Transcript of Module 2A Public Hearing on 30 January 2024

(10.00 am)

Lady Hallett: Good morning.

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

is Ms Kate Forbes MSP.

Ms Kate Forbes


Questions From Lead Counsel to the Inquiry for Module 2A

Mr Dawson: You are Kate Forbes?

Ms Kate Forbes: I am.

Lead 2A: You have helpfully provided a witness statement to

the Inquiry which is under reference INQ000273982, dated

16 November 2023. Is that your statement?

Ms Kate Forbes: That is my statement.

Lead 2A: Have you signed the statement?

Ms Kate Forbes: I believe I have signed the statement.

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

accurate as at today’s date?

Ms Kate Forbes: They do.

Lead 2A: You were appointed Cabinet Secretary for Finance on

17 February 2020; is that correct?

Ms Kate Forbes: That is correct.

Lead 2A: Until taking the role as Cabinet Secretary, you were

minister for public finance and digital economy. In

that role you had responsibility for fully devolved

taxes; is that correct?

Ms Kate Forbes: That’s correct.

Lead 2A: You served in the role as Cabinet Secretary until May 2021 when the role was expanded to take into account additional responsibility for economy, the role became Cabinet Secretary for Finance and Economy; is that correct?

Ms Kate Forbes: That’s correct.

Lead 2A: As at May 2021 clearly the economy was in turmoil, Scotland was emerging from its second lockdown, there were – significant business support had required to be provided. Is that a fair summary?

Ms Kate Forbes: Yes, that would be –

Lead 2A: Thank you.

Ms Kate Forbes: – a fair summary.

Lead 2A: Can you describe how – if and how your role changed when you took on the responsibility for the economy portfolio after May 2021?

Ms Kate Forbes: Yes. Up until that point I had primarily been, obviously, responsible for funding the pandemic, but I had taken on quite considerable responsibility for direct business support. So although that would have previously been under the economy portfolio in a sense it continued when I became economy secretary too.

The thing that changed was probably my direct engagement with business, so I increased my direct

engagement with business and with trade unions, and also

took on more responsibility for the guidance that was

being given to businesses and places of work in terms of

how to keep the guidance and the rules around the Covid


Lead 2A: Thank you.

You explain in your statement that you remained in

the role of Cabinet Secretary for Finance and the

Economy for the remainder of the pandemic, indeed you

remained in the role until 28 March 2023; is that


Ms Kate Forbes: That is correct.

Lead 2A: Thank you.

Your appointment to the Cabinet Secretary position

followed on from the sudden resignation of your

predecessor, which took place on the day of the Scottish

budget, 6 February 2020. Is that correct?

Ms Kate Forbes: That’s correct.

Lead 2A: Due to that unforeseen situation, you stepped in to

deliver the Scottish budget that day?

Ms Kate Forbes: Correct.

Lead 2A: You presumably had had some role in contributing to the

preparation of the budget when you were minister for

public finance and digital economy; is that correct?

Ms Kate Forbes: I would say very little in terms of contributing to the budget.

Lead 2A: As at – we’ve heard from other evidence that as at that date, 6 February 2020, there was some emerging evidence available to the Scottish Government through various sources, in particular from a consultant epidemiologist called Professor Woolhouse, about the basic threat of the virus and what it might mean for Scotland.

When you stepped into that role, were you aware of that information, either broadly or the specifics?

Ms Kate Forbes: Not that I recall being aware of, no, beyond what might have been just generally discussed in the public domain.

Lead 2A: Was any provision made in the budget delivered on 6 February 2020 for the emerging threat?

Ms Kate Forbes: Not that I recall.

Lead 2A: So insofar as that information was available, it hadn’t penetrated yet the financial side of the operation?

Ms Kate Forbes: I don’t remember anything in the budget that I presented, which I’d only had sight of for a few hours at that point. I don’t recall any reference. There may have been some passing reference as the budget developed over the subsequent month –

Lead 2A: Yes.

Ms Kate Forbes: – but not in that initial statement.

Lead 2A: We’ll get on to that important period in a moment.

Before doing so I’d just like to ask you some questions about messaging and indeed the retention of WhatsApp messages.

You have provided some WhatsApp messages that you retained to the Inquiry; is that correct?

Ms Kate Forbes: That’s correct.

Lead 2A: And these are WhatsApp messages which fell within the ambit of our request for messages relating to decision-making about the pandemic?

Ms Kate Forbes: That’s correct.

Lead 2A: You’ve provided, as I understand it, some exchanges with Professor Leitch, from whom we’ve heard, limited exchanges with the former First Minister, Ms Sturgeon, exchanges with Ms Freeman, from whom we heard yesterday, and with officials such as Alyson Stafford, who was the director general within the Scottish Exchequer. Is that a broad summary, I think, of what you’ve provided?

Ms Kate Forbes: Yeah, I think there’s maybe a few more, but –

Lead 2A: Yes –

Ms Kate Forbes: – that’s generally –

Lead 2A: Thank you.

Your position, as I understand it, is that you did not delete any of your WhatsApp messages; is that right?

Ms Kate Forbes: I did not delete any of the WhatsApp messages with Cabinet secretaries, with special advisers, and with private office until January 2022, after all of the major Covid decisions were taken, which was the point at which a member of my private office, I think you have the reference – the relevant message, which – the message deletion policy was given to me, and that was a point at which – the first point at which I knew there was any policy governing messages.

Lead 2A: But given that you were able to provide messages to us subsequently, those messages must still have existed in some form?

Ms Kate Forbes: Yes, that’s right, they – I did not retrospectively delete anything.

Lead 2A: Yes. So you started deleting the messages that were sent after January 2022 but you didn’t delete any of them that you held that had been sent before that period?

Ms Kate Forbes: Precisely, yeah.

Lead 2A: Obviously that coincides roughly with the period in which we’re interested, which goes up to April 2022, so the ones that you’ve provided are all from before January 2022?

Ms Kate Forbes: Yes. And I should say that that – I only shared that in the spirit of being completely open, but I should also state that that only applied to that particular individual in private office, and not generally to the rest of government.

Lead 2A: I understand.

So do I take it from what you’ve said that you became aware of a policy in around January 2022 which required the deletion of messages?

Ms Kate Forbes: The – in January 2022 a junior member of my private office stated that it was now required government policy for messages with private office to be deleted, going forward, to which I acquiesced because I believed it was an instruction. And that only applied to that particular member, a junior member of private office, and I don’t recall it applying to anybody else in and around the Cabinet or government.

Lead 2A: So as far as you’re concerned, therefore, with regard to the messages we were more interested in, which is ones you were sharing with senior officials or with other Cabinet secretaries or other ministers, your position has been that your understanding is that there has been no policy either mandating or suggesting the deletion of those messages at all up till today?

Ms Kate Forbes: Correct.

Lead 2A: I’d like to understand a little bit more about precisely the role that you were playing during the pandemic. Your helpful statement sets this out to some extent, but I wanted to try to summarise, if possible, the various different aspects of the role, and it may of course be, as we’ve highlighted already, that the role changed to an extent when your title changed after the May 2021 election, but just to be clear as to exactly what it was you were responsible for, I’d like to go through various bits.

My understanding primarily is that you were responsible for allocating funding for aspects of the pandemic response or, indeed, with regard to effects of countermeasures taken to combat it. Is that broadly correct?

Ms Kate Forbes: That’s correct.

Lead 2A: So, for example, you would have been the person responsible if one wanted to get funding for testing and tracing mechanisms, for example?

Ms Kate Forbes: To an extent. The NHS or the health portfolio is approximately just under 50% of the overall budget, and so the financing of health response was largely taken by the Health Secretary. So I would have engagement with the Health Secretary at the time in terms of the overall quantum of funding that he or she determined that they might need for the various responses, and then it was their responsibility to determine from within that quantum whether it should be spent on, for example, Test & Protect, vaccinations and so on.

Lead 2A: So what I’m trying to get at is that during the course of the pandemic there would be things that couldn’t have been anticipated that there would be funding required for; is that right?

Ms Kate Forbes: That’s true.

Lead 2A: And I gave an example of increased testing capacity; that wouldn’t have been required before the Covid virus was known?

Ms Kate Forbes: That’s right, yeah.

Lead 2A: So what you’re telling me is that there was a system whereby the Health Secretary, be that Ms Freeman or later on Mr Yousaf, they would come up with a sort of list in their own minds of all of the things that they needed funding for which were additional to the budget they already had, and they would come to you with a figure, and you – what – your job would be to work out whether that overall figure was one that you could cope with in the general budgeting of the Scottish Government?

Ms Kate Forbes: I think that’s a fair characterisation.

Lead 2A: Thank you.

So the list of things that they might have, and of course this would extend across all of government to focus on some of the things, that would have included the additional funding that might be required for testing or tracing mechanisms that weren’t required before the pandemic?

Ms Kate Forbes: Indeed.

Lead 2A: It might also include things like the requirement for extra money to provide sanitation, infection control in hospitals or schools or care homes?

Ms Kate Forbes: Yes, it –

Lead 2A: Which, again, wouldn’t have been necessary, necessarily, in advance of the pandemic but became necessary as time went on?

Ms Kate Forbes: That’s correct.

Lead 2A: Thank you.

We’ve heard a lot, I’m sure we’ll hear more today, about the four harms framework, and this is no doubt a structure which you are familiar with; yes?

Ms Kate Forbes: Yes, yes.

Lead 2A: It was introduced, we understand, in April of 2020, and one of the four harms, the fourth harm, was the economic harm which was being caused either by the virus or by the countermeasures taken to combat it; is that broadly correct?

Ms Kate Forbes: That’s correct.

Lead 2A: We know that there was a four harms group set up that provided advice and analysis to government decision-making about the four harms; is that right?

Ms Kate Forbes: That’s correct.

Lead 2A: And that started to meet and provide that function formally in October of 2020?

Ms Kate Forbes: Correct.

Lead 2A: I’d be interested to know the extent to which your role involved an element of analysis and assessment in particular in relation to the fourth harm, which seems to sit most neatly with your portfolio.

Ms Kate Forbes: Yes, so from just before the announcement of lockdown, the Economy Sub-Cabinet Group was established, and that was chaired by my colleague Fiona Hyslop, who was the Economy Secretary, but I had a role in meeting weekly with the First Minister as well as with the Chief Economist to discuss the impact to the economy and also to look at what recovery might look like, and that obviously shaped our discussions around how the funding should be spent in order to try to mitigate the harms that workers and businesses were experiencing.

Lead 2A: Because these two aspects that we’ve discussed so far are interconnected, aren’t they? If you have a certain amount of money you want to spend it in the right place to deal with fighting the virus but you also want to have some consideration of whether it’s being spent in the right place to minimise overall or – either short, medium or long-term economic harm?

Ms Kate Forbes: Absolutely.

Lead 2A: And you would have been involved, along with your colleague Ms Hyslop, in providing analysis, assessment, input into the overall government strategy as to where the funding would be best placed with a view to putting it in the right place for fighting the virus but also giving some consideration to the fourth harm?

Ms Kate Forbes: Absolutely.

Lead 2A: Thank you.

In your role, I understand it that you were responsible – we’ll get on to issues about the Treasury and contact with the UK Government in a moment, but I understand that in your role you were responsible for allocating funding to support businesses in order to try to minimise the effect on the economy in the short and medium and long term; is that correct?

Ms Kate Forbes: That’s right.

Lead 2A: Because, again, if one looks at the amount of money that’s available in order to try to work out where that money needs to be directed from the overall budget, one requires to think, well, where would it be best spent in order to try to deal with what needs to be dealt with today but also deal with the longer-term economic harm, harm 4, that was part of the strategy?

Ms Kate Forbes: Yes.

Lead 2A: Is that broadly right?

Ms Kate Forbes: That is broadly right.

Lead 2A: And that role involved, I think you said, possibly in your particular case, more, after May 2021, contact with stakeholder businesses and organisations representing business or workers in order to try to understand and inform your analysis of the best place to spend the budget that was available so as to achieve those aims?

Ms Kate Forbes: Yes.

Lead 2A: Thank you.

I’ve mentioned already that Her Majesty’s Treasury is a reserved matter; is that right?

Ms Kate Forbes: That’s right.

Lead 2A: And what that means – again, I’ll try and analyse this complicated subject in a moment as well, but it meant, in effect, that you also were involved in discussions with ministers and other representatives from Her Majesty’s Treasury about how Scotland was to access funding from the UK Government in order to comprise the budget that you were then handing out to the various directorates and ministers –

Ms Kate Forbes: Yes.

Lead 2A: – is that right?

In performing this role, these various roles I should say, you had available to you a team of people, including – you’ve mentioned an advisory group, but also civil servants within, presumably, a number of different directorates who were able to provide you with data, information, analysis, in order to inform your input into discussions about how best decisions should be made about using money. Is that correct?

Ms Kate Forbes: Yes, my primary source of advice was the director-general of the Exchequer and the Exchequer team.

Lead 2A: Okay, and as we’ve heard broadly already there’s a system in the Scottish Government of directorates-general, and under those sit a number of different directorates, it’s been described as a system of “directorate families” by a previous witness, and you had a directorate-general that would presumably be most closely associated with your particular role?

Ms Kate Forbes: Ab – yes, yeah.

Lead 2A: Thank you.

I understand that as Cabinet Secretary you attended, on occasion, the SGoRR meetings that we’ve also heard of?

Ms Kate Forbes: Yes, I did.

Lead 2A: And you also attended meetings of another body called either gold or gold command?

Ms Kate Forbes: Yes, perhaps later on in the pandemic.

Lead 2A: Yes, I wanted to ask you some questions, we’ll get on to that in a second.

In your statement you say on page 29 at paragraph 76, if we could have that up, please, just in connection with the role of these bodies and the Cabinet:

“At times, waiting for the weekly meeting of Cabinet or waiting for an extraordinary meeting of Cabinet was deemed to be too slow for a decision to be made. Furthermore, sometimes Cabinet would discuss all the factors related to a decision and agree that the final decision would rest with the First Minister. This wasn’t an uncommon way of working during the pandemic.”

I’d just like to explore a little bit more precisely what that means.

Is it not the case that in order that decisions should be made within Cabinet, Cabinet could have been convened at relatively short notice?

Ms Kate Forbes: Yes, and it frequently was, particularly where the – for example, the evidence was still emerging or there was new information that hadn’t been considered at a previous meeting of Cabinet. There was quite a number of extraordinary meetings of Cabinet.

Lead 2A: Right. What do you mean when you say that “all of the factors related to a decision would be discussed in Cabinet”?

Ms Kate Forbes: Well, I think whenever there was a decision to be made, for example, introducing new non-pharmaceutical interventions or discussing a circuit-breaker or lockdown, Cabinet would meet and I would of course contribute some of the points around the finance, the Health Secretary would contribute in terms of the health factor, we would discuss that, there would be a very frank conversation, but you will often see in Cabinet papers that there was an agreement that Cabinet would delegate to the First Minister –

Lead 2A: That is right.

Ms Kate Forbes: – for final agreement or final sign-off. Or where there was a very tight decision being made, for example whether a particular local authority area should go into level 3 or stay in level 2, often those decisions would be delegated to the First Minister.

Lead 2A: That’s what you mean by there being all the factors related to a – there’s a discussion that takes place in Cabinet about those factors, there is then a delegation, the decision is then made elsewhere, is that broadly the process that you say was not an uncommon way of working during the pandemic?

Ms Kate Forbes: Roughly. I think that the bulk of the decision would always be made by Cabinet, but when there were fine points that Cabinet hadn’t come to an agreement on, that final decision would rest with the First Minister.

Lead 2A: This is really what we’re interested in, because we’ve seen a number of expressions like this which don’t define with any degree of precision what you mean by “the bulk of the decision”. There may well – it may well be, for example, this is a hypothetical example, that if the position were that the Cabinet were to agree that “We should do something about this virus”, and then everything from that point on was left to the First Minister or a close group of advisers, then that might accurately be characterised as Cabinet not really having made any part of the decision at all and all of the operative parts of the decision had been made outwith Cabinet. In that hypothetical situation do you agree with the proposition that that’s what that would be?

Ms Kate Forbes: I wouldn’t agree that that would be a fair characterisation of how things operated.

Lead 2A: Indeed.

Ms Kate Forbes: I would suggest that Cabinet had a key role in terms of making the decisions. The example that I gave earlier is probably a good example of the nature of a decision, where Cabinet might have agreed, for example, that some local authorities should move up or down a level, but that there was a few local authorities where it was very, very tight and finely balanced. That’s an example where it would be delegated to the First Minister.

Lead 2A: Neither the SGoRR nor the gold group meetings are minuted; is that correct?

Ms Kate Forbes: Well, that surprises me, and this would be the first of me hearing it.

Lead 2A: Right. The reason that we think that that’s the case is we’ve obviously asked the Scottish Government for all of its papers concerning these matters, and although we have, for example, Cabinet minutes, of course, we don’t have minuted records of either of those groups. So therefore it becomes difficult to understand what precisely the ultimate decision-making process is when there is no record of how those decisions were ultimately taken.

Ms Kate Forbes: And I can understand that frustration.

Lead 2A: Do you think those meetings should be minuted in future, for what it’s worth?

Ms Kate Forbes: I think that every meeting of that nature in the Scottish Government should be minuted and, as I say, I’m surprised to hear that they weren’t.

Lead 2A: So your expectation, after having participated in some of them, was that they would be minuted in the same way as Cabinet is minuted?

Ms Kate Forbes: My expectation would be as you’ve described. I also recall sort of summary emails being sent out afterwards in terms of the main issues that were discussed. And perhaps if I could also just say, as a Cabinet Secretary, these summaries and minutes and so on were extremely important in terms of retrospectively considering how a decision had been arrived at.

Lead 2A: Yes, because it’s important, isn’t it, in particular in a continuing threat like a pandemic, that there is the material available in, one would imagine, formal minutes, to be able to assess whether the way we went about it last month or six months ago was right so that, as the threat continued, there could be an internal assessment of “Well, how do we do it the next time”?

Ms Kate Forbes: Absolutely, corporate memory was critical, so I was Cabinet Secretary for the two and a half years but of course officials would come and go, teams would sometimes change, and if individual officials couldn’t recall how things had been approached the last time the decision was made, then it would be much more challenging to make the decision again.

Lead 2A: Thank you.

As far as the gold or – gold or gold command it seems to be called, again we don’t have minutes of those meetings although we see them referred to in various places. There are, for example, Cabinet meetings saying “Well, there was a meeting of gold that discussed this”, and so you can pick up information.

You have provided us helpfully with a list of the gold meetings you attended with the material that you’ve provided. From that we can see that you attended gold on 11 occasions. These meetings were in mid-2021 and in late 2021 and early 2022. You did not attend any gold meetings in 2020, is that correct?

Ms Kate Forbes: Well, this list is drawn directly from the diary, so I don’t recall attending gold, I don’t recall even being aware that it existed until later on in the pandemic.

Lead 2A: Again, this has been the effort of looking through the material that we do have because we don’t have minutes, but we’ve certainly ascertained that there were at least six such meetings in the period between September 2020 and January 2021, that there may be more, but we’re trying to piece together what all of these actually were.

You didn’t input into the discussions at those meetings then because you didn’t attend them; is that correct?

Ms Kate Forbes: If I wasn’t there, I won’t have inputted, no.

Lead 2A: Okay.

Over that period, at least, the meetings from September 2020 to January 2021, again, as I often try to do, to put it into the context of where we were in the pandemic, that was a period which started with the First Minister announcing on 7 September that there needed to be a slowing down of the easing of lockdown because there had started to be an increase in cases. It was subsequently shown that that was connected largely with foreign travel. And then as the year went on, with cases going up and up, Scotland started to feel the effects of the Alpha variant, which then led into the second lockdown.

Over that period, we’ve seen evidence that there were a number of discussions about a number of potential things that might be done, advice tendered then ultimately withdrawn about a circuit-breaker, the way in which local restrictions might be used.

These are all matters that would have significant economic impacts on Scotland, isn’t that right?

Ms Kate Forbes: Correct.

Lead 2A: All matters in which one would imagine, given our discussion about the roles you played, input from you would have been significant and the absence of input might have had significant consequences?

Ms Kate Forbes: Well, I assume that that might lead from the fact that there wasn’t a finance minister present. What I can’t answer for is whether or not Ms Hyslop, the Economy Secretary, was present at those meetings.

Lead 2A: Thank you.

There were issues – we’ll come back to this general topic, but there were issues around that time in particular connected to whether the furlough scheme would continue to be available if Scotland decided to have any further lockdown or significant restrictions. Do you remember that period?

Ms Kate Forbes: Very much.

Lead 2A: We’ll look back on that. It seems in paperwork that we’ve seen to be represented that the impression that the Scottish Government had that if it were to impose another lockdown, circuit-breaker, firebreak lockdown or whatever, that there would be an impediment to that course of action because furlough funding would not necessarily be available from the UK Government.

We’ll get on to the details of that in due course, but that was a very important matter in which you had had involvement, as I understand it?

Ms Kate Forbes: That’s correct.

Lead 2A: And it appears from the paperwork it was central in the decision-making about whether to have a lockdown or not at all?

Ms Kate Forbes: Correct, in terms of the subsequent lockdown. I’m assuming we’re talking about late 2020 here?

Lead 2A: That’s right, yes, the period I’ve tried to define as best I can for you.

Ms Kate Forbes: Yeah.

Lead 2A: But over that whole period there were discussions about what should be done in light of rising cases. It culminated in the second lockdown but there were significant funding aspects to the decision-making over that period; yes?

Ms Kate Forbes: Yes, there were.

Lead 2A: And indeed, of course, to look at the slightly different aspect from your perspective, a further lockdown would – it would have been predictable that a further lockdown would have economic consequences for the country, fourth harm type harms?

Ms Kate Forbes: Very much so.

Lead 2A: Yes.

Could I ask you some questions, please, about generally the way in which public services in Scotland are funded?

Ms Kate Forbes: Yes.

Lead 2A: I’m going to try, as I did before, to take you through some general propositions to see if our understanding, our current understanding about it is correct. I’m sure if we entered into a discussion about it we’d be here for many hours, but hopefully this is roughly correct.

As I understand it the Scottish Government receives a fixed budget which means that it cannot overspend that budget, and it requires to spend only what it is allocated for a particular year?

Ms Kate Forbes: That’s correct, it has to be a fixed budget.

Lead 2A: Yes, and that budget, which I understand is called a block grant, comes from Her Majesty’s Treasury part of the UK Government?

Ms Kate Forbes: Correct.

Lead 2A: So every year there is an allocation of a certain amount of money for Scotland, and your role, part of your role, would have been to have that amount of money in normal times, if you like, and allocate that the way that the Scottish Government wished to, amongst its various different commitments?

Ms Kate Forbes: Primarily through the budget.

Lead 2A: Yes. And the Scottish Government then, with this general sum of money, has the ability to decide what it wants to use the money for?

