Transcript of Module 2A Public Hearing on 29 January 2024

(10.00 am)

Lady Hallett: Good morning.

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

morning is the Right Honourable Michael Gove MP.

Mr Michael Gove


Questions From Lead Counsel to the Inquiry for Module 2A

Lady Hallett: Mr Gove, I’m sorry that we have had to call

you back again.

The Witness: Not at all.

Lady Hallett: I do understand the difficulties it may

cause, but it was necessary, I’m afraid.

The Witness: Of course. Thank you.

Mr Dawson: You are Michael Gove?

Mr Michael Gove: Yes.

Lead 2A: You have helpfully provided a number of statements to

the Inquiry, but two particularly to this module. The

first, if we could have it up, please, is INQ000371583.

It’s a statement dated 14 December 2023. Is that your


Mr Michael Gove: It is.

Lead 2A: You have signed the statement?

Mr Michael Gove: Yes.

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

accurate as far as you’re concerned?

Mr Michael Gove: Yes.

Lead 2A: You have helpfully also provided us with an additional short statement, supplementary statement, with the reference INQ000236648. This is a statement dated 25 January 2024. Is that also your statement?

Mr Michael Gove: It is.

Lead 2A: Have you signed that statement?

Mr Michael Gove: Yes.

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

Mr Michael Gove: They do.

Lead 2A: Thank you.

You’re a member of the UK Parliament for Surrey Heath?

Mr Michael Gove: Yes.

Lead 2A: You were first elected to the UK Parliament in 2005; is that correct?

Mr Michael Gove: Yes.

Lead 2A: You are currently the Secretary of State for Levelling up, Housing and Communities?

Mr Michael Gove: Yes.

Lead 2A: You’re also currently the minister for intergovernmental relations?

Mr Michael Gove: Yes.

Lead 2A: In your statement, you explain that you became

significantly less involved in any aspect of the

pandemic response after September 2021; is that broadly


Mr Michael Gove: Yes, it is.

Lead 2A: In the period between January 2020 and September 2021,

you were the Chancellor of the Duchy of Lancaster?

Mr Michael Gove: Yes.

Lead 2A: From mid-February 2020 you became Minister for the

Cabinet Office?

Mr Michael Gove: Yes.

Lead 2A: And after September 2021, you continued to have contact

with the devolved administrations, including the

Scottish Government, in your post as minister for

intergovernmental relations, but not in the context of

the pandemic response; is that correct?

Mr Michael Gove: That is correct.

Lead 2A: As I say, you’ve given evidence already in connections

with modules 1 and 2, both in statement form and in oral

evidence. You are here today to give evidence in

relation to the Scottish Government’s decision-making

and, indeed, the UK Government’s decision-making insofar

as it related to Scotland. I understand that you

performed a role during the course of the pandemic as

the minister in the UK Government who acted as something

of a conduit between the two governments. Would that be fair?

Mr Michael Gove: Yes, it would.

Lead 2A: Over what period did you perform that role?

Mr Michael Gove: Essentially from the very beginning of the pandemic until the reshuffle in September of 2021 when I was appointed to my current post.

Lead 2A: Would it be fair to say that in the exercise of that particular role, although you didn’t hold principal ministerial responsibility for a number of areas, you are required to keep abreast of developments within both the UK Government and the Scottish Government with regard to the pandemic, so as to be able, intelligently, to be able to discuss with the Scottish Government matters relating to the pandemic response across the UK?

Mr Michael Gove: Yes, to the best of my ability.

Lead 2A: Thank you.

I’d like to ask you some questions about the interaction between the devolution settlement and the pandemic response. The module has already heard significant evidence about the devolution settlement.

Is it fair to say, as we’ve heard from other witnesses, that although the Scottish Government and the UK Government make decisions separately as regards matters within their respective devolved and reserved competencies, one might say that they share overall responsibility for policy decisions that impact Scotland?

Mr Michael Gove: Yes.

Lead 2A: Reserved UK Government and devolved Scottish Government policies both impact outcomes in Scotland?

Mr Michael Gove: Yes.

Lead 2A: And decisions, even decisions made by the UK Government with regard to its exclusive areas of competence in other parts of the United Kingdom, will have had an indirect effect on matters within Scotland as well?

Mr Michael Gove: Yes.

Lead 2A: That’s perhaps because although these structures are man-made structures, the virus and its epidemiological flow did not respect those borders and structures?

Mr Michael Gove: Precisely so.

Lead 2A: At all relevant times during the pandemic, the Scottish Government had devolved responsibility for public health, the health of Scotland more generally, the NHS, including hospitals, schools and the social care sector is that your understanding?

Mr Michael Gove: Yes.

Lead 2A: In your evidence to Module 2, you were asked some questions about this area, and you said on 28 November. It’s at the transcript at page 116, which is available on the website:

“… health is devolved and public health is devolved, but there is a distinction, I think, between two different types of public health intervention. On the one hand there’s the straightforward public health intervention, like keeping ourselves healthier, how much fruit do we eat and so on. That’s quite properly a matter for the devolved administrations.

“But when you are dealing with a pandemic and a pandemic which is raging across one island, Great Britain, then I do think that there is a case for saying that there can and should be certain UK-wide powers exercised at the centre.

I think that it is an open question, to draw that distinction between two different types of public health interventions because, again, one of the points that Michelle O’Neill makes, very fairly, is that the island of Ireland is a single epidemiological area. It was always regarded so in forms of animal health and a fortiori in terms of human health. So, again, these are difficult issues to manage and I wouldn’t say that this was a view that I hold passionately but I do think that the whole question about how you can ensure that the UK Government, short of the Civil Contingencies Act, can say, ‘Look, we need to override some of the independent decision-making you might make’, I think that’s worth considering.”

Was it fair to say that, in advance of the pandemic, it was reasonably foreseeable that in a health emergency of the nature of the pandemic which the UK faced, it would require, given the underlying devolution settlement, a degree of cross-border co-operation?

Mr Michael Gove: Yes.

Lead 2A: Would you say that it was necessary for there to be clarity as regards precisely what fell within the ambit of the Scottish Government’s responsibility under the devolution settlement and what it was that the UK Government would do insofar as impacted upon Scotland?

Mr Michael Gove: Yes, and I think that there is a case for greater clarity overall about devolved and reserved responsibilities.

Lead 2A: Would it have been possible for greater clarity in that regard to have been achieved, given the fact that it was reasonably foreseeable in such a situation that cross-border co-operation would be necessary?

Mr Michael Gove: Yes, I think that, again, we dealt with a virus which was unprecedented in the speed with which it spread and also its lethality, but it is certainly the case that the devolution settlement evolves over time and we can learn from how we responded to this virus to consider how the devolution settlement might be improved in the future. It is of course perfectly open to conclude that no constitutional settlement will ever be perfect and that the current division of responsibilities is broadly right.

Lead 2A: But clarity in this regard, in order to maximise the effectiveness of the response, is really key, isn’t it?

Mr Michael Gove: Clarity is always helpful.

Lead 2A: Is the distinction that you made in your evidence in Module 2 between public health matters, which are clearly devolved, eating more fruit you refer to – we actually heard from Professor Devi Sridhar, public health expert, who talked about measures to fight obesity, smoking, alcohol consumption, all of which she had some involvement in. Is the distinction between that type of public health responsibility and some other type of public health responsibility a constitutional legal principle as far as you’re concerned?

Mr Michael Gove: No, I believe that it’s a practical operational question, and it relates of course to how we can protect the health of everyone within a particular geographic entity, in this case the island that is Great Britain. So a case has been made, and it’s one for which I’m sympathetic, that when one is thinking of some biosecurity measures in respect of dealing with a virus, for example questions over international travel or testing at the border, that there is a case for saying that that should be a UK-wide responsibility, exercised by the UK Government, and I submit to the Inquiry that this is a legitimate and respectable point of view, but, as I say, there can be arguments either way about the wisdom of going down that route, but it is certainly a case with which I have sympathy.

Lead 2A: As far as the position of the UK Government during the course of the pandemic is concerned, was it your and the UK Government’s position that the Scottish Government was responsible for matters of public health such as eating more fruit, but overall the UK Government retained responsibility for the management of the virus?

Mr Michael Gove: No, I think that it was clear from what happened during the course of the pandemic that the Scottish Government was responsible for deciding the non-pharmaceutical interventions that it believed were necessary in order to curtail the spread of the virus.

Lead 2A: Did issues around the division of responsibility in this regard remain contentious or difficult throughout the pandemic, in particular as a result of your particular experience of dealing with the Scottish Government in your four nations meetings?

Mr Michael Gove: No, I think in my evidence I make the point that of course there were differences in approach and of course we had different political parties operating across the United Kingdom, but the day-to-day management of the virus and the day-to-day responsibilities exercised by ministers in the devolved administrations and in the UK Government was for the most part constructive.

Lead 2A: My question was directed at trying to understand whether there was difficulty as regards the constitutional divide, rather than – a subject we’ll get on to – the personal interrelationships between people involved. What I was seeking to get at was: did it remain an issue as to what was the UK Government’s responsibility, what was the Scottish Government’s responsibility, which may of course have affected the – impacted upon the effectiveness of the overall response?

Mr Michael Gove: I wouldn’t want to jump the gun, but I suspect that some might, in this module, want to make a point about the degree of fiscal devolution that the Scottish Government enjoys and whether or not that should be greater and whether or not that would enable the Scottish Government or a future Scottish Government to respond more effectively. I’ve outlined my views on that question and I’m happy to return to them and, indeed, expand on them. But during the course of the pandemic I did not see any real angst about the constitutional situation presenting effective decision-making and an effective response.

Lead 2A: You mentioned in your earlier evidence the possibility, which I know you’ve discussed already with others in previous modules, that the way in which the pandemic management division, if you like, could have been approached was the use of the Civil Contingencies Act. You mention something “short of the Civil Contingencies Act” in your previous evidence. Would it not have been – if the UK Government wished to exercise a wider control over matters of public health, would it not have been an option, a preferable option, for the UK Government to have approached the division of responsibilities through that legal mechanism, about which we have, again, heard a little from previous witnesses?

Mr Michael Gove: Yes, I do believe so. The Civil Contingencies Act is designed to deal with a catastrophic coming from a clear blue sky, a terrorist incident or a hostile state actor unleashing the sort of havoc that requires an immediate emergency response, and also it involves the curtailment of independent action and liberty to an extent that I think most people would find difficult to take, save in such a particular emergency. But I do think that it’s worth looking at the operation of the Civil Contingencies Act and considering whether or not, between that quite powerful intervention and the other interventions that we saw exercised during the course of the pandemic, might there be a need for a new mechanism or a new way of operating in order to deal with potential future threats to public health or safety.

Lead 2A: Was this not literally a catastrophe that came from a clear blue sky?

Mr Michael Gove: No, because while it was undoubtedly a horrendous period in the life of our nations and the loss of life and the pain suffered by many was momentous, the threshold for the Civil Contingencies Act I think is rightly very high, and it is the case that, whatever successes or failures there were in the management of the pandemic, we could see the pandemic coming. It wasn’t as though it were, as I say, like a terrorist attack, when you move from a moment of peace and serenity to the sudden, dramatic loss of life that such an intervention might precipitate, or, as I say, a foreign state actor attacking. And the Civil Contingencies Act, by its very nature, leads to the centralisation of powers, the restrictions of liberties, but one would have to clear a very high threshold before initiating.

So my own view is that the Civil Contingencies Act is too draconian an instrument in many cases for the sorts of challenges that we might face in the future.

Lead 2A: The practical result, had that course been followed, I think you’ve already explained to us, but just to be clear, would have been that the UK Government would have had greater power over the way in which the pandemic was managed across the nations of the United Kingdom. Is that broadly correct?

Mr Michael Gove: It would have done, and –

Lead 2A: Yes, it would –

Mr Michael Gove: Yeah, and it would have had greater power over and control over the actions of local government and individuals and civil society. It is, as I say, a – by “draconian” I don’t mean to say that it’s never capable of being used, but it should only be used in very sparing and exceptional circumstances.

Lead 2A: In the end, the way in which the pandemic was managed – we’ve heard some evidence from a political expert who talked about the civil contingencies route or the public health route –

Mr Michael Gove: Yes.

Lead 2A: – being two options. The public health route was ultimately the one that was taken, if we can use that as a label; is that fair?

Mr Michael Gove: Yes.

Lead 2A: What happened was that legislation went through the UK Parliament, which became the Coronavirus Act 2020. In the schedules to that Act, specific powers to do things like impose restrictions and ultimately lockdowns were accorded to the Scottish Government; is that correct?

Mr Michael Gove: Yes.

Lead 2A: And those powers became vested in the Scottish Government on 26 March 2020?

Mr Michael Gove: Yes.

Lead 2A: Was it your understanding of the Scottish Government’s position prior to that point that it was of the view that it had the constitutional power to impose restrictions and lockdowns in any event?

Mr Michael Gove: I believe that – I don’t know what the Scottish Government thought, but I do believe that the Scottish Government, if the UK Government had chosen not to act, would undoubtedly have pressed us to grant them powers in order to be able to have the sorts of interventions, the non-pharmaceutical interventions, the lockdown powers that were subsequently exercised.

Lead 2A: But your understanding, do I take from that, was that the – of their position – Scottish Government thought that those powers would require to be granted to them, ie they did not have them?

Mr Michael Gove: Yes.

Lead 2A: So as far as the legislative framework is concerned, the powers to manage matters of public health, to impose restriction, lockdowns or anything short of a lockdown became clear, at least, on 26 March; is that correct?

Mr Michael Gove: It certainly – they were further clarified. I think one of my experiences of devolution is that at different points, in issues arguably less important, the Scottish Government has pushed at the boundaries of the devolution settlement in order to establish that which it can do. It’s inherent in the Scotland Act that those things which are reserved are listed and specified, but not those things which are devolved, and there is an argument put forward by the Scottish Government and others that anything that is not explicitly reserved is devolved and, therefore, it is open to the Scottish Government to – and the Scottish Parliament, to legislate in those areas. I won’t stray further into that debate now, but –

Lead 2A: Thank you.

Mr Michael Gove: – it is certainly the case that some would have argued that even if the UK Government had been idle, that the Scottish Government and the Scottish Parliament would have been empowered to legislate in this area.

Lead 2A: Despite, as I think you’ve accepted, the reasonable foreseeability of the need to have a cohesive, co-ordinated UK response in an emergency such as this, and the preferability at least of clarity around devolved and reserved competencies, this was not a matter which had been discussed or sorted out between the governments before the pandemic arrived, was it?

Mr Michael Gove: No, but there were regular occasions where the UK Government and devolved administrations would work together to consider how to deal with civil contingencies, and there were also arrangements to discuss how they might deal with pandemics, particularly, as has been discussed elsewhere, the prospect of a flu pandemic, which was the principal operating assumption when it came to a public health emergency that the UK Government was operating to.

Lead 2A: If there were a concern on the part of the UK Government that the Scottish Government tended to try to push the boundaries of devolution based on previous experience, it would have been perfectly open to the UK Government to clarify the boundaries between each government’s area of responsibility in advance as part of those preparedness exercises, would it not?

Mr Michael Gove: It would be possible, however precisely given the tendency, particularly under the Scottish National Party, to see if the devolution boundaries can be pushed, one can’t anticipate all of the areas where a Scottish Government might choose to push those boundaries. Again, one of the emerging challenges that we all face across the world at the moment is artificial intelligence. At the time of the Scotland Act AI was not a concept with which any of us were particularly familiar. There is an open question, probably not for this Inquiry so I shan’t labour the point, as to whether or not artificial intelligence and the threat that it potentially poses if not properly regulated should be regulated at a UK level or at a Scotland or devolved administration level. Again, my argument would be that we should have that discussion now, but we can’t always anticipate every future challenge that we may have to face, or indeed every future initiative that a duly elected Scottish Government might wish to press.

Lead 2A: In contradistinction to the concept of artificial intelligence, Mr Gove, public health was a matter which – to which, as you’ve said, a considerable amount of attention was paid in advance of the pandemic, therefore it was entirely predictable that public health was a matter which required a degree of clarification as to the constitutional boundaries?

Mr Michael Gove: Yes, but I don’t believe that in the response to the pandemic that the constitutional questions, which are of course of great interest, actually impeded day-to-day our response. So yes, in a perfect world, a greater degree of constitutional clarity on some of these questions would be preferable, but in the practical day-to-day operation of responding to the pandemic and the virus, I don’t believe that these were material considerations.

Lead 2A: Could I – you’ll be pleased to hear, Mr Gove, I don’t intend to take you through vast reams of WhatsApp messages, but I will take you to a few.

If we could turn, please, to INQ000163134, please.

These are messages that I understand were provided to the Inquiry by Mr Hancock, and they relate to discussions around a four nations approach to the governance of the Joint Biosecurity Centre in May 2020.

Do you recall the discussions around that issue at that time?

Mr Michael Gove: I do.

Lead 2A: The Joint Biosecurity Centre, I think, was formed as a new directorate within the Department of Health and Social Care in June 2020, eventually, to bring together data science assessment and public health information and expertise to assist in the fight against the virus. Is that a fair description, broadly?

Mr Michael Gove: Totally.

Lead 2A: Thank you.

Can we just look at these, please. These messages say – if we start at 30 May, 2.14 pm, it is said there that the owner of the cellphone, who we understand to be Mr Hancock, says:

“Yes. It should be a UK body like MI5. Pandemic response is a reserved responsibility. It’s the actions taken in response that are devolved.”

To which you respond:

“The sub (which I think should have gone 2 u) takes a different view – based on ‘legal advice’. Do let me know if you haven’t been sent it.”

Then the response thereafter from Mr Hancock is:

“I’ve now read the sub. I’m very unhappy with it. The JBC is designed as a UK institution that gathers and analyses data. It executes via many different agencies, local authorities, devolveds, OGDs etc. But there is no need for it to be run through a committee of the four nations. We wouldn’t put English local authorities on the board!”

Then at 9.01 Mr Hancock says:

“The advice this sub is based on wrongly states that ‘public health is devolved’. That is not true. Parts of public health are devolved (fat fighting; local response) but public health emergencies are a reserved matter. How can a sub on such an important matter miss such a critical part of the devolution settlement?

“Let’s discuss in the morning – this clearly needs sorting out.”

So, broadly speaking, what’s happening here is there’s a discussion over the extent to which this is – the Joint Biosecurity Centre would be a matter for UK Government control; is that right?

Mr Michael Gove: Yes.

Lead 2A: And Mr Hancock has seen this as part of a more general attitude that he appears to have towards the way in which the public health response is being co-ordinated, saying, “The JBC falls within our remit” – the UK Government remit – “because the public health response more generally, in terms of policymaking, falls within our remit”; is that broadly correct?

Mr Michael Gove: That was Matt’s view –

Lead 2A: Yes.

Mr Michael Gove: Yes.

Lead 2A: And what you are doing here is you are bringing to his attention a submission, it would appear to be a legal submission, a piece of advice, which tends to suggest that that interpretation of the devolution settlement may not be correct; is that right?

Mr Michael Gove: Yes. And I think this goes very much to our earlier discussion. In the end, when the JBC was set up, as I think I mention in paragraph 74 of my evidence to this module, health ministers from all four administrations were on a ministerial board and the devolved administrations were represented on the Joint Biosecurity Centre steering board and technical board. So Matt, again – as the Inquiry has heard, Matt, and I think this was a good thing, was a bullish, determined, energetic minister who wanted to ensure that there was rapid and effective action taken in dealing with the virus. My responsibility was to seek to make sure that we worked effectively with all of the devolved administrations, so I didn’t seek to temper Matt’s energy, but I did seek to ensure that we were operating on all fours with the devolved administrations, and in the end we had an effective JBC broadly in line with Matt’s wishes but one which also involved the devolved administrations and which benefitted all.

Lead 2A: Is this, Mr Gove, indicative of a wider attitude within the UK Government, at least up to this point, that the UK Government was really in control of policy across the United Kingdom with regard to the management of the pandemic?

Mr Michael Gove: No, I don’t believe so, no. I think that at different times, naturally, there were some within the UK Government that occasionally found it irksome that they might have to deal with devolved administrations taking a different view, but overall the way in which the UK Government worked was respectful towards and inclusive towards the devolved administrations. So there may have been moments when individuals expressed – as energetic and determined individuals, anxious to see action this day, they may have expressed irritation at the need to, you know, take account of the devolved administrations but they would also at different times have expressed perhaps irritation with how Public Health England or another part of the government machinery were operating. It’s not, I think, a fundamental lack of respect, it’s simply an outworking of the energetic impulse of well meaning and public spirited individuals.

Lead 2A: It may not be a question of lack of respect, Mr Gove, but it is, I think, an indication as to Mr Hancock, who, let’s be fair, was a central part of the UK Government’s response –

Mr Michael Gove: Oh, yes.

Lead 2A: – it’s an indication of his understanding of the constitutional position. Despite legal advice to the contrary he is of the view that public health is devolved, and that – that public health is not devolved and that that statement was incorrect?

Mr Michael Gove: Yes, but I think I would balance that against the formidable array of evidence which shows Matt working collaboratively and effectively with health ministers across the United Kingdom. So Matt expresses a view, that view is born of his desire to press ahead energetically, but at the same time this is one conversation, an important one, but set against that there are the multiple, not just conversations but agreements and shared actions that Matt, Jeane Freeman, Humza Yousaf and others were responsible for.

So a single conversation of this kind shouldn’t be taken as evidence of the broader attitude that either Matt or the UK Government took to effective and co-ordinated work.

Lead 2A: It’s your understanding and perspective, as you said, that Mr Hancock and others in the UK Government worked collaboratively and effectively with the Scottish Government, and indeed the other devolved administrations, over this period. It is a consistent theme, however, of the Scottish Government evidence that, when attending or engaging in these apparently – or – these collaborative exercises, they felt very much that decisions had already been made by the UK Government and that they were simply being invited to be told what those decisions were. Their position is, in effect, as Mr Hancock seems to be expressing here, that the UK Government thought itself responsible for the public health response across the United Kingdom and that they were merely to be told what the decisions had already been, what they already were.

Mr Michael Gove: I don’t think that the – the actual evidence would justify that. It was the case, at different points, that the Scottish Government, and indeed other devolved administrations, chose a different path. My view was – and I think, to be fair, the view of most of those working in the devolved administrations was – that effective co-ordination and indeed a unified approach wherever possible was desirable, however there were occasions where the Scottish Government chose a different communication strategy, a different set of lockdown metrics, different ratios for when people could meet outside and so on, and we not only respected that but sought to work with the devolved administrations in that area. There were other areas, though, where it was undoubtedly the case that it was the strength of the UK Government that was enable – that was able to help everyone within the UK to respond better. We would not have been able to secure the effective vaccine roll-out that we did without the UK Government playing the role that it did in setting up the Vaccine Taskforce and so on. Of course the Scottish Government and those working within the Scottish NHS played a heroic role in supporting that, I would take nothing away from them, but I think it is important to recognise that there were critical elements of the pandemic response where we benefitted from having the broad shoulders of the UK Treasury and indeed the international negotiating and purchasing power of the UK Government.

Lead 2A: I think the timeline is potentially significant here, Mr Gove. What I’m interested in – you referenced the fact that there were times, either as regards public communications policy or the substantive strategy towards the management of the virus more generally, the Scottish Government took a different path. The timing of this is significant, in that we’ve already heard evidence that it was around May 2020 where that divergence, which was not a phrase that the Scottish Government witnesses liked very much, but that divergence started really substantively to occur.

What I’m interested in is why that divergence took place. Is it your position, Mr Gove, that there is no substance to the Scottish Government’s criticism of the UK Government in that in the period up to this point they were excluded from decision-making such that they had to take their own path?

Mr Michael Gove: No, I don’t think that’s a fair characterisation. We strove always to make sure that the views of devolved administrations were heard, respected and fed into UK Government decision-making. There was an intensity to the range of conversations at the beginning of the pandemic response that diminished a little as we moved into a period where it appeared that the virus was in retreat, and then, as the intensity of infection recurred, so the intensity of meetings recurred.

But the UK was not unique in having conversations between the central government and devolved or regional or other governments in how to respond, and again one of the points that I made in my evidence is that the Federal Chancellery in Germany sometimes had to deal with the fact that different Länder were pursuing different policies, and ensuring that there was an effective and unified response across the whole of Germany was a challenge.

So, yes, if you have devolution of any kind, and there were similar situations in France and Spain, then you will sometimes have divergent responses because, as administrations acquire more information about how to fight the virus, though – more options become available, and it is possible for public spirited individuals in different jurisdictions to argue for a slightly more energetic or a slightly more liberal response.

Lead 2A: You mentioned something of the intensity of the initial discussions, we may return to that in a few moments, Mr Gove. You, as you’ve already given evidence in Module 2, were heavily engaged – principally engaged, I think, in what are known as the four nations meetings –

Mr Michael Gove: Yes.

Lead 2A: – that took place. We know that these took place at different times, with a different level of regularity, and we know some of the matters that were discussed at these meetings.

Was your mission in setting up these four nations meetings to try to do something about the fact that the existing systems for Scottish Government/UK Government collaboration had failed?

Mr Michael Gove: No, I don’t think they had failed. Prior to the pandemic, my role as Chancellor of the Duchy of Lancaster had been to prepare for Britain’s departure from the European Union and the potential eventuality of a no-deal Brexit. In that work, I had a series of meetings, conference calls, Cabinet committee meetings, with representatives, ministers and officials from the devolved administrations, and while of course the Scottish Government and the Welsh Government opposed the course we were on, they recognised that the UK as a whole had made that decision and we worked, I think, constructively during that period, even when it was a very politically contested goal to make sure that we were ready for every eventuality at that time.

And I think that of course it’s open to the Scottish Government to feel that they were not as involved as they should have been at certain points, but I think the reality is that there was frank and open discussion of the delivery options available to us in that scenario, as there was subsequently in Covid.

Lead 2A: I think it to be the case that although some meetings took place before this, this is in fact around the time when the regularity of those meetings started to pick up –

Mr Michael Gove: Yes.

Lead 2A: – is that broadly correct? As I say, they weren’t absolutely every week or anything like that –

Mr Michael Gove: No.

