead 2A: Could I then follow this attempt to try to understand the decision-making process over this period into the later variant emergence which you mentioned yourself, the Omicron variant, so if we could go then to – I think it’s the same document, 4792, at page 45.

So at this stage late November Omicron has started to become the next issue that we have to deal with. I think that you say in your statement that there were some gaps in data around Omicron which caused some issues around that time. Could you tell us, do you recall what the gaps in data were around this period that caused difficulty in trying to come up with a strategy?

Mr Humza Yousaf: In terms of Omicron?

Lead 2A: Yes. I could read the passage out if it’s more helpful, it might refresh your memory:

“I do recall times when there were gaps in the data, scientific information or advice, particularly in relation to a new variant. For example, when information emerged about a new Covid-19 variant, Omicron, in late November 2021, advisors were understandably unsure about the extent of immune-escape or severity of Omicron. The scientific research was still in the early stages in South Africa (where Omicron was first identified) and while it was quickly established that it had a high transmission rate, other factors such as how it would impact those who had the booster vaccine were unknown. The lack of scientific understanding was communicated to Cabinet at the time, both from the CMO and in papers provided to Cabinet and taken into account when making decisions.”

So I think you’re trying to say there that, simply as a result of the fact it was a new variant. There was inevitably a lack of data about – one of the particular factors about it was whether there was going to be immune escape, such that the vaccines might not work as effectively against this new variant. Is that broadly correct?

Mr Humza Yousaf: Yes, correct.

Lead 2A: Yes. So at this stage one might think that one required to reimpose or reconsider a precautionary approach, because of the possibility that the great protector, the game-changer, as you described it, the vaccine, may no longer be the protection which it might at once have been; is that right?

Mr Humza Yousaf: That is one conclusion, yes.

Lead 2A: Is that a fair assessment of the approach which ought to have been taken?

Mr Humza Yousaf: Well, again, it depends when the decision was taken because every day we were learning more and more about the variant, its characteristics, possible immune escape, et cetera, et cetera.

Lead 2A: So if I could take you to an exchange, please – I’d taken you to at page 45, sorry, before asking you that question – at 13 December at 19.56.

Mr Humza Yousaf: Yeah.

Lead 2A: Discussion here in this context where you again discussing, as we see often, with Professor Leitch:

“Keep me updated on what comes out FM call. I will be really disappointed if we end up with just window dressing.”

To which, at 20.13, Professor Leitch described:

“It’s window dressing. We edged her to limiting households everywhere we could but it’s marginal. Nothing significant.”

You say:

“Just don’t get it. Take it it’s coming down to finance? So big events can continue, people can meet in as big as numbers as they like in pubs and restaurants? Madness.”

You say:

“Working from home?”

Professor Leitch says:

“All about money.”

Professor Leitch says:


“Yes. In regs.”

You say:

“Frustrating. Thought Kate [which I assume is a reference to Ms Forbes, is that right?] might have pulled something out of the bag. Was she on the call? I have might try and call her tonight will have limited effect i suspect but be helpful to understand the analysis she has done of costs involved.”

So is the position here that you are suggesting that greater steps require to be taken to deal with this situation but for, amongst other reasons, financial reasons those steps are not being taken, which is causing you a great deal of frustration?

Mr Humza Yousaf: That is a fair summary, so – and I remember this period very, very well, and I go back to the comments I made a moment ago in response to a different question that you asked. As Cabinet Secretary for Health I was always going to be the person round the Cabinet table that was pushing the government to go further, to go faster, to go harder, given that I was the one that was dealing with health on a day-to-day basis and seeing the impacts on the health service.

I think the other important point of context are in funding and finance here, which is exceptionally important, is of course by this point I believe the UK Government had already significantly reduced, if not entirely withdrawn, its funding in relation to business support. So therefore if we were going to try to find money for business support, if we were going to introduce restrictions on hospitality, then we would have to find that compensation within the Scottish Government’s budget, which was already under extreme pressure given that we were still – we had been fighting the pandemic that whole year.