Ms Kate Forbes: Correct.

Lead 2A: And, for example, as I think you’ve said already, health, the health budget often in Scotland is seen as requiring a higher percentage spend than is spent per capita, if you like, in other parts of the United Kingdom?

Ms Kate Forbes: Correct.

Lead 2A: And what that means is if – if Scotland, the Scottish Government, is choosing to spend more on health, what that means is one has to try to find money in another place where less is spent in order to balance the books at the end of the day?

Ms Kate Forbes: Correct. It’s sort of like a fixed pie and you can only cut from within that pie.

Lead 2A: Yes. And that was very much your function, to try to work out the way in which the pie would be cut up?

Ms Kate Forbes: Yes. Of course the complication in Covid was that additional funding was often announced unexpectedly, very rarely was it announced expectedly, and so we were repeating the budget process numerous times.

Lead 2A: Yes, because in normal times, as I’ve said, there is this one block grant that comes from the United Kingdom Government, and it is then allocated in accordance with the priorities of the Scottish Government; is that right, broadly?

Ms Kate Forbes: Correct.

Lead 2A: But in times of emergency, where additional funding is required to deal with things that couldn’t have been anticipated as being part of the normal budgetary processes, there requires to be further funding made available from the UK Treasury to Scotland to fund those additional requirements?

Ms Kate Forbes: Indeed.

Lead 2A: Is it the case that where these – if I call those emergency funding grants – if those emergency funding grants were made available, was it within the gift of the Scottish Government to decide what they would be used for?

Ms Kate Forbes: Yes.

Lead 2A: It is also the case, is it not, that it – because of the devolution settlement, the United Kingdom Government has the ability to spend directly in Scotland?

Ms Kate Forbes: Yes.

Lead 2A: And so what that means is that that’s – if the United Kingdom Government has a certain amount of money that it wants to spend on an initiative, it can do so, and it doesn’t form part of that budgetary process with the Scottish Government that I’ve just tried to explain?

Ms Kate Forbes: Indeed.

Lead 2A: An example of that to which we’ll also return is the Eat Out to Help Out scheme.

Ms Kate Forbes: Exactly.

Lead 2A: That, as we’ve heard from a political expert who gave evidence from the University of Stirling, Professor Cairney, was an example of a direct UK Government spend in Scotland?

Ms Kate Forbes: Yes.

Lead 2A: We’ll return to the details of that in a moment but that’s very helpful.

Does the Scottish Government have powers to borrow money?

Ms Kate Forbes: Very limited, and not resource borrowing, which is obviously what largely funded the response to the Covid pandemic. So we have some limited capital borrowing, which was not overly useful in a pandemic, and we can borrow for reasons that weren’t useful in a pandemic. So, for example, for cash management, which was never an issue.

Lead 2A: But the UK Government can borrow money?

Ms Kate Forbes: They can.

Lead 2A: And in Covid the UK Government was able to borrow money to fund the emergency elements of the Covid response that were necessary?

Ms Kate Forbes: That’s right.

Lead 2A: But in order for the Scottish Government to get part of that, it had to rely on the arrangements the UK Government had for borrowing money?

Ms Kate Forbes: Yes, so Barnett formula was the only mechanism by which money was provided to the Scottish Government during the pandemic.

Lead 2A: You’re jumping a line –

Ms Kate Forbes: Sorry.

Lead 2A: You’re ahead of me, but thank you.

It is, as I understand it, also the case that Scotland has limited – the Scottish Government has limited tax-raising powers?

Ms Kate Forbes: Correct.

Lead 2A: To what extent were those tax-raising powers effective or really relevant to the pandemic response in Scotland?

Ms Kate Forbes: I would say they were almost irrelevant during the pandemic.

Lead 2A: Can you explain broadly, if you can, why that is.

Ms Kate Forbes: Well, largely because income tax is only reconciled about 18 months after the year has passed, so we are budgeted for the – we budget for the period of the pandemic on the basis of forecasts of what we think we might get. So of course we were monitoring those forecasts in real times but it doesn’t have a bearing on the actual substantive funding you have in front of you. And then non-domestic rates was the other big tax, but of course there were record levels of non-domestic rates relief in place to support businesses.

Lead 2A: So the issue with the Scottish Government’s tax-raising powers in these areas, including income tax, was if money was needed it was needed there and then –

Ms Kate Forbes: Precisely.

Lead 2A: – and these changes would have taken too long to filter through; is that broadly correct?

Ms Kate Forbes: Precisely.

Lead 2A: So if it were to be suggested in any other evidence that Scotland’s tax-raising powers were a way in which it could have itself funded the response, I assume you would disagree with that proposition?

Ms Kate Forbes: I would disagree.

Lead 2A: With for the reasons you’ve said?

Ms Kate Forbes: Yes.

Lead 2A: Funding from the UK Government is allocated to the Scottish Government by way of the Barnett formula that you’ve mentioned?

Ms Kate Forbes: That’s correct.

Lead 2A: Again, as I tried with Professor Cairney, can we try not to get into the controversy surrounding that, as I know there are many, but effectively my understanding is that this is a means by which the percentage of what is spent in the UK Government, in England effectively, is allocated to Scotland. So you work out how much is spent overall in England and a certain Barnett percentage is applied to that and that’s what results in Scotland’s block grant; is that correct?

Ms Kate Forbes: That’s correct.

Lead 2A: And is it – is it the case that where one is dealing with a block grant, which deals with all of Scotland’s public spending, as we’ve discussed, that there may be swings and roundabouts and balances that can be incorporated in? So if, for example, you get a certain amount of money every year, you have to balance the books at the end of the year; yes?

Ms Kate Forbes: Yes.

Lead 2A: But you can do that by choosing “I’ll spend more in area A but I’ll spend less in area Z”, and that’s a way of balancing the books?

Ms Kate Forbes: Yes, it’s the only way, really, of balancing the books.

Lead 2A: Yes. But to what extent is it by operation of law or convention automatic that the Barnett formula should be applied to grants of emergency funding, such as the ones that were made available by the UK Government during the pandemic?

Ms Kate Forbes: Well, it was the only mechanism that was considered, I think, by the UK Government for allocating funding to Scotland. As you may come on to later, there was extensive discussion between myself and Treasury about looking at alternative means of allocating funding to Scotland. But there was no effort, I would suggest, in order to develop those alternatives, despite representations from the Welsh, Northern Irish and myself.

Lead 2A: I’ll go to a passage about this in your statement in a moment, but do I understand it correctly that broadly the position is whereas the Barnett formula – and there are people who don’t like that, but it might in some eyes be deemed to be appropriate for a block grant, for the reasons we’ve discussed, it logically really doesn’t necessarily apply to more specific funding because one might be able to demonstrate in that specific area that the need in one constituent part of United Kingdom is different from the English need upon which the amount is calculated?

Ms Kate Forbes: Absolutely. And if I could add, our primary concern was less to do with the quantum and more to do with the timing of when the Barnett allocation would be triggered, because it’s only triggered when there is spending on England-only areas. So where there might be funding that was triggered at a particular point, that may have been several weeks later or several weeks earlier than we might have needed to access it. So my primary concern with Barnett formula was around the timing and how we might access that funding. We did have discussions, for example, with the Treasury as to how, therefore, we could continue to use Barnett but resolve the timing issue by, for example, drawing down some funding which would then be netted off future Barnett allocations. But that didn’t progress.

Lead 2A: Right. Professor Cairney provided us with a very helpful analysis of a number of these issues in his expert report. He mentioned something called a Barnett guarantee. Could you explain what the concept was and whether that was something you favoured and ultimately whether that ever happened?

Ms Kate Forbes: The Barnett guarantee was enormously helpful, and it was agreed in the summer of 2020. I should say that when the Scottish Government is allocated funding, it’s only actually at the end of the year that we know precisely how much funding we will be given, because we don’t get a share of what’s announced, we get a share of what’s actually spent. And like every government, you only know what you actually spend at the end of the year. So there means that there can be negative consequentials. So if, for example, the UK Government is looking for savings in a particular area, then they’re going to spend less, and there was a risk that we would have to give back money.

So for that first part of the pandemic we weren’t just in receipt of funding, but we were also being told that we might have to give back. The guarantee said: You won’t have to give back to the UK Government, so when we make an announcement, we can promise you that that’s what you will receive and so you can budget with a lot more certainty.

Which was transformational in that first year.

Lead 2A: When did that element of the arrangement kick in?

Ms Kate Forbes: It kicked in from the summer, I think it was July 2020.

Lead 2A: Right. But there are, I think, still other concerns that you had – would have about the way in which the Barnett formula’s applied. Am I right?

Ms Kate Forbes: Well, it continued to be the case that the UK Government would understandably inform us that there would be no additional funding, and we would budget on that basis, and then a few weeks later, or indeed, in some cases, a few days later, there would be an announcement of additional funding. And it would have aided planning considerably if we had known the full extent of the funding that we had available to access.

That wasn’t a question of personalities, I had very constructive relationships, but it was a question of the systems, where the systems were just not set up to give us the budget guarantee that we needed.

Lead 2A: In his report, Professor Cairney in his analysis, his detailed analysis, suggests that the use of the Barnett formula – he describes it as a political solution rather than a coherent financial solution. Is that a proposition with which you would agree?

Ms Kate Forbes: I don’t necessarily follow the sort of political point, but I would say that it wasn’t a sufficiently flexible system for an emergency.

Lead 2A: It may be slightly elusive as to precisely what he means by that, but what I take him to mean by that is that, in the circumstances of the pandemic, because people were used to using the Barnett formula as part of a mechanism for providing funding but also to give a percentage that you could apply, it was an easy ready reckoner to use rather than trying to develop on the hoof, if you like, a more sophisticated system that would have targeted funding to the right places.

Do you think that that’s fair? Was what your experience of the use of the Barnett formula?

Ms Kate Forbes: Yes, I think from the very – yes, by and large, but I think from the very beginning my Welsh and Northern Irish counterparts and I all agreed that it couldn’t bear the weight of an emergency, and we suggested a number of flexibilities that could be adapted and adopted in and around Barnett, so that Barnett remained the basis on which funding was provided but there were flexibilities around it. And it remains an element of disappointment that only the guarantee was implemented of those various flexibilities that we had suggested.

Lead 2A: Yes, this is what I was trying to get at when I asked you were there other dissatisfactions with the Barnett arrangement applied in an emergency situation.

What – we’re obviously very interested in this Inquiry in trying to think about how things would work better if another pandemic were to come along, and in order to assist with that I was keen to understand more – put the guarantee to one side, we’ve dealt with that, but what these other flexibilities were that you think would have been useful to incorporate within the system which, as I understand it, you say were never implemented?

Ms Kate Forbes: Yeah. So the flexibilities that we proposed were all solutions, but perhaps it would be more useful to the Inquiry if I outline just the problems, because there may be better solutions to them.

But the first one was around managing a budget between years. So at the moment the Scottish Government has to have a fixed budget, it cannot overspend on that budget, and we can’t carry forward very much budget into the next year. So we can only draw down about £250 million in a new year. Remember, that’s in the context of a £55 billion budget.

On 15 February 2021, the UK Government announced an additional £1.1 billion of Barnett, which obviously was hugely welcome, but that is six weeks away from the end of the financial year, and we can’t carry money forward. So that was an example of a flexibility that we asked for: can we carry forward funding across years? Because otherwise you’re in the situation of having to figure out how to spend that money before the end of the financial year when it might better be spent in April.

That was the first one. The second one –

Lead 2A: Just on that –

Ms Kate Forbes: Yeah.

Lead 2A: – are you saying then that you weren’t able to carry forward that allocation of funding to be used after April 2020?

Ms Kate Forbes: So we could in March, it was finally granted to us to be able to carry forward that £1.1 billion as a one-off. But I think the principle still stands that if the government can manage funding across years, that would strike me as an eminently sensible adaptation to Barnett which doesn’t compromise the core principles of Barnett.

Lead 2A: Okay.

Ms Kate Forbes: And the second big one was this point around being able to spend money when it was required rather than when the UK Government announced it. So I recall, for example, in December 2021, you will remember that the Omicron variant was posing real concerns, and I had engaged extensively with the chief secretary to the Treasury to look to see if any additional funding might be granted, and was told that there wouldn’t be any funding granted, so we had to make decisions on that basis.

And then I think it was in – on 14 December, about £220 million was – we were told that £220 million was coming. Five days later it was doubled to £440 million. So rather than waiting for the UK Government to allocate funding, it would have been far easier for us to just say: look, we will spend this funding as it is required and the UK Government would have said “That’s okay, we understand that, you can pay that off over a longer period of time”.

Lead 2A: I see. If we could just look – you have mentioned the Omicron period, which is one that we’ve looked at with other witnesses and I was wanting to ask you some questions about that, we’ll return to the general discussion in a moment. But just to understand your evidence there, the difficulty you had with the UK Government, as I understand it, was there was a suggestion you would get £220 million, no doubt that was welcome, but that doubled, and it would have been good to have known that you were going to get double the amount, to assist with planning earlier than that; is that right?

Ms Kate Forbes: That’s right. And the initial 220 was itself, I think, a couple of days after the Cabinet discussion where we agreed that action needed to be taken.

I see.

Could I look, please, at INQ000334573, at page 9.


Ms Kate Forbes: It will just come up in a second.

This is some WhatsApp exchanges that you had with Alyson Stafford.

Ms Kate Forbes: That’s correct.

Lead 2A: Who was she?

Ms Kate Forbes: She was the director-general of the Exchequer.

Lead 2A: Thank you. And these – the messages I’m interested in, this is the period that you’re talking about, I think, when the Omicron variant was starting to – around about this time I think had just become the dominant variant in Scotland and the cases were rocketing.

Ms Kate Forbes: Yes.

Lead 2A: Is that roughly right?

There are some messages from the 14th that you exchange there that refer to what we’ve just been looking at. You message Ms Stafford saying:

“Hi Alyson, a very awkward discussion at cabinet where mr Yousaf said that health had identified a further £100 [million] for business support – which was news to me and obviously news to the FM who wasn’t best pleased. Somewhat embarrassing…can you try and get to the root of what Mr Yousaf was offering and perhaps use it as a lever [I think it’s meant to say] to get £100 [million] off health.”

To which Ms Stafford replies:

“Of course…. news to us all!!!!”

You say:

“He’s done it before…but this time he did it in front of the FM so I think we should ensure we get £100m this time.”

Then you further say:

“Anyway, I’ve never seen the FM this angry in all my cabinets…for good reason.”

Is this around the period that we were discussing? There are some previous exchanges, and indeed minutes – we’ve looked at an exchange with the current First Minister between himself and Professor Leitch around this time where they are talking about the need to get more funding and do more to try to deal with this emerging threat, there are various references to this difficult Cabinet meeting, and is the position that you’re seeking to get funding from the UK Government at this stage, there is reference to you trying to source money but having trouble with it, but that the current First Minister found £100 million in his health budget that you weren’t aware existed?

Ms Kate Forbes: Well, I think if I could just make one point of context here, furlough didn’t apply, furlough didn’t exist, so we had – I had been tasked with trying to source funding in any part of government, in any portfolio, over the previous week or so, maybe two weeks, to identify funding that could be used for business support. We had identified between £86 million and £100 million, but we considered that that would largely just about cover the self-isolation support grant and anything of the remainder would cover business, but we didn’t think there would be much left from that.

So I had gone to that Cabinet, as I recall, making the point that we had very limited funding available. I think that, if I remember correctly, I had cover to perhaps provide about £100 million perhaps at risk, at risk meaning it wasn’t guaranteed that we would have that £100 million sourced from the UK Government or otherwise, but the emergency nature of this meant that I put up £100 million, and then in that particular Cabinet meeting, the current First Minister, former Health Secretary, was trying to be helpful in saying that perhaps Health could look at providing £100 million, knowing that this would have a significant positive impact on the pandemic, and therefore on the health portfolio more generally.

It was often the case that surprises were never welcome at Cabinet, and so what I’m alluding to there in terms of the embarrassment and so on was the fact that it had been a comment that hadn’t been drafted in the papers, that it had perhaps come from left field.

Lead 2A: I see. So just to be clear, the £100 million that was identified for business support, you’ve explained why that was necessary, but was he saying that he had access to that £100 million, which is why you say “We can use this as a level to get £100 million off health”?

Ms Kate Forbes: Well, health, in my view, was – you know, they were always in need of additional funding, as you would understand, for this full scale of the response, and so when I had gone to all the portfolios asking if there was anything that they could free up, I had got a blank response from every part of the government –

Lead 2A: Yes.

Ms Kate Forbes: – because they were extremely stretched. And so my understanding was, from that exchange, that Mr Yousaf had offered £100 million from Health. I don’t know if it goes into it in that exchange, I don’t think it does, but in perhaps the papers you will then see a very rapid working with Health finance to identify where they might find that £100 million.

Lead 2A: But his position, to everyone’s surprise, it appears, at the Cabinet meeting, or the meeting, was that he had, contrary to what your impression was, about whether there was anything left in the back of the cupboard, that he did, in fact, have £100 million that he could make available for this purpose, and the irritation was based on the fact that this had not been made clear beforehand?

Ms Kate Forbes: I think that would be a fair characterisation, although I would say that the intention, I think, was to be helpful and not in any way to undermine the process.

Lead 2A: I see.

Just as we’re on this period and as you’ve mentioned it, I’d like to ask you some more questions in due course about furlough and how all that worked, but at this stage it appears to be the case that, as I think you said, there was no furlough available for dealing with a third wave of Covid; is that correct?

Ms Kate Forbes: That’s correct.

Lead 2A: It had been the case, by this point, December 2021, that Scotland had had record cases, really from the summer onwards, which had initially been caused by the Delta wave, which had caused, really, Scotland’s cases, as we’ve seen some statistical evidence, to go higher than anywhere else in the UK, it had led to issues around hospitals having to cancel non-emergency surgery, the military being called in to assist with the running of hospitals.

What – was it – over this period, were there discussions about the need to have further considerable social distancing or even lockdowns?

Ms Kate Forbes: Yes, I remember that autumn as a period of constant engagement with business organisations, and obviously there was the introduction of various changes in terms of NPIs, social distancing, and so on. So, yes, I think that over the course of the autumn things had been tightening up.

Lead 2A: Yes. We’ve already been through with Mr Yousaf, again helpfully illustrated through his WhatsApp exchanges with Professor Leitch, which were frequent, a growing concern on their part, from the Health perspective, about whether we were really doing enough to deal with this emerging threat, these record cases, this effect on the NHS. We looked in particular at discussions around the possibility of cancelling the EURO fan zone in the summer of 2021, there was also the COP26 in November, there are discussions around that.

So, in light of that, there were concerns expressed by them as to whether these additional measures could or should be imposed. Ultimately, the fan zone was allowed to go ahead. There was a rise in cases. As far as you’re concerned, were you having discussions at this stage with the UK Government about the possibility that Scotland may need to go further, have a lockdown even, and that therefore funding which would be associated with a lockdown, including for things like furlough, might need to be made available again?

Ms Kate Forbes: Yes, I think I made at least one, if not a number of public requests for furlough to be extended or at least reintroduced in that period.

But secondly, you will see from any table of the consequential funding that was being allocated over that period that the quantum decreases, in other words there was less being spent on business support in England, and therefore generating less funding, so there was less funding available to in any way mitigate losses that were being experienced by businesses over that period. And so that meant that in the discussion about what Scotland should do with the rising numbers, we were also balancing these other challenges.

Lead 2A: Right.

Could I go again to INQ000334572, this time at page 10. This again is an exchange between yourself and Ms Stafford from 18 December, so a few days later. It will come up in a moment.


Lead 2A: I’m looking at the one starting at 9.54.53 on the 18th. This looks like it is Ms Stafford forwarding on something from Sue Gray. Does that look right?

Ms Kate Forbes: I – oh, yes – sorry, yes, I see it now.

Lead 2A: You see it?

Ms Kate Forbes: Yes, I do.

Lead 2A: Who was Sue Gray?

Ms Kate Forbes: Sue Gray would have been, at that point – I don’t actually recall her specific title at that point, but she obviously was a point of contact in terms of devolved funding.

Lead 2A: I see. And it looks like Ms Stafford is forwarding something on to you from Sue Gray which says:

“HMT to engage DAs before COBR. COBR expected to be Sunday. Jackie’s aware too. Jackie checking in with Ben at HMT at 11.30 this morning to see how things have progressed post FM/PM Friday call.

Then Ms Stafford says:

“Last night, HMT were saying we’d hear at the beginning of the week and it would be only a modest adjustment to what was committed last week.

Then she says:

“The only other point I’d add is that seeking funding for targeted initiatives is likely to be better received by HMT….

“There’s no appetite for, in fact quite an allergic reaction to furlough.”

So does this indicate that Ms Stafford is reporting to you efforts that she’s making at an official civil servant level to try to explore the possibility of furlough funding being made available from the UK Government at this crucial time in Scotland?

Ms Kate Forbes: That’s right –

Lead 2A: And what she got was “quite an allergic reaction to furlough”?

Ms Kate Forbes: Yes, I think there was an intense effort over these days between officials and ministers to engage with the UK Government, and – she obviously characterises the response to requesting reintroduction of furlough.

I was also requesting additional funding for us to be able to not necessarily set up something which was akin to furlough but which would provide sufficient funding to businesses in order to keep their staff employed over that period.

Lead 2A: I see. And there’s a suggestion that more targeted initiatives would be likely to be received, so it’s not a closed door on the possibility of more funding, but furlough was off the table?

Ms Kate Forbes: That’s right.

Lead 2A: Okay.

Of course at this stage the Scottish Government had become, one would imagine, quite experienced at dealing with the threat of the pandemic, there having been two waves before, and indeed one would imagine quite experienced at dealing with anyone they required to deal with in the Treasury in order to try to anticipate the requirements from a financial point of view.

It I think would be fair to say that one must have learned or should have learned from the previous waves that the waves would often come quickly, they would often need urgent action, financial or otherwise, and so good preparation was absolutely mandatory; is that correct?

Ms Kate Forbes: Absolutely.

Lead 2A: Given the fact that although it is fair to say my understanding is that this is when Scotland started to feel the full force of Omicron for the first time, given that Scotland had been in the grip of Delta for some months before this, to what extent had efforts along these lines been made in those previous several months to try to anticipate the need for furlough that might arise as a result of Delta, never mind Omicron?

Ms Kate Forbes: There had been extensive engagement over that autumn period in terms of requesting what I would call the tools to be able to respond, and my tool was primarily funding that could help mitigate the losses experienced by households as well as businesses. So there certainly was extensive engagement. I imagine that this point would have been raised in every conversation I had with the chief secretary to the Treasury and was frequently raised between officials as well.

Lead 2A: Was it the case, generally speaking, that the reaction that you got was along these lines in that period too, because of course Scotland had higher cases in Delta, and therefore one might imagine, logically, that you would have experienced the same problems, because English funding was being made available presumably in accordance with spending priorities for the English situation, as you explained, but to what extent was there any progress in trying to persuade Her Majesty’s Treasury that Scotland was in a different position and therefore needed to be treated differently?