Lead 2A: – but one might say that from May onwards that was a period in which your engagement in those meetings and your efforts in those meetings were – that was the period when you were ramping that up to an extent.

Mr Michael Gove: Yes, with respect specifically to Covid, there were a series of meetings that took place, whether through the forum of COBR or otherwise, to agree the initial escalation towards the first lockdown, then subsequent to that ministerial implementation groups were set up in order to deal with the consequences of lockdown for public services, for the health service and so on. Then the ministerial implementation groups were wound down. That was partly because, as I say, the virus appeared to be in retreat, but partly also because these were quite cumbersome structures and we then moved to a different rhythm of meetings in the late summer and autumn of 2020.

Lead 2A: So in that narrative, just to make sure we’re getting the timing correct, you talked about the initial period, the ministerial implementation groups lasted over what period roughly?

Mr Michael Gove: I think from – until I suppose the second half of the spring of – into early summer of 2020.

Lead 2A: Right, and then you omitted to tell us about the COBR-O (sic) and COBR-S (sic) – Covid-O and Covid-S committees that were ones which were, I think, part of the Cabinet structure in the UK Government?

Mr Michael Gove: Yes, they superseded the ministerial implementation groups. And, again, one of the views that I had was that we needed to have a Covid Taskforce at the centre of the UK Government and that we should move towards a system similar to that which we’d had in order to prepare for our departure from the European Union, the so-called XO and XS split, but there were others who were more involved in the design and re-design of these structures in order to make sure that we had effective decision-making.

Lead 2A: The COBR meetings were attended by ministers from the Scottish Government?

Mr Michael Gove: Yes.

Lead 2A: The MIGs, the ministerial implementation groups, attended by ministers from the Scottish Government?

Mr Michael Gove: Yes.

Lead 2A: The Covid-O and Covid-S groups were not?

Mr Michael Gove: Covid-O did involve conversations with and attendance from Scottish ministers at certain points.

Lead 2A: These were effectively the UK Cabinet subcommittees; is that not correct?

Mr Michael Gove: Yes, to which Scottish Government and other devolved administration ministers were in attendance. Much as they had been with the XO meetings that occurred in the run-up to our departure from the European Union.

Lead 2A: And after the timeline we’ve been talking about, the structural timeline, is it fair to say, as I suggested at the beginning, that at about the point we’ve reached in the narrative, that the meetings, the four nations meetings which you were principally involved with, started to pick up pace as a means of communicating with the devolved nations?

Mr Michael Gove: Yes, exactly so. As well as the Covid-O meetings, I would hold regular calls with representatives, normally the First Ministers, in order to be sure that issues which were not necessarily on the Covid-O agenda but which mattered to them were ventilated and aired. It would normally be the case the territorial offices, the secretaries of state for Scotland, Wales and Northern Ireland, would attend, and also officials, sometimes from the Treasury and sometimes from other departments.

Lead 2A: Despite the fact that, as you’ve accepted, there was a need in a pandemic of this nature to maximise and achieve effective co-ordination between the nations of the United Kingdom and their administrations, do you accept, Mr Gove, that the structures which had existed before this point that we’re talking about had failed and that your attempts to rectify these failed decision-making structures through your meetings were really an attempt to make the best of a bad lot?

Mr Michael Gove: No, I wouldn’t say they had failed but I would say that the approach that we took was a process of iterative improvement. I think to say that the approach had failed is – and again, I don’t want to police other people’s responses, but for people who believe in Scotland’s constitutional future as an independent nation, supporters of the SNP and other parties and organisations aligned behind independence, it is necessary to prove that the United Kingdom is a dysfunctional entity, and therefore the SNP and its supporters will often, when dealing with a situation that is not perfect, say “It’s a failure, this is a proof that the UK as a constitutional entity is broken”. As I say, the differences of opinion that occurred between the UK Government and the Scottish Government on day-to-day management of the pandemic were no greater than differences between the Federal Chancellery in Germany and the Länder in Germany or the Élysée in France and the respective regional administrators.

But, while I have great respect for the integrity and professionalism of Scottish Government ministers when it came to the handling of individual pandemic choices, we have to bear in mind that the political aim of the SNP is to destroy the United Kingdom, and from time to time they will make political points to that end.

Lead 2A: So if the Inquiry were to hear evidence from ministers and officials within the Scottish Government to the effect that the co-operation and co-ordination structures before this point had failed, are you suggesting that that evidence would be politically motivated?

Mr Michael Gove: I think one would have to look at each individual piece of evidence, but it is undoubtedly the case that the Inquiry has already heard evidence which shows that people within the Scottish Government were, at certain moments, looking at the political as well as the policy consequences of their choices.

Lead 2A: Does your apparent assumption that the Scottish Government and its ministers’ motivations are politically motivated, it would appear, in everything they do, would it not rather indicate that there was a completely dysfunctional relationship between the two governments at the time?

Mr Michael Gove: No. And again I hope I that I said, and your question gives me the opportunity to make clear, I don’t believe they’re politically motivated in everything they do. I think, as I hope I made clear earlier, that I have great respect for the professionalism with which many Scottish Government ministers conducted themselves and I do believe that their overwhelming motivation was to protect the people of Scotland from a virus. However, there are and were occasions when the Scottish Government, as we can see, was thinking politically, and of course it is the case that the SNP, as a political mission – which is to achieve Scotland’s independence, ie to destroy the United Kingdom, and – it would be naive not to be aware that highly skilled politicians, including those at the top of the Scottish Government, might well seek what they perceive to be political advantage at certain points. But I think it’s important that recognise that while that did occur at certain points, the day-to-day management of the pandemic preoccupied them as it preoccupied other ministers, so it’s a matter of proportion and a matter of precision rather than a broad assault of the kind that the question invited me to agree with.

Lead 2A: Is your evidence a thinly veiled assertion that the First Minister of Scotland managed the pandemic in Scotland in order to further the cause of independence?

Mr Michael Gove: No. I think it is the case, though, that evidence that we have heard shows that the First Minister and those working for her at particular times were thinking politically. And, again, in my own earlier evidence I made it clear that I had and have respect for the immensely hard work put in by many in the Scottish Government and their dedication to keeping people safe, but this Inquiry has heard and seen direct evidence of the Scottish Government thinking politically, and again, as I say, it would be naive to assume that people who have dedicated their whole life to the cause of Scottish independence would not at certain points see the political component to some of the decisions and some of the points that were being made.

Lead 2A: Did the UK Government seek to do the same thing to promote its agenda to keep the UK together?

Mr Michael Gove: No, because I think the most important thing that we felt was that it was important to ensure that lives were saved across the United Kingdom. I mentioned earlier my own view that the existence of pan-UK structures helped to ensure that – from the vaccine delivery through to the way in which eventually, after many difficulties, PPE was procured, helped. But I also think there’s a difference, and the difference is this: that to believe in the integrity and to believe in the protection of a state, a political unit like the United Kingdom, is a responsibility that I have and all UK Government ministers have. It’s not a small P political thing, it is a matter of duty.

Lead 2A: Ms Sturgeon is actually relatively complimentary of your role, Mr Gove, in the way in which you conducted yourself, but I think it fair to say that the statements that we’ve seen from Scottish Government ministers would suggest, as I’ve put to you, that although your efforts in the four nations calls were appreciated, they were seeking to make the best of a bad lot, as had existed before that point.

Mr Michael Gove: Again, to be fair to the then First Minister and others, they were – expressed irritation sometimes, and those irritations, as I say, may well have come from a good faith position in disagreeing with the UK Government over the precise measures that we were taking. And, as I say, I respected very much the determination of each First Minister to do, on a day-to-day basis, their very best to protect their citizens, and if frustrations were expressed I always sought to ensure that those frustrations were communicated to my colleagues in the UK Government and that, wherever possible, we were able to work together and to accommodate a unified approach.

Lead 2A: Thank you.

On 23 July 2020, Boris Johnson, the then Prime Minister, visited Scotland. Nicola Sturgeon did not want to meet him, as I understand it, during the visit. Is that your understanding?

Mr Michael Gove: That is my understanding.

Lead 2A: What intergovernmental discussion took place about the visit?

Mr Michael Gove: I don’t recall any.

Lead 2A: What was its purpose, from this perspective, of the UK Government?

Mr Michael Gove: The Prime Minister of the United Kingdom should be able to visit any part of the United Kingdom at any time.

Lead 2A: But what was its purpose at that particular time?

Mr Michael Gove: I believe that the Prime Minister visited Orkney, and I believe that he also was involved – I don’t know if it was at that time, but certainly on a subsequent visit, he wished to thank those involved in the vaccine response.

Lead 2A: Could we have a look, please, at INQ000274143. This is a Twitter post relating to the visit from 23 July 2020 by the former First Minister of Scotland, she said:

“I welcome the PM to Scotland today. One of the key arguments for independence is the ability of Scotland to take our own decisions, rather than having our future decided by politicians we didn’t vote for, taking us down a path we haven’t chosen. His presence highlights that.”

Were you aware of that tweet having been released on that day?

Mr Michael Gove: I’m sure I saw it. If not at the time that it was released, subsequently yes.

Lead 2A: During the visit the then Prime Minister spoke about the “sheer might” and “merit” of the Union.

Mr Michael Gove: Mm.

Lead 2A: Do these iterations show that both the UK Government and the Scottish Government were playing politics at this key time in the pandemic response?

Mr Michael Gove: No, I don’t – well, firstly, I don’t believe that’s true of the UK Government. I think it was a straightforward – an important matter of fact that the UK Government, whether or not it was led by a Conservative administration or by any other administration, by the nature of the unified strength, weight, presence that we had, was able – I mentioned the vaccine roll-out, PPE – to provide protection for all of the UK’s citizens, and I think it’s important that everyone, whatever their views on the constitutional future of Scotland or any part of the United Kingdom, everyone who is a citizen of the United Kingdom is protected by the United Kingdom, and whether or not they voted for the Prime Minister of the United Kingdom, he or she is their Prime Minister.

Now, on this particular tweet, I recognise the political point that Nicola Sturgeon is making, but I don’t object to that point being made. I think that it is perfectly legitimate for the leader of a political party, with whose aims I profoundly disagree, to pass comment in this way. Of course. And I think I make the point in my evidence that from time to time during the pandemic, or at any point, SNP politicians would make the case for independence in – in broad terms, of course, perfectly entitled to do that, and I wouldn’t take exception to this tweet.

Lead 2A: You’ve mentioned the vaccine roll-out on several occasions, although I haven’t asked you any questions about it. Just for the sake of clarity, this was in July 2020.

Mr Michael Gove: Mm.

Lead 2A: This – I think you suggested that this might be connected to the vaccine roll-out. I think this may be quite considerably before the time when –

Mr Michael Gove: I think you’re right, and my apologies. I think – I remember that the Prime Minister visited Scotland – the then Prime Minister, Mr Johnson, visited Scotland on a number of occasions.

Lead 2A: Yes.

Mr Michael Gove: One of those occasions I’m pretty sure, subsequently, was to go to Livingston to thank those involved in the vaccine roll-out, but I think on this occasion the Prime Minister was visiting Orkney and I think he spent some time with crab fishermen there, and I think one of the points that he wanted to better understand as – as we moved towards a different approach towards fisheries outside the European Union, he wanted to get, as it were, on-the-ground feedback from those who were involved at the sharp end.

Lead 2A: We understand it to be the case that on 18 March 2020. Cabinet Secretary for the Constitution, Europe and External Affairs, Mr Michael Russell, wrote to you in your capacity as the Chancellor of the Duchy of Lancaster setting out the Scottish Government’s intention to pause campaigning for a second independence referendum in light of the threat.

Mr Michael Gove: Yes.

Lead 2A: Is that broadly correct as to your understanding of the Scottish Government’s position in that regard at this time?

Mr Michael Gove: Yes.

Lead 2A: Did you consider this tweet to be consistent with that undertaking?

Mr Michael Gove: Yes, as I say, I … I wouldn’t consider it inconsistent at all. Again, if it helps the Inquiry just to clarify, there will be moments when someone in Nicola Sturgeon’s position is either asked or involved in a political conversation and she will assert her faith in or support for independence. I don’t think this is a fundamental distraction from the work that she or anyone else was undertaking on the pandemic. I think the reason why Mike Russell wrote that letter is to say that individuals who had been working within the Scottish Government on an independence strategy were going to be stood down and transferred to Covid functions. I think that was the right thing to do. Obviously not a decision for me, but I was grateful to him for communicating it.

I think, and again I wouldn’t want to labour the point, the Inquiry has heard, however, about one or two other occasions where particular responses during the Covid pandemic were seen through a particular lens, so the distinction that I would draw is the commitment to upholding a set of political principles on which you were elected and which are your motivation and then, on certain occasions, seeing an opportunity to advance those political principles and potentially taking decisions through that lens.

Lead 2A: Was the purpose of the letter as you understood it not to communicate to you, and indeed to the Scottish and wider UK public, that although the SNP government in Scotland may have been elected on the basis of certain political principles and their principal policy of seeking independence, that those political considerations would be put to one side in the interests of the extreme public health emergency the nation was facing?

Mr Michael Gove: Yes. Well, again, I’m striving to be fair to the Scottish Government, with whom I have fundamental constitutional differences. I don’t think that either Mike Russell or Nicola Sturgeon could excise from their thinking at any point their desire to see Scotland independent in due course, but what they did do was to shift the resources that were being devoted to pursuing that to Covid, and I think that was the right thing to do. However, there were other occasions where, as I say, trying to be fair but not naive, the Scottish Government looked at things through a particular political prism with respect to whether or not the case could be made, in due course, for independence, and that therefore there were certain occasions where divergence was being considered through a political lens.

Lead 2A: Are there any particular occasions on which you think that was a problem?

Mr Michael Gove: Well, again, I think that the evidence that was discussed in this Inquiry last week with the former First Minister’s former chief of staff and special adviser would lead a fair minded person to conclude that the words “good old fashioned rammy” suggest that there was a search for political conflict rather than simply a divergence in policy conclusions.

Lead 2A: Her explanation of the messages to which you’re referring is that – although she was asked questions about the possibility that may have a constitutional political significance, that what she was seeking to do at that time was to try to bring to public consciousness the difficulties that the Scottish Government was having with regard to accessing particularly furlough funding in the event that they wished, as appeared to have been their right under the 2020 Act, to pursue different restrictions from the UK. So her position was that that was not meant in a constitutional political sense but in a more narrow political sense, in seeking to try to achieve better outcomes on funding for the people of Scotland.

Do you have anything to add to that, or is it your interpretation of that material that the constitutional political angle or argument that you’ve put forward is the correct interpretation, based on your experience from the time?

Mr Michael Gove: I will leave it to fair-minded observers to decide.

Lead 2A: But do you have anything to add based on your experience of that period? I’m trying to understand whether that period is one of the periods that you’re identifying as this being an issue. Your understanding of that period. In that period did you have concerns in this regard?

Mr Michael Gove: (Pause). I always wanted to put to one side, wherever possible, considerations of this kind. But I made the point earlier that one should not be overly naive. As I say, it is possible, and I think this is the case, to have in the Scottish Government both a commitment from people who are public servants first to seeking to do their best for their fellow citizens, but also, given the cause to which they’ve devoted their lives, then the temptation at certain points to seek political advantage – is clearly there. And I think that the language used, the desire to have a “good old fashioned rammy” with the UK Government, and some of the other language used, which I shan’t repeat now, does lead me to believe that at that point there was a desire to pursue differentiation for the sake of advancing a particular political agenda.

But of course the First Minister, former First Minister, will be here later this week and I want to take as balanced an approach as I can, paying tribute to her energy and hard work in seeking to do what was right, while at the same time acknowledging that the SNP as a political movement has a clear goal and its members and its leadership have seldom missed an opportunity in other times to seek differentiation in order to advance that cause.

Lead 2A: We’ve heard some evidence from materials within the Scottish Government operation that, in trying to achieve good intergovernmental relations, certainly within the United Kingdom, there is often really no substitute for the heads of respective governments seeking to resolve differences, find solutions and find ways through in the interests of the people. Would you agree with that?

Mr Michael Gove: I think it depends on circumstance. And I think it also is the case that the UK Prime Minister has a range of responsibilities, whoever he or she is, greater than that of the First Ministers of any devolved administration. I think it is a good thing for the UK Prime Minister to have as good relations as possible with First Ministers. That obviously depends on a variety of factors, but it will often be the case, particularly when you’re dealing with an emergency like Covid-19, particularly when the Prime Minister will be leading the Vaccine Taskforce or operating, you know, 24/7 in a number of areas, it will often be the case that there will be a division of responsibilities, and in that division of responsibilities he may well choose to appoint, as he did, another minister to deal with the conversations with devolved colleagues.

Lead 2A: I’m not keeping a running score, but is there a reason why you keep mentioning the vaccines, although I’m not asking you about it?

Mr Michael Gove: Purely because that was one of the most important elements in our response to the pandemic, and also because I think that if one were to look at the whole history of our response to the pandemic, then I think it’s important – my own view, I don’t want to suggest that the Inquiry should apportion its time in any particular way – but it’s important to look both at how we responded in a way which enabled us to successfully exit lockdown and non-pharmaceutical interventions as well as obviously looking at some of the decision-making, flawed and otherwise, that meant that perhaps we didn’t lock down at the time that we should have done, in the way that we should have done.

Lead 2A: What was the UK Government’s exit strategy from the first lockdown, in particular with regard to the likely availability of a vaccine?

Mr Michael Gove: Well, we believed that it was important overall to seek to reduce infection to a manageable level, reduce R below 1, and to buy time, because we believed that it would be possible to secure a vaccine in due course and that was the goal towards which so much effort was directed.

Lead 2A: Can you give a little greater specification to the meaning of the words “in due course”?

Mr Michael Gove: Well, we wanted to make sure that we could get a vaccine as quickly as possible, and there were competing judgements about how quickly a vaccine could be secured, competing scientific judgements, but again the hope was that if we secured that vaccine then we would be able to put any thought of further lockdowns behind us.

Lead 2A: In his Module 1 evidence, the former Deputy First Minister, Mr Swinney, stated that:

“… generally relationships …”

This is referring to really the period at the beginning of the pandemic, which of course Module 1 was predominantly concerned with.

“… generally relationships between the administrations were pretty poor by that point. Poor in the aftermath of Brexit, because obviously constituent parts of the United Kingdom – well, we were – in Scotland we were not happy with Brexit at all, or not happy with the – and you obviously had to spend a lot of time on the no-deal Brexit, as the Inquiry heard this morning from Nicola Sturgeon. But generally relations were pretty poor.”

Would you agree with the assertion that generally, not just in relation to particular personalities, that relations between the governments at the outbreak of the pandemic were pretty poor?

Mr Michael Gove: No, I don’t think that – for the reasons that the former Deputy First Minister quite rightly points out, I don’t think that the relationships were as strong as they might have been, because of the divergent political views on Brexit. However, I would say two things.

The first is that day-to-day working on a variety of issues across all of the administrations was effective. And, again, I appreciated the professionalism and commitment of Scottish Government ministers to dealing with what might have been the consequences of a no-deal Brexit, even as they devoutly wished to avoid that outcome. I also wished to avoid that outcome, but there was, of course, a difference in political analysis.

The second thing, though, I would say is that personalities do matter in politics, and you can have people from different political traditions and different political parties whose style or whose outlook means that co-operation can be easier, and it is certainly my experience that there were people in the Scottish Government who were sometimes much more constructive than one or two others. And again, the Inquiry can draw its own conclusions in due course about how important personalities are, but personalities do matter when you’re dealing with tensions which inevitably involve some degree of politically divergent thinking.

Lead 2A: Can you identify those who within the Scottish Government, amongst senior ministers at least, were more constructive and those who were less constructive?

Mr Michael Gove: Well, I think the person who was undoubtedly one of the most constructive was Kate Forbes.

Lead 2A: Can you explain why you would single her out?

Mr Michael Gove: Well, I fear I may be straying into political commentary here, but –

Lead 2A: Well, please try to avoid that, Mr Gove. I’ve asked a question about the pandemic response.

Mr Michael Gove: Of course. (Pause). It was the case that in all conversations with Kate Forbes, she would eschew any political – what’s the word – not point scoring but point making, and concentrate on the business in hand. There were some other ministers who would sometimes – even as we could come to a satisfactory conclusion, would sometimes preface their points with some political point making.

So, again, I would say that she stood out, but also that, I think that, to be fair I know that my colleague Matthew Hancock found that both dealing with Jeane Freeman and Humza Yousaf in their roles to be very straightforward as well.

Lead 2A: Do I take it then that other senior ministers whom you’ve not mentioned fall into the other category?

Mr Michael Gove: No, I think it’s fair to say that the Deputy First Minister, John Swinney, was also very professional.

Lead 2A: Do I take it then that the First Minister falls into the category of other types of people –

Mr Michael Gove: The First Minister again was, as I characterised earlier, someone who was undoubtedly a focused and disciplined minister, but it would sometimes be the case, yes, that there would be a political complexion to some of the points she chose to make.

Lead 2A: I think you mentioned a moment ago when we were discussing the letter that was sent by Mr Russell at the beginning –

Mr Michael Gove: Mm.

Lead 2A: – that you had an understanding that some of the officials who had been working on Brexit within the Scottish Government were repurposed to working on Covid –

Mr Michael Gove: Yes.

Lead 2A: – was that correct? I should say, I think that’s broadly consistent with our understanding as well.

Mr Michael Gove: Yes.

Lead 2A: I just wanted to reflect on the particular comment made by Mr Swinney to the effect that Brexit and the very recent, at least temporarily, conclusion of the Brexit work at the end of January may have caused difficulties for those who had been involved in those difficult negotiations, if you like, between the Scottish Government and the UK Government at that time, in particular as regards the decision to repurpose those very people –

Mr Michael Gove: Yes.

Lead 2A: – into another difficult intergovernmental situation, as you described.

Is that your understanding of what broadly happened in terms of repurposing of staff and did you feel that there were lingering issues relating to Brexit as a result?

Mr Michael Gove: No, I didn’t detect any, no. So again, obviously it’s for the Scottish Government to decide how civil servants working for the Scottish Government should be deployed, and I think it was the case, yes, that there were some who, as I understood it, had been working on Brexit preparations who were repurposed and also some who had been working on the case for independence who were redeployed as well. And again I don’t know the numbers, but I think that is a welcome thing. But I didn’t detect that the experience of having worked on no-deal Brexit led to any lack of commitment or professionalism or any additional anxiety within the operation of the Scottish Government towards the UK Government in its Covid response.

Lead 2A: We discussed a moment ago, and I think we were in agreement, that there is a significant importance in our system when seeking to promote good intergovernmental relations that the heads of the Scottish Government and UK Government are able to interact in a way which is productive. Is that your position?

Mr Michael Gove: Ideally, yes.

Lead 2A: You say in your statement at paragraph 61 that:

“While Boris Johnson and Nicola Sturgeon were not soulmates, they were generally always able to secure pretty effective coordination of substantive policy, respecting devolved and reserved competencies.”

Is the description that “Boris Johnson and Nicola Sturgeon were not soulmates” something of an understatement?

Mr Michael Gove: Understatement is sometimes the most effective means of communication.

Lead 2A: Is it fair to say, and we’ve obviously, as you know, addressed this somewhat from the other perspective in some of the evidence we’ve heard already, that they simply did not get on at all?

Mr Michael Gove: No, I think … on one level they’re very different figures. On another level, though, they’re both skilled politicians, fired by passion, but they’re also people who knew at a moment or moments of crisis the importance of respecting – insofar as possible, and working together insofar as possible – respecting each others’ positions, working together.

I would say two things briefly. The first is that I think when the former First Minister’s former chief of staff was giving evidence last week, she observed that the first time that Boris Johnson and Nicola Sturgeon met, which of course was preceding the pandemic, they had, in effect, a debate in Bute House, and, you know, there was a – as I’ve observed before, the former Prime Minister enjoys debate, can hold his own, and it’s a sign of respect for someone else that he’s engaging in that debate. So he undoubtedly had a degree of respect for the First Minister. However, it is also the case, as the Inquiry has heard, my second point, that at times the First Minister expressed her disapproval of the way in which the Prime Minister was operating, and it was also the case that there were some people in our government and some people working for the Prime Minister who had a low or critical opinion of the First Minister. My view is that it was important to, in the interests of everyone, keep relations on as professional a footing as possible, and my observation is that in the formal settings where they interacted, that applied.

Lead 2A: Was the former Prime Minister advised against engaging more with the Scottish Government or other devolved administrations more generally during the pandemic?

Mr Michael Gove: There were one or two people who did take that view, yes.

Lead 2A: Could we look, please, at INQ000048313.

This is an exchange which I think we’ve seen before in previous hearings. It is an exchange between Dominic Cummings and Mr Johnson regarding the Cabinet Office on 12 March.

The passage at the top – if we could just see that briefly, the passage at the top – you may remember, Mr Gove, was one that was looked at. It reflected issues which Mr Cummings had with the way in which the Cabinet Office was responding. That’s been looked at obviously in some detail in Module 2. I’m just trying to give this some context.

So that was on 12 March. Then on the same day at the bottom there’s an exchange, and again, as happened in Module 2, may I in advance apologise for the language. Mr Cummings said:

“You need to chair daily meetings in the Cabinet room – not COBRA – on this from tomorrow. [I’m] going to tell the system this.

“NOT with the DAs on the [fucking] phone all the time either so people [can’t] tell you the truth.”

Why was Boris Johnson being advised that daily meetings at this vital time during the pandemic should be reorganised so that they took place in the Cabinet Room and away from COBR so that the devolved administrations, who were represented at COBR, would not be on the line to allow advisers to speak more freely with him?

Mr Michael Gove: Well, I think Mr Cummings himself was asked about this exchange in a previous module –

Lead 2A: Yes.

Mr Michael Gove: – and gave his account. The point he made then, which I think was a fair one, was that there needed to be a space in which the Prime Minister could interrogate data and recommendations, and different propositions could be put to him, and the Prime Minister could seek to test the strength of argument A or test the strength of argument B in confidence, before then coming to a conclusion about what he thought might be the right course.