So there is no doubt that I had thought at this period in time that we should have gone further, and I’m not sure if it’s quite at this time or slightly later in the month that we end up with an options paper around various different options that Cabinet considers. Now it’s no surprise that I am the one who opts for what I think was option C at the time, which was the one with the most restriction in place, including further restriction on hospitality and leisure. But we had to consider not just all four harms, which was our guiding light, but we had to consider whether or not we would be able to compensate businesses or not if we added further restriction.

So, yes, I think your summary is fair, I wanted to go further, but ultimately that had to be a collective decision that Cabinet would have had in considering all of the factors, including finance of course, as well as ultimately the priority, which is public health.

Lead 2A: First Minister, over this period, as we describe, there was considerable uncertainty as to what might happen. There was a threat from a new variant, cases were rising; there was a need to take a precautionary approach, was there not?

Mr Humza Yousaf: Yes, and that’s why further limitations were brought in and you can see that from the exchange with Jason, limited households – limiting households everywhere, you know, but it’s marginal. I would have wanted us to go further.

I think by this point we also had a better understanding about immune escape and that the vaccine was still very effective against – a booster dose of that vaccine was incredibly effective against Omicron variant. So, again, as well as NPIs, the non-pharmaceutical interventions, we were also looking at how we would rapidly increase the level of vaccination as well.

Lead 2A: There are some further exchanges in this regard expressing your frustration with the position the First Minister seemed to take. This period – the correspondence goes on in this vein over this period.

If I could take you down a bit further, please, to 5 January 2022 at 1.19 – sorry 1.18, page 48?

1.18, yes:

“It is grim [you say] but FM is right, public aren’t with us. They now hear what they want to hear ‘less severe’ ‘one in ICU with Omicron’.”

Professor Leitch says:

“Yep. I agree. And I kind of agree with them. I can’t find any evidence of ICU increases or deaths globally. So…it’s a health service problem now.”

You say:

“So means we have to deal with the consequences, ie somehow ensure our NHS doesn’t completely collapse. I’m not entirely sure we can deliver on that but I’m going to have to do everything in my power to make sure it doesn’t.”

Then at 1.22 you say:

“We have asked a lot of the public. But we’ve lost the dressing room on this one. After 21 months ‘save the NHS’ isn’t enough to stop them living their lives as close to normal as they can get.”

Does this exchange indicate, First Minister, that by this stage, in light of record numbers of cases and the NHS in collapse, you had lost the faith of the Scottish people such that the virus was able to run rampant without control?

Mr Humza Yousaf: No, that is not the interpretation. The interpretation is that we have, as we say in the exchange that’s highlighted, we have asked a lot of the public. That was true. Never, never in my life could I have imagined that I would ever be in a position in politics that would require me, necessitate me to now have to effectively keep people under lockdown. Not in effect; we did keep people in lockdown. This was the biggest decisions I think a government has ever made, certainly in recent times, and we didn’t just ask the public to do that once, we asked them to live by these restrictions on multiple occasions.

So there’s not a blame here, neither on the public but nor do I think it is correct to attribute blame to the government for the fact that the public had had enough of restrictive measures. But when you have a vaccination programme in place that was effective, when you have a testing system that’s in place that has shown to be effective, then – and when we are seeing a new variant but that new variant, thankfully, because of the vaccine, largely down to the vaccine, is not causing as much severe illness perhaps as if we didn’t have the vaccine, and people are hearing that there’s one person in ICU for example with Omicron, then it would have been if not virtually impossible, extremely difficult to impose a level of restriction akin to lockdown that would have undoubtedly had the impact of reducing case numbers, but I don’t think we would have had compliance with – from the public.

Lead 2A: I’ve two very brief further questions.

I understand that during the course of your evidence, I think you alluded to this earlier in connection with the WhatsApp situation, that you have announced an externally led review into the Scottish Government’s use of WhatsApp and non-corporate technology; is that correct?

Mr Humza Yousaf: Yes.

Lead 2A: That review will not have access to WhatsApps which have been destroyed by ministers and senior officials, will it?

Mr Humza Yousaf: No.

Mr Dawson: I have no further questions, my Lady.

There are some pre-Rule 10 questions from Ms Mitchell.

Lady Hallett: Yes, there are.

Ms Mitchell.