Ms Kate Forbes: Well, we had sought to persuade the UK Government, probably over the entirety of the pandemic, that funding should be aligned with when it was needed in Scotland rather than when it was needed in England.

But perhaps if I could make one point, which is that I often thought that the engagement with the chief secretary to the Treasury and with his officials that were tasked with devolved finance were always good. I would suggest that one major learning is that they were not always – the devolved finance officials were very seldom sighted on what the UK Government might be about to do financially more generally. So they would give us their best evidence, they would seek to be helpful, and they would speak honestly and truthfully when they said no further funding would be provided. And when it was provided 24 hours later, it was largely because they didn’t know rather than because they were in any way being deceptive.

Lead 2A: Right, I see. When you were speaking there, it sounded as if it was slightly reminiscent of some of the other evidence we’ve heard from people in the Scottish Government about information not being shared or not being shared till the last minute, but as I understand your evidence what you’re saying is that happened as a matter of fact but you accept from a financial perspective that that was reasonable in the circumstances; is that correct?

Ms Kate Forbes: It was a breakdown between – amongst officials within Treasury rather than a breakdown between Treasury officials and the Scottish Government, is what I’m trying to say.

Lead 2A: Thank you.

Lady Hallett: (inaudible) shared by the UK Government with its own officials?

Ms Kate Forbes: Precisely.

Mr Dawson: When you were, at a ministerial level, dealing with the UK Government, you were dealing with the chief secretary to the Treasury, was that Mr Barclay for large periods?

Ms Kate Forbes: It was Mr Barclay and then Mr Clarke.

Lead 2A: Right. You were not dealing with the Chancellor?

Ms Kate Forbes: Not directly, no.

Lead 2A: Right. Is that the normal line of communication or …

Ms Kate Forbes: Well, in terms of, I would sometimes be in wider meetings with the Chancellor, but in terms of my face-to-face engagement, discussion and so on, it would always be with the chief secretary to the Treasury, although that didn’t stop me from seeking meetings with the Chancellor or writing directly to the Chancellor.

Lead 2A: Can I take you chronologically right back to the beginning. I’m sorry to jump around, but the opportunity to look at Omicron came up from your evidence.

Right back at the beginning, you had obviously, as we’ve explained, somewhat been thrust into the role that you held for the rest of the pandemic, and as I’ve said already there was, there is evidence available to the Inquiry of increasing concern amongst medical specialists about the position. We have heard evidence, or we’ve seen evidence from an individual who was a civil servant within the health directorate, Mr Grieve, who suggested – whose entries in his notebook suggest that over the period of February there was generally a lethargy, and in fact a relative lethargy when compared with the UK Government, with whom he was having frequent contact, about the way in which the Scottish Government operation was warming up to the threat.

I’d be interested to know from your perspective, in what, for you, was a new role, within the directorates which you were involved in, whether that was a general impression that you would share. Obviously against the background of emerging information, but some of which we’ve looked at and would suggest emerging information which was a basis for considerable alarm.

Ms Kate Forbes: The challenges posed – so I was appointed 17 February and, as you can imagine, being thrust into a job like that and having to complete a budget meant that my primary focus was getting the budget through Parliament. The budget was then nailed down, I believe, on 6 March, and within probably a couple of days the UK Government announced the first tranche of funding for Covid. So from an Exchequer perspective, in a sense we never stopped being in that budget period, and almost immediately we went straight into budgeting for a pandemic.

So from an Exchequer perspective we basically respond to the policy priorities of other parts of the government, and I think it would be fair to say that over the period of February, in hindsight, there should have been a lot more discussion about how to budget for the pandemic, and it was indeed in response to the funding that was made available on 11 March that we really got into that territory.

So I do think that that is a learning and a lesson that we should have, in that first budget, be considering a lot more around how we might have to budget in response to the pandemic.

Lead 2A: We’ve discussed with other witnesses in their specific portfolios, in particular with Ms Freeman, connected to health and other medical and scientific advisers, whether appropriate steps were being taken over that period to try to put in place the kinds of structures that experts were suggesting would be necessary to deal with the threat based on past pandemics and the information that was available. These included things like putting in place, first of all, testing but subsequently tracing facilities, the ramping up of the acquisition of PPE for hospitals, but more widely for the care sector and the like.

One might deduce from the evidence that we’ve heard that in that regard there was a degree of lethargy. Was that lethargy connected to an extent with lack of funding? And to what extent for these unusual events over that period could additional funding have been sought, looked for in a cupboard in another department, so as to be able to try to move more quickly as, on one view, the evidence might suggest should have happened?

Ms Kate Forbes: I’m not sure that I would agree with that, for the reason that when it came to, for example, procuring PPE and ventilators, I would suggest that the Scottish Government kicked into gear very rapidly, and kicked into gear several months before we had actually acquired any funding for the PPE and so on. So in that regard, I think it was an example where understanding the immediate need for PPE – it was my colleague Ivan McKee that immediately looked for Scottish supply chains, worked with business to start manufacturing PPE, and it was only really until the April or the May that we received Barnett consequentials to cover the PPE.

Lead 2A: You say that, but of course the Scottish health directorate will have had available to it a budget which it was entitled to spend any way it wanted?

Ms Kate Forbes: That’s right, yes.

Lead 2A: And it could, I think, in accordance with the procedures that we’ve looked at from a later period, have said “There’s a big problem, we absolutely need to get access, can you try to find some money, please” – to you – “within other budgets, because this needs to take absolute priority”; that could have happened?

Ms Kate Forbes: To an extent, and I think we – we did that. My point being that if you are funding something, then it means an equal and opposite reduction of funding in another area, and within the health portfolio in particular there was nowhere that could justify an equal and opposite reduction in funding. And so, much of this was done at risk, by which I mean they went ahead to procure the PPE before there was agreement with the UK Government around the Barnett consequentials. At risk, I held the corporate risk. And therefore they had, as it were, agreement to go ahead and procure it, even though the funding wasn’t lined up, reflecting the emergency and the urgent nature of the issue.

Lead 2A: So if they required to commit to spending beyond budget, they needed to get your agreement to that? Was that –

Ms Kate Forbes: Yes, they did. Well, it had to held as a corporate pressure.

Lead 2A: Yes, of course.

So I’d just like to explore the concept which one sees in many places that you can’t go ahead with doing things because you don’t have funding for that specific thing. I think we’ve discussed that isn’t quite the way the system works. You can choose to prioritise something, you can choose to try to get guarantees from you about the need for testing, the need for testing systems, genomic sequencing, for PPE. You don’t have to wait until the UK Government gives you the money for that specific thing, because once funding has been allocated or allocated to a department, they can choose to prioritise that any way they want?

Ms Kate Forbes: To an extent. The difference with the pandemic was a question of risk. That may work in normal times, where the risk that you’re holding is in the tens of millions of pounds. The risk we were holding in the pandemic started running to the billions of pounds. So that’s why I use the PPE example, that at the point where it was estimated that they had spent £160 million on PPE, and that may indeed rise to £200 million, that’s when I started engaging extremely intensively with the UK Government, because the UK Government had agreed to supply the PPE and therefore there would be no Barnett consequentials, because that’s UK-wide funding, but I made that point that we had procured our own PPE in order to be prepared and therefore we needed a Barnett share.

So I think the distinction I would make is on risk. You can take some risk but when it starts to mount up and you have a fixed budget to deliver, that becomes more of a concern.

Lead 2A: Were you required or asked to provide further funding to improve testing over this period?

Ms Kate Forbes: That was – that would have been held within the – I don’t recall any specific requests to me in terms of a corporate pressure, so that would have been managed within –

Lead 2A: The existing budget.

Ms Kate Forbes: – the Health budget.

Lead 2A: But a request, in the same way as I understand a request was made, effectively, for additional funding by way of your corporate guarantee, additional funding could have been asked for in the testing sphere?

Ms Kate Forbes: I –

Lead 2A: It could have been?

Ms Kate Forbes: I don’t recall any specific asks for testing. I do recall the health portfolio constantly asking for additional funding more generally.

Lead 2A: Okay.

There are various references that we’ve looked at in early documents, Cabinet minutes and the like – there are occasional references in these amongst the various health information to thought, in a broad sense, starting to turn to what the potential financial implications of whatever it was that was coming would be.

It is our general impression of these, without going to the specific mentions, that there seemed to be little consideration of the likely overall economic impact at that stage, and also that, insofar as any initial attempt at modelling that might be concerned, it seemed to be based on a number of things which, on one view, might be deemed to be broadly analogous but not directly analogous, including the fallout of the 2008 banking crisis, severe weather events, and the like.

In – I think you may have said something about this earlier, but in those early stages was modelling of the likely financial impact done to any extent? Recognising, of course, that this is a situation of urgency.

Ms Kate Forbes: Yes, but I don’t think it captured the full extent of the pandemic that unfolded. So, for example, I recall after – on one occasion, the health budget considering that it might need sort of an additional £800 million or so, and we ended up spending over £5 billion on health.

The general modelling of the impact on the economy I think was pretty consistent with what actually unfolded. So from memory I think Gary Gillespie suggested that about 900,000 jobs would be affected, there would be sort of a 25% or so impact on the economy. But that modelling was probably in late March. So prior to late March I think you’re right in saying that the economic modelling did not capture the full extent of a two and a half year impact on the economy.

Lead 2A: There’s mention in Cabinet minutes and indeed other documentation of the impending likelihood that the virus would affect what are usually broadly referred to as “vulnerable people” the most, and certainly we’ve seen very early indications in the medical information being provided to government that that was part of the unfolding picture really from January onwards.

To what extent are you aware of whether any assessment was done in the period up to March of the likely financial requirements which would flow from the fact that vulnerable people, particularly in Scotland, with its elderly population and considerable health inequalities, would be hit the hardest, and as regards the possibility that they would require significant financial assistance to survive?

Ms Kate Forbes: I don’t recall any specific modelling, but I know that it was well understood that vulnerable people would be particularly hit by the pandemic, and it’s part of the reason why I think one of our first major financial announcements was about £350 million to go towards, for example, food for those that were shielding and support for charities that were working in communities to help with social isolation and so on. So it was certainly uppermost in my mind that sufficient budget had to be made available for, as it were, social support for those alongside the business support.

Lead 2A: You mentioned charities there. We have been given a number of statements by charitable organisations in Scotland and, without wishing to summarise them all too broadly, I think it fair to say that the tenor of what they say is actually relatively complimentary about the provision of funding, although there were certain delays in certain cases.

Was it the view of the Scottish Government at that stage that the charitable organisations could be given relatively small amounts of money to deal with the all the difficulties that various vulnerable groups would experience, because systems did not exist for the government to assist those people themselves?

Ms Kate Forbes: I think that’s fair. And it also meant that it was a very devolved approach. So I could speak to, for example, the charities that operated in my own rural patch that were best placed to respond, and we – I think the first announcement was about £20 million for the third sector in that first tranche of funding.

Mr Dawson: Thank you.

If that’s a convenient moment, my Lady.

Lady Hallett: Certainly. I will return at 11.30.

(11.16 am)

(A short break)

(11.30 am)

Lady Hallett: Mr Dawson.

Mr Dawson: Thank you, my Lady.

Ms Forbes, we had reached, before the break, some discussions about some of the early period, the developing understanding of what the wider financial impacts might be but also the immediate spending priorities.

If I could take you, please, to INQ000214556.

This is – again, we call them minutes, the government seems to call them conclusions, of a Cabinet meeting from 7 April. Could we go – you were in attendance. Could we go to page 6, please.

There is a section here entitled “The Scottish Budget and COVID-19”. It says at paragraph 24:

“In relation to the item in paper SC(20)43 concerning the impact of the COVID-19 pandemic on the Scottish Budget, Ms Forbes noted that the projected net shortfall in the 2020-21 Resource Departmental Expenditure Limit (DEL) budget of £1.6 billion was the highest ever recorded by the Scottish Government at the opening of a financial year, and represented an increase of some £900 million beyond what had been expected when the Budget Bill was approved by the Parliament.

“25. On the basis of discussions with [Her Majesty’s] Treasury to date, it was not expected that there would be any further significant consequentials beyond those included in arriving at that position. In addition, any cost estimates were – due to the nature of the outbreak – highly susceptible to change.

“26. Further reprioritisation and savings options would be essential in order to move towards delivering a balanced budget. To this end, a series of targeted interventions were to be launched at portfolio level to identify further options, the outcome of which were to be included in a paper for consideration by Cabinet later in April.”

I was just keen to try to understand a little bit more, there is a lot of complexity around what’s happening at this time obviously, about where we were financially. Obviously you mention the budget being the highest ever recorded by the Scottish Government and some funding having been made available, what was the position at this time as regards where we were in budget terms, what had been made available, what was the projected deficit, obviously subject to the fact that things were obviously about to be quite turbulent?

Ms Kate Forbes: Yeah. I think a number of points. One is that we had understood that, as it were, the full quantum of Covid consequentials had been granted and therefore the only option to fund any additional Covid costs would have to come from within our own budget, which we did. And I should stress that that came almost entirely from non-Covid areas, so work that had been planned had to be re-prioritised.

It was a really phenomenally challenging time, because it was quite clear that the cost to respond to the pandemic, particularly in Health, were continuing to grow, and there was no access to emergency funding at that point.

Now, I should say that when we look back retrospectively, it seems remarkable because we know over the course of the pandemic over £14 billion in consequentials were received, but at this point I think it would have been in the region of about over £3 billion, and so that’s why we were – we were considering where we might find additional funding from within our own portfolios.

Lead 2A: So you had received that consequential, but for the forthcoming year your understanding was that that was all of them extra money you were going to get, so therefore because there was a shortfall in your projections you would have to find that money from elsewhere?

Ms Kate Forbes: That would be correct. And also if I could also mention, I said earlier, the risk of negative consequentials. So if the UK Government was itself looking for savings, bearing in mind we only receive what’s actually spent, if they had found savings and we understood that the UK Government was doing that, then the risk wasn’t just that there would be no additional money but that we might be in a position where there was negative consequentials.

Lead 2A: That’s at this point, but that –

Ms Kate Forbes: That’s at this point.

Lead 2A: – was subsequently resolved by the guarantee point discussed earlier –

Ms Kate Forbes: Indeed, in the summer.

Lead 2A: In the summer.

Just to understand, the concept of finding money from elsewhere always seems like a difficult one, but presumably were you at this stage able to predict to any extent, because of the fact that in the pandemic there would be certain things that couldn’t be done because of lockdown, capital projects and things, presumably it is – it was possible to find funding in the budget more easily than would normally be the case; is that correct?

Ms Kate Forbes: Well, it was a lot easier to find capital, but of course it’s not capital you need in an emergency like this, you need resource. And so, yes, major infrastructure projects could be parked, but it didn’t actually relieve the pressure. There were areas – so, for example, the expansion of early learning in childcare would be an example which was deprioritised and it freed up funding that could be reinvested and it was resource, which is what we needed.

Lead 2A: The reason I was interested in that particular area really relates to our discussion earlier about the fourth harm, because obviously – the particular example you gave is a good one, but the need to deprioritise things like that will have negative consequences further down the line. So if the government, as you say, was planning investment in early learning for children, that then didn’t happen, which presumably will have exacerbated the difficulties of those children not being able to access that learning, such that whatever should have been there for them wouldn’t be there at the end; is that right?

Ms Kate Forbes: Well, I think in this case it was postponed by a year, if I recall, which actually made sense, because it probably couldn’t have been rolled out anyway in light of the fact that children were not attending school. It may also be helpful to state that about half the Scottish Government’s budget is pay bill, so it’s people.

In light of what the whole government was trying to do in terms of keeping people in work, quite clearly that funding was guaranteed, and we didn’t look to make savings in that respect, which then meant the rest of the budget was under considerable strain.

Lead 2A: I see.

I think in your statement you mention, paragraph 25, pages 9 to 10, that – this is INQ000273982. Thank you very much. From the words “we often”, I think it might be over the page. Yes.

You say there:

“… we often provided funding to mitigate the impact of NPIs rather than avoid the harms of NPIs. For example, if we had invested in better technology upfront for Test and Protect or in Education so that children’s education wasn’t disrupted, the harms might have been less pronounced.”

I’m trying to put this in the context of that period, where you had a lot of difficulty in working out where the money was going to come from. There seems to be a recognition there that there are certain areas where you think greater investment could and should have been made. (a) is that correct, are there other areas that fall into these categories? And (b) why was investment not made in those, given that it would be almost inevitable, wouldn’t it, that, for example, children who are at home, not having learning, perhaps digitally excluded, would suffer significantly?

Ms Kate Forbes: So I think this is one of my primary lessons, I think. That, going back, the response to the initial lockdown was very much to do what we could in order to prevent the spread of the virus. It wasn’t to invest in brand new systems. So I think that principle applies very much to business support as well, that actually if we had invested in systems at the outset that would have lasted the two and a half years, I do believe that some of the other harms would have been lessened.

I mention education. Of course I’m not the Education Secretary, but some local authorities provided digital devices, some didn’t, which meant it was a patchwork. Now, a year later the Scottish Government committed to providing everybody with a digital device, but in the weeks prior to lockdown, assuming that lockdown would be short, it wasn’t considered to be a priority to build brand new systems which, inevitably in the public sector, as you will know, can take quite a long time, and also be very expensive, and we needed to get the money out to relieve the harms, if that makes sense.

Lead 2A: Yes. Indeed.

You mentioned in the statement also the possibility of better technology upfront for Test & Protect. Professor Mark Woolhouse gave evidence to the effect that it was thought that even in, by autumn 2020, the Scottish Government was only finding half of the cases because of deficiencies in the system of testing and tracing. Again, is it the case that better investment in that regard would have helped with the mitigation of what became known as harm 1, but also, as a result, the mitigation of other harms as well?

Ms Kate Forbes: I think it’s a principle that I would apply to everything from Test & Protect to education, that if in the first weeks of the pandemic we had invested in the infrastructure, then we might have – and expected the length of the pandemic, then I think we would have lessened harms. I suppose my point would be that in those first few weeks I don’t think, as Finance Secretary, I would have been permitted to do that by anybody, because immediately cash had to get to businesses, cash had to get to those charities, cash had to get to the PPE. And so we weren’t sitting with considerable sums of money and the time and capacity to build systems.

Lead 2A: You mention there something about the expected length of the pandemic. What was the expected length of the pandemic around the April period that we were discussing?

Ms Kate Forbes: Well, I think by April we were looking at starting to emerge from the first lockdown, and there was a lot of hope. And I think at the time our eyes were firmly set on getting to the summer and emerging from lockdown. You will recall the various documents that were published in terms of a framework for decision-making and the route map out of lockdown.

I do recall comments being made about a second wave, though, so I think that the risk of a second wave was very much on the periphery of our discussions, it wasn’t that it didn’t exist. But at that point it was trying to emerge from the first lockdown.

Lead 2A: Because one might reasonably argue that in the torrid period of February/March a lot of this was new, systems had to be created, there was a lot of pressure, uncertainty, planning for second wave or other subsequent lockdowns or restrictions, that did in fact happen, it might be slightly more difficult to defend those in circumstances where they were more predictable and not quite so torrid. Do you think that would be a fair point?

Ms Kate Forbes: And I think we start to see some of those systems emerge over that summer. So as we came out of lockdown, that first lockdown, over the summer months, I recall, for example, discussions about what systems would be best for providing business support going forward, and so we adopted a new model, which was the levels, where you got a different amount depending on what level you were in when the levels emerged.

But I do think it’s fair that in that summer we could have done even more in terms of building structures and systems. It did feel to an extent like we never actually emerged fully from that lockdown, because Aberdeen then was placed in restrictions, Glasgow, and so on. So I guess the perception was that we didn’t actually ever get to a point of reprieve, the pressures continued.

Lead 2A: Over the summer, of course, it appeared that – from documents we’ve seen that the priority was trying to eliminate the virus within the Scottish Government; is that fair?

Ms Kate Forbes: I think in terms of the objectives of the Cabinet, that may have been a priority. I suppose from my perspective, not being in and around the health elements, my priority continued to be just ensuring that there was sufficient funding for whatever our response was, and clearly other areas went into lockdown and we needed to continue to fund it.

Lead 2A: Because one of the phenomena that comes through in the evidence we’ve seen from disabled groups, other vulnerable people, ethnic minorities, children, women, elderly people, is that they saw no tangible improvement in the support that was provided for them throughout the two years plus of the entire pandemic. And, as I say, whereas one might, and I think they might, be relatively sympathetic to the torrid times of February and March, the tenor of their evidence is that they are far from sympathetic about what the Scottish Government did for them in the later part of the pandemic, from summer 2020 onwards.

Is it your position that the Scottish Government ought to have done more in recognition, and in the knowledge of what happened in the early part of the first wave, to protect the most vulnerable and indeed invest sums of money to ensure that that happened?

Ms Kate Forbes: Yes. And can I use the opportunity to express my immense sorrow at the devastation that was wreaked amongst so many families but also the personal cost and loss for those that had to shield, those that had to isolate, and particularly those that were separated from family over that period. And I do agree – I recall, for example, some additional investment in, for example, care homes to assist them with digital resources to connect with families, but that seems small in comparison with the billions of pounds that were being spent, for example, on financial support for businesses and so on.

Lead 2A: If groups like that or members of Scottish society more widely wanted to know what it was that the Scottish Government had spent its money on, the additional money that we’re talking about, the budgeted money as it changed and more money came through, it would be important, would it not, that the Scottish people would be able to access the information about what it had been spent on?

Ms Kate Forbes: Yes.

Lead 2A: In his, again, helpful analysis of matters, Professor Cairney drew our attention to an Audit Scotland report which identified a range of unresolved concerns about Covid-19 governance effectively to do with the ability of that body to access what the money had actually been spent on. No doubt complex. But was that, or is that, as far as you’re concerned, an issue which remains unresolved, justifying to people who will have had promises made to them that investment would be made in their sector, to help their children or their family or their disabled relative or whatever, their relative in a care home, that they are now not able to access information which tells them whether that money was actually spent in the way that they expected?

Ms Kate Forbes: Well, it’s obviously a very complex picture, but I agree with the principle that it is absolutely imperative that everybody in Scotland can understand where the funding was spent.

There was a number of initiatives that we took to try to make that clearer, so for example where we normally had two budget revisions we increased it to three. But one of the challenges in making it crystal clear is the way in which the funding was both informally and formally being dealt with. So often at the point that an announcement was made, it may have already been the case that we had informally allocated that funding on the basis of Treasury conversations, and it was also the case that, when we moved into the guarantee period, announcements were made which created a basic expectation, which was then spent. So I think the challenge with the complex picture, and obviously Audit Scotland has considered this in great deal, is that it was – there was a lot of moving pieces and every time we took a snapshot it was out of date probably within a matter of hours, if not days.