It’s important to say two other things: that at the same time as Dominic was making this case, there was also a regular tempo of meetings with the devolved administrations’ ministers and representatives. And I think it’s also the case, as we discussed in a previous module, that sometimes it’s appropriate for the decision-makers in any jurisdiction to have a safe space in which they can float different ideas without fear of those ideas being taken out of context and you depict them in a particular way.

Now, again, different people may conclude that that is or is not an effective form of decision-making, but it is certainly the case that, whatever Dominic’s views and intentions – and, as I say, I think he fairly set them out in a previous module – it was not the case that we abandoned, nor do I really think that he was arguing that we should abandon, having regular meetings with the devolved administrations.

Lead 2A: Just to be clear, because I think there was a little difficulty in picking up something of what you said there, but you said it was important, I think – please tell me if I’ve got this wrong – that it was important that decision-makers would have a safe space in which they can float different ideas without fear of those ideas being taken out of context and to depict them in a particular way; is that right?

Mr Michael Gove: Yes.

Lead 2A: Sorry, it was just I think that we missed a couple of the words there.

Was there a concern that if these conversations took place with Nicola Sturgeon in the room, that she would seek to depict the then Prime Minister in a particular way?

Mr Michael Gove: Well, again, I can’t speak to Dominic’s particular concerns, but it’s a function of government that the more people there are in a meeting, the greater the risk of a leak. When you have devolved administration colleagues on a call, obviously Scotland, Wales and Northern Ireland represented, ministers from each jurisdiction, and officials, people from the territorial offices, I think – I have to be careful here – I think that actually Dominic’s concerns – though of course, as I say, I don’t want to speak for him directly, but I think they were slightly more to do with the Sinn Féin Deputy First Minister of Northern Ireland being on the call than the SNP First Minister of Scotland. But I think that, as I say, whatever was in his mind, it is a fair point to say that if you have a smaller and more intimate meeting, then you can allow the Prime Minister to interrogate certain propositions with the risk of leaking being proportionately lesser, but at the same time you can have regular, focused and effective, business-like meetings with others.

As we noted, there was an unfortunate leak of the decision to go for a second lockdown in the autumn of 2020, and I think that the fact of that information leaking, though it had absolutely nothing to do with devolved administrations, I think reflects, with the benefit of hindsight, an understandable concern on the part of prime ministerial advisers to give a Prime Minister, or for that matter a First Minister, a certain space to kick around some very sensitive issues.

Lead 2A: This message demonstrates an aspiration not to keep any particular devolved administration out, but all of them; is that not correct?

Mr Michael Gove: Yes. But to be fair, and I think this is reflected in some other evidence, while there were sometimes bilateral calls, the nature of a COBR meeting is that all of the devolved administrations would be represented. So it’s either Scotland, Wales and Northern Ireland and the UK Government, or just the UK Government, as it were. So again, I’m sure if Dominic were asked to provide further evidence on that, I’m sure he would, but, as I say, I think that his account in a previous module speaks for itself.

Lead 2A: Putting aside the concerns, legitimate or otherwise, about leaks, does this – is this exchange not consistent with the Scottish Government’s position that the UK Government made decisions and merely communicated what those decisions were to the Scottish Government in subsequent meetings rather than engaging them in the decision-making process?

Mr Michael Gove: No, because, firstly, Dominic was one voice, an influential one, but one voice amongst many. Secondly, and I don’t say this as a matter of criticism, but the Scottish Government will – did – have discussions and deliberations, whether at Cabinet level or otherwise, to which the UK Government wasn’t privy, nor should we have been. So some of the decisions that the Scottish Government will have made about when to or how to exit lockdown will have been decisions that they will have made – on a shared basis, with shared information and an understanding of where other jurisdictions wished to go, but they will have made their own decisions. I respect that.

Someone could say, well, suddenly the UK Government is having to deal with the fact that the Scottish Government have presented them with a fait accompli. You could depict it in that way, but I think that would be ungenerous. I think that one has to respect that there will be, at different levels of government, moments when, within that level of government, a decision will be taken or decisions will be taken about what is properly the level of government’s responsibility, but that at other points, before decisions are taken, views are garnered, conversations ensue, and thought, care and consideration is given.

Lead 2A: We’ve talked about the concept of Scottish Government divergence from the UK’s position about matters. Did this exchange represent a divergence on the part of the UK Government from the COBR system and in particular the devolved administrations’ involvement in it, which had been an important part of the pre-pandemic emergency planning system?

Mr Michael Gove: I do believe so, and I think again the point that was made by Dominic Cummings in his evidence is that, firstly, the COBR system can describe a way of bringing different parts of government and, indeed, different governments together, so it can describe a process, but it also describes literally a room. In his evidence Dominic made clear some of the deficiencies of COBR as a location for decision-making. But the broader point of bringing in the devolved administrations and others to critical decisions, that principle was maintained throughout.

I think it’s fair to say that the frequency of those meetings at certain points or the nature of those meetings was not what certain First Ministers wanted. Mark Drakeford wrote to me in order to ask for an improved tempo. We agreed. So, again, I’m not claiming that our system was perfect, but the aim, the desire always to ensure that we could co-ordinate effectively was there, and if I or the UK Government fell short at any point in the eyes of First Ministers, we always sought to listen respectfully, make good, and create structures that worked.

Mr Dawson: If that’s a convenient movement, my Lady, thank you.

Lady Hallett: Yes, of course. 11.40, please.

(11.22 am)

(A short break)

(11.40 am)

Lady Hallett: Mr Dawson.

Mr Dawson: Thank you, my Lady.

Mr Gove, before the short break, we were discussing some of the messaging in the early period of the pandemic, and in particular early meetings and discussions around COBR. So I’d like to continue on that theme, but move into a slightly later time period than the one we were discussing.

Could we look, please, at INQ000056221.

These are the minutes of a Cabinet Office meeting chaired by – sorry, COBR, Cabinet Office Briefing Room meeting chaired by the Prime Minister on Thursday, 12 March; is that right?

Mr Michael Gove: Yes.

Lead 2A: We can see at the top that the meeting started at 1.15. Is that right?

Mr Michael Gove: Yes.

Lead 2A: And in attendance, amongst others, are Nicola Sturgeon, Cabinet Secretary for Health in the Scottish Government, Jeane Freeman, Chief Medical Officer of Scotland, Dr Catherine Calderwood, and the Secretary of State of Scotland, Alister Jack, amongst others?

Mr Michael Gove: Yes.

Lead 2A: Could we turn to page 6, please.

I’d like to look at a passage, please. There is some discussion around, obviously, the order of the day being what might happen in order to try to suppress the virus and deal with the impending threat or emerging threat. It states there that – it was stated at the meeting:

“That the Scottish Government was minded to advise against gatherings of more than 500 people. Their rationale for this to ensure the frontline emergency workers were able to prioritise the response to COVID-19.”

During that aspect of the discussion, there was a lot of other matters being discussed?

Mr Michael Gove: I do.

Lead 2A: Yes.

Could we also go a little bit further down page 6, from the words “That the public”, and that there was a concern also raised that the public had not grasped how cancelling mass gatherings would or would not impact upon the peak and that there needed to be more consistent messaging on this across the four nations, as it might be sensible to announce self-isolation and mass gatherings, recognising how this would support the resilience of the emergency services going forward?

Mr Michael Gove: Yes.

Lead 2A: Then it says below:

“That cancelling mass gatherings may possibly impact upon people’s behaviours and so the group should continue when this policy should come into play.”

And then it says:

“So far government policy had been science led and as the evidence was not there for cancelling mass gatherings there would need to be a clear basis for taking this action. If this action was taken, there would be consequences for a range of sectors …”

And then just some other details on this on page 7, over the page.

It states that – up at point 6:

“The, CHAIR said that the advice was SAGE was that there was low confidence in the effectiveness of cancelling mass gatherings on limiting the spread of the virus.”

So overall, the snippets that we’ve taken there tend to suggest that there was a significant discussion at that meeting around the possibility of cancelling mass gatherings, the Scottish Government indicating that they were broadly in favour but the UK Government suggesting that the scientific advice did not support such a move at that stage.

Is that broadly the flavour of the meeting as you recall it?

Mr Michael Gove: Yes.

Lead 2A: On page 8 it states that – under “Continuing” at paragraph 15:

“Continuing the CHAIR said that the GCSA should use the announcement to set out what stage two would be, and begin socialising options three and four to protect the most vulnerable. That the general public would not be asked to options two, three, or four immediately, but that these policies would come in the next few weeks. He respected the Scottish Government’s decision to cancel mass gathering to manage pressure on emergency responders, noting that as the epidemic progresses this approach may need to be taken by the whole UK to protect public services. However it was crucial for the government to stick to the SAGE advice and as far as possible, the Four Nations should try to stick together as one United Kingdom.”

Then on page 10, this is in the list of actions from the meeting, it states at point 1 at the top:

“CHIEF MEDICAL OFFICERS for all Four Nations, DEPARTMENT FOR HEALTH AND SOCIAL CARE and DEPARTMENT FOR DIGITAL, CULTURE, MEDIA AND SPORT to prepare advice for consideration by COBR on approach to mass gatherings.”

Then at page 10 there is an indication under “Decisions” that:

“COBR will keep under review the policy towards mass gatherings, with particular reference to their impact on public and emergency services.”

Does it appear, therefore, that the minutes show that an agreed position had been reached to continue consideration of the cancelling of mass gatherings and that the chief medical officers of the four nations were to prepare advice to assist in making that decision?

Mr Michael Gove: Yes.

Lead 2A: As far as you can recall, are these minutes an accurate representation of the discussion and the planning around that issue?

Mr Michael Gove: Yes.

Lead 2A: If the Scottish Government during the course of the meeting had said it was going to make an announcement that mass gatherings should be cancelled and not defer consideration for the advice to be received from the CMOs, that would be reflected in the minute, would it?

Mr Michael Gove: One would hope so.

Lead 2A: Shortly after the meeting concluded, we understand that Nicola Sturgeon announced at 3.20 pm that mass gatherings of more than 500 people would be banned in Scotland. She also provided some other updates from the COBR meeting such as the decision not immediately to close schools, and she made these announcements before Boris Johnson was due to speak to the public about the outcomes from the very same meeting.

Did Nicola Sturgeon’s announcement about mass gatherings contradict your understanding of the agreed position reached amongst the four nations at the meeting?

Mr Michael Gove: It was certainly divergent, and I think in the fourth evidence statement that I give I make the point that, in fairness to the First Minister, she’d clearly indicated a minded to intent on mass gatherings, but whether or not she hoped that that was a clear indication of the direction that the Scottish Government would go down, the minutes record the fact that we agreed that we would defer any announcement until further consideration, and it certainly wasn’t the case that the First Minister had indicated that immediately after that meeting that she would announce such a policy.

Lead 2A: And the reason for the deferral is also stated at the very page we can see there. It was to be consistent, I think, with the approach taken to that point to try to understand and follow the science as best one could –

Mr Michael Gove: Yes.

Lead 2A: – and that there was a concrete plan that not just the CMO for the UK Government but that all four CMOs –

Mr Michael Gove: Yes.

Lead 2A: – would input into an advice about the utility, the perceived utility of that move; is that correct?

Mr Michael Gove: Yes.

Lead 2A: What was the reaction within the UK Government to the announcement of Nicola Sturgeon to which I’ve referred?

Mr Michael Gove: Discomfiture.

Lead 2A: Did this create an impression that there were issues with the Scottish Government being trusted about four nations discussions with regard to the way in which the pandemic should be managed?

Mr Michael Gove: Yes, it did. There were colleagues of mine, ministerial and other colleagues, who were unhappy about the jumping of the gun, as it were. One can look at it in different ways. Was it right that Scotland should diverge in this way? Was it right that the First Minister should announce that divergence in the way that she did? Was it right that the First Minister should brief immediately after COBR, before the Prime Minister had an opportunity to address the country or before the Government’s Chief Scientific Adviser had an opportunity to address the country?

I think it’s important to stress that sometimes with politicians there can be amour propre. So I think that sometimes there will be a consideration on the part of one minister about another making an announcement before they do. But sometimes it’s more than amour propre, sometimes it can lead to a weakness in effective communication overall.

My own view is that, while I can completely understand the irritation, and it would have been preferable if the First Minister had not made that announcement at that time, that also we should also exercise or seek to exercise a degree of forbearance as well. So of those who expressed disquiet and discomfort, I was one of those who said, you know, in a pandemic, in a situation like this, sometimes there will be moments where others won’t necessarily act in a way that we would like, but let’s not – let’s not be too – what’s the word – critical or too unforgiving about that.

Lead 2A: Was there an expectation on the part of the UK Government ministers and officials, of which you were one, attending this meeting that the discussions would be confidential?

Mr Michael Gove: Yes.

Lead 2A: Did the announcement, as far as you’re concerned, break that bond of confidentiality?

Mr Michael Gove: Again, I would always strive to be fair. I think it was unwise for the First Minister to issue that briefing in the way in which she did. However, it’s entirely possible that the First Minister may have felt that it was necessary to do so in order to be clear about the way in which Scotland was pursuing its mass gatherings policy and that that was different from the rest of the United Kingdom, and she may have felt that it was necessary to get that message out as quickly as possible.

As I say, I believe that it would have been preferable for either that intention to have been more clearly communicated in the meeting, or for there not to have been that briefing thereafter. But again, while I do think that it was an error on her part, I wouldn’t want to lay massive blame or huge opprobrium towards her on that. I think it’s important to get these things in proportion, and, as I say, I’m one of those who is inclined – or on that occasion I was inclined to say that we shouldn’t allow regret over this to prejudice continued good working overall.

Lead 2A: That is your position, Mr Gove – but you mentioned also that others were irritated –

Mr Michael Gove: Yes.

Lead 2A: – by this. Who were the others amongst key decision-makers in the UK Government that were irritated by this move?

Mr Michael Gove: I think other Cabinet colleagues were irritated, and I – again, I can’t recall perfectly, but I’m pretty sure that there was irritation within Number 10.

And also, if I remember rightly, I think that the Secretary of State for Scotland, Alister Jack, was concerned as well, because, as I mentioned, there was a worry at different times throughout the pandemic that divergence might be pursued for divergence’s sake and that might have been driven by political considerations.

I don’t see any direct evidence that on this occasion there were political considerations of the kind that I alluded to earlier that were operating in the First Minister’s mind, but again I can’t know what the motivation was, and on that occasion I was inclined to, wherever possible, give the First Minister the benefit of any doubt.

Lead 2A: This is a crucial time, obviously –

Mr Michael Gove: Yes.

Lead 2A: – in the approach to the pandemic strategy. We know from evidence from Module 2 that an awful lot was going on within the UK Government: SAGE was sitting, advice was being – coming in regularly –

Mr Michael Gove: Yes.

Lead 2A: – it was updated at new advice became available.

What I’m interested in exploring, Mr Gove, is the extent to which, at that crucial time, this event caused tension and difficulties between the governments which then followed on through the rest of the pandemic.

Mr Michael Gove: I think it was certainly the case that for some within the UK Government it was a – as I say, a moment of discomfort which generated disappointment, but my approach then, and I hope my approach generally, was not to allow moments of irritation or disappointment to curdle. It was important to accept that when dealing with different administrations, different politicians and so on, that you – sometimes you would not get perfect co-ordination – perfect co-ordination was preferable, but if it didn’t occur, to put things behind one and to concentrate on effective working in the future rather than dwelling on any disappointment.

Lady Hallett: Mr Gove, forgive my interrupting, but some might think that’s being rather generous.

It wasn’t just that the then First Minister announced the decision about mass gathering in Scotland, it was the breach of confidentiality.

Mr Michael Gove: Yes.

Lady Hallett: You, as a long-standing and very experienced government minister, know the importance of confidentiality to government decision-making.

Mr Michael Gove: Yes, and my Lady, you are right that there were a number of people within government, including not just ministers, others, who were disappointed.

As I say, I think that I was aware that we were likely to be in this situation for the long haul, that we would need to work with the Scotland Government, and that while this was disappointing, and it certainly led some to believe that there should be a greater degree of care and caution in how we worked with the First Minister, my view was that we should try to maintain the best possible working relationship.

Mr Dawson: I think you used the expression earlier, when I asked you about irritation, irritation within Number 10.

Mr Michael Gove: Yes.

Lead 2A: Does that mean that the Prime Minister, then Prime Minister, was irritated with this statement?

Mr Michael Gove: I believe he was. One of the things about the then Prime Minister is that, again to be fair to him, he would often express irritation but he would seldom bear grudges, so he would sometimes express how disappointed he was but then quickly move on to the task in hand.

Lead 2A: We looked earlier at the messages which you’ve seen before in which Dominic Cummings is suggesting that discussions should take place outwith COBR, you have talked about the debate. Is there a connection between the air of suspicion and the perception of breach of confidentiality here on the part of the Scottish Government and the desire on Mr Cummings’ part to advise the Prime Minister to undertake his discussions about pandemic management outwith the ears of the Scottish Government and other devolved administrations?

Mr Michael Gove: Well, I think that the message from Dominic Cummings to Boris Johnson occurred in the morning of 12 March –

Lead 2A: Yes.

Mr Michael Gove: – and then Nicola Sturgeon’s press briefing occurred later –

Lead 2A: That’s my understanding, yes.

Mr Michael Gove: COBR occurred later. So in a way, one could argue that Dominic’s fears, as expressed in that message, were reinforced by Nicola Sturgeon’s action later that day.

I think that were there to have been, which I’m sure there must have been, a conversation between Dominic and the Prime Minister subsequently, Dominic could have pointed to the then First Minister’s actions and could have said “Well … “

Lead 2A: This is evidence for the proposal that I’ve made to you earlier this morning?

Mr Michael Gove: He – I’m sure he probably expressed views similar to that, yes.

Lead 2A: Okay. Did issues of confidentiality, leaking information from joint meetings, remain through the pandemic a concern on the part of the UK Government as regards the position of the Scottish Government?

Mr Michael Gove: There were concerns, and again that event I think was the sort of wellspring for those concerns.

But I don’t recall – even though there were disagreements on certain issues, I don’t recall any particularly damaging leak that could be laid at the door of anyone in any of the devolved administrations. It may well be that that happened, but I can’t recall another incident.

Lead 2A: But whether that was the case or not, did it create an apprehension on the part of key decision-making UK Government ministers that the Scottish Government effectively was not to be trusted?

Mr Michael Gove: Well, there were some people who would say, not that it was not to be trusted, but ca’canny when you are communicating with the Scottish Government on these issue, but, as I say, my view was that we’ve got to work together, we’ve got to rub along, there will be certain risks, of course, but it’s more important to seek to work collectively together.

And again, to be fair, the bigger the meeting of any kind, the greater the risk of leaks, and there were leaks at certain points, as we alluded to earlier, from within the UK Government that obviously had absolutely nothing to do with the devolved administrations and which sometimes impeded the effective delivery of policy.

But you have to accept that at certain times you have to broaden the cast list to bring people in, and that that risk of leaking increases proportionately.

Lead 2A: We’ve talked about the role that you played in meetings from roughly April/May onwards, the four nations meetings. We have also heard other evidence from a senior civil servant in the Scottish Government about attempts made around the May period where he characterised the position as being one of divergence –

Mr Michael Gove: Yes.

Lead 2A: – to try to make sure that the four nations message was reiterated from the Scottish Government perspective.

First of all, at this time, were attempts made to try to smooth over any irritation or concern such that the important relationship between the governments would be able to flourish as best as possible despite them?

Mr Michael Gove: Yes, and I think that some evidence for that would be the meetings of the ministerial implementation groups and the fact that they were meeting at that time relatively regularly to discuss support for the shielded vulnerable and the operation of other public services. That, I think, was evidence of a commitment on the part of every government to seeking, wherever possible, to work together. But of course the additional understanding that each jurisdiction had of the virus as the pandemic developed led to a difference of emphasis amongst some of the jurisdictions in how to handle it.

And again, as we touched on, it is both the case that at some points the Scottish Government were looking at things through a political prism. However, I think it is also the case that there were people both advising the Scottish Government and, for that matter, the Welsh Government, and people within the Welsh Government, who worried that the UK Government’s path out of lockdown, and certainly our decisions later that year, were insufficiently cautious. And again, I wouldn’t attribute to the Welsh Government anything other than a sincere level of caution slightly greater than that of the UK Government. I don’t think that their decision-making was influenced by anything other than their interpretation of the facts before them. And it was certainly the case, as we know, that the First Minister of Scotland was receiving advice from people who believed that a greater degree of caution and bearing down on the virus was necessary, so again, as we’ve also heard, there were other scientific and medical advisers who argued that the Scottish Government’s approach needn’t have been quite as restrictive as it was for as long as it was.

Lead 2A: We’ll come to that in just a moment, Mr Gove, but on this subject of the irritation, degree of concern, mistrust, one might say, you say in your M2A statement at paragraph 39:

“It became a particular irritation that many meetings relating to travel policy and ‘red list’ policies leaked. But it was also a sad reality that UKG-only meetings sometimes leaked.”

As you said.

Mr Michael Gove: Mm.

Lead 2A: “Nevertheless, we tried to include DAs in meetings wherever appropriate and sought to select attendees to ensure appropriate discussion even if that came at the risk of some leaking.”

Mr Michael Gove: Yes.

Lead 2A: Were your concerns about leaking of information relating to travel policies, the red list and the like related to the Scottish Government?

Mr Michael Gove: No. I think that, again, it was simply a fact, and I hope that the statement reflects that, that the bigger the cast list, the greater the risk. So I did not feel intrinsically that having the Scottish Government in conversations was a particular additional risk, but, as we’ve discussed, the experience of 12 March meant that there were those in the UK Government who did have that concern.

Lead 2A: And those included the Prime Minister and the Secretary of State for Scotland?

Mr Michael Gove: Well, the Prime Minister and the Secretary of State for Scotland were concerned after 12 March but I think in terms of the ongoing conversations that we had, I wouldn’t want to be in a position where I could state or overstate the concern expressed by either Boris or Alister. I know Alister is appearing later this week, so he’ll be able to offer his own perspective.

Lead 2A: Would it be fair to say, obviously as we’ve discussed, you were the principal, if you like, involved in those discussions in the period thereafter in the four nations meetings. Whereas you’ve told us you were prepared or able to put those concerns to one side, did it remain the position of other key decision-makers that they were not?

Mr Michael Gove: No, I think they did put them to one side actually. I think that … there was no evidence of anyone seeking to restrict attendance to any meeting or to restrict access to information. An expression of irritation is one thing, then seeking to act on it in a way that might be – what’s the word – long-term counterproductive is another, and there was no actual evidence of our being anything other than open and inclusive with information and seeking to include people in meetings wherever possible. And again, I think that both Number 10 and the Office of the Secretary of State for Scotland were committed to making sure that the relationships worked, whatever previous irritation might have been expressed.

Lead 2A: We have heard evidence in this module already, Mr Gove, on behalf of officials within the Scottish Government who were involved in the pandemic response at this stage and subsequently, that there were issues, as far as they were concerned, with accessing information in particular which was held by the UK Government which would be of assistance to the Scottish Government’s response.

Is that an accusation or a charge which you recognise to any extent?

Mr Michael Gove: No. The way in which SAGE operated, the way in which information was shared, there was never, that I was aware of, any scientific or public health information that the UK Government had that wasn’t shared, whether at the level of scientific advisers, chief medical officers, or ministers. So again, if anyone could point me to specific examples of information that should have been shared that wasn’t, then I could consider those, but I’m not aware of any – certainly of any significant withholding of information.

Lead 2A: Well, I was interested to know from your perspective, Mr Gove, as being someone who, at this stage, played an important role and, subsequently, a particularly important role with regard to intergovernmental relations, whether the issue of information flow from the UK Government and its various structures to the Scottish Government had ever been – whether that was ever a matter that was raised with you, a matter of concern on substantive, important matters at least?

Mr Michael Gove: No, and I did – I think that there might have been discussion about economic modelling at certain points, but the actual information, scientific information that we had, and of course some of that information was provisional, some of it was modelling, I think was always shared. And I think the whole basis on which SAGE operated, indeed the whole basis on which the medical profession and scientists operated, is that collaboration and information sharing is central to their professional ethos.

Lead 2A: Although we’ve heard variable evidence in this regard, some suggesting that SAGE and its subgroups worked quite well for those who were on the groups, as far as Scotland was concerned, but others have suggested that, for example, as far as Scotland was concerned, questions would have to be submitted in advance to SAGE such that there wasn’t the room for the kind of discussion which you’ve suggested is important in the political sphere. Again, is that something that was raised with you or are you aware of from your involvement at this period as being a concern from the Scottish Government’s end of the operation?

Mr Michael Gove: No. I don’t recall it featuring. There may have been requests or comments made about the need for information sharing, but I don’t recall any particular obstacle. Again, as the Inquiry has heard, when SAGE meets, except for, you know, one or two occasions, it meets without the presence of ministers and it meets with the CMO or the CSA there. SAGE will consider the questions put to it by different parts of government, but it’s important that it be a free and – free-ranging discussion with the clinicians, scientists and others in the room.

Lead 2A: We’ve heard – I’m interested in this particular early period in time, because you were involved in a lot of meetings and involved in a lot of discussions around that period, I’m interested in trying to explore with you your perspective on a particular matter. We have seen within some of the documentation, the noted documentation that we’ve seen, that there is at least one official who within Scottish Government thought in the period around about February leading into March that there – although there was significant activity at UK Government level, that – as – as expressed on 26 February – all departments in the UK Government are fully engaged and mobilised in a way that the Scottish Government simply isn’t. That comes from 26 February 2020.

I’m interested in understanding, Mr Gove, from your perspective, whether that was something, a phenomenon that you recognise, that the level of activity that was going on end of February, into March, in the UK Government, whether that appeared to be something with which the Scottish ministers and officials with whom you were speaking were equally engaged?

Mr Michael Gove: No, I think in the period, and it has been touched on elsewhere in the Inquiry, in the period late February, early March it is a fair charge that across the UK we did not act as quickly as we might have done to deal with the virus, but I don’t recall any reason for believing that the Scottish Government or any devolved administration was somehow dragging its feet particularly at that point in comparison to the UK Government. But others who have been more directly involved in preparations will have a better overall sense of that.

Lead 2A: At around that time and in light of the resilience structures which had existed prior to the pandemic, what would the UK Government’s position have been with regard to the Scottish Government’s powers to impose rather than simply recommend social distancing measures, up to and including lockdown?