Questions From Ms Mitchell KC

Ms Mitchell: First Minister, I appear as instructed by Aamer Anwar & Company on behalf of the Scottish Covid Bereaved.

I wish to ask you some questions particularly in relation to Covid symptoms.

I would like a document brought up, please. It is INQ000273956, paragraph 341.

I’ll start by explaining that paragraph says:

“In 2020, the Cabinet Secretary for Health and Sport would have received advice from scientific and clinical experts in relation to the risk of transmission within care homes of patients being discharged to care homes from hospital care. The Scottish Government are aware that older people were more at risk of serious illness from the virus, but in the initial stages of the pandemic there was an evolving understanding of asymptomatic transmission. As the knowledge and understanding grew, our testing regime was changed accordingly in response.”

Then you explain that this is why there was a change in routinely testing from those – from hospital to care homes who were asymptomatic to testing all people moving from hospital to care homes on 21 April 2020.

We see from our discussion of Cabinet meetings that the issue of care homes was frequently discussed, and I would like to ask you, as a member, I appreciate, of the Cabinet but not as the member who had specific responsibility for this, but nevertheless a member of the Cabinet who was making these decisions: what was your understanding, and when did you become aware of the possibility of asymptomatic transfer of Covid-19?

Now, before you respond to that, I use the word “possibility” with care. Not when did it become clear that that was an issue, but can you recall when the live issue of asymptomatic transfer was a possibility?

Mr Humza Yousaf: Thank you.

Can I reiterate, now that I’m speaking directly to you as the representative of Scottish Covid Bereaved, can I reiterate that apology that I made at the beginning for the way that we’ve handled the WhatsApp issue. It was not good enough and it has caused, I know, serious grief and re-trauma for those that you represent, and there’s no excuses from me, that should have been handled better and in the future will be handled better.

In relation to the substance of your question, I couldn’t give you an absolute date of when the possibility became clear. As you can imagine, many of us in government, regardless of whether they were health secretary at the time or not, have reflected on this issue and this question of asymptomatic testing for those who were being discharged from hospitals into care homes, and there will be a long list of potential lessons that the government and governments could have learnt.

I think the issue around possible asymptomatic transmission of the virus was known as a possibility early on, through various international journals, through various academic articles, and there will be a number of things that we could have done better.

It is in my view, as the current First Minister, that we should have been testing those who were leaving hospitals, going into care homes who were asymptomatic sooner than we actually did.

Ms Mitchell KC: Can I press you: when you say early, when are we talking about, January, February?

Mr Humza Yousaf: Forgive me, I couldn’t recall exactly when that was –

Ms Mitchell KC: So I suppose implicit in your response was that you were aware of the possibility of asymptomatic transfer at the time it was decided to move people from hospitals into care homes?

Mr Humza Yousaf: Yes. Yes, I mean, I would certainly say that pre-21 April 2020 I think it would be fair to say that there was a possibility – and that was the word you very specifically used – because it wasn’t clear, may not have been clear well in advance of that date, but it was certainly a possibility that asymptomatic transmission could have happened and therefore, as I say, if there’s an area of reflection that I think about very often, it is whether we should have – and it is my view actually we should have – perhaps more routinely tested those moving from hospitals to care homes who were asymptomatic sooner.

Ms Mitchell KC: I understand that you’ve reflected upon that and that’s your view now. Can you explain to the Inquiry what your thinking – what the impact of that was at the time, what your thinking was at the time when you decided: well, there might be a possibility of asymptomatic transfer but I’m still going to be a collective part of a decision to transfer from the hospital environment into the care home environment?

Mr Humza Yousaf: Yes, so I can try to talk you through that to the best of my ability. So, first of all, it is the issue around a possibility. And I should say at this point I also had a family member in a care home, my wife’s gran, who’s in a care home to this day. And therefore we always try to understand the issues that were affecting care home relatives, in particular, and those who were in care homes, because for them it wasn’t the care home, it was their home.

In terms of the possibility, the various factors we had to consider were at this point, in early days of the pandemic, we were extremely concerned about the overwhelming of the NHS and whether or not we would have the sufficient bed capacity or not, particularly in advance of any vaccine.