So during the pandemic, it was extremely complicated to try to pinpoint precisely what was happening.

Lead 2A: Those might well be reasons why if commitments were made, changing circumstances meant that those couldn’t always be fulfilled, because other things came along or what you expected to get from the UK Government wasn’t quite what you ended up getting, but it’s not quite the same question as being able to work out in the end whether or not monies were spent as they had been committed. It is important that people are able to understand that information, is it not?

Ms Kate Forbes: Absolutely.

Lead 2A: In particular because a number of representative organisations, some of the charitable organisations referred to earlier, spent a considerable amount of time and effort trying to lobby government to make sure that funding would be available, presenting arguments as convincingly as they could as to why that money was required, obtaining what they considered to be guarantees that it would be spent to meet the needs which they had identified and argued for, and they find themselves in a position of not being able to know whether that ever happened, and also in a position where, because of the considerable harms experienced within their particular constituency, they have a lingering suspicion that money was not spent as it was promised.

Ms Kate Forbes: I’m very sorry to hear how much efforts those groups have gone to to try to get answers to their questions, and I – I don’t think there’s any way but to say that it should be clear where promises were made how the funding was spent.

There are a number of documents that are published in terms of, for example, the Scottish Government accounts which will obviously go through in detail what money was spent and where, but if there are specific areas, then I don’t disagree with the premise of your question that that is probably a lesson that should be learned in terms of the clarity of public accounting and public budgeting in terms of linking funding.

I can obviously say with complete commitment that every single penny of Covid consequentials was spent on tackling Covid. And I can also say that there was – even with £14 billion, it could not in any way compensate for losses that have been experienced by any part of society.

Lead 2A: Thank you.

In your evidence broadly I think you’ve mentioned this already, I understand that, perhaps unlike some of your ministerial colleagues, you I think enjoyed a generally quite positive relationship with the UK Government ministers with whom you interacted; would that be fair?

Ms Kate Forbes: Well, I had a priority to keep it constructive because my end goal was ensuring that there was adequate funding, so …

Lead 2A: Yes, yes, I’m just trying to understand, would that be a fair reflection of your position –

Ms Kate Forbes: I think it would be fair, I think it would be fair that it was constructive.

Lead 2A: Yes. I would like to ask you some questions about the furlough scheme, which we’ve touched on already in connection to the Omicron wave and the apparent non-availability of furlough funding.

This was a considerable issue around the period we looked at earlier, around September, October and into the end of the year, when, as we understand it from previous evidence given to the Inquiry in Module 2, advice was tendered by SAGE, the advisory body, that there should be a firebreak or circuit-breaker lockdown to try to deal with the rise in cases at that time.

As we know, Scotland was also experiencing a rise in cases which, as I said earlier, led to the First Minister announcing on 7 September that there would require to be a slowdown of the easing of lockdown, and subsequently we know cases started to rise further.

Over this period we understand that it was the Scottish Government’s position that it had concerns about whether, if it required to impose a further lockdown, which was advised at one stage by the Chief Medical Officer and other medical advisers, that that would be difficult in the absence of any guarantees about funding. And on 1 November a public statement was made by the First Minister related to this issue which, as I understand it, was responded to the very same day by the Prime Minister, giving commitments that any devolved nation lockdown would be – would attract furlough funding.

Because this is an area in which you had significant engagement, I was interested to explore your perspective on it. Was it before 1 November – if my narrative is broadly in accordance with your recollection, was it before 1 November the Scottish Government’s position that it legitimately did not understand whether furlough funding would be available if a lockdown was necessary in Scotland?

Ms Kate Forbes: I would push that further and make the point that we believed it would not be available.

Lead 2A: What was the basis for that understanding?

Ms Kate Forbes: The Chancellor had announced, if I recall correctly, on 25 September that the furlough scheme was due to come to an end on 31 October, to be replaced by the Job Support Scheme, and over that month of October we intensely lobbied the chief secretary to the Treasury to ask that furlough be extended, and if it couldn’t be extended for the whole of the UK, it would be extended for those devolved governments that needed it.

Our concern was that it severely constrained the period within which we might be able to introduce some form of lockdown, because in the previous lockdown furlough had been absolutely critical. So we, in that October – and by that point also furlough had been reduced, so employers were being expected to compensate for more of the replacement of furlough. So in that October break, we obviously announced some financial support, and also part of that was very much tailored to try to compensate for the top-up on furlough that had been removed.

But in those engagements, I think if I recall correctly in one meeting the Welsh Finance Secretary actually saying that they would fund a replacement for furlough themselves. The difficulty for all of us is that none of us could control the administration of furlough, because it was HMRC, and that was reserved.

Lead 2A: So just to be clear, over that period of October at least, you were lobbying the UK Government for commitments in this regard, but you – not only did not get a commitment you got a positive no, if you like?

Ms Kate Forbes: Yes, there was no inch given that I can recall, there was no hint that it would be extended, there was no suggestion. And indeed where we had suggested alternatives, for example, doing a top-up ourselves but needing help with the administration, even that was not supported.

Lead 2A: So you made suggestions that you would fund it yourself as long as they helped with the administration?

Ms Kate Forbes: Well, we were open to all alternatives. I think the example I gave was actually from the Welsh Finance Secretary rather than from me, because we were quite constrained financially at that point.

Lead 2A: It seemed to us to be slightly politically odd, in the circumstances where the UK Government in terms of the 2020 Act had accorded in the schedules to that Act significant powers to the Scottish Government to impose social distancing restrictions and up to and including a lockdown, and that, as you say, by that stage there appeared to be an acceptance, if I understand your evidence correctly, that furlough was an essential part of a lockdown, that politically it would really be possible for the UK Government in those circumstances not to fund it, in particular in circumstances where at some future time England might have to have a lockdown and it be funded.

Would you agree with that assessment and was that the Scottish Government’s position at the time?

Ms Kate Forbes: Yes, and it did seem strange, because we were making the arguments throughout that period of the need for financial or economic support to match the health response, and so it seemed somewhat remarkable that our prophetic comments actually resulted in our fears happening where furlough was only extended on the eve of an announcement of lockdown in England.

Lead 2A: Had discussions taken place about the possible requirement for furlough, the UK Government’s position in that regard, before October?

Ms Kate Forbes: It had taken place over the – our conversations about furlough probably took place right throughout the summer, I would suggest, because we had been told that it would come to an end at some point, and –

Lead 2A: What I mean, to be clear, is discussions about the possibility of the need for a further furlough scheme in connection with further lockdowns rather than the one that was still in Scotland, certainly going on in the summer of 2020?

Ms Kate Forbes: Yes. Largely because we had seen the need for localised lockdown in Aberdeen and in Glasgow. So my memory of the summer is that we never actually came out of some form of lockdown because of those localised outbreaks, and so it felt like the proof of the need was there.

Lead 2A: You mentioned that the – the Welsh situation, which certainly seemed to us to be relevant, that Wales of course had a firebreak lockdown for 17 days starting on 23 October, and we have some information in a statement from Mark Drakeford, First Minister of Wales, where he said that he wrote to the Chancellor of the Exchequer to seek an extension of the job support scheme for the firebreak lockdown proposed in Wales, and claims that the Chancellor refused. He says that the firebreak lockdown came into effect on 23 October without the financial support of the UK Government and he states that the Chancellor of the Exchequer refused to fund the consequences of a public health decision taken in Wales. And he described that decision as one of the most misguided decisions of the whole pandemic, saying that the Treasury was acting as a Treasury for England not a Treasury for the UK.

Now, you’ve already mentioned the Welsh position. Would you say, although Scotland didn’t have a lockdown at that time so it didn’t suffer that particular consequence, was that – does that indicate the same sense of frustration in this regard that the Scottish Government had around this issue at that time?

Ms Kate Forbes: I would say so, yes.

Lead 2A: Was it a matter, and we’ve heard evidence that this happened on over occasions, on which the devolved administrations rather stood together and the UK Government took a position that they couldn’t quite fathom?

Ms Kate Forbes: Very much so.

Lead 2A: Thank you.

You do say in your statement at paragraph – page 19, paragraph 46, you say:

“Ultimately, I don’t believe that a lack of clarity or standardised mechanisms had a material impact on decisions about managing the health harms of the pandemic, but it added risk to the decision-making process and may have affected other harms like economic harms.”

Is that you in this regard, as we understand it, bringing together the fact that although this was a problem, and you’ve explained why it was a problem, ultimately it didn’t affect decisions about restrictions or lockdowns, as it appears to have done in Wales, because Scotland wouldn’t otherwise have done anything any differently as regards to the restrictions, based on the medical advice it had at the time?

Ms Kate Forbes: I think by and large, yes, that is the case. So in terms of the examples, that circuit-breaker, we – it was still introduced despite the fact that I think only £27 million were sourced to fund business support. Compare that with the £2.2 billion at the beginning of the first lockdown.

So that measure was still introduced. It did mean, however – I mean, there was no way during the Covid lockdowns we could in any way compensate for loss of trade for business, but we could try to mitigate the harms. So I do think that the decisions were still made. And I think, if I could add, the First Minister was ultimately I think absolutely focused on the health impacts and reducing the impact of the Covid health harms, and I think was often braver in doing what needed to be done irrespective of some of the other challenging situations facing businesses.

Lead 2A: Just to be clear, you mentioned a circuit-breaker there. Scotland didn’t have a circuit-breaker at this time.

Ms Kate Forbes: This was at the October, I’m talking about the October.

Lead 2A: But we didn’t have a circuit-breaker at that time.

Ms Kate Forbes: We – well, in terms of the measures that were taken over the October holidays, is what I’m referencing.

Lead 2A: Yes.

Ms Kate Forbes: The restrictions that were introduced –

Lead 2A: Yes –

Ms Kate Forbes: – sorry –

Lead 2A: – there were, of course, restrictions –

Ms Kate Forbes: Yes, the restrictions that were introduced, apologies.

Lead 2A: But to be clear, your position is that ultimately, although these added risk, you say, and one can understand why that’s the case, they didn’t ultimately affect the decision that the Scottish Government considered was the best decision to take in the interests of harm 1, minimising the effects of the virus –

Ms Kate Forbes: Not in a material way, no.

Lead 2A: Right, thank you.

You mentioned there the determination of the First Minister to combat harm 1 and to have her own strategies around that, and we’ve heard a lot about that in the evidence we’ve already had. Do you think that, in particular given the fact that the Treasury is a reserved matter, Scotland adopted a policy of “Fight the virus now, worry about the financial consequences later”?

Ms Kate Forbes: Well, they certainly took an approach of “Fight the virus now”, but I can assure you I did a lot of worrying about the finances throughout the pandemic.

Lead 2A: I’m sure you did, but as regards – you mentioned earlier that it was the First Minister who was the one who was driving the strategy, and I’m asking you whether that strategy, which ultimately became Scotland’s restrictions strategy, which of course differed from other nations in the United Kingdom, whether that strategy – it obviously prioritised harm 1, but whether it did that unreasonably to the detriment of other harms, including economic harms?

Ms Kate Forbes: I think that with every new introduction of an NPI, there was no harm-free option ever before us. And I saw my job as trying to ensure there was sufficient funding for whatever decision was deemed to be the best for the health reasons. So, in that sense, I do think that harm 1 was prioritised over everything else. But the justification for me was that the only way to ultimately resolve harms 2, 3 and 4 was to manage the Covid impact. So in prioritising harm 1, and trying to ensure we dealt with harm 1, we could hope to emerge from whatever NPI it was, whether it was lockdown or otherwise, and then start the road to recovery for all the other harms.

Lead 2A: There might be something of a logical issue with that, in the sense that what you’re suggesting is that the premise was as long as you deal with harm 1 everything else will take care of itself, but what is required, is it not, in terms of the four harms strategy, if nothing else, is a balancing of whether what is done for harm 1 is proportionate to what happens to harms 2 to 4?

Ms Kate Forbes: Yeah.

Lead 2A: Are you suggesting that the prioritisation, certainly in 2020, which is the period we have been looking at, of harm 1 was done at the decision-making stage without adequate consideration of the other harms?

Ms Kate Forbes: No, I think there was a lot of consideration, but – you know, there was – it was never the case that – let’s take harm 4, it was never the case that the economy could recover or be free of harm for as long as Covid existed. So any financial support that we could identify would never compensate for loss. It could only mitigate the harm.

Lead 2A: Yes.

Ms Kate Forbes: And what businesses wanted was ultimately to be able to trade completely freely, but it wasn’t within anybody’s gift to enable that for as long as Covid existed, because even when we came out of lockdown, there were other NPIs in terms of distancing that had an impact on them.

And that’s – my logic here is that – and, you know, I faced off to businesses, I met businesses probably on a daily basis, particularly when I became Economy Secretary, so I heard their stories of anguish, the harm – harm 4 is often characterised as business and the economy, it was people, it was workers, it was their mental health, and the pressure on an employer to give their workers reassurance.

So throughout the two and a half years, whether we were in lockdown or out of lockdown, there was an economic harm, and the only way to ultimately resolve that was to deal with the Covid health harm.

Lead 2A: What some might suggest is that that is a process whereby, although of course information was being gathered about the various harms and was on the table, the ultimate decision-making only focused on harm 1 and that ultimately what that meant was that the decision-making was not balanced or proportionate.

The owners of those businesses with whom you were meeting, many, many small businesses closed in the pandemic. The owners of those businesses might well suggest that a greater degree of priority should have been given in the weighing of the balance of allowing their business to open up to some extent, keeping some social distancing in place to manage harm 1, but that that would have been a more equitable balance.

Is your position that harm 1 was always prioritised on the assumption that the other harms would take care of themselves thereafter?

Ms Kate Forbes: Certainly not that they would “take care of themselves”, but I think where this became really concentrated was in, for example, the route map out of lockdown, and many businesses would have wanted to re-open earlier than they were able to. I think also going forward – in the first lockdown there was widespread acceptance of the need to lock down, and going forward, having suffered catastrophic losses in the first lockdown, businesses just did not have the resilience. And so I think that – I certainly believe I tried to weigh up all of the harms, but there was no harm-free option ever on the table, and so it was trying to figure out how to lessen the harm rather than to eradicate it completely.

Lead 2A: That might have been the process going on in your head, but you weren’t present at any of the gold meetings that took place in 2020, were you?

Ms Kate Forbes: I wasn’t.

Lead 2A: Okay.

So I just have a couple of areas that I’d like to try and cover with you, if I can.

Lady Hallett: Before you do, Mr Dawson.

Given your seniority in the Scottish Government, why weren’t you at the command meetings in 2020?

Ms Kate Forbes: I don’t recall – well, I wasn’t obviously invited.

Lady Hallett: Well, you obviously don’t know because you didn’t make the decision, but do you have any idea?

Ms Kate Forbes: I don’t. I wasn’t invited. I’m not even sure I was aware that they existed, because I remember, when I was invited to my first one, not really knowing what it was until somebody explained it.

Lady Hallett: You would have expected to be invited, wouldn’t you?

Ms Kate Forbes: Well, I would have expected to be invited to any meeting where there were significant financial implications.

Lady Hallett: Sorry, Mr Dawson.

Mr Dawson: Thank you.

A couple of areas. The first one I was going to try to cover with you was Eat Out to Help Out. We mentioned this earlier. This was a – as I understand it, an example that I cited earlier of a direct UK Government spend in Scotland. Is that right?

Ms Kate Forbes: Yes.

Lead 2A: And in your statement you say at paragraph 77 on page 29 that:

“We recognised the significant economic opportunity of the scheme but reservations were expressed about how it might encourage the spread of Covid-19. It was introduced on a UK-wide basis, without any decision-making or funding implications for the Scottish Government.”

So what that means is you didn’t need to find money in the budget for it, the budget came directly from the UK Government, but to what extent were you aware before it was introduced, I think on 3 August, that this was something the UK Government was going to do?

Ms Kate Forbes: I had no knowledge.

Lead 2A: As far as you understand it, is that the position across the Scottish Government.

Ms Kate Forbes: It’s certainly the position of anybody I’ve ever spoken to about it.

Lead 2A: Is it correct to say, given your expression there about reservations to do with the possibility it may encourage the spread of Covid-19, that this was not consistent with the Scottish Government’s then policy, strategy if you like, to seek to ease the lockdown slowly in order to try to suppress the virus?

Ms Kate Forbes: Well, that – that would – the reservations that I was conscious of was that it was likely to result in more people meeting together and therefore the virus spreading.

I should also say, though, that recalling all the meetings I had had with those businesses who had suffered catastrophic losses and the anguish they faced in some cases meant that it was largely popular amongst the stakeholders that – the business stakeholders that I was engaging with.

Lead 2A: That’s why you say that you recognised the significant economic opportunity from that perspective; is that right?

Ms Kate Forbes: Yes.

Lead 2A: The last thing I’d like to cover with you quickly, another area that we’ve covered, and you’ve explained that your role in this somewhat evolved before and after the election, it’s engagement with stakeholder bodies.

What was the policy as regards you or other ministers in your department engaging throughout the pandemic with business or representatives of business in order to get as full a picture as possible about the impacts on them?

Ms Kate Forbes: I would characterise it as extensive and constant.

So prior to the – my new role in May 2021, I still engaged. I would suggest that officials were engaging with the main business organisations on a daily basis. We would often seek their input to business support, for example. There was at least twice-weekly engagement between me and those business organisations, when I became Economy Secretary, to discuss what they were experiencing and why the Scottish Government was adopting certain policies.

Lead 2A: And before that I think you said that that was part of your role although not as prominent a part of your role; is that right?

Ms Kate Forbes: Yeah. Yeah.

Lead 2A: And before that, and perhaps after that, other ministers would have been doing something similar?

Ms Kate Forbes: Yes, I would have assumed so.

Lead 2A: Yes. And we’ve heard some evidence in the sessions that we’ve had from a representative of the STUC who told the Inquiry that they felt that there was a degree of consultation, as you’ve mentioned, but when they were consulted they felt as if the decision had already been made. Do you recognise those concerns and do you have any explanation as to why they exist?

Ms Kate Forbes: Yeah, I think that tension existed with nearly all of the stakeholder engagement work we did, including with the STUC. Largely because – each representative organisation obviously had concerns, they had desires for change, and we would then take that back to Cabinet, or we would have come from Cabinet, where those were also being balanced with other considerations across the four harms. So I would say that we tried to feed in all of those concerns and issues, but for every individual that said one thing there was another individual that would say the opposite, and in Cabinet we were trying to balance all of that. I think we tried to get the balance right, but it often left stakeholders disappointed that their particular issue hadn’t been delivered in full as they envisaged.

Lead 2A: You obviously can’t please all of the people all of the time, Ms Forbes, but is it perhaps the case that the STUC’s concern was based on the fact that no doubt they were lobbying on behalf of workers across Scotland, their various – parts of their organisation, that what they felt was that the decision had already been made because the decision was always to prioritise harm 1 and never deal with the concerns that the workers they represented were raising with them?

Ms Kate Forbes: I wouldn’t agree with that latter part in terms of never prioritising workers, because I think that throughout the pandemic we did seek to prioritise workers and workers’ rights.

What I would say in terms of balancing those harms, I would say that towards the middle of the pandemic there was an active shift – I certainly tried to deliver – which was to discuss a decision with a stakeholder group before it was made. There were always some elements of risk in terms of confidentiality, announcing decisions before you announce it to Parliament, but to try to bring issues to those stakeholder groups before it was made rather than after. And I think there was a bit of a mix throughout the pandemic of the point at which we engaged stakeholders.

Lead 2A: When did that shift occur? I mean, in the middle, might be about the time of the election, something like that?

Ms Kate Forbes: No, it would have been after the election, I would say. I remember trying to implement that shift in summer 2021. I was newly in post, Cabinet Secretary for the economy, and thinking: wait, can we build more of a trust here? And say, “Look, these are the problems that we’re trying to resolve, what do you think?” And then taking that into Cabinet.

Lead 2A: Do you think it would be fair to say that that –

although that was obviously a personal initiative on

your part, that would be part of a wider government

initiative at that stage to try to turn the attentions

more on the other harms and away from managing the virus

itself, to achieve a better balance?

Ms Kate Forbes: Yeah, I think harm 1 obviously continued to be

prioritised but I do think that there was more interest

in proportionality, although that had probably started

to shift in the previous October, I would suggest.

Mr Dawson: Thank you.

Those are my questions, my Lady. I don’t understand

there are any CP questions.

Lady Hallett: I don’t think so. Thank you very much


Thank you, Ms Forbes, I’m deeply grateful for your


The Witness: Thank you.

Lady Hallett: Thank you very much.

(The witness withdrew)

Mr Dawson: The next witness, my Lady, is the

Right Honourable John Swinney MSP.

Mr John Swinney


Questions From Lead Counsel to the Inquiry for Module 2A

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

Mr Swinney.

The Witness: Not at all, my Lady.

Mr Dawson: You are John Swinney?

Mr John Swinney: I am.

Lead 2A: You have helpfully provided two witness statements, to this module at least of the Inquiry. The first is under the number INQ000287771 and is dated 3 October. Is that your statement?

Mr John Swinney: That is my statement.

I’m very grateful, Mr Dawson, for the Inquiry allowing me to complete a sentence which I was mortified to read at the weekend that I had not completed. So that has been amended in this version –

Lead 2A: Thank you.

Mr John Swinney: I’m grateful to the Inquiry for –

Lead 2A: I was going to ask you whether you’ve signed the statement?

Mr John Swinney: I have signed it, but I signed the one without the –

Lead 2A: Yes.

Mr John Swinney: – completed sentence.

Lead 2A: I understand that you realised you’d missed out half a sentence and you have helpfully included that in the final version, if you like. Does the statement with the inclusion of that final half sentence remain true and accurate as of today’s date?

Mr John Swinney: It does.

Lead 2A: You provided a further statement to the Inquiry on

16 November 2023 under reference INQ000273979; is that


Mr John Swinney: That’s correct.

Lead 2A: Is that your statement?

Mr John Swinney: That is my statement.

Lead 2A: Have you signed that further statement?

Mr John Swinney: I have sign –

Lead 2A: And does it remain true and accurate as at today’s date?

Mr John Swinney: It does.

Lead 2A: We also have had a number of corporate statements from

various directorates of the Scottish Government

connected to matters that were within your very broad

ambit during the course of the pandemic, to which I may

make reference as we go along, and you helpfully also

provided a statement to Module 1 in which you also gave

oral evidence dated 5 May, which we’ve already looked at

in previous hearings.

Mr John Swinney: That’s correct.

Lead 2A: Can I ask you a little bit, first of all, just about

your background. You were the Deputy First Minister of

the Scottish Government between November of 2014 and

March 2023?

Mr John Swinney: That is correct.

Lead 2A: You were Cabinet Secretary for Finance and Sustainable Growth from May 2007 to May 2016?

Mr John Swinney: That’s correct.