Mr Michael Gove: I think our view would have been that any response to a UK-wide threat should be effectively co-ordinated. And again, as it turned out, one of the things that we would do is have conversations with Scottish Government ministers and officials, and indeed Northern Ireland Executive and Welsh Government officials, and seek to thrash out what the appropriate level of responsibility was and if people had the resources and powers required, as indeed we sought to do during the course of the pandemic with those – albeit that it’s a different set of questions – who had powers as mayor. So one of the things that we were discussing right at the very beginning of the pandemic is whether or not London should go first into lockdown, and there were conversations with the Mayor of London who was brought into COBR and so on.

I’m not suggesting for a moment that one should consider London, great city as it is, on a par with Scotland. You know, the nature of Scotland’s political, constitutional, historic character is different, so I wouldn’t want anyone to infer from that that I was suggesting and sort of constitutional parity. I’m just saying that, in operational terms, you would sometimes be faced with a new crisis, albeit that some aspects of it could have been anticipated – you just, through conversation, work out where are the correct levers for dealing with an issue of this kind.

Lead 2A: What I’m interested in exploring, Mr Gove, is the extent to which, at that stage, certainly from the UK Government’s perspective, it was anticipated, based on pre-pandemic resilience planning, that effectively the UK Government would be responsible for policy, deciding whether or not –

Mr Michael Gove: Oh yes.

Lead 2A: – there should be restrictions, and that the Scottish Government’s involvement would be in the implementation or operationalisation of that policy as opposed to fixing the policy itself?

Mr Michael Gove: No, I don’t think so, and I think that for those who would have given it a great deal of thought, there would have been an appreciation that health is devolved, and that the – a lot of the decisions would have been for the Scottish Government, quite rightly, to take.

So there may have been a haziness in some minds, and it may be that some might not have given every aspect of pandemic preparation all of the thought that might be required, but I think there was a pretty good general understanding of the need to respect the competences of the devolved administrations.

Lead 2A: But at that stage would it have been anticipated that Scotland, if it were necessary to impose social distancing measures, would have the power to do that as opposed merely to operationalise policies made by the UK Government in that regard?

Mr Michael Gove: I think the point has been made in previous evidence sessions that lockdown itself was a novel and contentious policy and that the overall approach towards the pandemic had been to seek to use testing, contact tracing and so on to mitigate its impact and to seek to control it. It was only after observing what had happened in East Asian countries that lockdown became a policy tool that was considered, obviously a controversial one.

So in a way, while the Inquiry I’m sure will have a number of judgements to make about the extent to which a crisis of this kind was foreseeable and the extent to which different types of preparation might have been put in place, there wasn’t anyone really anywhere in the western world who was thinking about lockdown as a desirable policy tool, and therefore the question, had we thought about, you know, if lockdown was required should the Scottish Government have this power or that power, wouldn’t have arisen, because people weren’t thinking about lockdown as the sort of policy that would need to be pursued.

Lead 2A: But if one were to put lockdown as a concept to one side –

Mr Michael Gove: Yes.

Lead 2A: – and simply think about the possibility of using social distancing measures short of a lockdown –

Mr Michael Gove: Yes.

Lead 2A: – so, for example, the cancelling of mass gatherings, was that something over which the UK Government’s position was that it would make the policy decisions, and that would merely be operationalised through existing resilience partnerships and arrangements within Scotland?

Mr Michael Gove: I don’t think so, but there may have been different views amongst those who were giving consideration to that question.

Lead 2A: Okay. In the period after the lockdown had been imposed – I’d like to take you through some various elements over time periods to get your broad impressions of the Scottish position.

In the period after the lockdown was imposed, we’ve heard evidence that a number of things were done within the Scottish Government operation, including the setting up of new directorates to deal with the Covid response, and indeed the creation of a new Scottish Covid advisory body, about which we’ve heard considerable evidence during the course of that week.

Was there a perception within the UK Government at this time, this is late March, early April, when that was being put together, the structures being developed over that rough period, was there a perception within the UK Government at that time that the Scottish Government was seeking to put together its own structures so as to be able to diverge its response away from the UK Government’s response?

Mr Michael Gove: I don’t recall anyone thinking that – that, no. As I said, there was a concern at certain points that divergence might be sought for its own sake, but I also think, to be fair, for Scottish Government ministers, knowing that they had direct responsibilities, there would have been a question in their mind: have we taken all the advice that we possibly can in order to know whether it’s right to maintain alignment with the UK or to diverge in any way? If I had been a minister in the Scottish Government at that time, admittedly an extremely unlikely eventuality, but had I been, then I think I would have wanted a second or a third opinion as well before I took particular steps. As I say, there were, I’m sure, temptations at certain points to think politically and to seek divergence for its own sake, but I don’t think setting up those structures is in itself a bad thing.

Lead 2A: You’ve used the expression “seeking divergences for its own sake” on a number of occasions.

Mr Michael Gove: Yes.

Lead 2A: Are we to take you to mean, when you’ve used that expression, that there was a perception, at least within the UK Government, that the Scottish Government diverged in order to try to further its aims for political independence rather than in the public health interest of the people of Scotland?

Mr Michael Gove: I think that most of the time, almost all of the time, decisions were made in the public health interest of the people of Scotland, but, as we touched on earlier, I think that temptation existed.

I think it’s also the case, to be fair, that the Scottish Government believed that its handling of these matters was somehow superior to that of the UK Government, that people would appreciate and recognise that, and therefore people would be prompted to think, “Well, how much better might life be if we gave the Scottish Government more powers and we moved further down the path towards independence?”

So there are two things. The first is that within the minds of Scottish ministers I believe it was the case that they thought “If we demonstrate that we are more efficient and more compassionate, people will think, hmm, give the Scottish Government more power”. And secondly, I think that they thought, at certain points, “We can demonstrate by our divergence the benefits of separating oneself from the UK”.

Now, again, the day-to-day outworkings of decision-making by the Scottish Government I believe were overwhelmingly driven by a desire to do the right thing, but, as I say, when one is dealing with a political movement that has a single overriding objective in the way that the Scottish National Party has, and when one looks at how the Scottish National Party operates and the way in which it looks at every political issue, through the prism of achieving independence, then that has to be borne in mind. The weight given to that obviously depends on individual judgement.

Lead 2A: To be fair, Mr Gove, I’m not sure what you’re describing there is in fact divergence for divergence’s sake. What you’re describing is a situation in which – a hypothetical situation, I think, in which, if the Scottish Government dealt with the pandemic more effectively and more compassionately, which surely would be something that the people of Scotland would want, that there might at some later date be some political advantage.

So why was it that the UK Government seemed to have a perception that this was divergent for divergence’s sake rather than for the purpose of achieving a more effective and compassionate response?

Mr Michael Gove: I think we’re not at variance, really. I mean, I think there are two overlapping elements to it.

So the first thing to say is that sometimes, and this is the whole point of devolution, you can have policy innovation in one jurisdiction that others can learn from, and that is not a bad thing, and sometimes that ability to vary policy and to learn can help every part of the United Kingdom to improve.

Now, of course during a pandemic, when clarity of communication and co-ordination of response is so important, then there is far more of an incentive to work together than to experiment in that way.

However, I think it is the case, and I think the First Minister at the time almost made this case, that she believed that Scotland’s, as she believed it to be, superior response would make the case for greater autonomy in due course. But it was also the case, as we heard from the evidence from Liz Lloyd, that at certain points the Scottish Government were tempted to go down a course where they would engineer a potential row, a rammy, in order to reinforce that political point as well.

As I say, it’s in the nature of the SNP as a political movement that it thinks slightly differently from other political parties, but it’s also in the nature of people who are public servants, like all of those who served in the Scottish Government, that they do so from a sense of duty and vocation, and I think that it’s important to try to take a balanced perspective on all of those questions.

And, as I say, this is my perspective, but I would respect those who would take a different view.

Lead 2A: It will be a matter for her Ladyship in due course, Mr Gove, but I suspect that the fact of temptation to go down a political course isn’t really what we’re interested in. What we’re interested in is whether the Scottish Government, in your view, gave in to that temptation, and whether giving in to that temptation resulted in a poorer management strategy than the Scottish people ought to have expected?

Mr Michael Gove: I think firstly if one looks overall at the response of the Scottish Government and then the outcomes in Scotland, outcomes at the end of the pandemic were not radically different in Scotland than from the rest of the United Kingdom.

And again, it’s not my place to say whether, in the handling of care home deaths or in the handling of other issues, Scotland’s approach was significantly better or worse than in other parts of the United Kingdom, but in the end, the number of – the tragic number of excess deaths across the United Kingdom was broadly – broadly similar. One could consider why those factors were there.

But I do think that the Scottish Government did think politically. Whether or not that had the impact of their management of the outbreak being significantly worse or better than it might otherwise have been, I cannot conclude.

So your point that of course my Lady will consider all of this evidence in the round, I absolutely understand. What I’m not seeking to do is to try to push the Inquiry towards any particular conclusion, I’m simply seeking to explain how I, as a politician, perceived or understood decision-making to take place, and there will be a weight of evidence that the Inquiry will want to look at, I’m sure, to conclude whether or not I’m being unduly critical. I hope I’m not.

Lead 2A: But the height of your evidence, I think, Mr Gove, is that you can indicate that your impression was that there was a temptation to diverge for a political motivation but you cannot point to any circumstance in which the Scottish Government gave in to that temptation, with particular results?

Mr Michael Gove: I think – there are two thing. There was a temptation – there were moments when the Scottish Government diverged. Did they diverge for political reasons or not I can’t conclude because I can’t make windows of men’s or women’s souls.

Lead 2A: In the period after the period we’ve just touched on, which was April 2020, we start to get into the period we were discussing earlier, when your involvement in the four nations meetings started to ramp up somewhat and continued to do so.

We’ve had a considerable amount of detailed evidence already from the Scottish Government in respect of – particularly from a senior civil servant called Mr Kenneth Thomson, related to difficulties which emerged around about a week into May, in particular a meeting at which the Prime Minister and First Minister attended, and an announcement made on 8 May by the First Minister of Scotland that the nations may start to diverge from this point.

There was then, you will no doubt recall, a COBR meeting on the 10th which was described by Ms Lloyd, who we mentioned earlier, in her notebook as a shambles.

At that stage, as I understand it, the Scottish Government’s position is that the UK Government had been less than candid about its intention to move away from the Stay at Home message towards the Stay Alert message which it ultimately adopted.

I would be interested to understand your perspective as a UK Government minister on that accusation.

Mr Michael Gove: I think both Liz Lloyd and, in her written evidence, the former First Minister have said that they felt that they had an issue with the Stay Alert message, but I think actually, of all of the things that one can point to during the course of the pandemic, a quibble over that wording at that time doesn’t seem to me to be one of the most important issues that arose, and indeed I think, as has been pointed out, the critique of the Stay Alert message was considered before any of the additional messaging around it was in place.

And again, the views of both the – both Nicola Sturgeon and Liz Lloyd about the UK Government and about Boris Johnson were always inclined to be critical, as I mentioned earlier, they came from a very different starting point. And as we know, in their private communications they were very critical. But the reality, I think, is that actually UK Government communications were at least as good as Scottish Government or any other administration’s communications. Later on, I think, in the pandemic there was a debate over Hands, Face, Space versus FACTS, and I think I touched in previous evidence on the fact that, while the Scottish Government was at that time a more trusted source of information within Scotland than the UK Government, the UK Government’s message was clearer, easier to grasp and so on.

So, again, we can have a long conversation about the finer points of communications here and the divergence and difference between them, but in the end I don’t think it was that material to the way in which the pandemic played out.

Lead 2A: You’ll be pleased to hear, Mr Gove, that I don’t think we need to have a long conversation –

Mr Michael Gove: Sorry.

Lead 2A: – about it, because my point is less to do with the communications element of this and more, as I’m sure you’re aware, to do with the Scottish Government’s position that around this issue they felt that they had been misled by the Prime Minister when he said – he emphasised in meetings the need to stick to the Stay at Home message and did not indicate that he was going to go down the Stay Alert route. That is a matter of confidence and trust about which we’ve said quite a lot today, and you’ve said quite a lot already. So rather than focusing on the marketing message, what is the UK Government’s position as regards the accusation that there was a genuine basis upon which they lost faith in the UK Government’s approach based around the messaging in this regard?

Mr Michael Gove: I think I mentioned earlier that, given what – the events on March 12, the best thing to do was to exercise forbearance. During the course of policymaking, during a pandemic or certainly any other crisis, it will sometimes be the case that individuals will make errors, that information that might have been shared isn’t shared, not out of malice or a desire for secrecy, but just because of the way in which rapid decision-making occurs. On the whole, I think it is better to err on the side of forgiveness or forbearance. Obviously on that occasion the First Minister and her team felt irritated, but I don’t believe there was any intent to provoke or deceive. I can’t recall all of the details of that time, but I suspect that it was rather more to do with the pace of decision-making than anything else.

Lead 2A: We’ve touched earlier – I think you touched in your evidence on the developments after this period –

Mr Michael Gove: Yes.

Lead 2A: – in particular the divergence or difference in approach to the management of the pandemic and indeed Scotland’s more cautious exiting –

Mr Michael Gove: Yes.

Lead 2A: – of the lockdown, and its development of what subsequently became known as the zero Covid policy.

Mr Michael Gove: Yes.

Lead 2A: This was a period in which you were actively engaged in four nations meetings. I was interested to know from your perspective what your understanding was of the rationale behind, and indeed the achievability of, Scotland’s elimination or zero Covid policy?

Mr Michael Gove: I remember conversations with the First Minister about the use of the word “elimination”, and I was seeking to understand what it was that the Scottish Government hoped to achieve. My own view is that, absent the vaccine, you couldn’t have an effective elimination strategy. And again I know that we’ve heard evidence about the seesaw analogy and so on. So I think that the pursuit of zero Covid was misconceived, but I don’t think it was illegitimate of the First Minister to seek to find from scientists and others different views about what the right policy was.

Lead 2A: We’ve heard a fair bit of evidence, both orally and in writing, that there was a perception within the Scottish Government that the Scottish people had a different tolerance level perhaps towards restrictions. Was that something that was ever expressed to you, that concept of Scottish people having a different attitude or tolerance towards restrictions, in your capacity as the main conduit of information between the two governments?

Mr Michael Gove: No, I don’t recall that ever having been said per se. I mean, I think obviously the Scottish Government pursued a slightly different approach, but … it is often asserted that there is a huge difference in values between people in Scotland and people in the rest of the United Kingdom, and my experience is that that is nationalist mythmaking, and that people in Newcastle or Liverpool or Manchester have the same values as people in Aberdeen or Broughty Ferry or Glasgow. And the – but it is sometimes the case that the SNP and their supporters seek to suggest that there is something about the national community in Scotland that is somehow different, more compassionate, more tolerant, than people in England, and I think that is divisive nonsense.

Lead 2A: We talked earlier about the details of the Prime Minister’s visit to Scotland on 23 July 2020, and it was put to you that the Prime Minister’s comments about the Union were an example of the United Kingdom Government politicising the pandemic response, and we had a discussion about that, and your position, as I understood it, was that the United Kingdom Government did not use the pandemic response to further arguments about the Union. Is that correct?

Mr Michael Gove: It was the case that some of what we were doing was self-evidently a consequence of the strength of the Union, so it would have been – what’s the word – curious to be reticent about that.

Lead 2A: Could we look at INQ000089054, please.

This is a paper entitled, I think, “State of the Union”, presented at a meeting of the Cabinet Office, held on 21 July 2020, two days before the Prime Minister’s visit to Scotland; is that correct?

Mr Michael Gove: Yes.

Lead 2A: It’s a paper presented by you?

Mr Michael Gove: Yes.

Lead 2A: Could we turn, please, to page 2. It says there:

“Perceptions of the Government’s and the devolved administrations’ response to COVID-19 reflect wider challenges in microcosm. In Scotland, only 27% of people think that the UK Government is putting in place the right measures to protect the UK from COVID-19, but 70% of respondents believe the Scottish Government is putting in place the right measures to protect Scotland. In Wales, these figures are 29% to 65%, and in Northern Ireland 36% to 61%.”

Could we turn to page 5, please. A proposal is made at paragraph (d) saying:

“We need to change perceptions of our response to COVID-19. There is a real opportunity to outline how being part of the Union has significantly reduced the hardship faced by individuals and businesses across the UK, and will continue to do so. But as outlined in paragraph two, satisfaction with the UK Government response to COVID-19 in Scotland, Wales and Northern Ireland is low. Building on the work of the Treasury, we need to generate further, tangible examples of where we have acted in the interests of citizens across all four nations, and all departments should review their COVID-19 response to identify examples that could be utilised in future communications.”

Page 7, please. The page before that. Paragraph 17, I think. Yes, sorry, down at the bottom.


“17. Absent COVID-19, I am firmly of the view that the risk to the Union would be the greatest challenge this Government needed to confront – and unfortunately it is in no way lessened by the parallel demands of the epidemic and our economic recovery. In the lead up to May next year, and throughout this Parliament, protecting and strengthening the Union must be a cornerstone of all that we do. This paper therefore asks Cabinet to agree the need to act, to endorse the strategic approach described in paragraph six, and to take forward the specific actions detailed above and summarised at Annex A.”

In this paper, you are setting out the strategy of the United Kingdom Government to use the Covid-19 pandemic as a means to strengthen its arguments in favour of the Union; is that not correct?

Mr Michael Gove: I think it’s the case that I am seeking to make sure that people appreciate the way in which the existence of the United Kingdom and its institutions has enabled us to deal effectively with the Covid pandemic, pointing out that the degree of trust and support for the UK Government and for devolved administrations when it comes to response to Covid is divergent, and seeking to ensure that the fact that we’d been, to an extent, hiding our light under a bushel was something that we should seek to address.

Lead 2A: This was the reason for the Prime Minister’s trip to Scotland on 23 July, wasn’t it?

Mr Michael Gove: I don’t believe so, no.

Lead 2A: You mention in this paper the need to try to highlight some of the things which the UK Government thought it had done well in the pandemic response in order to try to counteract a general impression that seemed to exist, in polling at least, of the Scottish people that opinion of the UK Government’s response was low. Is that what you’ve tried to do in your evidence today by constantly referring to the vaccine roll-out, Mr Gove?

Mr Michael Gove: No, I think that there are a number of cases where the UK Government’s response was significant and helpful across the United Kingdom, so I think the Covid business intervention loan scheme would be one such. The – our whole approach that we took towards furlough. I think it would also be the case that the way in which we managed in a competitive international environment to source PPE would be another.

It’s my responsibility as a minister of the UK Government to uphold the United Kingdom and to point out from time to time that to dismantle its institutions and its structures would be harmful and deleterious to all of its citizens. But when it comes to something like the pandemic, I not only think it’s necessary to demonstrate how we’ve benefitted, I think it’s also necessary to concentrate on making sure that those benefits are spread equally across the whole United Kingdom, which is why I believe that one needs to work constructively and openly with those in devolved administrations, respecting their role and their mandate but also being clear that to be passive in the face of an attempt to break up the United Kingdom is not to be even-handed, it is to quit the field when there is a direct danger to the wellbeing of every citizen of the United Kingdom.

Mr Dawson: Thank you, Mr Gove.

I have no further questions. There are some core participant questions.

Questions From the Chair

Lady Hallett: I have one, just before Ms Mitchell comes. Mr Gove, I noticed when we were looking at your third witness statement that you mentioned at paragraph 39 – I’m sorry, I haven’t got any reference, I don’t think we need to bring it up – that the – when we were talking earlier about Nicola Sturgeon making the announcement about the mass gatherings and then about whether or not schools would be closed, we talked about breach of confidentiality, but I noticed that in your witness statement you said that devolved administration ministers didn’t consider themselves bound by confidentiality, because the Ministerial Code that you consider makes it bound applies to UK ministers not to the devolved nations, so that could explain why Nicola Sturgeon didn’t consider herself bound by confidentiality; is that right?

Mr Michael Gove: It could. So I think it is manifestly the case that the Ministerial Code does not apply to ministers in devolved administrations, but one would have hoped that the nature of the discussion and the sensitivity of the matters under discussion would have meant that at the very least a degree of, if not confidentiality, certainly respect for the conclusions of the meeting might have led her to wait until after there had been a formal announcement by the UK Government.

Lady Hallett: I understand that.

Secondly, if devolved administration ministers don’t consider them bound by a duty of con – it – wouldn’t it be possible to set up a meeting whereby – just like we would at a meeting say that the Chatham House rule applies, that one could say this meeting is bound by confidentiality, isn’t that possible?

Mr Michael Gove: Yes, it is. And I think it’s also the case that there was a sort of broad understanding that when you’re meeting at any sort of – what’s the word – joint ministerial level that if there’s going to be communication afterwards, that you have an agreement, formal or informal, about whether or not there’s going to be a communique or a press conference or whether or not someone is going to be allowed to brief the media in a particular way. So that’s generally done in an ad hoc way, but it could be formalised.

Lady Hallett: Thank you.

Ms Mitchell.

Questions From Ms Mitchell KC

Ms Mitchell: I’m obliged.

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

Mr Gove, I wonder if I can ask you a question arising from your statement where you talk about the issue of financial clarity.

Now, just to allow you a moment to remember the context of this, you set out a proposed memorandum of understanding of what issues we might like to consider in relation to any future pandemic and how we might be able to think of various issues in advance to reduce, I suppose, any issues that might be problematic. In that regard, you say “financial clarity for each DA”.

Can you first of all explain what you mean by financial clarity?

Mr Michael Gove: Yes. I think that it’s important for the widest possible understanding to exist of how public services are funded within each of the devolved administrations and what the flexibility is that each of the devolved administrations have. And work has been done by the UK Treasury in order to ensure that each of the individual devolved administrations is happy with the way in which, for example, the Barnett formula works and the way in which their respective tax varying powers can be deployed.

Ms Mitchell KC: Is that post-pandemic that work has been done?

Mr Michael Gove: I think that work is continuing, so I think it is the case that, throughout the development of devolution, there have been both conversations at an official and ministerial level about making sure that people can understand how the fiscal framework can be improved and how understanding of, for example, the Scottish Government’s borrowing powers can be appreciated and, if necessary, deployed.

Ms Mitchell KC: And is the financial clarity, not simply the financial clarity of those within Scotland but also within the UK Government, as to where the lines are drawn, is the conversation two-way, I suppose?

Mr Michael Gove: I think it’s at least four-way, but yes.

Ms Mitchell KC: And where do you see the four-way?

Mr Michael Gove: With Wales and Northern Ireland as well.

Ms Mitchell KC: I see.

Moving on to question number 2, we heard you earlier give evidence that, in the context of leaks by the Scottish Government and, in fairness, the UK Government, but in the particular instance of leaks by the Scottish Government, the UK Government might have to ca’canny in communication with the Scottish Government.

I’d like to ask you about a comment that you’ve made in your statement where you say:

“I accept there were occasions where materials were distributed shortly before meetings. It seems to me that there were probably good reasons for this, including the incredible fast pace of events, and in some cases the need for security and confidentiality of the material to prevent leaks to the media.”

And you go on to explain that there were such delays and last minute documents given also to the UK Government, it wasn’t simply those that involved the devolved administrations.

Can I ask, in what instance would it have been appropriate to hold back documents for a meeting to prevent leaks to the media. And secondly, can you provide any instances of this occurring that you’re aware of?

Mr Michael Gove: Yes, throughout government it will often be the case that documents will be held back. There have been a number of occasions when there have been UK Government-specific discussions, not about Covid but about other matters, where the paper before the meeting which will be the basis for discussion is shared only with ministers an hour beforehand, sometimes ministers are invited into a reading room and given an opportunity to absorb the information and the proposition before then going into general discussion.

It is the case that most civil services overall dislike the idea of decision-making being affected by leaks. Most civil services believe that they serve their government well by making sure that confidentiality is respected. And I think that is absolutely right and it would have been, I think, for the Scottish Government civil service and for the UK Government civil service just a matter of propriety that they, when dealing with sensitive issues, would restrict the circulation of those papers, which would often be, you know, containing policy discussions, in such a way as to minimise that leak.

However, when we’re dealing with an issue like Covid, the overwhelming majority of the information required, the background information that will feed into a discussion, would have been shared and widely known before getting into that detailed policy discussion.

Ms Mitchell KC: And in relation to the second part of my question, can you give any specific instances of this that you’re aware of?

Mr Michael Gove: I could. I can’t recall at the moment but I can certainly write back to you and to the Inquiry with further and better particulars.

Ms Mitchell KC: I’m obliged.

I move on, briefly on to question number 3.

You talk in your statement about the issue of parity of decision-making between the Scottish Government and the UK, and effectively the issue of the Scottish Government being involved in UK decisions and whether or not that should mean that the UK Government be involved in Scottish decision-making.

Does this point us to a position where really the best way to deal with these things when we’re dealing with a pandemic, a cross-UK issue, is the involvement of the body such as the Joint Ministerial Committee or something of that name going forward in these instances?

Mr Michael Gove: I think it is open to debate what the best method is. As I mentioned earlier, other countries have similar challenges, and even when you have a federal constitution like that in Germany, it was still the case that there were tensions between what the Federal Chancellery sought to do and what the individual Länder sought to do at particular times.

It’s very rare in politics that you can design a piece of constitutional or governmental machinery which doesn’t then need to evolve to take account of new strains and new information. So it’s entirely possible that lessons can be learned about better intergovernmental working, but, as we discussed earlier, (a) quite a lot depends on the nature of the crisis being dealt with, and then also something depends on what people’s ultimate goal is.

So my view is that intergovernmental working is there to make sure that devolution serves the people of Scotland and the United Kingdom Government serves all of its citizens.

Mark Drakeford in Wales will take the same view, even though his view of devolution might be slightly different, because he too is committed to making devolution work and making intergovernmental relations work.

With the best will in the world, the SNP, even though on the day-to-day basis they want to serve the people of Scotland, don’t want intergovernmental relations to work because their ultimate goal is to break up the United Kingdom.

Ms Mitchell KC: Well, I’d prefer if we tried to look more positively at the way in which, going forward, intergovernmental relationships can be taken.