The other thing that we had to consider was the testing infrastructure. Now, the testing infrastructure built up over a period of months and years, even – but certainly over a period of months we were able to ramp it up, but we did have limitations in terms of the testing infrastructure and also the reliability of tests, rapid tests, which became – again, evolved over time to become far more accurate than they were.

But when it became clearer, because we talked about a possibility of asymptomatic transmission, when it became clearer of course we moved to a position of routinely testing.

Ms Mitchell KC: But prior to that time it appears that, balancing things out, that was a risk you had to take?

Mr Humza Yousaf: We were always trying to balance a number of factors and risks, overwhelming of the NHS, nosocomial infection, impact on care homes, and so on and so forth, and –

Ms Mitchell KC: May I move on to my next question, and that is in relation to the changing picture of Covid symptoms over the piece.

Now, we’ve heard evidence even as early as February and certainly in March of 2020, we heard evidence from Dr Donald Macaskill saying that they were aware at Scottish Care that symptoms demonstrated as being Covid symptoms were not manifesting in the same way as in a population which was particularly old and with multiple comorbidities.

We have then at a later stage, June 2020, Public Health Scotland highlighting the fact that symptoms in the elderly are different, and also Public Health Scotland, in June 2021, indicating that older compromised residents may present with atypical or non-specific symptoms, and list them.

My Lady, for reference, that is INQ000241655.

After you became Cabinet Secretary for Health and Social Care in May 2021, you met the group now known as the Scottish Covid Bereaved on 17 August 2021, and during the course of that conversation they raised with you the issue of Covid-19 symptoms being restricted to temperature, persistent cough and a loss of sense of taste or smell, and you recall that you confirmed that the UK Health Security Agency was responsible for the symptoms and would not at that stage change it.

You say that in respect of the steps taken to revise the symptoms, you recall enquiring of the CMO as to the potential scope for expanding the line of symptoms.

In that regard, this would be Gregor Smith that you would have been asking, do you recall if you asked him in person or in writing?

Mr Humza Yousaf: Forgive me, it certainly would have been in person, I can’t remember whether or not there was also a written exchange, be that over informal communication or formally, but the Scottish Covid Bereaved of course raised it, as you rightly say, and that’s minuted. It was also raised by other groups as well that there may be additional symptoms, and there was of course primary core symptoms and then what was known sometimes as secondary symptoms. But ultimately these were clinical decisions. There is no way that I, nor the previous DFM, who met Scottish Covid Bereaved –

Ms Mitchell KC: No, I’m sorry to interrupt you, First Minister, I’m just wanting to see whether or not you asked him, and presumably he followed that up, because in the paragraph you give, we don’t hear what the response was. Can you remember what the response –

Mr Humza Yousaf: Yes, he would have had a discussion with the other CMOs of the United Kingdom and for – the clinical expertise would have been to maintain those core symptoms as they were. Now, they would have taken a whole raft and range of clinical advice and used their clinical expertise to come to that decision, and I go back to saying that ultimately it was always going to be a clinical decision.

Ms Mitchell KC: Finally, why when health is a devolved matter did it require the UK Health Security Agency to identify the symptom profile, as fed into it by the four CMOs? Why couldn’t Scotland go its own way in that regard?

Mr Humza Yousaf: Yeah. I think in essence if we had – if the CMO and the clinical advice had come back to say very strongly that “We believe that there should be XYZ symptom added to the core symptoms”, that may have been a possibility. I think we were very, very keen in this sense to try to keep UK alignment, to try to make the issue more simply understood in relation to the core symptoms right across the UK. But this again, I go back to the point, there’s always going to be an issue of clinical advice as opposed to ministerial decision or direction.

Ms Mitchell: My Lady, those are my questions.

Lady Hallett: Thank you, Ms Mitchell.

Thank you very much, First Minister, I’m very grateful to you.

Sorry about the constant coughing, I’m afraid it’s been a feature of this Inquiry, certainly in Scotland.

I will see everybody on Monday at 10 am.

The Witness: Thank you my Lady.

(The witness withdrew)

(4.33 pm)

(The hearing adjourned until 10 am on Monday, 29 January 2024)