Lead 2A: You were Cabinet Secretary for Education and Skills from May 2016 until May 2021?

Mr John Swinney: That is also correct.

Lead 2A: You were Cabinet Secretary for Covid Recovery from May 2021 to March 2023?

Mr John Swinney: That is also correct.

Lead 2A: And you are a Member of the Scottish Parliament for Perthshire North?

Mr John Swinney: I am.

Lead 2A: You set out in your statement a number of the ministerial responsibilities you had over different areas, and as they evolved during the course of the pandemic.

You say in your statement of 3 October at page, between pages 1 and 2, paragraph 9 and at pages 4 to 5, that you led the policy response within Scottish education from the start of the pandemic to May 2021. Is that correct?

Mr John Swinney: That’s correct, yes.

Lead 2A: You also participated in your various capacities in the collective decision-making of the Scottish Government in response to the pandemic?

Mr John Swinney: I did.

Lead 2A: You led the process of recovery from Covid, including the relaxation of restrictions from May 2021?

Mr John Swinney: I did.

Lead 2A: You were accountable for the handling of the pandemic on a resilience basis?

Mr John Swinney: That is correct.

Lead 2A: And you were involved in the development and implementation of something we’ve heard a lot about, the four harms framework?

Mr John Swinney: I was.

Lead 2A: You say in your statement:

“As Deputy First Minister, I would generally be involved in other matters that required leadership and direction where that matter did not immediately fall within the responsibilities of any of my Ministerial colleagues.”

Is that correct?

Mr John Swinney: That is correct.

Lead 2A: You provided a core function in the taking of key decisions and the development of the Scottish Government’s Covid pandemic strategy?

Mr John Swinney: I think that would be a fair comment, yes.

Lead 2A: Just on one aspect of what we’ve just looked at, you were appointed as the minister for Covid recovery after the May 2021 election; is that right?

Mr John Swinney: That’s correct, yes.

Lead 2A: What – as far as the strategy of the Scottish Government towards the pandemic was concerned, what was your understanding of the reason why you had been appointed to that post, and what does that tell us about the overall direction of the strategy and how it was evolving?

Mr John Swinney: My appointment in May 2021 to the role as Cabinet Secretary for Covid Recovery I think was a recognition by the First Minister that we needed to ever more turn our attention to recovering from Covid and to make sure there was a whole-government response in a co-ordinated and cohesive way to that effort.

So what I think we had learned during the course of the pandemic was the importance of cross-governmental working that took place on an ongoing basis, it was an essential characteristic of how we handled the pandemic. And the First Minister was keen to make sure that that approach was maintained in the period of Covid recovery, which we considered that we were in or we had to get ourselves into, notwithstanding the fact that the pandemic wasn’t in any way over, it was still very much present, but we had to be mindful of the importance of recovery. And I think also, lastly, the First Minister took the view that the approach which you referred to, Mr Dawson, about the four harms, which I had been instrumental in putting together on the government’s behalf, provided a foundation that enabled us to consider the basis of how a recovery would be constructed. And I think that would sum up the reasons why that particular post was identified and I was appointed to it.

Lead 2A: As far as the four harms were concerned, we’ll come back to look at this in a bit more detail, Mr Swinney, but just on this particular passage or period of time, would it be fair to say that for a variety of reasons, including the emergence of the virus and the threat, that in the period before the election the focus had remained on what is defined as harm 1, the fighting of the virus, whereas in the period after the election, coincident with your appointment as Covid recovery minister, the focus turned in earnest to the other harms which had been done by what had occurred over the previous year?

Mr John Swinney: I wouldn’t say that would be my view. The four harms framework was launched in April 2020, and it provided a basis for us to take decisions, which I think really, from that moment on, allowed us to rationalise what those choices could be, given the prevalence of the pandemic. So there was a – when the country faced the circumstances that we faced in March 2020 and went into lockdown, there was a very clear, obvious, perilous threat to health from Covid which had to be addressed. Without that, you know – I’m sure we’ll talk about these things – there would have been very significant and damaging consequences for more people than there already were as a result of Covid.

But we recognised, I think quite early on, that there were other harms being done, hence the construction of the four harms framework to give us a basis of beginning to think about: how do we move out of that dire emergency into a situation where we could begin to relax restrictions to any extent?

And I would cite in all of that, a question which was very intimate to my responsibilities at the time in 2020 was the issue about school closures and school re-opening, because I would contend the government’s actions in that respect were addressing the other harms beyond the immediate health harm of Covid, and those were decisions that were taken in the summer of 2020, so in advance of my appointment as Cabinet Secretary for Covid Recovery. So I think the – I think what I would say is that the four harms framework began to have its effect in 2020, prior to the election.

Lead 2A: You mentioned there your response – particular responsibility for education during the period before the election. Did the multiplicity of roles and responsibilities that you had mean that it was difficult for you to be able to devote the requisite energy that was obviously required to address any one single component part of your various portfolios, in particular education?

Mr John Swinney: I wouldn’t say so. I worked all the hours that God sent at that time, seven days a week, from early in the morning to very late at night, and I gave it my all –

Lead 2A: You wouldn’t say though it was difficult? I asked whether it was difficult.

Mr John Swinney: It was challenging, there were multiple demands on my time, and obviously in that period there were huge demands from a whole variety of different directions, but I gave it my level best.

Lead 2A: Could I ask you some questions, please, about the ways in which you communicated with other people when you were acting in your various responsibilities during the course of the pandemic.

You have helpfully provided us with the witness statement of 16 November, which is INQ000273979, and you tell us in that statement about various different ways in which you communicated with other ministers and senior advisers. You tell us there, for example, that your contact with Nicola Sturgeon:

“… tended to be in person conversations or by telephone, and there would be likely be a text message exchange to arrange a conversation. I do not believe we ever communicated by WhatsApp.”

Are those text messages with Nicola Sturgeon still available to you?

Mr John Swinney: They’re not available, Mr Dawson.

Lead 2A: Have they been deleted?

Mr John Swinney: They have been deleted.

Lead 2A: Were they deleted manually or by some auto-delete function?

Mr John Swinney: They were deleted manually.

Lead 2A: Why?

Mr John Swinney: Because I was always advised by my private office that I should not hold information that was not – that was relevant to the government’s official record in what are called ungoverned sources. So throughout my ministerial career, I have deleted material once I have made sure that any relevant information was placed on the official record of the government, and that was the approach that I was advised was the appropriate approach for me to take, which was to put all relevant material onto the government’s official record and then to delete it.

Lead 2A: What was your understanding of the source of that obligation?

Mr John Swinney: That was advice given to me by my private office, as far back as 2007, when I entered government, and it was also consistent, in my view, with the government’s record management policy, which makes it clear that information that is held in ungoverned sources should be placed on the official record of the government, and then deleted. And I also think it’s consistent with the obligations of the Ministerial Code, which indicates that where a civil servant is not present for a conversation involving a minister, any relevant information should be placed on the official record and – and – through dialogue with the private office, which would be – the primary channel of my dialogue with the government would be through my private office.

Lead 2A: What do you mean by “ungoverned sources”? It seems slightly concerning there would be any ungoverned sources of the conduct of Scottish Government business.

Mr John Swinney: Well, that’s anything that’s not on the official record of the government, is what I think would be the definition of “ungoverned sources”.

Lead 2A: So what you mean by that is telephones and things like that which are not controlled by the Scottish Government?

Mr John Swinney: No, what I’m saying is that anything that’s not on the official record of the government is essentially an ungoverned source.

Lead 2A: So that would include absolutely everything, would it not, until it was included on the official record?

Mr John Swinney: That’s correct, yes.

Lead 2A: When you say that material was placed on the official record and then deleted, can you explain what your understanding is of what material you required to place on the official record?

Mr John Swinney: What I would consider that to be is any material that is relevant to the contact or the dialogue that has taken place, and I would essentially do that by sending an email to my private office. I make reference in my statement to the email account that I used, it’s a Scottish Government email account. I would email from that email account – you know, I wouldn’t be surprised if I emailed from that email account hundreds of times a day – to submit material to my private office on responses to submissions, on instructions that I wished to be undertaken, on any questions that I had, or on any information that I believed had to be added to the official record of the government.

Lead 2A: So amongst those hundreds of emails a day there will be some that contain the process of you conveying to your private office important information which has taken place in these ungoverned sources which needs to be placed on the official record by them?

Mr John Swinney: That is correct, yes.

Lead 2A: Okay. You say that you had infrequent text messages with Jeane Freeman, Ms Jeane Freeman, and have provided us with one WhatsApp exchange between you and her. This consists of four messages exchanged on 7 April 2020, and two messages exchanged on 24 December 2021.

Is that the extent of the communications you had via WhatsApp with Ms Freeman or did you manually delete messages and this is all that remains?

Mr John Swinney: That’s all the exchanges with Ms Freeman.

Lead 2A: It’s the full extent of the exchanges that occurred?

Mr John Swinney: Yes, yeah.

Lead 2A: You had reasonably frequent WhatsApp messages with the now First Minister, Mr Yousaf. You were not able to provide any of those messages, but we saw some of those messages last week when the now First Minister gave evidence. He retained these messages and fortuitously discovered them on an old handset.

There are 18 pages of WhatsApp messages between 19 June 2020 and 6 April 2022. Did you message Humza Yousaf before June 2020 via any informal means?

Mr John Swinney: I can’t recall if that is the case, but I should also probably state for the record and for completeness, that once Mr Yousaf had made the public statement that he had retained his messages, I asked if I could have a copy of any that were relevant to me, and I’ve made those available to the Inquiry.

Lead 2A: Yes, yes. So he was able to provide messages over the period that I’ve indicated because he found them on his device, but they were not on your device?

Mr John Swinney: They were not.

Lead 2A: They had been deleted –

Mr John Swinney: They had been –

Lead 2A: – in accordance with the policy that you’ve outlined already. Was it the case that these messages were deleted one by one manually or were they subject to some sort of auto-delete function, which I understand one can apply to WhatsApp messages?

Mr John Swinney: They would be deleted by periodic deletion once I was satisfied I had told the – my private office any material that was relevant. And I would be doing that on an ongoing basis so that I was not facing, you know, a large number of messages that I potentially would have to delete on one occasion.

Lead 2A: Thank you.

You tell us about exchanges, helpfully, with a number of other individuals and the means by which you communicated. I think broadly speaking the case is that you have not been able to provide us with those messages, although again some of the correspondents have been able to provide some of the messages to us. Is that broadly correct?

Mr John Swinney: That’s correct, because of the approach that I was taking to the recording of information that was relevant to the government’s official record.

Lead 2A: It would be possible, would it not, in light of the fact that these messages have been retained by others, for us to look at the messages that we have, not retained by you, and look at the emails by which you communicated what needed to go on to the official record and work out whether the right material had been put on to the official record; that would be possible, wouldn’t it?

Mr John Swinney: I’m sure that would be, yes.

Lead 2A: And indeed, given the fact that the Inquiry has requested materials held by the Scottish Government pertaining to the process around and ultimately decisions taken by the Scottish Government in the management of the pandemic, we should have available to you – to us the emails in which you communicated the information that needed to be put on the official record to your private office?

Mr John Swinney: That should be the case, yes.

Lead 2A: Because, as you said, that was communicated via your Scottish Government email address, so that would be part of – is it the Scot system or some sort of – the electronic system whereby the emails are able to be located?

Mr John Swinney: Yes.

Lead 2A: Thank you.

You were also a member of a number of group chats, three of which we have been provided access to by the Scottish Government, with officials, which are of a limited time nature, for specific debates or committee meetings, instead of notes being passed up to you. You state in your statement that categorically you were not a member of any group chats with ministers, civil servants and officials that considered ongoing issues in relation to the pandemic. Is that your understanding of the position?

Mr John Swinney: That is my understanding, yes.

Lead 2A: So did you not think that those group chats were included in that definition?

Mr John Swinney: I think I was – I think I was answering a specific question, I think, which was what group chats was I a part of, and what I was saying was that there were a small number of group chats that were established to provide me with a channel of communication with officials during parliamentary committee sessions where I would ordinarily have officials sitting with me who would be able to pass me notes with relevant information or points to make, or that I would have, in a parliamentary debate, officials sitting at the back of the chamber able and empowered to pass notes to me when I was sitting on the front bench, which I would use and had used for many years. So these were group chats that were established for, you know, a day which were designed to provide me with that information and it was for that purpose alone.

Lead 2A: Right, so just to be clear, I think – I said you gave a particular definition of you were not a member of any group chats with ministers, civil servants and officials that considered ongoing issues in relation to the pandemic, and you did not consider those groups to fall within that definition; is that right?

Mr John Swinney: My apologies, I misunderstood. I didn’t consider them to be passing that test of being –

Lead 2A: Yes, that’s –

Mr John Swinney: – discussing – sorry, my apologies. That the – those were technical information feeds of relevant answers to points, they were not ongoing discussions about the development of the pandemic, no.

Lead 2A: Well, just to be clear around definitions, was it your understanding of what required to be produced to us was evidence of decisions or something broader than that?

Mr John Swinney: I think the Inquiry would want to see evidence of decisions and the – some of the preparatory information that went into those decisions. And that would take a number of different forms: it would take the form of perhaps briefing papers, it would take the form of instructions that I had perhaps given to civil servants, it might take the form of other documentation that came out of other forums within government. And that the Inquiry would form a view around about that material.

Lead 2A: Because whether it’s for the purposes of the Inquiry or not, it’s important, isn’t it, that a record be kept of the way in which decisions are either arrived at, or ultimately perhaps not arrived at, so that the Scottish public, the people who ultimately you are serving, would be able to know the process by which decisions had been reached so as to be able to judge for themselves whether they thought that process was acceptable to them or not?

Mr John Swinney: Yeah, I think that’s right, and I think the Scottish Government captures a very significant amount of information that enables such a judgement to be arrived at, and publishes a large amount of that information. But then for the purposes of this Inquiry, for example, it makes available a huge amount of information, most of which would not be available for a formidable period of time because of the nature of its internal government business. Cabinet minutes, for example, they’re not routinely published but obviously have been made available to the Inquiry, entirely appropriately for the Inquiry, but wouldn’t be available for a 15-year period. I’ve just been looking at the Cabinet papers that were – the Cabinet minutes, et cetera, that were published at the turn of the year as part of the 15-year disclosure arrangements.

So I think it is important that that information is available for people to see.

Lead 2A: The then First Minister made statements about the inevitability of there being a public inquiry into the Scottish Government’s handling of the pandemic as early as March 2020 when questions were raised with her about the way in which the Scottish Government was handling and had handled the care home infection issues. Therefore, was it not the case that everyone within Scottish Government was on notice that material needed to be retained so that an exhaustive examination of how decisions had been made would be possible?

Mr John Swinney: Could I just clarify in your question, Mr Dawson? I think you said March 2020.

Lead 2A: Yes, that’s correct.

Mr John Swinney: I – okay. I would say that my view in all of that was that the steps I was taking in relation to the way in which I was handling information was consistent with that approach of ensuring that whatever information I had was available for and placed on the official record of the government to make sure that was available for the Inquiry or for any other purposes in due course.

Lead 2A: Which we will now be able to check against messages retained by other people. Is that right?

Mr John Swinney: Yes, that’s correct, yes.

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

Lady Hallett: Just after I’ve asked one question.

Mr Swinney, once you realised there was going to be an inquiry, statutory inquiry or inquiries, did you not think to question the policy of deletion? Did you not ask somebody: “This is what we do in normal times, but what do we do now?”

Mr John Swinney: I think the view I took – in answer to your question, my Lady, I didn’t ask that question. I took the view that the approach that I had been advised to take all through my ministerial career was the appropriate one because nobody had ever said to me to the contrary, and that I was – I believed I was furnishing the record with any relevant information that would be necessary for the Inquiry.

But could I perhaps take this opportunity, my Lady, to say that if I have misunderstood the policy of the Scottish Government in this respect, then I would apologise unreservedly for so doing, because my intention was never to do anything other than to make sure the official record was furnished with all of the information that it needed to have.

Lady Hallett: Thank you.

Mr Dawson: If I could just ask one – very briefly – follow-up, my Lady.

Lady Hallett: Yes, of course.

Mr Dawson: It is, of course, entirely possible, is it not, Mr Swinney, that the defect may lie in the policy rather than in your implementation of it, it’s possible that the policy doesn’t require people to retain enough information and, even if you adhered to it to the letter, it may be that adequate information has not been retained?

Mr John Swinney: That might well be the case, Mr Dawson, and what I would say to the Inquiry is that I believed what I was doing was consistent with that policy, and that I was doing nothing during Covid that I wasn’t doing at any stage in the previous 13 years of my ministerial life, and the – my handling of information had at no stage ever been questioned in that process.

Mr Dawson: Thank you.

Thank you, my Lady.

Lady Hallett: Thank you. 1.45, please.

(12.46 pm)

(The short adjournment)

(1.45 pm)

Lady Hallett: Mr Dawson.

Mr Dawson: Thank you, my Lady.

Mr Swinney, we had got to the conclusion of the discussion around text messaging and WhatsApp messaging just before the break.

If I could pick up with you, please, paragraph 18, page 8 of your second statement, 979 at the end.

Yes, this again is related to informal means of communication, in this instance telephone discussions, you say:

“All of my discussions were focused on taking forward the direction that had been set by Cabinet and addressing practical issues that arose as a consequence. Many of these informal discussions would be by telephone and if there was any relevant information that was required to be placed on the corporate record, this would be undertaken by me issuing an email to my Private Office or an Official recording the necessary information.”

So as far as telephone conversations were concerned, a similar process to the one that we discussed earlier, is that broadly –

Mr John Swinney: That’s correct, yes.

Lead 2A: You go on then to list the individuals you conversed with, including Ms Sturgeon, Ms Freeman and Mr Yourself, and you accept that you discussed matters around the progress of the pandemic in Scotland, commented upon the advice received in relation to the pandemic in Scotland, commend upon the nature of decisions that the Scottish Government might have to take, make any – you made any decisions about the Scottish Government’s response to the pandemic, and commented upon the decisions which the Scottish Government had taken, and then you state:

“Any decisions taken were consistent with the Cabinet direction and were always recorded in the corporate record.”

So is it correct to understand that all of the matters that I’ve listed you accept were part of those telephone discussions?

Mr John Swinney: I do, yes.

Lead 2A: Thank you.

I’d be interested just to explore with you a little, come back to talking about Cabinet a bit later, but you say there that decisions taken via this means, and by others, were based on the direction set by Cabinet. Can you give us some indication as to what that actually means in terms of what was the expectation of what would be done at Cabinet and what was the expectation of what would be done in other fora, including these telephone conversations, by way of decision-making?

Mr John Swinney: Well, cabinet was the decision-making forum, so that’s where decisions were arrived at, other than where Cabinet took a decision to delegate that to another individual, invariably the First Minister and/or myself, in certain circumstances, but Cabinet was the decision-making body and it would set out the direction of travel that we were taking, and that, at one moment in the pandemic, could be the application of very tight restrictions of the nature that we experienced in the early part of the pandemic, or it might be taking decisions about relaxing some of those restrictions. And what would follow from that in any other subsequent conversations were discussions about how we turned that into operational or practical reality or any issues that arose as a consequence that we could resolve within the framework or the direction that Cabinet had set.

Lead 2A: Because in the context of the pandemic in particular, it may be – you assert, of course, your position is that the Cabinet took the decisions other than where there was a delegation, but it might not be other people’s interpretation as to precisely what happened, in the sense that if the Cabinet said “We see cases are rising, we think that there should be something done about that”, that might be deemed to be the direction, but all of the means by which the rise in cases were then combatted, the various means open to government to be able to do that, if those decisions about those practical aspects are taken elsewhere, really all the decisions are taken outwith Cabinet, isn’t that right?

Mr John Swinney: I wouldn’t accept that, no, because I think the nature of the – and the content of Cabinet minutes will show that I think both of the elements that you raise in your question, Mr Dawson, are happening at Cabinet.

Cabinet is saying “We are concerned about the rising cases and we need to do something about it and here are the things that we are going to do about it”, and then what might be left to delegation might be what I would describe, and I think I used the word in my statement, marginal questions, which would then be the subject of perhaps further interaction with advisers and then the minuting of what is the conclusion of that process of delegation.

Lead 2A: As far as the matters that I’ve listed which you accepted were part of these telephone conversations were concerned, is it your position that all of those things, discussions around the progress of the pandemic, comments upon advice, commenting upon the nature of decisions the Scottish Government might take, the Scottish Government did take, and decisions the Scottish Government had taken, is your position that all of the salient features of those discussions are on the corporate record?

Mr John Swinney: I would say so, yes.

Lead 2A: Okay.

And of course, as I said earlier, as similarly as regards the WhatsApps, we would be able to check that by checking the corporate record, the paperwork we’ve been given by the Inquiry about the management of the pandemic, with what we can see from others’ messages, because your messages generally aren’t available through you; yes?

Mr John Swinney: Yes.

Lead 2A: Could I just, as a point of clarification – you rightly pulled me up earlier when I was asking you a question about the point at which the First Minister announced there would be likely to be a public inquiry and you asked about the month. You were absolutely right to do so, because I insisted, frankly, that it was March; I think in fact it was May of 2020 when those comments were made, which of course would be much more consistent, I think, with the way in which information about the care home situation arose. Is that broadly right?

Mr John Swinney: That was – that was – that was just what confused –

Lead 2A: Yes, yes, because –

Mr John Swinney: – me, because –

Lead 2A: – also what confused me, because it was March when a lot of the people in the care homes were being infected and ultimately dying; is that right?

Mr John Swinney: Obviously there was – it was – there was a period where there was some acute pressure within care homes, and that – well, that went on for a very long time, but there was, I suppose, an intense period of pressure which would be in that March to April –

Lead 2A: So the period where a lot of the infections were occurring which ultimately led to 50% of the deaths in the first wave in Scotland occurred March/April; is that your understanding?

Mr John Swinney: That’s correct, yes.

Lead 2A: And it was only in May, when the First Minister made the comments to which I referred earlier about the likelihood of a public inquiry, that that was coming to light and being discussed openly in the Parliament and in other places.

As regards one further aspect to do with your phone before I move on to other areas, the phone, as I understand it, that you used throughout this period was a personal phone; is that right?

Mr John Swinney: That’s correct, yes.

Lead 2A: And you give an explanation in one of your statements to the effect that it was convenient for you to use a personal phone because you had a particular BlackBerry app that you used and it was easier to use that in conjunction with your personal phone; is that –

Mr John Swinney: That’s correct, yes.

Lead 2A: Do you broadly, given your vast ministerial experience, think that there may well be other concerns about senior ministers like yourself using personal phones and that that might be something that would be looked at by the Scottish Government in future?

Mr John Swinney: I understand that unease, and the issues for me were practical issues. I could access with one device my Scottish Government email account, which is the one, as I’ve said in the session before lunch, I used habitually, I was use – on it all the time, to submit emails and respond to emails from my private office. I had that securely on my personal device, and it meant I only had one phone number and one phone to carry about, because the dangers of losing phones are enormous the more you have.