Mr Michael Gove: Yes.

Ms Mitchell KC: Minimising party politics and minimising the politics of personality, could you give your view to this Inquiry as to what best format that might take? Would it take simply getting all the people involved round the table and making decisions together, like the Joint Ministerial Committee, or can you think of any other body or type of way of decision-making that would assist?

Mr Michael Gove: I think that it’s certainly the case that that helps, and it is – it is the case that following on from Lord Dunlop’s review that we now have in place a tempo of meetings and a set of structures to ensure that intergovernmental relations work effectively. And I think that it’s perfectly possible to say that that can be improved, but for the moment, I’m not – I don’t want to be Panglossian about it, but for the moment I think that that is an effective and workable means of reconciling different policies and bringing discussions together.

Ms Mitchell: I’m obliged.

My Lady, I’m obliged.

Lady Hallett: Thank you, Ms Mitchell.

Thank you very much indeed, Mr Gove. I hope we won’t have to call upon you again. I’m not giving a guarantee, but I don’t think it’s likely, so thank you for your help.

The Witness: Not at all. Thank you very much, my Lady. Thank you.

Lady Hallett: Right, 1.45.

Mr Dawson: Thank you, my Lady.

(12.52 pm)

(The short adjournment)

(1.45 pm)

Mr Dawson: Procedural matter

Mr Dawson: My Lady, before we get to this afternoon’s witness, there is one procedural matter that I would just like to clarify, if that’s okay.

On Friday 19 January the Inquiry heard evidence from Dr Jim McMenamin, as your Ladyship will recall, who had previously provided the Inquiry with a witness statement and accompanying documentation, including some WhatsApp messages. An extract of those WhatsApp messages was put to Jason Leitch on 23 March and subsequently published on the Inquiry’s website the same day. The specific extract is from INQ000268025.

In the published extract, the formatting of the messages may make it appear as though Dr McMenamin is agreeing to a suggested deletion of WhatsApp messages. Our interpretation is that this is not the case. Dr McMenamin was replying to another message earlier in the chain of correspondence not shown in the extracted

text. The formatting of this WhatsApp message for

presentation in evidence makes the message appear

chronologically and does not illustrate direct responses

to other messages out of sequence in the chain of

correspondence. For the avoidance of doubt I wish to

make sure that the evidence shows that Dr McMenamin did

not delete any messages. It is in fact Dr McMenamin who

provided the Inquiry with the WhatsApp messages

contained within that document via his employer, Public

Health Scotland.

Lady Hallett: Thank you very much, Mr Dawson.

Mr Dawson: Thank you, my Lady. The witness this afternoon

is Ms Jeane Freeman OBE.

Ms Jeane Freeman


Questions From Lead Counsel to the Inquiry for Module 2A

Lady Hallett: I hope we haven’t kept you waiting too long,

Ms Freeman.

The Witness: Not at all, my Lady.

Mr Dawson: You are Jeane Freeman?

Ms Jeane Freeman: I am.

Lead 2A: You have helpfully provided some statements to this

module of the Inquiry, in particular a witness statement

dated 16 November 2023 under reference INQ000273984. Is

that your statement?

Ms Jeane Freeman: It is.

Lead 2A: Have you signed that statement?

Ms Jeane Freeman: I have.

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

Ms Jeane Freeman: They do.

Lead 2A: You have also provided a further witness statement to this module of the Inquiry which is dated 21 November 2023 under INQ000347982. Is that your further statement?

Ms Jeane Freeman: It is.

Lead 2A: Have you signed that statement?

Ms Jeane Freeman: Yes.

Lead 2A: And do the contents of that statement remain true and accurate as far as you’re concerned?

Ms Jeane Freeman: They do.

Lead 2A: You previously gave evidence to Module 1, as I understand?

Ms Jeane Freeman: I did.

Lead 2A: You’re currently the dean of strategic community engagement and economic development at the University of Glasgow?

Ms Jeane Freeman: I am.

Lead 2A: You’ve held that role since February 2022?

Ms Jeane Freeman: Yes.

Lead 2A: From June 2018 until May 2021 you head the post of

Cabinet Secretary for Health and Sport within the

Scottish Government?

Ms Jeane Freeman: I did.

Lead 2A: You left that role in May 2021, prior to the Scottish

Parliamentary election in which you did not stand; is

that correct?

Ms Jeane Freeman: That’s correct.

Lead 2A: Prior to holding that role, you were the minister for

social security within the Scottish Government between

18 May 2016 and 26 June 2018?

Ms Jeane Freeman: I was.

Lead 2A: Your current post is a post in academia?

Ms Jeane Freeman: Yes.

Lead 2A: As Cabinet Secretary for Health and Sport, your

responsibilities included the NHS and its performance,

national clinical strategy, carers and adult care and

support; is that correct?

Ms Jeane Freeman: That’s correct.

Lead 2A: Thank you.

I’d like to ask you some questions about your use of

informal communications –

Ms Jeane Freeman: Yes.

Lead 2A: – during the course of the pandemic, and also your

retention of them.

The Inquiry has seen on a number of occasions a table that was helpfully produced by the Scottish Government indicating the position with regard to usage and retention of a number of different things, including informal messaging. Now, this is dated from October of this year.

As at that time, the position communicated to us was that the Scottish Government, as it states there, understood that some WhatsApp and text messages had been retained and the Scottish Government was currently clarifying the volume but did not expect it to be large. They indicated that you had been part of a WhatsApp group of Cabinet secretaries for health of the four nations, to facilitate meeting running, and they confirmed to us that no other WhatsApp groups – that you had not been part of any other WhatsApp groups or other informal messaging with key decision-makers.

Now, obviously the position has moved on somewhat, we’ll get into that in a moment, but as at October of this year, was that the position that you held as communicated to us by the Scottish Government?

Ms Jeane Freeman: Yes, it was. I was always clear and knew that the only WhatsApp group I was a member of was with the other health secretaries, the four nations group. But then subsequently I checked the rest of the WhatsApp messages I could access and, as you know, disclosed all of those to the Inquiry.

Lead 2A: Thank you, yes. We’ll have a little look in a moment at the variety of – types of messages, with whom, and that at that sort of thing, but as at October of this year, this was the position, and then subsequent to that you managed a find a number of messages, which you’ve provided to us; is that broadly correct?

Ms Jeane Freeman: Yes.

Lead 2A: As far as your phone usage is concerned, you tell us, I think, that you used Scottish Parliament issued phone for government business, which you handed back to the Parliament when you left in May 2021; is that right?

Ms Jeane Freeman: That’s correct.

Lead 2A: Why did you not use a Scottish Government issued phone?

Ms Jeane Freeman: I didn’t feel there was a need to. I didn’t really want to have two phones running, and the number I had for the Scottish Parliament phone was actually the mobile phone number I have had, I think, since 1993, when I got a mobile phone after my father died, and so it was the number known to family and friends as well as anyone else, and so I wanted to retain the number and I didn’t want to have more than one mobile phone that I was using.

Lead 2A: I see. And our understanding from your statements is that the Scottish Parliament phone that you used was connected to the Scottish Government secure server for the retention of Scottish Government email to the Scot electronic records management system; is that right?

Ms Jeane Freeman: That would be the Scottish Government issued tablet that I used. I – and the mobile phone emails were MSP emails, so that was for the purpose of conducting my constituency business. But the tablet was a Scottish Government issued tablet that was then connected into the Scottish Government system. So if I used that for any emails, they were recorded into the Scottish Government system.

Lead 2A: So as far as email usage is concerned, is it the case that, as far as the conduct of your Scottish Government business, you used the tablet for those emails or were other devices used for emails?

Ms Jeane Freeman: No, occasionally the phone would be a copy, so an email might be sent to me on Scottish Government business through the tablet and copied to the mobile phone, but it was already in the tablet. And that would be emails coming predominantly from my government private office.

Lead 2A: And as I understand the position, that would mean if it came via the tablet that email would already be recorded automatically within the Scottish Government system?

Ms Jeane Freeman: Yes, yes, yes.

Lead 2A: Thank you.

You say in your witness statement dated 21 November at paragraph 9:

“… my Scottish Parliament phone was returned to them when I demitted office and while the What’s App and text messages, I have noted at Q13 are retained on what is now my personal phone, I do not have access to those with Gregor Smith or Jason Leitch, or to the few text messages between me and Nicola Sturgeon.”

We’ll get in a minute to – there’s a big list, we won’t go through all of them, of people with whom you exchanged messages of some sort during the course of the pandemic, but it appears from that statement, as I understand it, that some messages which would have been exchanged on your Scottish Parliament phone somehow made their way onto your personal phone but some did not. Is that correct?

Ms Jeane Freeman: So the ones that did not, did not because, as you know, both Dr Smith and Professor Leitch had, I think, auto-delete or took steps to delete messages, and – so I did not have those on my phone, what was now my personal phone, it still had the same phone number, and so when I purchased that, everything was downloaded from the cloud, and that then produced the WhatsApp messages that I gave to the Inquiry.

Lead 2A: So that’s the reason why some of the messages appear there but not those you exchanged with Professor Smith or Professor Leitch?

Ms Jeane Freeman: That’s correct.

Lead 2A: What about the messages you exchanged with the former First Minister, Nicola Sturgeon?

Ms Jeane Freeman: So those would be very small number of text messages. Ms Sturgeon and I were in each other’s company every day, and so most of the business we conducted between us was conducted verbally, or by telephone call on occasion, and those text messages I couldn’t find a way to recover those but I do know that they would be very short and they were usually operational, inasmuch as me confirming to her that something she had asked to be done I had done it, or something that she was concerned about had now been fixed or resolved.

Lead 2A: I see.

So you also told us in your statement that:

“A WhatsApp group existed for the Cabinet Secretaries for Health of the Four Nations. All four health ministers agreed to the formulation of this group. The WhatsApp group was used to facilitate the running of the weekly meetings over Zoom.”

You provided us with those messages which you still held. You say:

“I am providing the messages I still hold with these individuals to the Inquiry.”

And you did provide us with those messages; yes? And you also provided us with group chats called “Health team” and “Covid-19 health”, involving junior health ministers, officials and special advisers?

Ms Jeane Freeman: Yes.

Lead 2A: Thank you.

You, as I say, provided us with a lengthy list of people with whom you corresponded by various different means, including text and WhatsApp, and the position, as I understand it, as you’ve already told us, is that you exchanged a few messages with Nicola Sturgeon by text; is that right? And that the main means of communication between you and her, because you were, I think, in the same building as her during the course of the pandemic, was, I think you said, phone calls and verbal exchanges?

Ms Jeane Freeman: Yeah – excuse me – it was primarily verbal meeting, you know, one-to-one or with others, and occasional phone calls and very occasional text messages.

Lead 2A: We’ll just get back to that in a moment, but the Inquiry has also been provided through the Scottish Government with WhatsApp conversations between herself and Humza Yousaf, yourself and Kate Forbes, and text messages between yourself and Richard Foggo.

The reason I mention those is because those aren’t mentioned in your statement. Do we take it, then, we don’t know the answer to this, they must have emanated from another source rather than yourself?

Ms Jeane Freeman: Yes. I searched all of those, I searched every single Cabinet Secretary on my phone to double check, and given the time lapse I couldn’t be certain of everyone that I might have exchanged messages with. I didn’t find any on my phone for either Ms Forbes or Mr Yousaf or Mr Foggo, but they came, as you’ve said, from other sources and I have seen those.

Lead 2A: Yes, and do you then have any explanation as to why those ones appear not to be in your possession but a number of other conversations were?

Ms Jeane Freeman: No, I don’t. I did not delete messages.

Lead 2A: Okay.

Ms Jeane Freeman: Primarily because it never occurred to me to do so.

Lead 2A: Were you aware of any Scottish Government policy which suggested that you should delete messages, whether sent by way of text or WhatsApp or any similar platform?

Ms Jeane Freeman: I wasn’t aware of that policy. That’s not to say that I hadn’t been given that policy, but in the – in the pace of the pandemic, there were some documents like that that I may not have paid as much attention to as I did rightly to others. So I wasn’t aware of that policy, and I did not delete WhatsApp messages.

Lead 2A: But in any event you didn’t delete text or WhatsApp messages?

Ms Jeane Freeman: No.

Lead 2A: And you’ve explained the reasons why, the technological reasons why you’ve not been able to produce some of the exchanges which you recognise you had?

Ms Jeane Freeman: As best I can.

I have to be completely frank with you, my Lady, Mr Dawson, I am not the most technologically gifted member of the Scottish Government at that time, and so I searched as best I could and as best as I understood it and then provided to yourself and to the Inquiry everything that I found.

Lead 2A: You say in your witness statement at paragraph 17, page 6:

“All of the noted informal communications [which are the ones listed there] covered variously, progress of the pandemic, progress on pandemic response delivery, information exchange, factual and clinical or scientific information, clarification on clinical and/or scientific advice received or problem/issue resolution – all dependent on with whom I had the exchange. No decisions were made in any of these informal communications which were not then entered into the Scottish Government system, the process necessary to record and instruct action.”

Do you accept that these exchanges are likely, therefore, to hold and to have held important information about the way in which decisions were reached, in particular the scientific basis upon which decisions were arrived at?

Ms Jeane Freeman: Do you mean the messages?

Lead 2A: Yes.

Ms Jeane Freeman: No, I don’t think that’s entirely fair. They were primarily operational. The Inquiry has seen, for example, a very long set of text messages exchanged between myself and John Connaghan, who was the principal operating officer for the NHS at that point, which are all about operational matters, about whether or not ventilators have arrived or hospital beds or whatever it might be. We weren’t reaching decisions in those exchanges, because there would be no point in reaching decisions in those exchanges unless you then entered them into the system, because only by entering them into the system could you ensure that they were acted on.

Now, I had an agreement with my private office that if, for example, I had a phone call with Mr Macaskill or one of the health union leaders that I would then tell the private office what the outcome of that call was so that they could keep that record.

Lead 2A: When you say the “outcome” of the call, do you mean any decision that had been reached?

Ms Jeane Freeman: Anything that I wanted to then happen. Usually those calls were either confirmatory of decisions that already had been reached or the individuals in those examples I’ve given you were raising with me concerns that they might have around, for example, the distribution of PPE, “The systems were in place but care home X or hospital section Y hadn’t received their supply”. And so then I would tell my private office, and ask for officials to investigate that and sort it out.

Lead 2A: But were you under the impression that the obligation to record information on the corporate record was limited to information which showed that a decision had been taken?

Ms Jeane Freeman: No, I don’t think the obligation to record on the corporate record was only decisions. In the corporate record for meetings, for example, or from Cabinet meetings, in that I know the Inquiry has the minutes of all the relevant Scottish Cabinet meetings, would always have a bit of text or often have a bit of text that said “in discussion the following points were made” and then the decision or the action. So that was often the case.

Lead 2A: Because in the passage that I’ve just taken you to, information exchanged about the progress of the pandemic, the “progress on pandemic response delivery, information exchange and factual and clinical or scientific information, clarification on clinical and/or scientific advice received or problem/issue resolution”, all of these things, including as you mentioned earlier things about PPE procurement and the like, all of those things are important context, are they not, to the environment and background against which decisions would ultimately be taken?

Ms Jeane Freeman: They were all important, because they were about the matters that I’ve set out, but you will also, I’m sure, find the context for decisions recorded in the official record, whether that is in Cabinet papers or in email exchanges or whatever it might be, because that was the only way to make things happen. You had to put it into the system in order to ensure that action would then be taken.

Lead 2A: But your position, as I understand your evidence, is that the obligation as you understood it was not limited to recording exchanges which showed decisions being taken, it was wider than that, isn’t that right?

Ms Jeane Freeman: Yes, yes.

Lead 2A: And that the width of the obligation included the obligation to record the context, as you’ve put it?

Ms Jeane Freeman: Yes, well, for example, if I had – and I did have frequent phone calls, usually on my way home at night, perhaps with a health trade union leader or with Mr Macaskill, the context for that, the subsequent email that would go from my private office to the relevant officials would be to set out the context. I’m not quoting exactly here, you understand, but, for example, “Ms Freeman spoke to whoever last night on her way home, they’re raising concerns about … can you do the following”.

Lead 2A: So the corporate –

Ms Jeane Freeman: The context would be recorded as well as –

Lead 2A: I see –

Ms Jeane Freeman: – “Just please do”.

Lead 2A: Just to be clear – thank you for the explanation – that the context, as you say, which would ultimately be recorded on the formal record by an email or some other means, would include the sort of information that you’re identifying there as having been communicated informally –

Ms Jeane Freeman: Yes.

Lead 2A: – but it would then be recorded formally?

Ms Jeane Freeman: Yes, yes.

Lead 2A: Thank you.

You mentioned already and you say it in your statement at paragraph 21 that:

“Where pertinent issues arose as a result of any of these informal communications that required action by me, these will be retained in the Scottish government corporate record by my private office.”

Could you just, I think you’ve touched on this, but explain the process by which you or your private office transcribed or transferred pertinent issues which arose in your WhatsApps or texts into the corporate record?

Ms Jeane Freeman: So one of the examples I’ve already given, and it did come up in some of those calls or conversations, informal conversations, would be around the distribution of PPE. As you know, and we may come to this, we set up a number of additional distribution routes from pre-Covid times. They did not always work as effectively or slickly as we might want. There was a helpline to record issues, but also specific problems might be raised directly with me and I encouraged that. So I would then say to my private office “I have just spoken to, for example, Donald Macaskill, and he is telling me that care home X hasn’t received what they asked for, can you get onto NSS or whichever official it might be and ask them to double check this, find out what’s going on and fix it”. And they would then put that into an email and give that context, “Ms Freeman has just spoken to …”

Lead 2A: I see.

Ms Jeane Freeman: And then the reply would come back.

Lead 2A: You’ve given a helpful example of a hypothetical or unhypothetical situation where you’re discussing important matters relating to pandemic management. You’ve mentioned that you were often, in the period when you were Cabinet Secretary, physically present in the same place as other important decision-makers, including the First Minister; is that correct?

Ms Jeane Freeman: Yes.

Lead 2A: Just to expand on that a little bit, just to explain the physical situation, a number of people including ministers over that time will have been working remotely, isn’t that right?

Ms Jeane Freeman: Yes.

Lead 2A: But a number of people tended to be based in a centralised office building of the Scottish Government; is that right?

Ms Jeane Freeman: Yes, that’s correct.

Lead 2A: And that would include yourself?

Ms Jeane Freeman: Yes.

Lead 2A: And the First Minister?

Ms Jeane Freeman: Yes.

Lead 2A: And what other key advisers or decision-makers, without naming them, just broadly the types of people that would have been involved?

Ms Jeane Freeman: So the First Minister and I would be in St Andrew’s House seven days a week, in fact. We would also have our private offices with us. But in addition you would have the CMO, National Clinical Director, Chief Nursing Officer, some senior officials. Now, that cast list, if you like, would vary, and they wouldn’t necessarily be there every one of those seven days, but they would be there certainly most days, because the practice was that the First Minister and I would have a meeting at 11 – round about 11 o’clock every morning where we were looking at the data that had come in overnight from Public Health Scotland on case numbers, occupancy rates in hospitals, whatever the issues were. We would then – as you know, regular media briefings were instituted. We would then have a very brief discussion just before those and then a follow-on discussion afterwards, and may then subsequently meet again later in the day, depending on what issues we were dealing with.

Lead 2A: So you would have meetings and conversations with, amongst others, no doubt, the key people that you’ve just mentioned in that list, who may have not been there all the time, but will have been there part of the time; is that fair?

Ms Jeane Freeman: Yes.

Lead 2A: What mechanisms existed for transcribing into the corporate record verbal conversations or, I think you mentioned also, telephone conversations, the type of information that I think we’ve – we both think required to be incorporated into the record, discussions around decision-making?

Ms Jeane Freeman: So from that, for example, from that usually 11 o’clock in the morning meeting, there would be further – often further requests for more information that the First Minister or I or both of us thought we needed, specific things checked, for example, so that we were absolutely sure of what we were doing and the data that we were basing our actions on. That would then be communicated into the system from primarily the First Minister’s private office, not necessarily mine, but the First Minister’s private office. And if we had a senior official – or it might be the Chief Medical Officer’s directorate, and their office, if we had a senior policy official then they – and they were tasked with finding something out, taking some kind of action, then they would then put that into the system to their team to do whatever was necessary.

Lead 2A: You see. I think what you are talking about there is information that would be obtained externally from whatever the appropriate body was to try to augment your knowledge, data or other such information. What I’m interested in is the extent to which there was a system which aimed to record on the corporate record the nature of discussions taken between or amongst the key individuals whom you have described as being involved in the pandemic response at that stage, about your views on things, the way in which the pandemic seemed to be going, decisions you might take or might not take, why it is that you think one course would be better than the other. If these happened predominantly verbally or on telephones, there was a risk, I think, that they may not have been properly transcribed into the corporate record.

Ms Jeane Freeman: So they rarely, if at all, happened between me and the First Minister by telephone. In fact, I can’t recall any discussion quite as you’ve described it, they would be in-person discussions, and they would be transcribed into the system as part of the context for the ask that was now being made.

So, for instance, “The First Minister and the Cabinet Secretary are unclear as to whatever this data is actually telling us, can you please provide more information in order to help them, help their consideration”, or whatever it might be.

Lead 2A: So the instruction to the external body for more data, information, would be recorded but the –

Ms Jeane Freeman: The context for it would also be recorded.

Lead 2A: Right, in what form?

Ms Jeane Freeman: In the form I’ve just described, in the form of – so – and this is important for everyone we were asking things of. They were working extremely hard, whether they were civil servants, public health officials in PHS, whatever they might be doing, they were very, very busy, so you can’t just issue an instruction for “X” without explaining to them why you want it. And that also gives them a feel for, “Well, they want this, that must mean that we’ve not been clear enough so far, so let’s give them a bit more information to explain what it is we’re telling them”.

Lead 2A: So we should be able to find that context on the corporate record?

Ms Jeane Freeman: I would expect so, yes.

Lead 2A: Thank you.

I’d like to ask you some questions about the very early period when the threat of the virus started to emerge. You were the Cabinet Secretary for Health and Sport at that time?

Ms Jeane Freeman: Yes.

Lead 2A: You were holding a very important position in a moment of crisis that was coming over the horizon; is that correct?

Ms Jeane Freeman: That’s correct.

Lead 2A: And at that time, we understand from other evidence that you were involved in a number of early meetings of COBR?

Ms Jeane Freeman: Yes.

Lead 2A: And also, as we’ll come to, a number of meetings of the Scottish Cabinet and similar emergency meetings including SGoRR, the Resilience Room within the Scottish Government?

Ms Jeane Freeman: Yes.

Lead 2A: And over that period, you received a considerable amount of emerging information from –

Ms Jeane Freeman: Yes.

Lead 2A: – other sources, and our understanding is that, broadly speaking, insofar as one required medical advice, that medical advice was coming to you through Dr Calderwood, the Chief Medical Officer?

Ms Jeane Freeman: Yes.

Lead 2A: Could I ask you, please, to have a look at INQ000352450.

This is an exchange we’ve looked at before, but I would be interested in your perspective on this. If we go down to the final page, please, page 5 – I think this may be it, in fact.

This is an exchange of emails that the Inquiry has seen already between Dr Calderwood and a consultant epidemiologist at Edinburgh University called Professor Mark Woolhouse, who no doubt you will know from his involvement in many different spheres, but in particular the Scottish Covid Advisory Group subsequently.

Ms Jeane Freeman: Yes.

Lead 2A: In this correspondence, as we’ve already gone through in some detail with Professor Woolhouse, what he is trying to do, it would appear, is bring to Dr Calderwood’s attention concerns, an obvious concern, as you see expressed there, about the developments that are coming to his attention about the threat, and he says:

“The obvious concern (increased by yesterday’s not unexpected announcement of human-human transmission) is that this will become a pandemic, and therefore will affect Scotland. This is not yet certain, but in my judgement it is likely, certainly sufficiently likely that we should be prepared for the eventuality. Other colleagues share this view.

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

As you will, I hope, be aware, there is a series of correspondence in this vein that then comes over the next few days, some of which we might look at. Were you aware of this correspondence having taken place?

Ms Jeane Freeman: I don’t believe I was aware of the specific correspondence, in terms of having sight of that email or the correspondence, but I did know from Dr Calderwood that Professor Woolhouse had been in touch with her, as had others, or she had also reached out to others, experts in this field, that she was aware of, and clearly her colleague CMOs in the four nations.

Lead 2A: When did you become aware of these exchanges? This is 21 January 2020.

Ms Jeane Freeman: I can’t recall the specific dates, but I would think around about the same time as these exchanges. I mean, we were conscious that this – I can’t think of another way of putting it – this thing that appeared to be emerging from China and appearing elsewhere was potentially very, very serious indeed, and of course his reference to the H1N1 pandemic resonated with the former First Minister, Ms Sturgeon, because she had been Health Secretary during that time.

Lead 2A: What was the significance of the H1N1 pandemic in the assessment of the level of the threat?

Ms Jeane Freeman: So people were – I clearly was not in government – or wasn’t an MSP at that time. People were referring back to that, and referring to the concern that they had around the seriousness of it at the point, which did not then play out in practice, but were also very clear that that may have been the case then but we don’t know that this one’s going to be the same. And of course as you know and I’m sure we will come to, subsequent modelling of the Covid-19 virus produced some very stark numbers about its likely level of impact on the population.

Lead 2A: We’ll get to that in a moment, yes. Is it fair to say, therefore, that the H1N1 experience provided a degree of reassurance in the approach, given that it had not turned out in Scotland to be as serious as it might have been?

Ms Jeane Freeman: I did not find it reassuring. I found it interesting to understand what had happened then, but my primary position was: that was then, this is now, and we don’t know it’s going to be the same.

Lead 2A: What was your understanding of, at this time, the significance of the possibility raised by Professor Woolhouse that the epidemic may be fuelled by mild cases?

Ms Jeane Freeman: At that point, I don’t think, as a non-clinician and not a scientist, I don’t think I had a particular view. I think it’s one of those situations where you hear that, you say “Well, it might be”, but the other voice in your head is saying “But it might not, let’s find out, let’s keep finding out till we know”.