Lead 2A: But there may also be dangers associated with using personal phones which are not fully within the control of the Scottish Government?

Mr John Swinney: I understand that, yes.

Lead 2A: Thank you.

Could I move on then, Mr Swinney, to something I’ve touched on. It’s to do with the decision-making processes of which you are, as you’ve accepted, a fundamental part.

I’d like to ask you first of all, by way of clarification to an extent, of some of the evidence that you gave in Module 1, if we could sort of start off where we left off with you there and then move into the actual decision-making process which happened during the Covid period.

You gave some evidence in Module 1, as I understand it, that obviously you had a responsibility for resilience matters prior to the pandemic; is that right?

Mr John Swinney: That’s correct, yes.

Lead 2A: And you gave some evidence related – this is the point of clarification – not to the SGoRR system, the Resilience Room system itself, but to a Scottish Government Resilience Cabinet Subcommittee –

Mr John Swinney: Yes.

Lead 2A: – which was involved in discussing, preparing the way in which resilience might work; is that correct?

Mr John Swinney: If I can perhaps provide some detail on this.

Lead 2A: That would be very helpful.

Mr John Swinney: The Cabinet in the period up until about 2010 had an operational Cabinet subcommittee on resilience, and that met very infrequently, but it was essentially looking at strategic preparations for the – for any resilience event, whatever that might be. We have more – we’re more accustomed to winter weather resilience arrangements than to pandemics. We have a lot of them.

Lead 2A: That’s why SGoRR itself did meet, is it not?

Mr John Swinney: Correct. But then what we began to find after 2010 was that SGoRR was meeting on a regular basis, the same cast list was largely round the table that would be round the table for the Cabinet subcommittee, so all business really got transacted in SGoRR, which met very frequently over the years after 2010. So the idea that somehow our resilience grouping stopped in 2010 and nothing else happened, that was not the case. The resilience activity was undertaken under the umbrella of SGoRR, which tended to have the First Minister, the Deputy First Minister, relevant Cabinet members round the table with senior officials, and that met very frequently in the aftermath of 2010.

Lead 2A: But this subcommittee that we’re talking about, it had a role in organising, preparing for the way in which resilience would work, there was an operational role for that body as opposed to SGoRR itself?

Mr John Swinney: I would say there were – that’s probably a fair assessment, but what the SGoRR arrangements did was they provided – they recognised the fact that we had to have a whole range of different players involved in our resilience activity, so we tended to develop our strategic thinking around the Scottish Resilience Partnership which, I think I put on the record to the Module 1 hearings, drew together figures from local government, from Police Scotland, the Scottish Fire and Rescue Service, the Scottish Environmental Protection Agency, the local authority chief officers, and other organisations who were critical to enabling us to have effective resilience arrangements.

And from that initiatives such as the Scottish Risk Assessment emerged, which was a strategic overview of what were the likely potential threats or resilience issues that Scotland may have to face, and that became a focal point for our planning for future events.

Lead 2A: Was it the case that – the fact that the Scottish Government Resilience Cabinet Subcommittee had not met since 2010, was it the case that that created something of a deficit in the organisational aspects of the way that any resilience response would be in fact conducted through SGoRR?

Mr John Swinney: I don’t think that’s the case, because there was engagement at the most senior level in the Scottish Resilience Partnership and also within SGoRR about all of these issues on an ongoing basis, and from time to time these issues would also come to Cabinet as well.

So the Scottish Risk Assessment, if my memory serves me right, I’m pretty certain went to Cabinet. All the resilience thinking around about that would have gone to Cabinet as well.

Lead 2A: Is it the case, as I understand the evidence from Module 1 that you and others gave, that resilience was, effecetively, in a broad sense, a reserved matter?

Mr John Swinney: I wouldn’t say – there’s, I suppose, in a legislative sense there will be certain legislative instruments which will be wholly reserved, and the civil contingencies legislation, for example, will be wholly reserved. But when it comes to responding to the practicalities of resilience arrangements, many of the issues are devolved and wholly devolved.

Lead 2A: Well, this is exactly what I wanted to try to clarify with you, Mr Swinney, because if there were, prior to the pandemic, hypothetically speaking, to be a response to a national emergency, would it be the case that the respirations would be delivered on an operational level through the various partnerships in Scotland that you’ve described but that if that emergency had been – emergency response had been instigated through the Civil Contingencies Act, that the policies connected with how something would be managed at a higher policy level would generally be a matter for the UK Government to decide?

Mr John Swinney: I think it would depend on the nature of the circumstances. If, for example, there was any requirement for there to be a response in the resilience arrangement from public services that were devolved to the Scottish Parliament (for ease of reference, health, education, police, fire, transport, local government), the involvement and the engagement of the Scottish Government and the Scottish Parliamentary arrangements would be critical, because the constitutional arrangements that we have today make it clear that those are all devolved functions. And in my view it would be antidemocratic for that not to be the case.

I do accept, however, there may be certain steps taken by the United Kingdom Government properly under the existing legislative framework approved by the House of Commons – the House of Lords, for provision through the Civil Contingencies Act.

But if there were practical issues that had to be addressed by the devolved public services in Scotland, that would have to take into account the constitutional arrangements that we have, that in short the Scottish Government runs those things.

Lead 2A: Yes, so you would organise the practical arrangements within health or police or fire services, whatever would be needed to be able to respond?

Mr John Swinney: If it was taken forward in – under the umbrella of the Civil Contingencies Act.

Lead 2A: Yes.

Mr John Swinney: But my contention is that that wouldn’t be a particularly effective way to do that because of the fact that there is policy responsibility as well as operational responsibility vested in the Scottish Parliament and the Scottish Government for the exercise of those functions consistent with the Scotland Act of 1998 and successive legislation.

Lead 2A: But as we’ve discussed with other witnesses, including Mr Gove yesterday, it was a possibility that the pandemic might have been dealt with as a Civil Contingencies Act situation. It might have been.

Mr John Swinney: Might. But I think Mr Gove also said that he didn’t think that would be appropriate.

Lead 2A: Well, eventually we knew that he and his government did not think it was appropriate and, as I understand it, neither did the Scottish Government?

Mr John Swinney: We did not, no.

Lead 2A: One other aspect of your M1 evidence before I move on to the substance of what we’re looking at, you were asked about, in your Module 1 evidence, the state of relationships between the two governments, the Scottish Government and the UK Government, as at the beginning of the pandemic, and you said that:

“… 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.”

I just wanted to clarify with you that that remains your understanding of the position, and in particular I wanted just to clarify with you the generality of the evidence that you’ve already given to the extent that you don’t limit that, for example, to personal relationships between any individuals, but generally between the governments you suggest that the relations were pretty poor?

Mr John Swinney: Well, I think it would be fair to say that things were pretty strained after the no-deal Brexit experience, and there was a … you know, I think a “strain” is the best way to put it.

I think, however, and I think one of the other points that I put on the record in my Module 1 evidence, was that generally on resilience issues we all tended to work collaboratively with each other, and my experience of interacting with UK ministers on resilience issues, of which, you know, there had been on quite a number of occasions, we generally managed to – to work on a collaborative basis.

Lead 2A: Did that continue to be your experience as regards the extent to which you had to work with any UK Government ministers or officials during the course of the pandemic? Because we’ve heard conflicting evidence about that.

Mr John Swinney: I think it varied, you know, and I think on – you know, for example, as Education Secretary I had quite a lot of interaction with the – well, reasonable amount of interaction with the UK Secretary of State for Education and my counterparts in Wales and Northern Ireland, and these were always very helpful and collaborative and courteous conversations, and I’ve set out in other respects areas where we were able to make some headway, other areas where it was a bit more difficult to make some headway.

Lead 2A: What were the areas in which there was difficulty?

Mr John Swinney: I think often – I think if I look at the pandemic, I think there was a sense in March 2020 that we would have liked things to be moving faster, to move to a response to Covid, and then I think when we got to the moment of lockdown, that was agreed on a collaborative basis. I think the relaxation of lockdown was difficult because there were different circumstances in different parts of the United Kingdom which made it difficult for there to be a one size fits all, it didn’t suit everybody to be moving at the same pace because of the condition of the pandemic, and that added to, you know, that made things a bit tense.

Lead 2A: Just on that latter point, we’ve heard some evidence about tensions which seemed to be apparent from materials that we’ve looked at around the May period of 2020. Would that be coincident with your second category there, when restrictions were being eased, or are you talking about a different period?

Mr John Swinney: I think it probably would have started around about that time, where there would be a sense that we were – we had to take account of the different circumstances in different parts of the United Kingdom.

Lead 2A: That had always, of course, been a possibility because the legislation enabled Scotland to take a different path if it was thought appropriate?

Mr John Swinney: That’s correct, yes.

Lead 2A: Could I ask then some questions about the decision-making during the course of the pandemic itself. I have already referred to the Cabinet. In your evidence you suggest that:

“Members of the Cabinet would be invited to express their views on all matters before Cabinet. The First Minister would generally sum up the discussion and an agreed position would be arrived at. While different views and proposals would often be considered, Cabinet never held a vote on any issue in connection with Covid-19 or any other issue for that matter.”

Can you please explain to us why it was that Cabinet never voted on any matter related to Covid, given your position that Cabinet was the main decision-making body?

Mr John Swinney: Because Cabinet aired its views, we had the evidence in front of us, and the First Minister would get to a summary position and if – and that would be a summary position that would be informed by the evidence and from had been expressed at Cabinet. And I suppose, you know – and my comment which you’ve read out, Mr Dawson, is absolutely correct. In my 16 years in the Cabinet there wasn’t a single vote on any single issue, because that’s not how Cabinet did its business, it did its business by trying to come to a point of agreement. And I suppose if a member of Cabinet felt they just could not go along with what had been agreed, then – you know, we all know how the system works: once Cabinet decides, collective responsibility kicks in, and if you can’t live with it then you have to resign from the Cabinet.

Lead 2A: Yes.

Mr John Swinney: And no member chose to do so.

So I think we all – I think all of us in the Cabinet would be entirely cognisant of the working approaches of the Cabinet and would know what was the course of action to take if we didn’t agree with it.

Lead 2A: Was it the case that – I think Cabinet meetings, other than extraordinary meetings of which there were some examples, generally took place on a Tuesday; is that correct?

Mr John Swinney: That’s correct, Tuesday morning at 9.30.

Lead 2A: I think there was, as we understand it from the paperwork, a certain process by which materials would be put together for the purpose of Cabinet, and it would possibly tend to involve meetings of a smaller group of Cabinet, tending to involve the First Minister and usually, as we understand it, yourself and certain others to discuss matters which might then be put before Cabinet. Is that broadly correct? That is an interpretation of the materials that we have. Is that –

Mr John Swinney: Broadly I would say that that is a fair summary, that – not in – not in all cases but certainly at some of the key moments of the handling of the pandemic in relation to the relaxation of restrictions there might be a discussion that would be convened involving the First Minister and myself, the Health Secretary. There would at different stages be either the finance minister or the economy minister, and latterly those two jobs were combined by Kate Forbes, along with some senior officials and senior advisers. And we would tend to look at evidence presented to us about the state of the pandemic and what were the – you know, what were the possible choices that we might have in front of us at that particular moment in time. And that would be invariably informed by a slide presentation of information that would be led by senior officials about what was the, you know, the current state of the pandemic and, particularly when it came to questions around about relaxing restrictions, whether there was any scope available to us to relax restrictions given the prevalence of the pandemic and given the strategic direction set by Cabinet that we were trying to suppress Covid to an extent that would allow us to have a bit more normality than any of us were experiencing at that time.

Lead 2A: Our interpretation of the paperwork, as we understand it, is that these prior meetings resulted in material then being put to Cabinet based on effectively what that group had thought would be the right thing to do, Cabinet looking at those and then often delegating responsibility back to the First Minister or yourself, who were usually members of the initial group.

Is that a fair summary of the process? And to what extent would it be a legitimate conclusion from that, that decisions were made in this other body beforehand, merely ratified by Cabinet, and then ultimately the detail of the decision being made by the same individual members of that body that met before?

Mr John Swinney: I wouldn’t accept that characterisation. What would happen is that there would be an early discussion about some of the evidence base and about some of the options that were available, and there would be, on many occasions, lots of uncertainty about what might be provided for. That would result – that would invariably take place maybe towards the end of a week or in the early part of the weekend, and then over the weekend a very detailed Cabinet paper, which I’m certain the Inquiry must have access to, would be prepared which would give all members of Cabinet the evidence base and then draw out of that evidence base what were the possible actions that could be taken and those issues would be put to Cabinet, which would then – as the Inquiry will see from the Cabinet minutes, a very extensive discussion would be had at those Cabinet meetings.

And in that Cabinet meeting, I think it would be fair to say we were wrestling with the dilemmas about to what extent could restrictions be relaxed, given the state of the pandemic. Or the other side of the coin: given the state of the pandemic what do we need to do to apply greater restrictions? And Cabinet would come to a position on that. And if there was any marginal detail, and I stress the word “marginal” detail, that needed to be clarified in the aftermath of a Cabinet discussion, and that might be particularly when it came to the settling of what local authority areas were in what particular levels, that might require some further interrogation of data, it might have to wait for the data of the day to emerge, which might come about maybe 12 o’clock on a Tuesday, and there would be limited scope delegated to the First Minister or my – and/or myself to take that final decision.

Lead 2A: Thank you.

There are good reasons, are there –

Mr John Swinney: My –

Lead 2A: Sorry?

Mr John Swinney: Might I also add, Mr Dawson, that that position would then also invariably lead to very open public communication about the issues involved as a consequence.

Lead 2A: There are good reasons, are there not, why decision-making in Cabinet is part of our system?

Mr John Swinney: There are.

Lead 2A: Amongst possibly others, those reasons include the importance of all Cabinet ministers being able to bring the perspective of their particular portfolio to the discussion; is that right?

Mr John Swinney: That’s correct, yes.

Lead 2A: And if it were to be the case, hypothetically, that discussions took place and decisions reached in smaller groups, that that would be a matter which wouldn’t derive the benefit of being able to draw on the experience, insight and viewpoint of all of the Cabinet members which represent really the main cross-sections or parts of society?

Mr John Swinney: I think that would be a problem, but that wasn’t what happened in the Scottish Government.

Lead 2A: Did the system that I think we’re agreed on broadly happening, although we’re, I think, not agreeing on precisely where the decisions were taken, the system of a discussion taking place beforehand, the Cabinet meeting taking place and some element of decision-making being delegated, give rise to a system whereby you, the First Minister and a small group of selected others effectively made the decisions about how the pandemic should be managed in Scotland?

Mr John Swinney: I wouldn’t accept that characterisation at all. I think the decisions were taken by the Cabinet, and if there was anything not undertaken by the Cabinet it was of a marginal detail in relation to any decision-making. With the exception of a couple of instances at the start of the pandemic, which I’ve narrated in my witness statement for – for completeness, where decisions were taken with such urgency that they were taken amongst smaller groups, and I’ve been open with the Inquiry about where that was the case.

Lead 2A: I appreciate that, Mr Swinney.

Was it the case that where ministers brought matters up in Cabinet, the First Minister was often, if she disagreed with that point of view, often sought to trump the view with her own view as to how matters should be undertaken?

Mr John Swinney: Not in my experience. The First Minister encouraged an open discussion at Cabinet, and very different points of view were expressed, because these are – these were not perfect or ideal choices. We talked earlier today about the four harms framework. I think that was a very helpful framework for us to structure our decision-making –

Lead 2A: We will turn to that.

Mr John Swinney: We will. But all that did was assemble the dilemma. You know, it assembled the dilemmas in front of us, it didn’t give us a perfect pathway. It assembled the dilemmas and we had to try to take the decisions that would allow us to navigate through those challenges.

Lead 2A: Might one say that the four harms framework pointed out the problem but didn’t help with the solution?

Mr John Swinney: I think it pointed out the problem and it helped with the solution.

Lead 2A: Okay. Could I look, please, at INQ000334792.

This is an exchange which took place in messages which are frequent between the now First Minister and Professor Leitch, whom you will know, obviously.

This is on 14 December 2021 at 14.07, in amongst a discussion about what had happened at that time in a Cabinet meeting. The context of this, Mr Swinney, as we looked at with Ms Forbes earlier, is the emerging threat of Omicron, you’ll remember, in December 2021, that although Scotland when already lived with the period of high cases as a result of the Delta variant that the Omicron threat was creating an even more pressing situation, and the context is discussions amongst the then Cabinet Secretary for Health and Social Care and the National Clinical Director about what should be done about that.

Mr Yousaf said:

“I took a hell of a bullet at Cabinet (!) But might be able to strengthen the measures, even if its just slightly. We think we can find £100m within the portfolio not sure if thats enough but ive pushed to ask if it is enough to move limits on gatherings in households and hospitality into regs for at least the next 4 weeks.”

He then says:

“Dont know if itll happen this last minute and FM not remotely happy its at this last stage but let’s see if it strengthens a package of measures that are far too weak as things stand.”

To which Professor Leitch responds:

“I was listening. I almost intervened to deflect for you. She was ridiculous. Absolutely ridiculous.”

And he replies:

“And yes to the principle.”

And Mr Yousaf said he didn’t realise he was on the call:

“Ack that’s just the way it is. Her ranting at me isn’t the problem, i can take it its whether the quantum at this stage helps us strengthen [the] package. Though feel free to defend me at a later stage.

“Todays numbers lower than expected. Suspect some [people] are not testing given xmas round the corner.”

Do these messages not show the culture of the Scottish Cabinet was driven by Nicola Sturgeon’s strong-mindedness, when challenging her was seen as taking a bullet?

Mr John Swinney: No, because I think that particular morning, if I remember it correctly, I think the First Minister was just a little bit surprised that the health portfolio had been able to find £100 million to transfer to, I think, to business support, which in – you know, in all my nine years, ten years of handling the public finances of Scotland, the Health Secretary never offered me £100 million in return for anything. I think it probably surprised the First Minister. So that would be not my sense about how business was transacted. Cabinet had open and full discussions.

And again, I’m sorry, I suspect I might exhaust your patience, Mr Dawson, on the four harms framework, but we would constantly be wrestling with the dilemmas that would be involved in establishing a path out of the situation that we found ourselves in, because there was no easy answer.

Lead 2A: Do these messages show that whilst Cabinet secretaries might complain in private, as in the exchange we’ve just looked at, they would ultimately fall back in line behind the First Minister who was really calling the shots?

Mr John Swinney: Well, if – I come back to the answer I gave earlier on, if a member of the Cabinet can’t live with a Cabinet decision, then we all know what the rules are: you resign from the Cabinet.

Lead 2A: Would it be accurate to say that given the volume and complexity of the information that was available to take into account in decision-making, that sharing that burden of responsibility amongst Cabinet members, rather than expecting it to be assimilated and borne by one or two people, would be a sensible way to govern?

Mr John Swinney: That’s why we had extensive Cabinet papers. In total 71 papers were put to Cabinet with comprehensive evidence, background and recommendations, 61 of them authored by me, to enable Cabinet to come to – to have those – those very discussions about the dilemmas, because it was accepted that these were difficult dilemmas and they had to be – and we had to establish a way through them.

Lead 2A: And we should be able to see the nature and extent of those discussions in Cabinet from the Cabinet minutes?

Mr John Swinney: I would have said so, yes.

Lead 2A: We are not, however, able to see the extent of the discussions that took place in other important bodies, such as the group that I mentioned – referred to at times as the gold group or gold command, and indeed the SGoRR group, for which there are no minutes?

Mr John Swinney: I think on the – on the gold meetings, my view would be that in a large amount of my experience – the format for a gold discussion was that essentially a slide deck would be gone through in – these meetings all took place – well, invariably took place on – on Teams. So a slide deck would be presented to us all remotely and we would interact with that and discuss and debate the different issues that were in front of us. And then in the aftermath of that there would be – a summary note would be prepared, which would be invariably, in my recollection, a minute from Ken Thomson, the director-general who the Inquiry heard from a couple of weeks ago, which would then be issued to those who participated. And I think we actually – actually we’d have had wider circulation than that, because more people needed to hear the contents of those discussions. So that would be the process of recording the gold discussions.

Now, I think I would accept that I – I certainly felt I saw that traffic, all those follow-up notes, for a substantial period of the pandemic, I’m not sure I saw it for the whole of the pandemic. So I would accept there may be times where there isn’t all of that information that’s there. But there should be, and I accept that point.

When it comes to SGoRR, SGoRR tends to be a place where operational decisions are taken and then a list of actions identified as to what is to be taken forward, and that would be the approach that would be taken.

Lead 2A: But again, there are no minutes of the discussion that took place, so whether one can see the outcomes from documents that may or may not be available from certain periods, one doesn’t know what the nature of the discussion was and therefore the basis upon which any operational decisions or other decisions then presented to Cabinet were made?

Mr John Swinney: Well, I think if you take the – if you take the gold discussions, what I’ve said there is that the process of – you know, there would be a presentation of evidence, which I’m certain will be available, there will be a summary note of the points that arose and were concluded as a consequence, and then that would essentially be the drafting blocks of the Cabinet paper that would then go to Cabinet.

So the Inquiry would be able to see, I would think, through all of that a clear line of sight of the thinking that was going into the conclusions that were being arrived at and ultimately, in the Cabinet paper, a relationship between the evidence that was being gathered, the conclusions drawn, and the actions that were being proposed as a consequence.

Lead 2A: Why were these meetings not minuted?

Mr John Swinney: Well, I’ve explained the basis of which I think they were being recorded, so that there was a – you know, essentially the gold meetings were preparing material that would go to Cabinet, and the Inquiry will see those Cabinet papers, and the Cabinet minutes that arise out of them, and I can certainly – I can recall various notes which summarised the discussions that took place within the gold meetings, which again flowed into the drafting of the Cabinet papers as a consequence.

Lead 2A: In the same way as in the emails to your private office, you summarised matters that you wished to put on the corporate record?

Mr John Swinney: Yes.

Lead 2A: Could I ask you some questions about something I think you referred to earlier, some of the early decision-making very early in March 2020, and the delegation of decision-making in that regard.

There was a decision taken, as I understand it, to recommend a ban on mass gatherings on 12 March 2020; is that right?

Mr John Swinney: That’s correct, yes.

Lead 2A: And that decision was made outwith Cabinet; is that correct?

Mr John Swinney: That’s correct, yes.

Lead 2A: I understand that the decision to cancel mass gatherings of more than 500 people was taken by the Cabinet Secretary for Health and Sport and the First Minister, with input from the Chief Medical Officer, on the morning of 12 March 2020; is that correct?

Mr John Swinney: That’s correct, yes.

Lead 2A: A Cabinet meeting took place on 10 March 2020, which is INQ000238706, looking at page 3, paragraph 10. You’re listed as attending that meeting.