Lead 2A: Obviously it is correct to point out, Ms Freeman, that you’re not a clinician, but of course you were in a position to receive medical, clinical and scientific advice –

Ms Jeane Freeman: Yes, of course.

Lead 2A: – from, amongst others, the Chief Medical Officer. Was she explaining to you at this time the potential significance of an epidemic fuelled by mild cases?

Ms Jeane Freeman: No, not in as categoric terms as those. She was explaining what she knew had happened when it was H1N1, but also keeping very much open the door in our mind and in her own that this may not be the same kind of epidemic, and in fact became a pandemic.

Lead 2A: Professor Woolhouse also mentioned the possibility of mortality among vulnerable patients. What did you consider – what did you understand from Dr Calderwood or otherwise this class of vulnerable patients to constitute? Who were these people that he was talking about?

Ms Jeane Freeman: Those would be, I understood it to be, and in my own mind would think it to be, people who had other serious clinical conditions, comorbidities, and that would also include those who were elderly, but not exclusively those who were elderly.

Lead 2A: Thank you.

If we could scroll up, please, to the 25 January email, page 4, I think. Maybe 3.


Lead 2A: So this is a further piece of correspondence, again from Professor Woolhouse to the Chief Medical Officer, Dr Calderwood. In this, he reports some further information relevant to the epidemiology, including the basic reproduction number, of which there was a central estimate of 2, the R 0, and a case fatality rate of 4%.

Again, were these things that were brought to your attention at that time, and was the significance of these figures explained to you?

Ms Jeane Freeman: Yes, they were, and in those numbers, around the R number, as I think we all came to clearly understand it and talk about it, the ranges were there. Of course Dr Calderwood was receiving information not only from Professor Woolhouse but from others, and all our science, epidemiologist, virologist colleagues and chief medical officers were working hard to try to get a grasp of what we were dealing with, so we were often dealing with a range of information. It could be “Between this and this”, for example. In any event, as I heard it, I heard it as “this is very serious”.

Lead 2A: You say that advice was being received from others at this time. Could you recall who were the other advisers that were providing input similar – on the same subjects at least as Professor Woolhouse?

Ms Jeane Freeman: So Dr Calderwood would be attending discussions with the other CMOs and of course the Chief Scientist, including discussion with the Chief Scientist for health, and there would be others that she was in touch with as a consequence of her career. I don’t have the names of those, but she would mention them, who she had been speaking to and the calls that she had been involved in, and what she was understanding from all of that information that she was gathering in.

Lead 2A: The message which we’ve seen on a couple of occasions in the sort middle paragraph, here in the bottom half of the page, relates to putting the numbers I’ve just mentioned into an epidemiological model for Scotland, and that the prediction would mean:

“… over about a year, at least half the population will become infected, the gross mortality rate will triple (more at the epidemic peak) and the health system will become completely overwhelmed. We can formalise those predictions (and there are many caveats to them) but those are the ballpark numbers based on information from WHO. Please not that this is NOT a worst case scenario, this is based on WHO’s central estimates and currently available evidence. The worst case scenario is considerably worse.”

I’m not sure, Ms Freeman, one requires to be a clinician to read that passage with a considerable amount of trepidation about the position.

Ms Jeane Freeman: No, you do not, and I think as I’ve already said, I had a growing feeling of trepidation about what we were about to have to deal with all through that month of January. And that feeling on my part was not in any respect undermined by Dr Calderwood, who herself was increasingly clear with me and with her colleagues in the health directorate about just how serious this could end up being, and to quickly disabuse ourselves of any notion that this might be a repeat of H1N1.

Lead 2A: What steps were you, practical steps, advised that Scotland should start to take in order to deal with this threat?

Ms Jeane Freeman: So the numbers that are indicated here and the numbers that then fed into the four nation action plan that was published, I think, at the very beginning of March.

Lead 2A: 3 March, perhaps.

Ms Jeane Freeman: Those numbers were emerging, they weren’t finalised but they were emerging, and what that told me was that a significant proportion of the population, a very high proportion of the population, would be infected, that a significant proportion of that number would require hospital treatment, including intensive care treatment, and that a proportion of that number would also die. And so that told me that I had to begin work, undertake work with our health service colleagues, our NHS colleagues, to look at: what is our current bed capacity; what do we need to do to increase that bed capacity so that we can take people who are ill? What is our current position in terms of ventilators and ICU and what do we need to do to increase that?

In both those figures, the obvious answer, the clear answer was we need to increase bed capacity and we need to increase ICU capacity. And so work began to look at: how do we do that.

Lead 2A: Just to be clear as best you can, with a bit more precision, to be fair to you, about the timeline, when was it that – you mentioned ventilators, ICU capacity was being a primary consideration in light of this information; when did it start to be that that was your focus and you started to take steps to try to investigate what the capacity was and what you might do about it? Was it at this time in January or was it later?

Ms Jeane Freeman: January into February.

Lead 2A: Right.

Ms Jeane Freeman: I think we had – I’m not sure if I have it with me, but we had an early number in February, an estimate of the size of the population in Scotland that would be affected, infected by this virus. And of course then there was, as I said, the modelling in the three nation plan – four nation plan.

Lead 2A: Was the modelling that was done around that time simply taking the UK figures and scaling them down for the relative size of the Scottish population or was it based on specific Scottish information?

Ms Jeane Freeman: So at that point, in the early days, it would be looking at how the UK-wide figures would be apportioned in Scotland, but then work was undertaken to factor in other factors, for example the levels of comorbidity amongst our population, the level of health inequality amongst our population and so on, to refine the figures. But the bottom line is the figures are high.

Lead 2A: Yes.

Ms Jeane Freeman: And you can model them to make appropriate changes, that doesn’t alter the fact the figures are high. And as you know, the 3 March modelling, reasonable worst-case scenario was 80% infected, 4% requiring ICU (4% of that 80%), 1% deaths.

Lead 2A: Yes.

Ms Jeane Freeman: Those are big numbers. And the February modelling number that I received was 75,950 hospital admissions in Scotland.

Lead 2A: Right.

Ms Jeane Freeman: Now, they’re not all admissions at the one time, of course, but over the piece that’s – what was expected, and we had a bed capacity of 3,000.

Lead 2A: Right.

You mentioned that there was a point at which what one might describe as local data was taken into consideration and one wasn’t deriving it simply from the UK data scaled down. I think you recognised that it was important to do that based on the demographics of Scotland’s population, in particular its elderly population and the existence of a number of comorbidities and health inequalities. Did I pick you up correctly?

Ms Jeane Freeman: Yes.

Lead 2A: When was it that that local data started to be factored into the planning?

Ms Jeane Freeman: So the analysts would begin doing that through February, I mean, hence we had a number given to us in February as a possible, a modelling number, and the – you know, analysts were quite clear, quite rightly, modelling was not a prediction, it was a model, but it gives you an idea of what you might be dealing with, and they would then begin to factor in some of those other factors to see what changes that might make.

But from my point of view, I didn’t see that modelled number of just under 76,000 coming down because Scotland has a higher comorbidity, a more elderly population, greater health inequalities. I could only see it rising.

Lead 2A: Yes.

Ms Jeane Freeman: So let’s just deal with this. It doesn’t matter if you add 10,000 on to this, or whatever you do, this is a big number and we need to do serious work to try to deal with this.

Lead 2A: You were focusing, quite rightly, on the question of ICU capacity, ventilators, hospital capacity, but of course there were other more specific measures that might be taken into consideration in order to try to deal with the particularly vulnerable individuals whom we’ve identified. What steps were taken to try to understand the extent of Scotland’s vulnerable population in order to try to inform the best measures that might be taken to try to protect them?

Ms Jeane Freeman: So that understanding, if you like, or that work comes into play when you start to look at the specific measures that you might take. So, whether you’re looking at the impact of the virus on a particular part of, for example, Glasgow, where we know the health inequalities are higher than another part of Glasgow, it doesn’t really matter too much in terms of hospital admissions and ICU demand. You know what you’re going to get. Where it does matter is when you are looking at vaccine take-up, access to testing and so on further down the line. And also your communication, so that what you were trying to ask the public to do is communicated as widely as possible in order to reach all areas of the population.

Lead 2A: Just to be clear, again, and to try, if we can, to put this in the timeline.

Ms Jeane Freeman: Mm.

Lead 2A: You mention there, for example, obviously access to vaccines came much later, although very much under your watch, if you like. As far as access to testing is concerned, you’ve mentioned, I think, that that was something that was being considered for more vulnerable people further down the line. When did access to testing for more vulnerable people become part of the narrative?

Ms Jeane Freeman: So, to be clear, so we don’t misunderstand each other, access to testing was significant in my mind from the outset, not least because we did not have sufficient testing capacity and capability. So my initial concern was not who is going to be able to be tested, but initially how can we increase our testing capacity. That – that was the first and most important thing to focus on, we started out with a per day testing capacity of around 350 tests. The very initial – the very, very early tests for Covid were sent I believe to Colindale, and I think you have heard from other witnesses as well that tests were being developed for this particular virus, as they have to be for all particular viruses. But particularly, in answer to your question, my primary concern initially around testing was our capacity and capability to process tests speedily and in a higher volume than the 350 that we started out with in February.

Lead 2A: So was that – the capacity for testing throughout February was 350 a day; is that right? And how long did that last for, do you recall?

Ms Jeane Freeman: So that was our starting point. By 18 March we had a 780 capacity per day of PCR tests across three of our NHS labs. We increased that by the end of April to 4,350. And of course by that point the Glasgow Lighthouse lab, part of the UK Lighthouse Network, was being established and, as the NHS laboratory testing increased, the Lighthouse Laboratory testing also came in, not exclusively for Scotland for tests – to process tests taken in Scotland, but a significant proportion, but it was part of the UK network.

So the capacity increased exponentially from that point, but in those early days and months, the capacity was low.

Lady Hallett: Did you ask anyone why you had such limited capacity at the beginning?

Ms Jeane Freeman: I did, and, my Lady, I probably asked them in fairly robust terms. And I think, in fairness – I can’t recall the specific answer, but I think, in fairness, the answer would be that, in the prioritisation of NHS resource over the years previously, it had not necessarily featured highly, and the resource, limited resource, for our health service had been prioritised elsewhere.

Lady Hallett: So one of your predecessors?

Ms Jeane Freeman: It could have been many of my predecessors, from the point when the Scottish Parliament reconvened in 2000. I think it is one of the significant lessons, if I may, and my apologies if I’m jumping ahead, but one of the significant lessons is the importance of retaining a core testing capacity that you can scale up. Now, that’s not straightforward, it’s about the skills, it’s about the kit, as well as – so it’s about the capability as well as the actual capacity, and so it is disappointing to me that the Glasgow Lighthouse lab wasn’t retained, because I believe – it was a UK Government decision, but I believe it could have been re-purposed for other important tests in Scotland.

Now, regional laboratories were built up, NHS regional laboratories were built up, and part of the thinking behind that was to retain a core capacity post-pandemic.

But, Mr Dawson, you’re rightly pointing me to where we were at the outset, and that is where we were.

Mr Dawson: Thank you.

Is it the case, therefore – because you’ve highlighted that there are a number of component parts one has to have to an effective testing system – is it the case that at this stage Scotland did not have the skills, the kit or the capability to carry out adequate testing?

Ms Jeane Freeman: Well, I would say Scotland certainly did have the skills and the Glasgow Lighthouse is testimony to that in how it could bring skilled personnel in so quickly. What we did not have was the physical space or the kit in order to do that. And so we began the increase in our existing NHS laboratories with that increase to 780, that was in the NHS labs in Glasgow, Edinburgh and Dundee, and then by the end of April every one of our territorial boards had local access to that testing. Processing of tests is actually, strictly speaking, what it is.

Lead 2A: If could we go back – sorry, it’s my fault for not asking to cue it up – to INQ000352450 again, this is the Professor Woolhouse emails.

I’m looking now at page 2, please. There are various scenarios – this again is another one in the chain of correspondence with Professor Woolhouse where he sets out various scenarios. He talks about a third, a SARS scenario, and talks about various things that might be done. This is – he says there:

“This is the scenario that I outlined for you yesterday (though I didn’t give you the worst case version of it). This is what we have to expect if the current case fatality rates are roughly correct. The measures we could consider are:

“A vaccine.”

And then, going over the page, various other antivirals.

And then effectively he rolls that out as being something that’s open at the moment. And so he says back to public health measures. And he points out there that public health measures which ought to be used are case isolation, infection control and contact tracing, public messaging and social distancing.

So these are – you talked about the testing capacity being built up subsequent to this, but at this stage what is being suggested is that there needs to be case isolation, which means test – which means there requires to be testing before one could find out what the cases are, isn’t that right?

Ms Jeane Freeman: That is right.

Lead 2A: And there also needs to be a system put in place of infection control involving contact tracing so finding people that might have been infected by the index case; is that correct?

Ms Jeane Freeman: Yes.

Lead 2A: As far as – we’ve talked about the testing capacity but as far as contact tracing systems were concerned, our understanding is that that wasn’t put in place until much later, when the Test & Protect system started; is that correct?

Ms Jeane Freeman: Not quite. It was certainly scaled up at that point, but Scotland has always had, through our public health system, a capacity for contact tracing. It’s used through our local incident management teams who may be – at this very moment may be undergoing contact tracing perhaps for sexually transmitted disease in a particular area or for other viruses that arise. So we had that system in place that undertook contact tracing, and it was that system that we used to build.

So contact tracing, as I know you know, was used for the cases that came from the Nike conference. That was the use of a system already in place.

Lead 2A: What efforts were made at this time to try to expand that existing contact tracing system or build a new contact tracing system to the level and scale of the sorts of prognosis or prediction that Professor Woolhouse was making?

Ms Jeane Freeman: So in the first phase of the four nation plan is about containment and that rests a lot on contact tracing.

Of course contact tracing begins with a positive test, and so where you have limited test capacity your contact tracing is, from the outset, limited. So the scaleup, limited though we might see it as being at this point, with hindsight, was part also of being able to have more contact tracing if that was what was needed.

Lead 2A: Why is it necessary to look at the deficiencies in the scaleup of the contact tracing system in hindsight? Because what you had here was a recommendation from a recognised epidemiological expert as to the kind of scale that you might be looking at and the need for contact tracing to try to prevent that. At the time it was known that that would be necessary, isn’t that right?

Ms Jeane Freeman: Yes, so with respect what you said I said is not what I said, if I may.

What I said was that in order to scale up contact tracing, you have to scale up testing. And, you know, as we look at it now, going from 350 in February to 780 by 18 March may not look like a significant increase, and it wasn’t a significant increase, but it was the best that we could do in that – at that point, with the resources that we had. We then increased that, as I say, significantly by the time we got to April, but that is about acquiring premises, kit, and people. But that’s fundamental to a number of things in responding to the pandemic, but it is fundamental to contact tracing.

Lead 2A: To be clear, when you talk about a lack of resources you’re talking about a lack of premises, kit and people; is that right?

Ms Jeane Freeman: Yes.

Lead 2A: So that’s what you had to build, because it wasn’t there before?

Ms Jeane Freeman: Yes.

Lead 2A: As far as public messaging is concerned, Professor Woolhouse was also of the view that this was tremendously important.

Ms Jeane Freeman: Yeah.

Lead 2A: You’ve mentioned the Nike conference and the public messaging around that. What public messaging about the threat took place in February?

Ms Jeane Freeman: To be honest, Mr Dawson, I can’t recall. Certainly I know that I had alerted Cabinet colleagues to the virus through our Scan system, which I think you’re familiar with. It’s basically a notification system for every Cabinet meeting to every Cabinet Secretary on issues of importance that you think your colleagues need to know about but no decisions need to be taken at this point. So the first Scans that raises Covid-19 is 28 January, so I was certainly alerting Cabinet colleagues at that point to this matter. But I can’t recall at that point if there was specific public messaging.

Lead 2A: Cabinet colleagues were, of course, members of the public, but telling Cabinet colleagues is absolutely not public messaging, is it?

Ms Jeane Freeman: No, no, it’s not.

Lead 2A: So, I mean, you will know that we’ve heard evidence around the way in which the outbreak at the Nike conference was handled in terms of public messaging, but in effect there was no public messaging of the threat until the first case was announced on 1 March; isn’t that right?

Ms Jeane Freeman: I believe that is correct. There was a lot of work going on to reach four nation agreement around the first four nation plan, and a lot of agreement around – or work going on to reach collective agreement, where we could, about the information that we would base our plan on, but also the information that would be used to communicate with the public.

Lead 2A: It was subsequently, as I understand it, an important principle of the Scottish Government’s public communication policy that there be honesty and truthfulness about what was going on with the people; is that fair?

Ms Jeane Freeman: Yes, that’s correct.

Lead 2A: Why was there not a similar approach to alerting people to the threat in particular in light of the fact that Professor Woolhouse had already alerted you to the fact that it was tremendously important?

Ms Jeane Freeman: Well, to be fair, Professor Woolhouse had alerted Dr Calderwood to that fact. We were not –

Lead 2A: Were you not aware of that?

Ms Jeane Freeman: As I said earlier, I don’t recall seeing his correspondence, as such. I do recall Dr Calderwood telling me about hearing from Professor Woolhouse and broadly what he was saying, along with others that she was also hearing from, and I think we know that the scientific community and the academic community was engaged in constant discussion, where there was not always agreement – understandably so, I mean, science is an iterative process. So we understood the emerging seriousness of the problem, as I think I’ve already indicated, but you have to be clear of your ground before you communicate that more widely. It’s not overly helpful to people to say “We think there might be a problem but we can’t really tell you at this point exactly the size of it”.

Lead 2A: Is it your position that you were aware that recommendations were being made, a recommendation had been made by Professor Woolhouse or others that public messaging was tremendously important as at towards the end of January?

Ms Jeane Freeman: I don’t recall specifically being made aware of that, but I am personally very aware of public messaging being important.

Lead 2A: Could I then look, please, at another document, which is INQ000238707.

This is, I think, as we’ve clarified with other witnesses, effectively a Cabinet minute, which tend to be called, in Scottish Government, “conclusions”, as I picked up from other similar documents.

This is minutes effectively of the Scottish Cabinet meeting on 28 January 2020. Could I look at page 5, please – if we actually, sorry, look at page 4 first.

As far as coronavirus outbreak is concerned, you presented a paper about this at this particular Cabinet meeting; is that right?

Ms Jeane Freeman: No, this is the Scans note.

Lead 2A: Yes, but you’re speaking to the Cabinet meeting about that?

Ms Jeane Freeman: Yes.

Lead 2A: On page 5, please, paragraph 17, over the page:

“In discussion the following points were made:

“(a) The rate at which the virus was spreading in China was alarming, as was the suggestion from Chinese officials that the virus might be infectious in its incubation period, before symptoms began to show. If confirmed, this would make controlling the virus much more challenging. It would be important for Scottish Government messaging to be consistent with the latest evidence concerning how the virus spread.”

What was your understanding at that stage of the significance, first of all, of human-to-human transmission, which we had seen in the previous correspondence from Professor Woolhouse, and this apparent development that there may be transmission in the incubation period before symptoms began to show, as regards the difficulties that one might experience in any response?

Ms Jeane Freeman: Yes, so that was emerging information. I mean, we had had, I think on 24 January, pretty categoric advice from policy officials but based on – yeah, 24 January, clear advice with respect to the scientific knowledge at that time that people carrying the virus are only infectious to others when experiencing symptoms. So that was pretty categoric advice that there was no asymptomatic transmission. That, of course, began to change as various experts in the field understood the virus better.

Lead 2A: You used the expression a moment ago that science is an iterative process, and no doubt that’s the case. Is it not very important in moments like this to understand that if one waits to see a hard scientific conclusion that it’s likely to be too late to do anything about it?

Ms Jeane Freeman: It is important to not wait unnecessarily for a hard scientific conclusion, as you put it, and I think as the pandemic progressed we increasingly understood the importance of acting fast, but at this time it still felt like there was a degree of uncertainty around about exactly the nature of this virus in terms of how it would behave, and therefore what did we need to do.

Lead 2A: So the conclusions about what one should do at this stage were based on what you felt; is that right?

Ms Jeane Freeman: But also – no, not entirely, I don’t think that is fair. We also had the benefit of the CMO’s advice from her discussions with her colleagues in the rest of the UK, and with Professor Van-Tam of course, as the Chief Scientist, and others. So we had the benefit of her advice that this was an emerging serious situation.

Lead 2A: Just to be clear, I think the advisory systems of which we’re aware at this stage were predominantly Chief Medical Officer to Chief Medical Officer, so it would have been Dr Calderwood dealing with Professor Whitty?

Ms Jeane Freeman: Yes.

Lead 2A: And you mentioned the Chief Scientific Officer, that at the time would have been Sir Patrick Vallance.

Ms Jeane Freeman: Yes.

Lead 2A: Who I think was also heavily –

Ms Jeane Freeman: Yes.

Lead 2A: – at this time. So those would be –

Ms Jeane Freeman: Yes.

Lead 2A: Is that – am I right in thinking that –

Ms Jeane Freeman: Yes, you are –

Lead 2A: – Van-Tam –

Ms Jeane Freeman: Yes, you are, my apologies.

Lead 2A: It’s said at paragraph (b):

“It was likely that, in time, the virus would reach the UK. The Scottish Government was putting in place appropriate measures in all parts of the country, to minimise the risk of contracting the virus and to control the spread of any outbreak.”

Which of the measures that Professor Woolhouse mentioned in his prior email that would achieve those aims were the Scottish Government putting in place? What were these appropriate measures?

Ms Jeane Freeman: So we would – we were beginning at that point to look in some detail at what we might need to do in terms of our NHS in order to increase capacity in the health service, as well as increasing kit, like ventilators. We were looking at what this might mean for our PPE procurement, and we were also actively looking at our testing capacity and what we needed to do to increase that.

Lead 2A: Subject to the limitations that we explained a moment ago?

Ms Jeane Freeman: Yes, but also how could we get round those limitations, what was available in Scotland by way of private sector testing, and there were one or two facilities, as I recall, perhaps more, like that in Scotland, of limited capacity but nonetheless they existed, and whether or not we could contract with them to provide their service to the NHS.

Lead 2A: I wanted to ask you about that, actually, the private sector. Did it become – did it turn out that there were any private sector facilities for undertaking testing or any of the other processes required within the private sector?

Ms Jeane Freeman: So from my memory, there was at least one, possibly two, private testing facilities. I think one subsequently was also used by St Andrews University, but I may be wrong about that. We also –

Lead 2A: (inaudible) over this period in particular.

Ms Jeane Freeman: Yeah. Over this period, I think there were one or two. We also were, of course, looking at private health facilities in terms of bed space, not for Covid but for other procedures, and whether or not we could, if you like, buy up those beds for the NHS.

Lead 2A: Because, as I think you’ve candidly accepted, there were issues with the NHS’s capacity to undertake testing and ultimately tracing –

Ms Jeane Freeman: Yes.

Lead 2A: – which existed at that time?

Ms Jeane Freeman: Yes.

Lead 2A: It might be suggested that greater efforts should have been made in light of the apparent urgency and severity of the threat to access testing and tracing capacity in the private sector.

Ms Jeane Freeman: My understanding is that what the private sector could provide was testing. Contact tracing is a skilled exercise that was undertaken by our public health colleagues and, as I’ve already said, we already had a network, a local network, through our local incident management teams, public health incident management teams, that worked on contact tracing continuously where there was a requirement for that, and so we wanted to use that expertise to expand the contact tracing capacity. But to do that you need to expand testing.

Lead 2A: And did these forays into the private sector in this period result in any further testing being done beyond the capacity that you’ve already mentioned?

Ms Jeane Freeman: We – from memory we did use at least one lab. But whether or not we used – I don’t believe we used it in this time period, which is January, but we –

Lead 2A: I was talking about the period that you were talking about, where you gave figures for January, February and March and April.

Ms Jeane Freeman: Yes.

Lead 2A: Over that period were private facilities used?

Ms Jeane Freeman: Yes, yes.

Lead 2A: To what extent, therefore, did they boost the numbers that you have talked –

Ms Jeane Freeman: Their numbers were very small but we were not in the business of cavilling at small numbers, we needed all the capacity we could get.

Lead 2A: Thank you.

Just before we take this away, there’s one aspect of this I just wanted to follow up with you. You’ve mentioned already the collaboration with people like Patrick Vallance and Chris Whitty, this minute records at paragraph (e):

“While there had been good collaborative working between the UK’s Chief Medical Officers, the UK Government had not been sufficiently responsive to requests from Scottish Government for information (including about UK nationals currently in China) and had not fulfilled a number of the commitments it had made at the Cabinet Office Briefing Room meeting held on 24 January. This point would need to be raised urgently at senior official level.”

This is something we’ve seen from other witnesses, that there seemed at this a period and, if I recall the evidence going forward, to be issues with access to information which the Scottish Government needed from the UK Government. Can you recall what the details of this were? Can you elaborate on what sort of information was lacking and how that was impeding Scotland’s response?

Ms Jeane Freeman: So the particular meeting that’s referred to there is the first – I believe the first COBR meeting which was chaired by Mr Hancock and which I and the Scottish Chief Medical Officer attended.

My feeling at that meeting was that there wasn’t sufficient urgency from the UK Government, and I do recall raising in that meeting or querying their intention to focus on flights into the UK from Wuhan, and suggesting that international travellers often travelled via hub centres like Schipol or Dubai, and that we should be looking at flights from there too if we were talking about trying to ensure that we knew whether the virus was coming in via any of those routes, and that not being considered the right thing to do. I believed that was wrong, and said so. But of course that was not within my purview as a Scottish Health Secretary.

And there were times then, and subsequently, when Scottish Government officials were frustrated by slow information or the absence of information. To be entirely fair, in my dealings with Mr Hancock subsequent to that COBR meeting, where I think we had a bit of a disagreement, but subsequent to that COBR meeting I found that if I spoke to him directly on matters then we could resolve them.

Lead 2A: In the period between January and March 2020, did this information flow issue from the UK Government constitute an impediment to Scotland’s preparation and understanding in connection with the pandemic?

Ms Jeane Freeman: None that I was aware of.

Mr Dawson: Thank you.

If that’s an appropriate moment, my Lady.

Lady Hallett: Certainly.