It says:

“Paragraph 7 of the paper made clear that, while current scientific evidence did not suggest that closing schools or cancelling large scale events would have a significant effect, this should be kept under review. In addition, even though the epidemiological evidence might not yet imply the cancellation of large scale events, other factors might apply – notably behavioural ones: there might, for example, be a problem with the credibility of a public message advising significant restrictions of personal behaviour while allowing a ‘business as usual’ approach for large events.”

So the Cabinet on 10 March discusses the cancellation of mass gatherings and I think decides to keep it under review as there is not the scientific evidence to support the ban; is that the position as at that stage?

Mr John Swinney: That’s correct, yes.

Lead 2A: Two days later Nicola Sturgeon and others have made that decision. Is this not an example of a decision that ought to have been made in Cabinet?

Mr John Swinney: I’m in a difficult position to answer questions in detail about this particular moment because on 11 March I was called away from Parliament because my mother’s health had deteriorated and unfortunately she died on the morning of 12 March, so I was not in close proximity to the decision-making that was being taken on 12 March. So –

Lead 2A: My condolences in that regard, Mr Swinney. However, I’m simply asking whether this is a decision that ought to have been taken in Cabinet, which doesn’t really require any actual involvement.

Mr John Swinney: I don’t think a decision of that nature, given the pace of events at that time, would necessarily need to be made in the Cabinet, because the Cabinet minute says “Paragraph 7 of the paper made clear that, while current scientific evidence did not suggest that closing schools or cancelling large scale events would have a significant effect, this should be kept under review.”

So the Cabinet has essentially opened up that question – and I suspect, you know, we may come on to the issues in relation to the sequencing of decisions about school closures, because the wording is not dissimilar in relation to that question, and I think what – so there was scope being left for that issue to be looked at further. And I think, as I understand it and as I’ve looked at the explanation given for the announcement of the cancellation of large-scale events, the conclusion that was arrived at was about the risk of pressure on the emergency services at that particular time, and as a consequence it was judged that that was the right step to take.

Lead 2A: If I can move on to the way in which decisions were delegated at other times, the Scottish Cabinet began regularly to delegate decision-making to you and/or the First Minister, isn’t that right?

Mr John Swinney: On – as I said earlier on, on marginal questions and finalising the detail of changes to be made.

Lead 2A: Could we look at INQ000232744, please, page 7. These are minutes of a Cabinet meeting held on 19 December 2020. Paragraph 24:


“(a) Agreed to delegate to the First Minister the responsibility for finalising proposals in response to the threat posed by the new variant of the virus [that as the Alpha variant at that time of course] and all decisions that might be required in advance of her planned public statement later that afternoon;

“(b) Delegated to the First Minister and Mr Swinney the responsibility for any further decisions that might be required to take into account any material changes in circumstances of which they might become aware …”

This is, in effect, a delegation of all decision-making power at that stage, isn’t it?

Mr John Swinney: No. What I would say is that in – all of this is consistent within the strategic framework that Cabinet has considered, which is referred to in paragraph (c), and Cabinet has also had a full discussion about the circumstances and the issues that we are confronting.

And when – so that particular moment is taking, you know, the Cabinet’s had its discussion, it is establishing what are the challenges and the difficulties that we face, it’s airing the type of changes that we have got to encounter, because the Cabinet paper will have narrated those particular choices, and then is essentially within that framework saying to the First Minister and to I, to finalise any of those particular points before public communication.

Lead 2A: This is, in effect, the Cabinet saying at this very important time, as the Alpha variant is starting to become part of the picture, shortly before ultimately the second lockdown in Scotland, “We agree that you need to do something about it, it’s up to you and Ms Sturgeon to work out what”?

Mr John Swinney: I think the – can I just be reminded of the date of that Cabinet meeting, please?

Lead 2A: 19 December –

Mr John Swinney: 2020?

Lead 2A: Of 2020, that’s right.

Mr John Swinney: Because what the – there then proceeds to be further dialogue after that which results in a Cabinet meeting, if my memory serves me right, on Monday 4 January 2021 that takes explicit decisions about the handling of the arrangements thereafter which resulted in the second lockdown. So the second lockdown arrangements are not agreed by the Cabinet on 19 December, they are agreed by the Cabinet on 4 January 2021.

Lead 2A: There was a gold command meeting in advance of that on 2 January, as I –

Mr John Swinney: That’s correct, yes.

Lead 2A: That was not attended by Ms Forbes, we learned earlier; is that right, do you recall?

Mr John Swinney: I can’t recall.

Lead 2A: If we go to INQ000232688, this is a paper presented to Cabinet on 4 January by you, as I understand it. Is that right?

Mr John Swinney: That’s correct, yes.

Lead 2A: Paragraph 5 on page 1 says:

“In light of further data on case numbers across Scotland over the past week and further emerging evidence on the new strain, Ministers met chief clinical advisers and lead policy officials in ‘Gold Command’ format on 2 January. At that meeting, the First Minister concluded that urgent further action would be required to curb and reverse the strong growth in transmission; that proposals should be put to Cabinet for collective discussion and decision-making on 4 January; and that the Presiding Officer should be asked to recall Parliament to consider them later that day.”

At paragraph 20(c) if we could go to that, please.


Lead 2A: Sorry, Mr Swinney.


Lead 2A: Over the page, I think.


Lead 2A: The outcome – there is a discussion in this paper where effectively there is a recommendation put to Cabinet as a result of the gold meeting to strengthen to protection level 4, and as I recall the outcome of this is that final decisions were delegated to the First Minister for announcement to the Parliament on that day. Is that right?

Mr John Swinney: I think I would – I can’t see that from the document –

Lead 2A: Yes, that’s my understanding of the conclusion of this.

Mr John Swinney: But I think what the – but the Cabinet would have had in front of it proposals for the application of further restrictions –

Lead 2A: Yes.

Mr John Swinney: – and the Cabinet would have considered those, and if the Cabinet had any issue or concern about the contents of those proposals, Cabinet would have concluded to that effect. But if Cabinet – well, you know, Cabinet is – well, I think the crucial –

Lead 2A: There it is, Mr Swinney, sorry.

Mr John Swinney: Yes.

The first part of it, paragraph (a), consider the recommendations for emergency action, so Cabinet has obviously had that in front of it, note the proposed timing for discussion of the wider review of the strategic framework, and to delegate final decisions to the First Minister for announcement to Parliament on 4 January, having heard Cabinet’s consideration of the recommendations for emergency action.

Lead 2A: So there’s detailed discussion two days before this where evidence is presented and a recommendation drawn up; is that right?

Mr John Swinney: Well, if I could – if I could possibly go through the sequence of events, because I think it might help the Inquiry in understanding how we found ourselves at this position.

On 19 December the previous Cabinet minutes, which took place on a Saturday, the Cabinet was being briefed and was taking decisions about the – as I recall it, at that moment – delaying the return of schools after the school holiday, the Christmas holiday.

The Cabinet then met the following week, which would be on its normal Tuesday meeting, and then Parliament rose for the Christmas recess but returned just before New Year, I think on 30 December, to consider issues in relation to Brexit.

And then on, I think, the Saturday thereafter, possibly – you know, either the Friday or the Saturday, we were asked to participate in a gold meeting because of an acute deterioration in the condition of the pandemic which was causing our chief advisers and our clinical advisers acute concern about the sustainability of the National Health Service.

So in the space of a relatively short space in time the condition of the pandemic deteriorated and it was judged necessary for us to take the emergency action that was required, and hence the calling of that Cabinet meeting in the morning of 4 January and the recall of Parliament that afternoon.

Lead 2A: To return to my question, if I may, the position is that there is a detailed consideration in advance of this of materials relevant to the decision that needs to be made at this stage, in a couple of days before; was that right?

Mr John Swinney: Yes.

Lead 2A: Yes, and then that recommendation is put to Cabinet, and at the end of the day the final decision is delegated to the First Minister?

Mr John Swinney: Well, the –

Lead 2A: My question, if I could, is: does this not demonstrate that in fact the Scottish Cabinet was merely a decision-ratifying body and not a decision-taking body?

Mr John Swinney: No, because I think there’s one example being identified here where particular decisions were being delegated to the First Minister, but the First Minister was making that announcement having heard the details of the Cabinet discussion and conversation about it.

Now, to look at this a slightly different way, if there was a member of the Cabinet who believed that fundamentally these decisions were unwarranted, then that would appear in the Cabinet minutes, that would be there for us all to see, because the member of the Cabinet would have made it clear that what was being proposed in the recommendations for action were just not on, if they thought that to be the case, that’s what a minute would capture, and there would be Cabinet minutes for that occasion. But what they – and therefore the individual concerned would know what to do in those circumstances.

But none of that pertains here, because the Cabinet came to – the Cabinet heard that evidence and accepted that we were in a position where we needed to take emergency action and the finalisation of that was left to the First Minister.

Lead 2A: We looked last week with the now First Minister at an exchange between him and Professor Leitch in May 2021 in which, shortly after his appointment as the Cabinet Secretary for Health and Social Care, Mr Yousaf was discussing with Professor Leitch a number of matters pertaining to rises in cases particularly in the Glasgow area. There was a deep dive meeting that was due to take place shortly thereafter. Mr Yousaf said:

“Okay. I’ll be on the deep dive.”

To which Professor Leitch responded:

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

Is this, in a private conversation that Professor Leitch probably never thought would come to light, an indication of the actual decision-making process, in which the First Minister, the then First Minister, effectively expected to take the decisions herself?

Mr John Swinney: No, because – well, if that had been the case, then I would have had an awful lot more time on my hands than I had during the course of the pandemic because I, Professor Leitch, Gregor Smith, Mr Yousaf, Ms Freeman, Ms Forbes, Ms Hyslop, were frequently on, and many others, frequently on very long calls wrestling with these questions, so the idea of a – of there being a small cast list about who was discussing these points is not one that I would accept.

Lead 2A: We’ve seen exchanges between the then First Minister and Ms Lloyd connected with decision-making around, for example, the number of people who might be allowed to attend weddings and funerals, which appear to demonstrate that the decision is taken in the conversation without apparent explanation of the scientific basis between the two of them; was that a regular occurrence?

Mr John Swinney: I don’t think it would be, no. I think that probably would be one of these details that would be – you know, it wouldn’t surprise me if that was a detail that had not been included in the long list of specific commitments that would be made based on scientific advice and had arisen and had to be resolved. But if you look at the Cabinet papers, the Cabinet papers contain extensive very specific details about what should be permitted when. Now, I think there’s – you know, I would accept that in some of those cases it might be that there was probably – potentially too much specificity about how many people here, there, or whatever circumstances happened to be. But we were also being asked countless detail-specific questions because people generally wanted to do the right thing, they wanted to know what was the right thing to do, and we therefore felt obliged to give as much clarity as we possibly could.

But all of these conversations would take place within the context of a knowledge of how the pandemic was progressing and what the – whether we had any scope to relax or a necessity to apply restrictions to deal with that situation.

Lead 2A: I suspect those who at that time wished to attend the weddings or funerals of their loved ones wouldn’t consider the number of people that the Scottish Government prescribed be allowed to attend as a detail. Do you agree?

Mr John Swinney: I think these are unfortunately necessary details which the Scottish Government had to wrestle with. These are – you know, I – you know, from, in the period between the death of my mother and her funeral, we had to completely and utterly change the arrangements for her funeral to the extent that only then seven of us attended my mother’s funeral, because things changed in front of us in March 2020. So I accept the agony that causes for people. I unreservedly accept the agony that causes for people. But unfortunately, in the circumstances we found ourselves in, we had to make some of those very specific decisions, and in some cases we would have got that right, in other cases we would not have got that right. And I’m sorry if we caused any offence to anybody by the way in which we went about that but the government was being asked for specific provisions and we felt the need to offer those.

Lead 2A: And those who found themselves, like you, in that tragic situation, would want to and would be entitled to know how the decision was reached as to how many people were allowed to attend; would you accept that?

Mr John Swinney: I would, yes.

Lead 2A: Thank you.

As I have trailed already, we’re turning now to the four harms framework which I think you are able to provide considerable assistance on, Mr Swinney.

We have already looked, in a number of other evidence sessions, at the four harms framework, at least to understand its broad context, its timing, its intentions, and other witnesses have given us a good deal of evidence as to that, so I don’t want to rehearse all of that but of course I very much want to hear your perspective on the framework and where you saw it fitting in.

Our understanding broadly, to remind the audience, is that in April 2020 the Scottish Government developed this four harms framework in order to try to identify four separate harms which were caused either by the virus itself or by the countermeasures which had been taken to combat the virus, in order to assist in the future process of weighing up the competing harms in these different four areas. Is that broadly correct?

Mr John Swinney: That’s correct. I think the only point I would add is that the decision-making that led to lockdown on 23 March 2020 was exclusively taken on the basis of the health – the direct health harm that would arise out of Covid-19 and the necessity of protecting population health. And I 100% support that, and I think that was absolutely the right decision to take. But we recognised that there was a complexity about how we navigated our way back from that whilst also recognising some of the issues that you just put to me, Mr Dawson, about the fact that there were multiple harms that arose out of the correct decision, in my view, to lock down on 23 March, but which gave rise to wider complications or implications in the later stages of the – in the weeks after the pandemic started.

Lead 2A: Thank you.

So as I understand it, what you’re saying is that the decision to lock down on 23 March was – to use the subsequent language from the four harms, was taken solely on harm 1 related grounds?

Mr John Swinney: Correct.

Lead 2A: But in April there was a realisation that there were being caused and would subsequently be caused other harms which were perhaps more indirectly caused by the virus, including those other harms being non-Covid health-related harms, social harms and economic harms?

Mr John Swinney: I think the only – yes. I think the only thing I would add to that is that I think in the period running up to the decision around lockdown, there was also an understanding at that time, pre-23 March, that whilst harm 1 may be the decision-making issue about lockdown, there were – we were aware at that time of other harms that were likely to arise.

So, as Education Secretary, I was aware from advice and evidence that I saw prior to lockdown of the damage that would be done as a consequence of school closures, but I – but I was aware of that at the time.

Lead 2A: Were you aware – obviously in broad terms, it wouldn’t take a lot of advice to assist you with reaching the conclusion – that closing schools would be bad for children’s development and education?

Mr John Swinney: Well, it was part of the advice from SAGE that I had on 17 March.

Lead 2A: Yes, but when – I’m just interested in finding out whether that was in any way assessed or quantified at that stage?

Mr John Swinney: That’s essentially the point I’m making, that it was not –

Lead 2A: Yes.

Mr John Swinney: – because the overwhelming and answerable case was to address harm 1, whereas what the four harms framework was an attempt to do was to give us a basis of reconciling some of those other harms with the acute health harm of Covid.

Lead 2A: As far as the position in March was concerned, obviously what you’re trying to tell me, I think, is that there was an awareness that these other harms would be caused, but there wasn’t the opportunity to undertake assessments and that the strategy that was introduced in April was in order to try to assess the extent of these harms more, is that broadly –

Mr John Swinney: That – that’s a fair representation of my position, yes.

Lead 2A: It would be fair to say, would it not, that there would be in particular – certain vulnerable sectors of society that would sustain harm as a result of the virus but also would sustain harm as a result of the other harms that are caused by the countermeasures; is that right?

Mr John Swinney: Yes.

Lead 2A: To what extent was an assessment of harm done, for example, the likely harm to elderly people or disabled people as regards the virus itself, putting aside for one moment the effects of the countermeasures at the time of the lockdown in March 2020?

Mr John Swinney: That was essentially the core of the modelling and information and data that was presented to us prior to lockdown.

Lead 2A: So you had modelling as regards an assessment of the likely harm of the virus on the disabled community?

Mr John Swinney: Yes.

Lead 2A: You had modelling on the likely harm of the virus on ethnic minorities?

Mr John Swinney: I – I think it might be better if I – if I say –

Lead 2A: That’s a yes or no –

Mr John Swinney: Well, I don’t know if – I don’t know if we had information as specific as that, that’s the point I’m just about to arrive at. What I’m – what I think is a better way for me to express it for the Inquiry is that we had data which showed the damaging effect of Covid on those with vulnerabilities. What I cannot be specific about is just how granular that detail was at that particular time.

Lead 2A: But the position as regards the other harms, although you’re aware that there would be other harms caused, there was no assessment done for any of those groups or in fact anyone of the likely impact of those other harms?

Mr John Swinney: That’s correct.

Lead 2A: Thank you.

As regards the framework itself, one of the things that you tell us in your statement is that:

“Ministers established clear frameworks within which to consider the evidence for example the Strategic Framework and the Four Harms Framework. These were rational, evidence-based and published frameworks that enabled Ministers to rationalise competing advice and establish clear direction of activity.”

So as regards the four harms framework, can you explain to us what you mean when you say that the four harms framework enabled ministers to rationalise competing advice and establish clear direction of activity, rather than simply pointing out what the evidence was in each of the areas?

Mr John Swinney: The – I think two things were done in that respect. One was that a complete evidence picture was assembled to show what were the various harms that were being experienced within society. So there would be in the immediate aftermath of Covid, there were – the pandemic starting, there were very clear – there was very clear availability of information about the effect that Covid was having on individuals, and on society. And that was able to be – you know, we could interact with that information to judge the course of the pandemic –

Lead 2A: Just to be clear, sorry, one point about timing, that was from April, was it, from April?

Mr John Swinney: No, I’m talking really about the information on cases and infection rates, cases per hundred thousand, fatalities, all that information was available from – within March.

Lead 2A: Yes, but then as regards the harms that were being caused to society in general or particular elements of society falling within harms 2, 3 and 4, when did that information become available?

Mr John Swinney: That would begin to be assembled in the four harms framework in the aftermath of 23 April 2020 when the framework was launched.

Lead 2A: What I was interested in is the extent to which you feel able to assert that the framework enabled ministers to rationalise competing advice and evidence to establish a clear direction of activity. It seems that this is a laudable attempt to try to assemble information about that, which may have taken some time to become available, but how does it enable ministers to rationalise all of that information and to make better decisions as to how to manage the pandemic?

Mr John Swinney: Because what it allows ministers to do is to look at the state of the pandemic, which is the intense datasets about the number of cases, cases per hundred thousand, fatalities, the R number, the progression of the pandemic in different parts of the country, and to establish – within the strategic intent of the government to suppress the virus to an extent where it does not provide a threat to public health and to – enables individuals to live their lives closer to normality than had been the case, can then – you know, given that – that we could never allow the pandemic to run rampant, we had to try to suppress it, but there was a fine judgement to be made about the degree to which we could relax other measures to enable people to live life more normally and to address some of the harms, the other harms in Covid. If we did that, we would essentially be opening up the opportunities for the virus to thrive.

And that’s really what I mean when I use the word “rationalise”, that we can actually construct a basis of decision-making that says: given the state of the pandemic – let’s for argument’s sake say it is receding – we can afford to take some decisions on the other harms that will allow people to live life a bit more normally, to address some of those harms, without the risk of inflaming the course of the pandemic.

Lead 2A: Thank you.

In his expert assessment, Professor Paul Cairney suggested that the four harms strategy was mostly a statement of the problem rather than a statement of the solution. Do you agree?

Mr John Swinney: No.

Lead 2A: Why?

Mr John Swinney: Because the framework enabled us to gather evidence of the impacts of the various harms on society and then to begin to consider how particular measures of relaxation, if we had the headroom to do that, could make a difference in addressing those harms. So it would provide us with a framework that enabled us to take a considered set of judgements based on the very clearly articulated priorities of the government about where we would want to act first to try to reduce harm that was being felt within society.

Lead 2A: A four harms group was put together which I know you were intimately involved with. It started to meet in October 2020; is that correct?

Mr John Swinney: That’s correct, yes.

Lead 2A: Why was it that there was a delay between the creation of the framework and the group starting to do its important work?

Mr John Swinney: I think to all intents and purposes a lot of that work was going on in the period between April and October, although I think it was formalised into the four harms group in October, but the Cabinet papers that we saw between April – you know, late April, when the framework was established, would have led to decision-making that was consistent with the four harms framework, particularly in relation to questions, you know, such as the return of school education or whatever the other decisions were, in the interim period. So the advisers were gathering together, putting that material together, but it established a formal structure in October.

Lead 2A: Would it be – would the following be a fair characterisation of what happened over this period: there was a realisation in April that other harms were being caused and there required to be a framework –

Mr John Swinney: Yes.

Lead 2A: – as to how to assemble information about the extent of those harms?

Mr John Swinney: Yes.

Lead 2A: In the period thereafter, the policy of the UK Government was to prioritise harm 1 in furtherance of a zero Covid policy – sorry, Scotland – in furtherance of a zero Covid policy?

Mr John Swinney: I think that’s probably a fair assessment, yes.

Lead 2A: By the time the operative mechanism to try to implement addressing the other harms had been put in place in October, in the form of the four harms group, the virus had returned such that harm 1 required to be prioritised again?

Mr John Swinney: Well, that misses out what happened between April 2020 and autumn 2020. Crucially, in that period, from my policy perspective, schools had returned in August, so for me a really, really big harm was being addressed by the return of full-time education for children and young people in Scotland. So that had – so what had happened after April was that the prevalence of the virus declined towards the summer, indeed when – in the period between the formulation of a plan for the return of schooling in the early part of – in the middle of 2020, the number of people who were able to transmit the infection were estimated to be about 20,000, by June that number had fallen by 90% to 2,000. So we’d seen a dramatic fall in prevalence over the summer, which enabled us to do, in my view, one of the most important things we did, which was to re-open schools and to re-open them early, on 11 August. And – but we then experienced increases in the prevalence of the virus in subsequent weeks, for which we took measures in applying restrictions, starting principally in the west of Scotland, in September 2020, which were designed to arrest that, because – and that essentially makes my point that we were – yes, we had harm 1, we knew what that looked like, it was a devastating virus that we had to suppress, but we had to try to enable people to live lives slightly more normally than they were without inflaming the path of the virus, and that was the sensitive balance we were trying to construct. And crucially the decision to return schools in August may well have contributed to that rise in the virus, I have to accept that point, but it did so in a fashion that allowed us to take other steps to tackle harm 1.

Mr Dawson: Thank you.

If that’s a convenient moment, my Lady.

Lady Hallett: Yes, certainly. I shall return at 3.15.

Mr Dawson: Thank you.

(3.02 pm)

(A short break)

(3.15 pm)

Lady Hallett: Mr Dawson.

Mr Dawson: Thank you, my Lady.

We were speaking, Mr Swinney, about the four harms framework. You told us helpfully that, although there was an awareness in March 2020 that harms would be caused by the restrictions, that no assessments could – were done at that time and that the four harms framework was an attempt to start to address those other harms.

You – was it apparent that there would be harm done, a greater, disproportionate harm, to people who suffered inequalities or were in protected groups?