Just before we break, Ms Freeman, looking at (b), Mr Dawson asked you about what measures were put in place. The statement in the minutes is that the Scottish Government was putting in place appropriate measures. When you answered his question I wrote down your words, not literally verbatim, but that “we were beginning to look at” or “were looking at”. Given that you were still at very early stages, was putting in place appropriate measures something of an overstatement?

Ms Jeane Freeman: No, I don’t believe it is, because I think that as we looked at things we agreed things pretty quickly. So looking at, for example, would it be possible to use private laboratories to increase our testing capacity – so usually, under the leadership of Mr Connaghan, those phone calls would be made, he would come and tell me, I would agree, “Go contract them”. So looking at and doing were often a matter of a day, hours, between one and the other.

Lady Hallett: Thank you.

Mr Dawson: Thank you, my Lady.

Lady Hallett: Break now until 3.15, please.

(3.00 pm)

(A short break)

(3.15 pm)

Lady Hallett: Mr Dawson.

Mr Dawson: Ms Freeman, I’d like to move on just a little bit in the timeline into February. We understand that on 12 February 2020 there was a ministerial tabletop exercise called Exercise Nimbus which took place. The intention of this exercise was to test the decision-making process by COBR, in response to a fictional scenario drawn from the real reasonable worst-case scenario pandemic influenza plans.

Now, we understand that you did not attend this and one of your junior ministers –

Ms Jeane Freeman: Yes, that’s correct.

Lead 2A: Do you have any understanding as to – we have various documents about this, but, broadly speaking, do you understand what the significance of this exercise was in pandemic planning for the real pandemic, given that it was a hypothetical exercise, though based in a hypothesis that was actually quite close to reality?

Ms Jeane Freeman: Yeah, so I understood it to be an attempt, if you like, to almost update or double check planning against the flu pandemic, the potential of the flu pandemic, which had informed most of government planning prior to Covid-19.

Lead 2A: Given the circumstances and the severity of the circumstances in reality that you’ve just understood was your – you just explained was your apprehension of the Professor Woolhouse and other medical information you were privy to, was it not important that you attend that in order to make sure that Scotland’s position was as up to date as it possibly could be in the planning?

Ms Jeane Freeman: I think it was important that a Scottish minister attended and that’s why Mr Fitzpatrick did. I can’t recall – I don’t have my diary with me – as to what else I was doing at that time, but I would have made a decision that whatever else that was required my personal attention more than this did, and I of course had confidence in my health minister to attend, to ensure that any points that we wanted raised were raised, and to feed back to me on the outcome of that.

Lead 2A: The minutes or the note of the meeting record the exploration, I think, of a whole load of different agencies and departments of the UK Government that might need to be engaged in a response, so “For this part we need to engage with this part of government”. There is only one reference that we could find to the Scottish Government, which is – it says:

“SCOTTISH GOVERNMENT (SG) outlined that they had activated their response and were thinking about the same issues. There had been good collaboration across CMOs. They emphasised that everyone had to be clear about priorities before decisions were made.”

Now, to be clear, as I understand it, this is a hypothetical position of the Scottish Government in a hypothetical exercise, although one would have expected, would one not, if the purpose of this exercise was trying to update the planning and apply it more to the potential real life situation that was evolving, that the Scottish Government would have had more to contribute and say than simply that?

Ms Jeane Freeman: I’m not sure if that would be fair. It wasn’t the Scottish Government responding hypothetically, it was the Scottish Government saying that, for example, our Resilience Room had been set up, and the purpose – one of the purposes of our Resilience Room is to draw together different relevant parts of government to focus on and co-ordinate action in response to. So it would do that on flooding, for example, it did it when there was the attack on Glasgow Airport, and it was stood up for Covid.

So it brings – if you like, it co-ordinates the different parts of the Scottish Government. So we don’t need to go through a big list of different bits of Scottish Government that need to do things, the Resilience Room does that.

Lead 2A: But if this exercise – the UK Government seemed to list all the various different things it was going to do. If Scotland was going to play an active part in that, would it not need to be absolutely clear in the updated plan exactly what it was that the Scottish Government was going to be relied upon to do?

Ms Jeane Freeman: Well, it would be clear in the updated Scottish Government plan. And whatever came from that Nimbus Exercise Nimbus would feed back into that and that would include giving me feedback from the exercise itself, so I knew what the UK Government was planning and was able – would be able to check that we were parallelling that, if you like, as well as anything else that we might be doing.

Lead 2A: Was it anticipated at this stage, that if matters did escalate either along the lines of Professor Woolhouse’s predictions or something similar to that, that Scotland’s role would be to allow the UK Government to decide on policy and for it to implement an operational response within Scotland?

Ms Jeane Freeman: No, that wasn’t the understanding on 12 January. The understanding at that point, in my mind, would be that we would see four nations collaboration in response to a virus. And what that means is that as far as possible we would share information, share decision-making, agree the direction and the response that we would take, co-ordinate that where that was possible, but as – and, as it turned out, each of the four nations caveating that approach by saying “But in addition we may diverge one from the other depending on our judgement as to what is right for the population that we serve”.

Lead 2A: If that was the Scottish Government’s position, should it not have set it out as part of Exercise Nimbus?

Ms Jeane Freeman: Arguably so, but it does not appear from the note that we did.

Lead 2A: Thank you.

There was a civil servant, I understand, who worked alongside you called Derek Grieve –

Ms Jeane Freeman: Yes.

Lead 2A: – is that correct? He was the deputy director for health protection division within the directorate of population health; is that correct?

Ms Jeane Freeman: Yes.

Lead 2A: We have looked already at some notes he kept in his notebook over this period, and they are at INQ000346137. He attended a number of key meetings around this period with you and was generally engaged in the Scottish response; is that fair?

Ms Jeane Freeman: Yes.

Lead 2A: Page 14, he says – this is the Wednesday 26 February we understand it:

“Attended COBR (M) meeting with Cab Sec.”

That would be you?

Ms Jeane Freeman: Yes.

Lead 2A: And:

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

Then in the next day it refers to someone trying to encourage them but with “no real engagement”.

“They then spent 20 [minutes] talking about internal SG comms. Completely amazed!”

Then on page 18, this skips forward a week or so to Thursday 5 March, where he says that:

“I attended Directors meeting [I think this was the top] … Laid it out thickly but few believe this is going to be serious.”

It appears here that Mr Grieve is suggesting that within his department, within your department – directorate I should say, that there was a general lack of awareness of the severity of the situation, in contradistinction, it would appear, to the position in the UK Government.

Ms Jeane Freeman: Well, certainly if that’s the case, it is in contradistinction to the position of health ministers, myself included, or the First Minister or the Deputy First Minister for that matter. It’s clearly Mr Grieve’s feeling and view, and I’m not going to cavil against that. I think he was reasonably frustrated that other parts of the directorate – it’s a very big directorate – were – appeared to him to be taking a view that this was a public health matter and therefore not for them. And that was probably fair in those early days, but of course the directorate had to come together fairly quickly because in the same way as we had to redeploy NHS staff to respond to Covid, we had to redeploy – not I personally, obviously, the senior civil service had to redeploy civil servants to strengthen parts of the directorate that were responding directly to the pandemic.

Lead 2A: And officials required to take forward practical actions based on the threat, such as the testing programme, et cetera, that we discussed earlier?

Ms Jeane Freeman: Yes.

Lead 2A: And these would be the officials that he’s talking about who had have required to take those important practical actions forward on your instruction or otherwise?

Ms Jeane Freeman: Well, they would be under the leadership of the director-general at that time, and also of Mr Connaghan, and both of those individual I had a great deal of confidence in their ability to corral individuals to take the action – not just take the action that we required them to but to do so speedily. And of course Mr Connaghan was in daily contact with our NHS boards as well, where a lot of the action had to take place too.

Lead 2A: You may recall, I hope you recall, that two international rugby matches took place towards the end of February or were due to take place towards the end of February in Italy: the Scotland men’s international rugby team played in Rome on 22 February; the women’s international rugby team had been due to have a match on 23 February, also in Italy, which was eventually cancelled due to local concerns about Covid.

Was this a matter that was on your radar at the time in particular in light of concerns about the spreading virus in northern Italy?

Ms Jeane Freeman: Yes – excuse me – yes, it was.

Lead 2A: What advice did you receive about the dangers that might be created by groups of people – not just, of course, the teams and people themselves, but the supporters that would be going to the game, possibly going to Italy and coming back to Scotland subsequently?

Ms Jeane Freeman: Yes, so the advice I received which came from the CMO, but also was advice, through her, from Health Protection Scotland, and I believe some of this was at least discussed at SGoRR meetings, was that the risk of spread in an outdoor setting was less than that when people were indoors, that people were already coming here, and if we cancelled the actual match more of them would concentrate or congregate for longer in an indoor setting, where the risk was higher.

Lead 2A: I wonder whether we might be at slight cross-purposes here, Ms Freeman, I wonder whether the response you’re giving relates to a later rugby match that was taking place in Scotland. What I’m talking is, in the international season the matches take place every week or two weeks.

Ms Jeane Freeman: Okay.

Lead 2A: We’ll get on to that in a moment. But what I was asking about was matches that took place towards the end of February – or one took place, one was due to take place – of the Scotland men’s and women’s teams in Italy –

Ms Jeane Freeman: Ah, yes.

Lead 2A: – so away matches. So I wondered whether that was a matter that had been brought to your attention, because of course a number of people would go to those matches, supporters as well as those actually participating, and they would come back to Scotland subsequently. So was that a matter that you received –

Ms Jeane Freeman: Yes.

Lead 2A: – advice about?

Ms Jeane Freeman: Yes, my apologies, yes, I was aware of those matches, and of the risk, if you like, of people returning from those matches, but also people returning from skiing holidays, for example, which often took place around about that time.

Lead 2A: We’re aware from the PHS report into the circumstances of the Nike conference that somewhere in the region of – there were somewhere in the region of 300 entry points for Covid – in reality, subsequently found out – that came from continental Europe, and therefore would it not, at least in hindsight, be something upon which you might have a comment as regards the advisability of sending large groups of people to northern Italy, which was the very area that was associated with outbreaks at that time?

Ms Jeane Freeman: I’m not quite sure what you’re asking –

Lead 2A: What I’m asking you –

Ms Jeane Freeman: – we should have stopped people going –

Lead 2A: Yes.

Ms Jeane Freeman: We could have issued advice to people not to go. We couldn’t actually stop people going. And in a similar vein, people returning, we would require that information to come from the UK Government so that we could, had we had the capacity, have tested them on their return. So it was not something entirely at the hand of the Scottish Government.

Lead 2A: When you say that you could have advised but not could have stopped them, what was your understanding of the powers of the Scottish Government at that time with regard to controlling its borders in that way?

Ms Jeane Freeman: So my understanding at that time was that the Scottish Government – that the UK Government controlled the borders into the UK, and –

Lead 2A: For all purposes? For all purposes?

Ms Jeane Freeman: Yes.

Lead 2A: Thank you.

Ms Jeane Freeman: And the Scottish Government’s responsibility was for public health measures inside Scotland.

Lead 2A: Thank you.

There is subsequently a meeting on – of the Cabinet on 3 March. There is just one aspect of that – we might not have to go to the minutes for this. There is a record on page 5, this is on 3 March. Again, this is updating again with further information that’s becoming apparent, similar to the minute we looked at before.

It says there that:

“COVID-19 would also have a differential impact on different groups within society, such as the most vulnerable and older people (unlike influenza, the new coronavirus appeared not to pose a serious risk to young people but had a disproportionately serious effect on those in their 70s, 80s and over).”

That’s very helpfully been put up.

Just to be clear, is that, does that reflect your understanding of the risk profile, if you like, as the science was showing at that point?

Ms Jeane Freeman: Yes.

Lead 2A: That’s 3 March.

Ms Jeane Freeman: Yes, it does.

Lead 2A: Thank you.

Could I also please, in that minute, go to paragraph 15. Just to be clear, it’s INQ000232901. Page 4. Thank you very much. Just the top paragraph there, Ms Freeman, it says:

“Although Containment remained the highest priority, it was likely that the response to the outbreak would move into the Delay phase in the near future. The objective during that phase would be to maximise the NHS’s ability to cope with the outbreak by spreading the number of cases over a longer period. Ideally, it would be best to delay the spread of the disease into the summer months, when it was thought that the medical effects might be less severe (although this was as yet not proven). Delay would also bring nearer the time when research into a possible vaccine might be closer to bearing fruit.

“16. During the Delay phase, the authorities’ principal tool was likely to be ‘social distancing’, which could include restrictions on large scale gatherings such as sporting fixtures or cultural events, but it would be important not to implement such measures prematurely.”

And at paragraph 19 on page 4 it says:

“(c) It appeared likely that, over the next few months, there would be a relatively slow increase in the number of cases from the current very low base, given the efforts that were being put into containment. At present, there was little evidence of community transmission in the UK, and new cases tended to be in ‘clusters’ – hence the continued importance of contact tracing as one of the main containment strategies it was, however, likely that containment would reach its practical limits over coming weeks.”

So do we take it from this that as at 3 March the Scottish Government was under the impression, first of all, that it would be important not to implement measures prematurely?

Ms Jeane Freeman: Yes.

Lead 2A: Sorry, I was just going to ask what the basis of that understanding –

Ms Jeane Freeman: So there was continuously all through the response to the pandemic – in as far as the time period that I was involved in it, there was a continuous discussion between – a judgement between what I said earlier about act fast, act decisively, but an argument that said: if you act too quickly, ie prematurely, then you don’t have enough evidence and rationale to convince the public that they should comply with what you were asking them to do, and so the tension, if you like, is between the urging to act fast and act decisively and the other argument that comes that says “But people won’t know why you’re stopping them from doing things, and if they don’t believe it’s a good reason they’re not going to comply with that”. And we don’t want to get into a situation where – we need to be, in public health, in a situation where people believe there is a basis for what you’re asking them to do that is about protecting themselves but also protecting others.

Lead 2A: One of the reflections that Professor Smith, when he gave evidence to the Inquiry, shared with us was that he was under the impression that one of the things that one might do better in the future, if you like, was that greater reliance could be placed on behavioural science in order to try to assist, I think, with the balance that you’re trying to point out. Was the position that it would be important not to implement such measures prematurely based on any scientific advice?

Ms Jeane Freeman: I believe so. I believe it was discussions that – that had been held in SAGE, but also, I believe, between the four chief medical officers. It was certainly part of the discussions that I had with the CMO and with the First Minister. And of course, as you know from a previous witness, we did reach out to gain expertise in terms of behavioural science as we progressed.

Lead 2A: Yes, we’ve heard from Professor Reicher who was a member of SPI-B but also served on the Scottish Covid Advisory Group?

Ms Jeane Freeman: Yes.

Lead 2A: That of course wasn’t constituted in Scotland until later. But your understanding was that there was scientific evidence that would suggest that it was important from a behavioural scientific perspective not to implement such measures prematurely, that was your impression at that time?

Ms Jeane Freeman: My impression at that time was that there had been discussions in those forums.

Lead 2A: Thank you.

As regards the apparent Scottish Cabinet impression that there was a need to spread the number of cases over a long period, ideally it would be best to delay the spread of the disease until the summer months, was there an impression at that stage that that was a goal that was achievable, extending the peak into the summer months?

Ms Jeane Freeman: So that was part of what was considered as the delay phase, where you introduce a number of non-pharmaceutical – NPI – interventions in order to restrict social movement and congregation, and what that does is it spreads out the peak of the expected numbers of the virus. In other words, you lengthen the period when you will have the virus, but you don’t have a peak of numbers, and that – that goes to not – attempting not to overwhelm our National Health Service –

Lead 2A: I see, that was part of your understanding of the strategy – or part of the strategy at that time was to spread out the peak over a longer period into the summer months was the objective; is that right?

Ms Jeane Freeman: As long as you believed it was necessary. So it wasn’t necessarily into the summer months, it was spreaded so that the peak is smooth, the curve is flattened – I think is the phrase I used in Parliament, the curve is flattened – so that we can cope with that.

There was also the view, as I’ve outlined before, that the summer months, when more people are outside, transmission is lower than when we are gathered together in confined spaces.

Lead 2A: Thank you.

The idea, I think, as we see in this paragraph, is that the anticipation was that there would be a relatively slow increase in the number of cases from the current very low base, given the efforts that were being put into containment. So if one followed this practice to try to push the peak into the summer months, there would be a relatively slow increase over that period?

Ms Jeane Freeman: No, not quite. So the thinking that there would be a relatively slow increase in cases was during the containment phase for as long as contact tracing was sufficient to contain the virus. Because contact tracing is trying to capture into one place everyone who might be infected, give them the necessary advice about what they need to do so they don’t infect others, and therefore contain spread in that group, if you like. But there comes a point where that isn’t going to work any longer, which I think the paper refers to, at which point contact tracing isn’t going to work to contain the virus, you need to take other steps.

Lead 2A: Yes. And given the document refers to “given the efforts … put into containment”, that there would be this relatively slow increase, I think, what efforts were being put into containment? I think we’ve already discussed that there weren’t very many; is that right?

Ms Jeane Freeman: No, what we’ve discussed is that the efforts were around contact tracing –

Lead 2A: Yes.

Ms Jeane Freeman: – at that point.

Lead 2A: Yes, but what were the efforts being put into containment then?

Ms Jeane Freeman: Okay, so where cases were notified, then contact tracing contacts the individual and asks them to tell them where they have been in the most recent period. There was a change in that, I think, from “Where have you been from the time when your symptoms first appeared?” Subsequently it was a “Where have you been and who have you been with from one or two days before your symptoms? Who were these people? What were you doing?” And then contacting those individuals and giving them the public health advice about isolating and not contacting others.

Lead 2A: I think we’ve discussed already that there were a number of limitations within the Scottish system of testing and tracing at that time; is that right, yes?

Ms Jeane Freeman: Yes, that’s right, but it is also fair to say that, with reference to the Nike conference, it was contact tracing that prevented the strains of virus prevalent in the individual who were affected from that conference from spreading any further.

Lead 2A: There is some comfort I think being taken in this paragraph from the efforts that were being put into containment; is that right?

Ms Jeane Freeman: I’m not – no. I would have been one of the people “in discussion the following points were made”. At no point in 18 months did I feel comfortable.

Lead 2A: But in that paragraph what’s being suggested, that “given the efforts that were being put into containment”, it’s “likely that, over the next few months, there would be a relatively slow increase in the number of cases from the current very low base”?

Ms Jeane Freeman: Yes.

Lead 2A: So the containment efforts will result in this objective that I think we’ve identified as being to try to squash the sombrero, or whatever one calls it, to get the peak further into the summer, and those eff – some reliance is being placed on those efforts as being something that makes it likely that that will be achievable?

Ms Jeane Freeman: So –

Lead 2A: – what it says on the page.

Ms Jeane Freeman: Yes, I absolutely –

“… a … slow increase in the number of cases from the current very low base, given the efforts …”

And you’re right, it does say “over the next few months”. That was a mistake. The efforts being put into containment would not see us through the next few months, because the virus was transmitting far too quickly for that.

Lead 2A: And the – sorry.

Ms Jeane Freeman: Sorry. Again to be sure that we’re understanding each other, the flattening of the peak is part of the delay phase, that is the point of those non-pharmaceutical interventions is to slow down transmission. Containment is about trying to contain it.

Lead 2A: Thank you.

I’d like to ask you – move on to a slightly different though connected area, which comes in around this period as well, to do with the spread of Covid-19 in care settings. In particular, to be clear, I’m interested in care homes obviously, but I’m also interested in prevention measures that were taken to try and protect people that were having care in their own home.

Ms Jeane Freeman: Yes.

Lead 2A: So we have already established, I think, that it had been known from the minutes from at least early March, if not before, that the elderly were particularly vulnerable to the virus; that was established?

Ms Jeane Freeman: Yes.

Lead 2A: And I think that it had been known, had it not, from sources including the Diamond Princess episode towards the end of February, that elderly people who were put in confined spaces indoors were particularly at risk, as that episode had rather shown. Professor Sridhar I think described it as almost like an experiment that would show you quite a lot that one wouldn’t have wished to have happened, but from which one could derive quite a lot of information.

Is that a fair background to where we were, say, by the beginning of March?

Ms Jeane Freeman: Yes.

Lead 2A: Thank you.

Could I turn, please, to the Cabinet minute from 10 March, which is INQ000238706. One second.


Lead 2A: It’s INQ000078529, sorry, my fault. This is in fact, sorry, the Cabinet meeting from 17 March.

Ms Jeane Freeman: Yeah.

Lead 2A: If we could go to page 3, paragraph 12, please, so there’s some discussion at this Cabinet meeting where it says:

“Social care presented particular problems, including those associated with residents in care homes and similar settings. COSLA had been invited to provide a co-ordination role across Scottish local authorities’ social care services, and bodies such as Scottish Care were already working with COSLA to achieve the best outcomes for those in care.”

This appears, from our analysis, to be the first substantive recognition in Cabinet that there are particular problems associated with residents in care homes and similar settings. The Cabinet minutes contain no further consideration of these problems.

Is it correct to say that around this time there was no urgency or prioritisation of the issues that would be posed for those who were in care, using that broad definition I gave a moment ago?

Ms Jeane Freeman: No, I don’t believe that is correct. Guidance had been issued to care homes on 13 March advising social distancing or physical distancing, visiting restrictions. I had written on 13 March that patients should be screened clinically to ensure that they weren’t being transferred inappropriately to care homes.

Lead 2A: This is –

Ms Jeane Freeman: So this Cabinet meeting is after that guidance was issued. So I don’t think it’s fair to say that this is the first time consideration was being given to this situation. That had not been the case, from my perspective as the Health Secretary, or indeed I believe from the First Minister.

Lead 2A: Thank you. Well, we’ll get on to the guidance in a second.

INQ000250859, please. This is a chain of emails from slightly earlier. If we could go to page 4, please, so there’s a chain of emails here relating to contact which it appears has happened on 10 March. It states – this is sent on behalf of the First Minister to the CMO, and it states:

“The First Minister would be grateful for advice on the following issue as a matter of urgency. A friend of the First Minister whose relative is in a care home received the letter below from the home today.

“[First Minister] said it rather makes the point that people are starting to vote with their feet. But it also begs the question of whether we need to issue some additional urgent advice to the care home sector? FM would be grateful for thoughts/advice?”

In fact, without going into the details, it’s a letter where a care home has sent material or a notification to a relative of someone in a care home relating to issues and an escalation of preventative measures which may cause some anxiety.

Is it the case that this email correspondence, which seems to have come to the First Minister from a friend, was the first indication or the first matter which provoked the need to try to issue some guidance?

Ms Jeane Freeman: No, it wasn’t.

Lead 2A: Well, when did the concern about care homes and those in care start within the Scottish Government?

Ms Jeane Freeman: So – excuse me – it started most definitely in – in and around February. The Chief Nursing Officer was the lead official in this, given her responsibility or the responsibility of that post for infection prevention and control, and discussions were beginning with Scottish Care and with COSLA.

You’ll recall, I know, that the care home sector and the care at home sector is not like our National Health Service, it is a mixed economy, local authorities have a significant responsibility for commissioning that service and have a significant locus in that service, as does the Care Inspectorate.

So consideration was being given early on about what we could do in that sector for those residents, bearing in mind this is their home, about how we could institute measures in addition to the national manual of infection prevention and control – which is part of their contract, all providers are required to abide by – what else could we do that would assist them to protect their residents.

And I would like to say at this point – I have said it before, but I want it read into the record here – that I was personally very concerned about our care sector, both our residential care sector and the care at home sector for adults, not all of whom were elderly, and regret very much, and will do for the rest of my life, any deaths that occurred there because of action that the Scottish Government didn’t take or did take but could have done better.

Lead 2A: Thank you.

On the subject of the deaths, of course we know that 50% of the deaths in Scotland in the first wave of the pandemic occurred in care homes.

Ms Jeane Freeman: Yes.

Lead 2A: You mentioned the idiosyncrasies, if you like, of the way in which care – the care sector is organised in Scotland, not part of public service entirely but a combination of public and private delivery. It is the case, however, that the threat to people in care homes which resulted in those deaths is a public health matter for which the Scottish Government had overall responsibility?

Ms Jeane Freeman: Yes, that’s correct.

Lead 2A: And which fell within your remit –

Ms Jeane Freeman: Yes.

Lead 2A: – as Cabinet Secretary?

Ms Jeane Freeman: Yes.

Lead 2A: When you say you were concerned in February, I think you said, about the care sector in the – with the wide definition I’ve given to it, it is correct to say that despite the concern that you’ve indicated that you had, no guidance was issued to that sector until 13 March, which was after the date upon which the email was sent to the First Minister from her friend which indicated there were concerns within the sector; is that correct?

Ms Jeane Freeman: That is correct. Part of the difficulty that Scottish Government – we had in Scottish Government at that point was because of the devolved nature, I think it’s probably fair to say, of the governance and management of that sector, the data that Scottish Government held was limited, about the exact number of care homes, and I believe we actually for the first time got the information from Dr Macaskill in Scottish Care about his membership and about the size and spread of those care homes, in other words the number of residents they might have, their staffing levels and so on. So centrally we had limited data, much more limited than we had about the National Health Service.

Lead 2A: Was it not possible – we’ve heard evidence already about the limitations on the Scottish Government’s access to data in the care sector. Was it not possible to try to get some of that information from the likes of Dr Macaskill, who was engaged in the sector?

Ms Jeane Freeman: Well, as I’ve just said, yes, we did, and officials were actively working to get that information, and of course Dr Macaskill and I had previously worked together before the pandemic, so it was entirely possible and we did converse frequently over the whole period of the pandemic.

Lead 2A: There was a particular concern, I think, from those early stages about the possibility that the transfer of patients into care homes, either from the community or more particularly from hospital settings, may pose a risk to those care homes, given that patients who are – residents who are being transferred may have acquired the virus in another setting. Is that correct?

Ms Jeane Freeman: So there was two-fold concern. One was that patients who were ready to be discharged from hospital because they no longer required hospital-based clinical treatment should not stay in hospital any longer – now, this was a pre-Covid concern – any longer than they needed to, especially if they were elderly or frail, because a longer stay in hospital diminished their muscle capabilities, could produce confusion in those who had not previously experienced that, and so on.

In terms of Covid, the concern was that that made them more vulnerable to acquiring the infection in hospital. Against that was the risk of transferring people to care homes who had not been tested, and what we attempted to do was to put in place additional mitigation measures to the national manual on infection prevention and control which all care homes were required to follow, and those additional mitigation measures are the ones that are set out, initially in the 13 March guidance, but then increased significantly over a relatively short timescale.

Lead 2A: The 13 March guidance, as we’ve seen in documents already, you’ll recall includes guidance that there should be social distancing, essential visits only, that the home should accept admissions to the home if safe, and that the home should be closed if residents test positive. There is no requirement in that for transfers, from either the community or hospital setting, to have a negative test before there is an admission; is that correct?

Ms Jeane Freeman: No, that’s correct, and that partly goes back to our earlier conversation about the availability of testing capacity.

Lead 2A: We’ll get back on to that in a second.

Just as regards these particular measures, you mentioned a moment ago the possibility that residents of care homes who are patients in hospital may suffer from confusion. To what extent were there – was there understanding within the Scottish Government about whether it would be practically possible for social distancing to take place, either as a result of patients suffering, for example, from dementia or other such conditions, and as regards the capacity and ability of care homes to enforce such social distancing in those environments?

Ms Jeane Freeman: So our understanding was that – or my understanding was, primarily through discussions with Dr Macaskill, that it would be possible to do that but we needed to have some flexibility, particularly around patients – or residents, I should say, who suffered from dementia who may find the lack of communal gathering upsetting and distressing, and at some point that feeds into the visiting guidance as well.

Lead 2A: What did the guidance mean when it referred to “essential visits only”?

Ms Jeane Freeman: So “essential visits only” referred to both end of life visits by family, but also those visits that might be necessary from a family member where an individual resident was distressed; it could also mean clinical visits from a local medical practitioner.

Lead 2A: Was consideration given to the difficulty that there might be explaining that requirement to residents of care homes who may have dementia?

Ms Jeane Freeman: Well, yes. But in none of this was there a risk-free choice. In none of this, at any point. So, yes, I understood very well the difficulty and the distress that might be caused to residents, and certainly the distress to their families by asking for physical distancing, the ending of communal dining, the ending of communal association, the ending of some of the external visits that residents do a great deal from, whether that was in terms of physical – physiotherapy, or local schools visiting, or what it might be.

So I understood that, but I also believed to allow that to continue was to increase the risk of transmission of the virus into the care home and transmission of the virus within the care home.

Lead 2A: Did the guidance, either on 13 March or indeed the subsequent one which I think was dated 26 March, include any guidance relating to requirements to minimise the risk of infection from staff in the care homes?

Ms Jeane Freeman: So both sets of guidance, as I recall, covered the use of PPE and guidance to staff on what PPE might be required, and the putting on and the taking off of PPE, particularly if as a staff member you were dealing with more than one resident, you had to take everything off and put on a new set. Clear guidance obviously that’s in the manual but it’s – was repeated about hand washing and so on.

Lead 2A: What was the Scottish Government’s understanding of the availability of that PPE in order to meet those requirements?

Ms Jeane Freeman: So up until, pre-Covid, care homes and the social – the adult social care at home sector, that mix of, I think, 80% private providers, 20% local authorities and the rest were third sector, independent providers, all of them were responsible for the provision of their own PPE and for their contracts. But Mr Macaskill primarily, but not only him, drew my attention to the problem that at that point some were having with sourcing PPE. Because this is a global pandemic, the demand for PPE is very high, the price is soaring, and the orders that they had were pretty low value orders in terms of the amount, so they were getting squeezed. And it was at that point, I think 19 March, when we introduced the triage service. In other words, we decide – I decided that our national procurement service which procured in volume PPE for our NHS would now procure PPE, additional amounts of PPE, to try and help the social care sector, because (a) it was a known provider and purchaser of PPE, it did it in high volume, it had known suppliers who would want to continue to be suppliers post the pandemic, so the chances of being knocked off their list, if you like, or pushed down the list for delivery was lower, and they had the strength, if you like, to increase their PPE volume so that we could begin to offer it not just to the social care sector but also to primary care in the community –

Lead 2A: That – sorry.

Ms Jeane Freeman: – including our pharmacies and so on.

Lead 2A: That initiative was instigated on 19 March, did you say, and that will have taken some time to feed PPE into the system because there would need to be negotiations about availability; although of course you say that the Scottish Government is using its purchasing power, it would be necessary to actually procure that, as you say, in a global pandemic?

Ms Jeane Freeman: No, NSS, our national services, which is the procurement arm of the NHS in Scotland, had stockpiles of PPE, and so introducing that on 19 March meant that they could provide from their stockpiles PPE to care homes, and that triage service.

Now, as we subsequently see, it was changed later because it was a reactive service so it relied on care homes to ask for what they needed. But the national – or NSS, the procurement arm, could already provide from its stockpile. What it then had to do was increase its orders coming in, in order to keep the stockpile at the level that was needed.

Lead 2A: As at the date of the 13 March guidance, I think you’ve described that the guidance pointed out that PPE would be necessary for staff in order to minimise the risk of infection, how it should be used in order to try to achieve that aim. So the requirement for it was known, but as far as the guidance was concerned the position at that date was: you’re on your own?

Ms Jeane Freeman: I wouldn’t put it as bluntly as that, Mr Dawson, because that implies a careless attitude on my part or anyone else’s, and we certainly didn’t have that. What that reflects is the pre-pandemic position, and as soon as it was made clear to me that that pre-pandemic position was struggling to produce the level of PPE in the quantity or of the type that was required, by Dr Macaskill and others, then we acted to change that so that the national procurement service for the NHS could provide PPE to our care sector, both adult social care at home but also residential care.

Lead 2A: I wonder if I could draw your attention to an email which was received, as I understand it, by Scottish Care from one of its members on – dated 25 March 2020. It’s INQ000249952. This email – as I say, dated 25 March – sets out a number of the issues which one of the members of Scottish Care is having at that time.

Now, we’ve looked at this before, but I’d particularly like to take you to the passage under the slightly understated comment, “A few worrying points”, just below where we are at the moment, and over to the next page, please.

So these are – this is what this particular care home is being told, and just over to the next page, it says:

“… ‘as long as staff wear the appropriate PPE’ …”

Which is effectively shorthand for that element of the guidance. It says:

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

Does that, Ms Freeman, adequately explain the difficulties that were being experienced with the guidance, the difficulties that were being experienced with PPE, and frankly the completely unrealistic expectation of the Scottish Government as regards this particular sector and the risk to the residents of care homes?

Ms Jeane Freeman: I think what it tells us is that there were serious issues being raised that needed to be taken seriously. PPE guidance did not come – I did not write PPE guidance. For the very reasons we’ve touched on before, PPE guidance came through our Chief Nursing Officer Directorate, based on their clinical understanding of infection prevention and control, informed by all the emerging and constantly emerging information about the nature of the virus. So PPE guidance changed over time, and the guidance that would have been in that issued on those various dates reflects the advice that I was being given about the kind of PPE that was needed.

Now, there were instances raised with me, not least in terms of care at home, about PPE and (a) the availability of it and (b) the lack of allowing those care at home staff to exercise their professional judgement about what they needed, that I sought to resolve and sought to resolve quickly.

But wherever issues were raised, whether they were directly with me, whether it was through the PPE helpline, whether it came from Dr Macaskill, through his members, or any other route, then my response was to double-check what the concern was and, if there was a problem in terms of receiving PPE or the adequacy of PPE, to try and resolve that.

Lead 2A: But these are more than just simple practical issues. These are – this is an indication which has been presented by Dr Macaskill in his evidence, as I understand it accepted, this was from one care home but representative of problems experienced across the sector, that it was simply not possible, as it says here, for that type of system to be instituted within a care home, which of course is not the same as a hospital.

Ms Jeane Freeman: No, it is not, it is a resident’s home. But what was not being suggested to me at that point, from Dr Macaskill or anyone else, was an alternative to those mitigating measures that I had to put in place until our testing capacity increased to the level that we could undertake testing prior to discharge or admission to care homes.

Lead 2A: Another consequence of the policies, the guidance which Dr Macaskill of Scottish Care pointed out in his evidence was that the 13 March guidance caused confusion within the care sector, which led to the belief that individual residents who were Covid-19 positive should not be transferred to hospitals. He talked of a presumption of a blanket ban on care homes transferring residents who had tested positive to hospitals, which meant that they were unable to access required medical care.

Was this an issue that was brought to your attention?

Ms Jeane Freeman: It was, and I believe our CMO acted on that, and having read the guidance I can understand why that concern was raised. What was intended, as I understood it, by the particular paragraph was that, as it is – as I have recently experienced, indeed – it is not always appropriate for an elderly person who is seriously ill to be transferred to hospital, where the risk of that transfer increases to their health, than to be provided care in their own home. That is what that paragraph intended to convey. The manner in which it is written, I can see why it would be taken precisely as people were concerned.

Lead 2A: What did you do in response, as regards that particular aspect of the guidance?

Ms Jeane Freeman: So I asked our CMO first of all to describe to me what was meant by that, and then to make sure, through her channels and her reach, that it was clear what was intended by that, that it was a clinical judgement whether an individual should be transferred from any setting into hospital, just as it is a clinical judgement whether or not an individual is ready for discharge. It’s not for anyone else to make those judgements.

Lead 2A: To be clear, you’re referring on a number of occasions to advice from the CMO or the Chief Nursing Officer; ultimately you and the Scottish Government are responsible for the guidance. Do you accept that?

Ms Jeane Freeman: I do, I have never caviled from that in any respect. I was the Cabinet Secretary for Health –

Lead 2A: Yes.

Ms Jeane Freeman: – so I am and was responsible.

Lead 2A: Thank you.

We understand from his evidence, again, that you met with Dr Macaskill on 18 March; do you recall that?

Ms Jeane Freeman: Yes, I did.

Lead 2A: Could we have a look, please, at INQ000261341, page 2, and I’d like to address the testing aspect.

Before we go to the text, just to clarify, I’ve read out to you the broad provisions of the 13 March guidance, and is it correct to say that neither the 13 March nor the 26 March guidance contained any requirement for there to be a negative test or indeed more than one negative test before a patient was moved from a care home – from a hospital into a care home?

Ms Jeane Freeman: That’s correct. The 26 March guidance introduced the isolation period, and I think Dr Macaskill refers to the aspect of it which is seven days –

Lead 2A: Yes.

Ms Jeane Freeman: – in what we’re about to look at.

Lead 2A: Well, I simply want to confirm with you that the guidance did not require there to be negative tests before hospital discharge, and indeed no test was required for admission to a care home from community either?

Ms Jeane Freeman: That’s correct.

Lead 2A: That changed subsequently –

Ms Jeane Freeman: Yes.

Lead 2A: – in the 28 April guidance –

Ms Jeane Freeman: Yes.

Lead 2A: – where there was a requirement in fact for two negative tests, is that right, just to put this into context?

Ms Jeane Freeman: Yes, that’s correct.

Lead 2A: Thank you.

So look at this document, please, this is a document that was prepared for you, a briefing in advance of the meeting that you attended with Dr Macaskill, and in this it is stated under “Testing”:

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

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

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

Then it says, “Lines to Take”, and outlines various options relating to:

“- Testing for patients/people is currently being triaged into four different categories …

“- Testing for staff – currently neither health or social care staff are being tested unless they fall under categories 1 and 2 [above].”

If we could turn, then, to page 2, paragraph 11, please, it’s the passage starting “If our aim …” Maybe over the page.


Lead 2A: Sorry, just one second.


Lead 2A: Sorry, it’s a different document I’d like to go to, if I could. It’s INQ000222973. Sorry, this is a different paper, which is prepared by Mr Grieve, in fact, for Nicola Sturgeon and you on 18 March, so the same day. So it’s putting it in some context, we’ve seen already that a meeting is being set up, there are a number of things which are going to be discussed, various options are presented. And on page 2, paragraph 11, sorry, it says:

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

This paragraph starts with the conditional, “If our aim is ultimately to contribute to saving lives …” Can we take it that that was the aim of –

Ms Jeane Freeman: It absolutely was. I’ve no idea why Mr Grieve would put “if” in that sentence.

Lead 2A: Care home residence has, of course, has been assessed as high risk from early on in the period that we’ve been looking at; is that correct?

Ms Jeane Freeman: Yes.

Lead 2A: And, as far as this is concerned, it seems to identify that lives will be lost if more is not done; is that correct?

Ms Jeane Freeman: Yes.

Lead 2A: And that the issue, the sole issue at this stage is testing capacity; is that right?

Ms Jeane Freeman: The primary issue at that stage is testing capacity, yes.

Lead 2A: As we said earlier, testing capacity is something that effort could have been put into at an earlier stage in order to try and ramp it up beyond the levels we discussed; it could have happened at an earlier stage?

Ms Jeane Freeman: I’m not – I’m not sure I agree with you. There is – you cannot magic out of thin air appropriate buildings, appropriate kit and skilled individuals. A lot of effort was put into increasing our capacity for testing, because even if I hadn’t understood the vulnerabilities in our care homes and other closed settings, I understood the vulnerabilities of those caring for individuals in terms, not only of PPE but of knowing whether or not they were themselves infectious and posing a risk not only to themselves, their families but also to those they cared for, and I believe that we moved as quickly as we could, actually could, to increase our testing capacity. And it has never been put to me that there was testing capacity available somewhere else that we could have used and didn’t use. We did our very best to increase that, and of course managed in the end to do that, and as you’ve noted – we will sure come on to it – in April we were able to introduce testing for admissions. But the whole issue of transmission and health and death in care homes is a complex issue.

If I can just make the point, and even at that point from Mr Grieve, his known number of care homes is inaccurate. There actually were 1,084 care homes, 843 of them had discharges from hospital, 348 of those had outbreaks, 321 had deaths, of those who took discharges from hospital.

What that tells us is that some care homes that received discharges from hospital during this time did not have outbreaks, because the issue is a complex one, not complex in terms of the professionalism, the commitment or the care of care home staff, but complex as a subsequent independent report also reveals in terms of size of care home as well as the availability of PPE and so on.

I am not – and I need to be clear – I am not saying that the discharge from hospital without a test into care homes had no impact. What I am saying is that it was one of the factors, and I think a Public Health Scotland witness that you had before you previously, my Lady, said that it was, but actually in their analysis and the independent analysis the size of the care home was a more significant factor.

So this is a complex issue that testing on its own does not help us understand as well as we need to.

Lead 2A: The figure given to you there that there were 35,989 residents in care homes, what’s the relevance of your figure to your assessment at the time?

Ms Jeane Freeman: That we were worrying about a great number of people who were residents in care homes and who, because of, for many – for many, not all – but for the vast majority, because of their age, their frailty, other conditions they might have, were vulnerable to this virus.

Lead 2A: You do not know or did not know at the time the number of patients, not the total number of residents but the number of patients who would be transferred from hospital to care homes, did you?

Ms Jeane Freeman: No.

Lead 2A: That was the relevant figure that you needed in order to be able to ascertain how many tests you would need?

Ms Jeane Freeman: No, not necessarily, because I would also want to know that people who were being discharged into the community had also been tested.

Lead 2A: But in order to try to – well, you would need to know that figure too, but in order to try and work out the issue of the number of tests that would be required for people who were coming from hospitals – this is the topic that we’re discussing – you would need to know the figure of transfers, not the total number of residents; isn’t that right?

Ms Jeane Freeman: That’s right, yes.

Lead 2A: We know already from other evidence that you did not have access to that information. Did you seek to try to understand the numbers that might be involved, for example, from Dr Macaskill?

Ms Jeane Freeman: I can’t recall if I had that conversation with him. We talked a lot about discharges and admissions to care homes, but I can’t recall if he gave me that number or if we discussed a number.

Lead 2A: We heard some evidence from an individual you’ll be familiar with, Caroline Lamb, who told us that there was a degree of prioritisation of tests within the Test & Protect strategy. She said that she was not involved in the prioritisation discussions for the testing around this time. Were you responsible for deciding who should be prioritised for tests?

Ms Jeane Freeman: No. That was a clinical decision, as it should be, and in the early days the prioritisation was to assist with diagnosis, and there were two other categories I can’t quite recall, I’m sure you have them, but –

Lead 2A: So when you say it was a clinical decision, do you mean that that was a decision you made based on clinical advice from the Chief Medical Officer and perhaps others?

Ms Jeane Freeman: Yes.

Lead 2A: So a prioritisation was given to people other than the residents of care homes who might have been tested, even although it was known that the residents of care homes were within the highest risk category?

Ms Jeane Freeman: Admissions of elderly people to hospitals would also be in that high risk category, and testing them in order to diagnose what needed to be done but also to identify if they were – if they had the virus and protect other patients by appropriate pathways for the individual was also a priority.

Lead 2A: You’ve referred already to the fact that the strategy changed in April. We understand that a deep dive meeting into care took place on 15 April. There’s a reference to that in one of the SGoRR sitreps. You might remember those documents that provide –

Ms Jeane Freeman: I do.

Lead 2A: – information.

What was it that prompted the deep dive meeting to happen on 14 April?

Ms Jeane Freeman: So by that time we had introduced testing for all health and social care staff, and those that we were seeking to return back, perhaps individuals who had retired or those final year medical or nursing students, to ensure that they were tested.

We’d also introduced the – a situation or a requirement that all symptomatic residents were tested where that was appropriate. Bear in mind at this point the test was both – you had to swab both the nose and the back of the throat, so for some individuals that was a very distressing experience, and that’s what “if appropriate” meant.

The deep dive at that point in April was around bringing together all the information we had about what we were doing, what more needed to be done, whether we were able to do it, and then focus the actions around that.

Lead 2A: Was the deep dive meeting indicative of a realisation in the Scottish Government that insufficient efforts had been made to protect those in care homes and many, many residents had died?

Ms Jeane Freeman: There was certainly a realisation of that, but that realisation didn’t suddenly happen on 15 April. I don’t think 15 April was a sudden dawning on the part of Scottish Government, Scottish ministers, myself or the First Minister that this was a serious issue. I think I’ve explained that for some weeks this had been considered by me as a very serious issue, but we were now at a point where it might be possible that our testing capacity was such that we could add that additional measure.

It was also a realisation or a growing understanding that the understanding and application of basic infection prevention and control was not necessarily consistent across all residential settings. Again, to be very clear, that is not a criticism by me of any member of staff, but it is the case that in some instances, as the figures I gave you earlier indicate, some of our care homes were responding to the guidance more fully than others, for a variety of reasons that we sought to understand through discussions with Dr Macaskill or individually with some of the providers, and sought to try and help support them to do that.

Lead 2A: Despite that background, the additional measures didn’t come in til 21 April; that’s correct?

Ms Jeane Freeman: That’s correct.

Lead 2A: Those we’ve talked about, the testing element which, as I understand it, is based on a lack of availability of testing until that time, that’s why that changed. Is that right?

Ms Jeane Freeman: Yes.

Lead 2A: As other elements of that guidance included increased oversight in order to try to make sure that the various measures that were required within care homes could be carried out properly, is there any reason why that oversight could not have been put in place much earlier?

Ms Jeane Freeman: Until that point, or until the period running up to that point, I think I mentioned earlier that Scottish Government’s knowledge of and complete understanding of how the adult social care sector operated was not as adequate at the outset as we needed it to be. And so there were some presumptions made that, as we worked through the days, became clear were – could not stand.

One of the presumptions that I made, and I regret this, is that the national manual for basic infection prevention and control was widely understood and practised. I think, again for reasons I’ve indicated and with no criticism at all of individual staff, that was not consistently the case.

Some other areas of our understanding of particularly the care at home sector was not adequate at the outset, and so we had to work through, with Scottish Care of course but also with COSLA, to increase our understanding and identify the deficiencies in how the system was operating, and one of those deficiencies required greater clinical support to the care home setting. Hence that part of the guidance that requires directors of public health – each health board has a director of public health – to take a direct engagement with the care homes in their area, to look at what more support might be needed.

Lead 2A: As had been the case in the early months of the pandemic, Ms Freeman, the Scottish Government’s response to the care home crisis and the need for people who are vulnerable or elderly to be protected was completely inadequate, was it not?

Ms Jeane Freeman: It was not as adequate as I would have wished it to be. I believe it was all that could be done with the resources available to us at that point, and that improved as time passed.

Mr Dawson: Thank you.

Those are my questions. As I understand it, there are some pre-Rule 10s. Thank you, my Lady.

Lady Hallett: There are.

Ms Mitchell.

Questions From Ms Mitchell KC

(Mic not on)

Ms Mitchell: – for asking many questions the Scottish Covid Bereaved wished to have answered.

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

I’d like to ask you, please, about communication strategy within Scottish Government, in particular misinformation was an important issue in the pandemic, particularly with the prevalence of people getting information from social media which couldn’t be properly regulated.

The First Minister, current First Minister’s written evidence is – has been submitted before this Inquiry, states:

“The Scottish Government did not directly refute misinformation, but instead worked to ensure our own factually correct messages were communicated widely.”

What I would like to know, first of all, was: was this a tactical decision taken by the Scottish Government not to refute misinformation in relation to issues during the pandemic? And secondly, if so, what were the reasons for that tactical decision?

Ms Jeane Freeman: So the principal reason for not directly refuting in that – through social media, if you like – misinformation was really to avoid getting into a “he said, she said” situation. But, for example, in the care sector, there was a lot of concern and anxiety around what was misinformation, for example, about vaccines. And so, rather than have a social media argument about that, with the support of Scottish Care we set up a series of webinars which simply allowed staff to ask questions that they had, concerns that they had. They may have received information that was wrong, they may have just straightforward concerns about vaccine efficacy, around the speed with which vaccines were produced, people had some concerns about whether they were as safe as pre-Covid; and that was the approach that we took to dealing with misinformation, was simply to try and find opportunities where people could ask questions about their concerns, that we could answer those concerns directly to them, and webinars were used a great deal by Scottish Care and ourselves, or open meetings with trade union members where they could – through Zoom or whatever it might be – ask a number of questions rather than have a social media, or any kind of media, tit-for-tat argument which I don’t think would have served anybody particularly well.

Ms Mitchell KC: I’ll move on to my next question.

The Inquiry has already heard evidence given by the First Minister, then Minister or Cabinet Secretary for Health and Mr Swinney, who is still to give evidence, met with the Scottish Covid Bereaved on 17 August 2021. At that meeting, members of the group expressed their concerns about the classification of the three cardinal symptoms of Covid: cough, temperature and the loss of the sense of smell and taste. Their concern was that these three cardinal symptoms were too restrictive, and they were raising that to see whether or not anything could be addressed.

Were you aware of the concerns raised by the Scottish Covid Bereaved in this regard?

Ms Jeane Freeman: Well, of course in August 2021 I was no longer an MSP or in government, but I recall from re-reading the guidance in preparation for today and for my witness statement that there is – and I can’t be certain whether it begins with the first guidance or whether it appears in the second, but there are sections which remind the reader that in elderly people the symptoms may be different, they may manifest themselves in a different way. That could be increased confusion, it could be more falls. So we were alert to the fact that the standard symptoms – that you shouldn’t confine yourself to saying: well, that person hasn’t got a cough and their sense of smell’s fine, so they must be all right, there’s something else happening; you needed to think more widely, particularly if you were dealing with elderly or frail people.

Ms Mitchell KC: Did you play any part in considering the issue of Covid symptoms, for example in discussions with the CMO or Mr Macaskill, or anything of that nature? Did you discuss with them the cardinal symptoms and whether or not they should be expanded?

Ms Jeane Freeman: I do recall, I believe, discussions with Mr Macaskill, because he wanted to ensure that the guidance took account of that. I don’t recall particular discussions with the CMO on that, although we did have discussions about the symptoms that we were alerting the general public to, because I think – in fact I’m sure – the list changed at one point during the pandemic, a new one was introduced.

Ms Mitchell KC: Indeed, and I think when we were asking questions of a witness before, the Inquiry has evidence that that is the case, in 2021 it changed, and indeed the Inquiry has also heard evidence from Mr Macaskill about the issue of the difference in symptoms that were being identified as Covid symptoms, but they were different and not manifesting in the same way in a population which was older, with multiple comorbidities. He says that that was aware to him, late February and certainly early March 2020, but a change didn’t occur til 2021.

Can you tell me, if he raised this with you, why it took so long for changes to be considered?

Ms Jeane Freeman: So, well, before 2021, as I’ve already said, the guidance that was issued to the care sector did mention this, and did raise to be alert that the standard Covid symptoms, if you like, may not manifest themselves in elderly or frail people and they had to look otherwise –

Ms Mitchell KC: That was June 2020, and then the actual symptoms were a year later. But in those early days, was there any consideration given to changing, as it were, those symptoms and advice?

Ms Jeane Freeman: So the symptoms of Covid, from memory, came to us from the four CMO discussions, and I don’t think – I certainly didn’t feel competent to question whether it was a cough or not a cough, or a sense of smell or whatever, but I did discuss with Mr Macaskill prior to June 2020, and I believe the guidance prior to June 2020 did mention that for those who were elderly you had to look beyond the standard symptoms that were being advised to the wider public.

Ms Mitchell: My Lady, those are my questions.

Lady Hallett: Thank you very much, Ms Mitchell.

I think that completes the evidence for today, Mr Dawson.

Thank you very much, Ms Freeman. I appreciate I’ve asked you to attend twice now. I’m not sure I can say I won’t ask you again, so thank you very much for your help.

The Witness: My Lady, if I may just take the opportunity to apologise. The last time I did attend, I did so virtually and we had some internet issues. I just, for the sake of my colleagues at the University of Glasgow, I need to be clear that was not their fault.

Lady Hallett: Right. I think someone was blaming Scotland rather than Glasgow University.

The Witness: I don’t think it was the country’s fault either, but it was certainly –

Lady Hallett: I didn’t think it was the country’s fault.

The Witness: Thank you very much.

Lady Hallett: Thank you.

(The witness withdrew)

Lady Hallett: 10 o’clock tomorrow, please.

Mr Dawson: Thank you, my Lady.

(4.36 pm)

(The hearing adjourned until 10 am on Tuesday, 30 January 2024)