Mr John Swinney: There would be an anxiety that that would be the case, and one of the duties of the Scottish Government in all of our actions is that we must act consistent with the legislative framework in which we operate, one element of which is the Equality Act – the Equality Act 2010, as well as the provisions of the Human Rights Act 1998. So these factors – these considerations are absolutely fundamental to decision-making that the Scottish Government has got to undertake, so they would be underpinned in the four harms framework.

But I think it’s also important to say that, as the events of the pandemic were taking their course, we were taking action to try to maximise the support as far as we could within the restrictions to support individuals who faced particular vulnerabilities. So, for example, the steps in relation to supporting the population who were shielding was one aspect of that. There would also be, in relation to my own portfolio, measures in place to ensure that local authorities were properly supporting children who were on the child protection register to make sure that in the – given the change to services and arrangements, that we could ensure that people were properly supported in that context. And there was other support which we navigated with our local authority partners around food support for people with vulnerabilities and other such provisions.

Lead 2A: The reason I ask, Mr Swinney about that particular element is because not only is it an important part of the scope of the module but a number of groups who have an interest in the module, including core participants, have raised with us the question to ask you why it was that inequality wasn’t specifically listed amongst the four harms, perhaps as a fifth harm, which I understand may have been the position in a similar framework in Wales?

Mr John Swinney: I understand that point, and the reassurance that I would give is that the legislative obligations of the Scottish Government to act consistent with the provisions of the Equalities Act and therefore the other obligations that we carry in relation to exercising our responsibilities in that respect were essentially underpinning the decision-making being made in the four harms framework. But if there is a concern that we did not take adequate steps to ensure that was the case, or that – by the fact that we didn’t have a fifth harm, but that we underpinned equalities considerations in our framework, if that led to a perception amongst groups that we did not take adequate – did not give adequate consideration to their interests, then I would apologise for that.

Lead 2A: Thank you. But you accept, I think, that there was an obligation – both legal and, one might say, moral – on the government to take account of the particular harms, the greater harms, as I think has been demonstrated subsequent to the pandemic by vulnerable groups in particular groups with protected characteristics?

Mr John Swinney: I accept that point, yes.

Lead 2A: We’ve heard a lot of evidence from these groups, some in person and some in written form that throughout the pandemic groups which fall within that categorisation feel that the government did – took inadequate steps to take account of that extra harm. In the opening video that we played at the beginning of the module, one gentleman who came from a background of having mental health difficulties, but I think his statement is broader, said that “The Scottish Government, when we started to emerge from lockdown, didn’t look around to see whom we had left behind”.

Why is it, if the four harms framework had running through its core these legal and moral obligations, more was not done to address the concerns of these groups whose interests one could have predicted would be more acute than the general society?

Mr John Swinney: Firstly, I’m sorry if any individual feels in that way, and I obviously am familiar with the material that you put to me, Mr Dawson, and I respect individuals for what they’ve said, I greatly admire them for that, so I’m sorry if our actions left people feeling in that way. What the government was trying to do was to return society to as much normality as we could whilst continuing to suppress the virus. And I – you know, I obviously, I took the best decisions I could at the time, and was involved in taking the best decisions that I could. I’m not going to sit here and say that we didn’t get all of those decisions correct in trying to exercise that judgement.

Lead 2A: When you say you’re sorry that your actions left people feeling that way, do you mean that you’re sorry that that was the experience, that that is what happened to people?

Mr John Swinney: Of course, yes. You know, that – that’s exactly the point I’m making, yes.

Lead 2A: Thank you. In his assessment which I’ve referred to already, our political expert in this module, Professor Cairney, said in his report that:

“While [the four harms] framework was useful to help plan the release of lockdown measures, there was still high uncertainty about the policy problem ([ie] the likely spread and impact of Covid-19) and likely impact of policy instruments (to address Covid-19), which ‘justified a role for the application of judgement in decision-making, taking all factors into consideration, including those that were difficult to quantify with much accuracy or confidence. This uncertainty also provided justification for adopting a cautious approach, particularly at stages during the pandemic when the risk to public health was potentially extreme’ … For example, the four harms approach was not a strong feature [in his view] of the emergency decision-making associated with lockdowns in March 2020 (it was produced by April 2020) or January 2021, and routine assessments of the impact of non-pharmaceutical interventions (NPIs) often involved too much uncertainty to make a proper four harms assessment …”

The conclusion that Professor Cairney reached was that the four harms assessment, based on the materials which had been produced to him by the Scottish Government in its response to this module, had not formed a part of the decision-making around having the second lockdown, and therefore that the Scottish Government had not learned the lessons from its inability to make those assessments with regard to the first lockdown. I’d be interested in your views on that.

Mr John Swinney: I don’t really share that view, because, as I narrated in the session just after – just before the break there, I was talking about the situation that we faced in the Cabinet of 4 January which took the decision to move into the second lockdown, I found that an almost – well, I did find that a terrifying couple of days, between the briefing that I got about the likely course of the pandemic, which is back to harm 1, to put it into the language we’ve used all of this afternoon. The harm 1 evidence was absolutely terrifying about what was coming our way in the course of January 2021, and in a sense the circumstances were very similar, if not identical, to the situation that we faced in March 2020 where, whichever way you looked at the evidence, it was just impossible to see any way through it other than having to take significant intervention to arrest the pace of the pandemic, because it would then go on to create even more significant harm than we’d experienced before.

So in that period, I understand the point that Professor Cairney is making, but the four harms framework acknowledged and accepted that there was one very direct acute harm which is caused by the virus, and the rest of the framework is about trying to help us to navigate our way out of those – the difficulties caused by that set of circumstances if we’ve managed to get the acute threat of the pandemic under control, and at that moment on 4 January we were not in that position.

Lead 2A: Is it correct to say, given the circumstances, the very pressing circumstances at that time, that the decision that was made was based solely on considerations of trying to suppress the virus and took no consideration or assessment of the other harms that would be done and were known would be done by a further lockdown?

Mr John Swinney: I think that’s – that is a way of looking at it, but I think there’s also another way of looking at it, which is to say that we faced an acute and serious situation which we had to address or there would have been even greater harm caused in direct Covid implications.

Lady Hallett: Is the answer to Mr Dawson’s question yes?

Mr John Swinney: I wasn’t –

Lady Hallett: – way of looking at it is –

Mr John Swinney: I wasn’t –

Lady Hallett: – the question?

Mr John Swinney: I wasn’t keen on choosing Mr Dawson’s words, my Lady, but I suppose the answer is yes to that question, that we took a decision which was based on the direct health harm, that’s what we – because of the extremity of the position we faced on 4 January.

Mr Dawson: Thank you.

Ultimately, when decisions are made relating to the way in which the harms should be balanced, those were decisions that were made by politicians including yourself, isn’t that right?

Mr John Swinney: That’s correct, yes.

Lead 2A: So the four harms gives you the ability to see where harms may be occurring or may occur based on different decisions but the decision, the balancing as you put it, requires to be a political decision at the end of the day?

Mr John Swinney: Yes.

Lead 2A: We’ve heard evidence both, again, in written form and in oral evidence, in particular from Professor Smith, that decisions about restrictions were often taken based, in part at least, on some perception amongst decision-makers of the tolerance of the Scottish people. Was that a concept which featured in your decision-making around restrictions?

Mr John Swinney: I – I wouldn’t say that I was particularly influenced by that. I felt that people were prepared – people realised the seriousness of the situation we faced and had shown remarkable willingness to play their part in trying to arrest this very difficult situation that we faced. And I felt if people were given – I understood frustration, you know, I heard it from people that I have the privilege to represent about how frustrated they were by lockdown and by other issues, so I understand the frustrations. But I can’t say I was influenced by what – about that sentiment.

Lead 2A: It would be difficult, would it not, if one were to factor into decision-making a concept as nebulous as the tolerance of the Scottish people, to understand what – how accurate that assessment could ever be and indeed what weight to place on it?

Mr John Swinney: Because it will vary from one individual to another, and therefore trying to get some – but my general sense was that people had really played their part in trying to arrest the difficult situation we were in, and we just had to be open with them about how – what were the, you know, the nature of the challenges, the severity of the situation that we found ourselves facing.

Lead 2A: When he gave evidence to the Inquiry, epidemiologist Professor Mark Woolhouse was asked about the four harms framework and indeed its implementation in decision-making. His position as regards the framework itself was that he thought to a large extent the four harms policy – he said “When the four harms policy were mentioned, I was greatly encouraged”, so the announcement of the concept in April was something that really encouraged him. But then he went on to say, as regards the question as to whether he felt it made a difference, it improved decision-making, in particular with regard to taking into account the other harms that would be done by lockdowns or other restrictions, he said:

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

Do you have any comment on the suggestion that the four harms framework, in particular its implementation, was mere rhetoric?

Mr John Swinney: I don’t agree with that. I think if I address the point that Professor Woolhouse makes about the summer of 2020, it perhaps will help the Inquiry to understand what was driving government decision-making.

In the summer of 2020 the government was absolutely focused on getting schools back on 11 August. That was our overwhelming interest. So in terms of the point that Professor Woolhouse is making, there is a legitimacy in his argument where he might say, well, the government could have relaxed restrictions – I think Professor Woolhouse was making particular points about outdoor leisure activities –

Lead 2A: His position was that there should never have been any restriction.

Mr John Swinney: Well, so – well, I couldn’t have gone along with that because I wanted to make sure that we could get the schools back on 11 August. That was a big issue for me. Now, if we had too much virus, too many cases, too much difficulty coming from the prevalence of the virus, the ability of the government to sustain the argument about a safe return to schooling on 11 August would have been challenged by that. So in a sense I’m partly agreeing with Professor Woolhouse that there’s choices to be made in there, there are choices, and the government made its choices very clear about what we wanted to prioritise.

Lead 2A: I think the part where you disagree – I think you would agree that there were choices but I think perhaps you’re disagreeing on the proposition that I think he would make, is that the wrong choices were made by the Scottish Government?

Mr John Swinney: I do disagree with that, yes.

Lead 2A: He is an expert epidemiologist.

Mr John Swinney: I understand that, but the Inquiry’s also heard other evidence from other epidemiologists who take a very different view about the – the impact of the decisions that were made, particularly in relation to, you know, issues that mattered to me around about the school closures, for example.

Lead 2A: He was the epidemiologist whom evidence shows was plugged into the Scottish Government decision-making framework from 21 January 2020, explaining to Catherine Calderwood, the then Chief Medical Officer, that what was going to happen was disastrous and measures needed to be taken which ultimately were taken, but not at the time he was suggesting.

Mr John Swinney: Listen, I have no interest in having a disagreement with Professor Woolhouse, I’m simply saying that in the particular scenario of the summer there was a particular decision that I – I made a particular choice at that time, and I supported that particular choice being made, which I understand he doesn’t agree with.

Lady Hallett: Can you pause, Mr Dawson.

Are we freezing the public gallery again? Could someone please check if there’s something we can do to stop them developing icicles on their noses.

Mr Dawson: Thank you, my Lady.

What I was going to suggest is that, although you don’t wish to have a disagreement with Professor Woolhouse, I think it would be fair to say that Professor Woolhouse has a disagreement with you, and the Scottish Government, in that his view is that the strategy that was adopted was the incorrect strategy throughout, that it wasn’t based on epidemiological evidence, which he was in a position to provide to the Scottish Government, and that that resulted in a great deal of hardship in particular with regards to harms 2 to 4?

Mr John Swinney: I think what I would say is that we faced, in March 2020, and on various other occasions, a very acute direct harm which was affecting and had the potential to affect a very substantial proportion of the population, and we had to act to suppress the effect of that harm. There were wider consequences, but what the four harms framework enabled us to do was to try to reconcile some of those difficult choices and chart a way out of the acute difficulties that we had faced.

Lead 2A: Thank you, Mr Swinney.

I’d like to turn now to the question of school closures that we discussed earlier. As well as being Deputy First Minister, you were until May 2021 the Cabinet Secretary for Education and Skills; is that correct?

Mr John Swinney: That’s correct, yes.

Lead 2A: We covered that already.

Could we turn to INQ000362664, thank you very much.

This is the – these are the minutes, again attended by you, of the Cabinet meeting held on Tuesday 17 March 2020.

Page 5, paragraph 18, please.

At subparagraph (c) it says there:

“Very active consideration was being given to the possible closure of schools and other educational establishments, but the evidence was not yet clear. The epidemiological evidence did not suggest that this measure would slow the transmission of COVID-19 down to a great extent (and might in fact cause some additional infections – for example by increasing children’s exposure to grandparents over 70).”

At page 9, paragraph 19(d), it says:

“The advantages [this is in the Cabinet agreement] and drawbacks of closing schools and other educational establishments should be considered further over coming days in light of emerging evidence across the UK …”

In your witness statement at paragraph 19 on page 9 you say:

“… I felt the dialogue I had with Nicola Sturgeon about the closure of schools with effect from 20 March 2020 was a significant matter and was the product of informal communication. The circumstances were deteriorating quickly, school attendance was falling, staff anxieties were growing and we needed to come to a definitive conclusion about whether schools should remain open. Nicola Sturgeon and I discussed the issue in person in the aftermath of Cabinet of 17 March and again on 18 March. We took a decision that she should say on 18 March the likelihood that was that schools would close on Friday 20 March and I confirmed this closure would take place in a statement to Parliament on 19 March.”

In light of the evidence that we’ve seen that on 17 March the Cabinet minutes record that the epidemiological evidence did not suggest that this measure would slow the transmission of Covid-19 to a great extent, and it might in fact cause some additional issues, what epidemiological evidence were you and Nicola Sturgeon given on 17 or 18 March that underpinned the decision which I understand you both took to close schools?

Mr John Swinney: In the evening of 17 March I was provided with further advice from my education officials about wider dialogue they were engaged with, with the United Kingdom Government and the other devolved administrations, about the issue of school closures and the possibility, and as part of that advice they indicated to me that they thought it likely that SAGE on 18 March would conclude that the epidemiological case was in place for the closure of schools and that that would in fact bring an advantage.

The other – so that was the different – so when – I received some information from my officials, I think on 9 March, which indicated to me that SAGE were not – of – largely replicating the point you made to me, Mr Dawson, from the Cabinet minutes of – that the evidence didn’t exist, that was largely the advisory position from SAGE in correspondence to me, I think, on 9 March, and then on 17 March after the Cabinet meeting I received this update which indicated that there was a growing assumption that SAGE on the 18th would provide the epidemiological advice that it would be advantageous to close schools.

I was dealing with a deteriorating position, as my witness statement says. During the course of Tuesday, I was receiving data on school attendance, which was declining, and had been declining. There was a decline in staff attendance. And when there’s uncertainty in the number of staff attending and the ratio of pupils, that begins to make the opening of schools on a stable operational basis quite challenging.

My officials were in discussion with directors of education around the country. Indeed, one director of education in Shetland had had to move the school system in Shetland on the previous Friday to a hub model because of staff illness and the school estate could not be run safely.

So during the course of the 17th I was becoming increasingly concerned that we were receiving data which was making the school estate unstable, and also epidemiological advice that indicated to us it would be advantageous to close schools. And on 18 March the data was deteriorating further about school attendance and I was concerned that we were in danger of operating an unsafe situation, and for that reason the First Minister and I concluded in conversation that it would be appropriate for her to make that point clear on the 18th.

I think also, for completeness, I discussed the issue with the Secretary of State for Education on the 17th, and we both shared our perspective about where things were heading at that time.

Lead 2A: On what authority was the decision made?

Mr John Swinney: On the 18th?

Lead 2A: The decision to close schools, yes.

Mr John Swinney: It was made as a consequence of direct discussion between the First Minister and I.

Lead 2A: But not on the basis of a delegation of authority to make that decision if the situation changed from Cabinet?

Mr John Swinney: That is fair, but my justification would be that events were moving at an absolutely ferocious pace and I had to give clarity to the education system about what was likely to be pertaining in the days to come.

Lead 2A: Was the advice from SAGE based on Scottish information and data?

Mr John Swinney: I don’t know the answer to that question.

Lead 2A: The position that we understand at this stage is that effectively English data was used in order to try to work out the threat of the pandemic at that stage and that obviously, as we know, subsequently Scotland developed its own data systems and advisory systems to try to address that.

Mr John Swinney: Yeah.

Lead 2A: But at this stage I think the position is that that would be based on English data?

Mr John Swinney: I don’t know that case, but obviously my officials were receiving advice from our clinical advisers, principally the Chief Medical Officer at that time, who took the view that was reflected in the advice that came to me that there was – that the appropriate step to take was to announce the closure of schools.

Lead 2A: But you relied on the SAGE advice, I think you said?

Mr John Swinney: I did, that’s correct, yes.

Lead 2A: Did you have the opportunity to interrogate SAGE about the application of that advice to Scotland?

Mr John Swinney: I did not.

Lead 2A: The position generally, epidemiologically, was that certainly London was considerably ahead of Scotland at that time in terms of the threat, therefore was it appropriate to base a decision on a conclusion reached by SAGE without interrogating it further?

Mr John Swinney: I think it was, because I think it was pretty clear that what was happening in London was coming our way and it would be coming our way pretty shortly thereafter.

Lead 2A: What equality impact assessment was done on the likely effects on children’s learning and development of the schools being closed?

Mr John Swinney: At that moment we did not have the time or the opportunity to carry out that assessment.

Lead 2A: Does that mean none? None?

Mr John Swinney: None, that’s correct, yes.

Lead 2A: What equality impact assessment was done on the state of preparedness to counteract those harms, including access to digital inclusion if schools were closed?

Mr John Swinney: We did not carry out a formal assessment but local authorities were encouraged to ensure that appropriate provision of education was put in place to support children and young people at that time.

Lead 2A: Were any equality impact assessments done for children’s mental health, those with disabilities or learning difficulties in particular?

Mr John Swinney: Not at that moment, no.

Lead 2A: What was the Scottish Government’s exit strategy at this stage from this policy?

Mr John Swinney: We – we wanted, and we made clear, that the resumption of full-time face-to-face education was of the highest priority for the Scottish Government, and essentially the development of the four harms framework was designed to provide us with the rational basis that would enable us to take decisions to restore full-time education at the earliest possible opportunity.

Lead 2A: Thank you.

A point that’s been made to us by the Children and Young People’s Commissioner Scotland related to the fact that no education closure direction was made, which meant the necessity and proportionality of the decision to close schools was not scrutinised by Parliament. Is that factually correct and why was no such assessment made? Sorry, no such direction made, I should say.

Mr John Swinney: Yeah. Well, the direction – like, it’s one of these interesting points that – at that moment we announced the closure of schools with the consent of local government, and I think that the statutory arrangements that are in place for a school closure are largely that a local authority has to close a school if there is an outbreak of a health nature, driven by a direction from a director of public health in an individual local authority area. So that’s the formal position for the closure of one individual school. The situation we faced here was altogether different, and we did not have the statutory powers to enable that to happen. Those statutory powers essentially only came on a – you know, on a Scotland-wide basis with the Coronavirus Act, which was yet to come into legislative force – yet to be passed by the Scottish Parliament and yet to come into legislative force.

So we essentially made that announcement, it didn’t have legislative underpinning, it was an expression of leadership in a desperate moment where parental anxiety was very high, staff anxiety was very high and the concern for the wellbeing of children and young people was very high as well. And we took that decision to try to avoid some of the effects of coronavirus and its impact on the wider population.

Lead 2A: Would it be reasonable to conclude, Mr Swinney, that at this time, and these are not my words, the Scottish Government was in a state of complete panic?

Mr John Swinney: No. We were very anxious about the situation, we had a severe problem on our hands, but we were trying to take an orderly set of decisions that would provide clarity to those who required to have clarity from us.

Lady Hallett: Mr Swinney, did you ever consider an alternative to a complete closure of schools? For example, certain year groups or mornings or afternoons, anything of that kind?

Mr John Swinney: Not at that moment, my Lady, because we felt that the severity of the situation that we were facing was of such a magnitude. Now, we did consider all of those questions at later stages for the return of pupils, which we envisaged potentially coming back on an approach which was called blended learning, which meant that some children would be in some days sometimes and not others, but eventually got to the point where we were able to return all pupils to full-time learning.

Lady Hallett: Thank you.

Mr Dawson: As regards the – you’ve mentioned already the consideration that went into the re-opening of schools on 11 August. In that regard, what medical, epidemiological, scientific evidence were you aware of earlier in the year, in April or May, with regard to the extent that schools were contributing to the spread of the virus?

Mr John Swinney: The – I think it was difficult for there to be a specific analysis given to that effect, although I do see in other evidence that the Inquiry has indicated – has heard that there are studies which have indicated that school closures contributed beneficially to the reduction in the rate of fatalities as a consequence of Covid. But when we looked at the whole sequence of steps in relation to the re-opening of schools, we did have the benefit of advice from a specific Scottish Covid education advisory group who were a subgroup of the Chief Medical Adviser’s group within the – which was convened by Professor Andrew Morris, the education group was convened by Professor Carol Tannahill, the Chief Social Policy Adviser to the Scottish Government, and which included epidemiological advice and a variety of child psychology and educational advice that provided the underpinning for the re-opening of schools in August.

Lead 2A: So presumably that subcommittee, chaired by Professor Tannahill and others, child psychologists, et cetera, presumably the general tenor of their position would have been that it was important to do what we could, in the balancing exercise, to try to get children back to school, because it was almost self-evident that children not being in school would affect not only their learning but their development and put them at social harm, et cetera, as we’ve seen in all the evidence; was that broadly their position?

Mr John Swinney: I – I never participated in their discussions, I thought it was important that –

Lead 2A: But we’ll have got something of their –

Mr John Swinney: Wait, I’ll come to that – but I never participated in their discussions so I never – I never heard their – the exchanges that went on. But the advice that they were providing to me left me with the impression they were coming at this from the perspective of they saw and acknowledged the benefits of the return to schooling of children and young people and they wanted to make sure that could happen at the earliest and safest available moment.

Lead 2A: So from a – one might call that a harm 3 perspective, it was a good thing to try to get children back to school as soon as one could, but that had to be balanced against harm 1, which was the predominant consideration?

Mr John Swinney: And that was my point about the summer of 2020, when we were having our exchanges about Professor Woolhouse, that I was desperate to make sure that we could get schools back on 11 August, for all the legitimate reasons that you put to me.

Lead 2A: What I’m interested in is why that didn’t happen earlier, Mr Swinney, because Professor Woolhouse in his evidence on 24 January told us:

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

He said:

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

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

Why was it that you didn’t take account of that advice, Mr Swinney?

Mr John Swinney: Well, some school pupils were back before the summer break, because we put a premium on young people who were making the transition from primary to secondary education, which is a challenging transition for many young people, was that they would be able to come back to experience some full-time – sorry, face-to-face learning in advance of the summer break.

So we did actually – it’s not just the case that pupils all came back on 11 August, we did take steps to get some pupils back before the summer break, recognising the beneficial element that that could be.

Lead 2A: With respect, Mr Swinney, that’s not an answer to my question. I asked you why it was you hadn’t taken the epidemiological advice into account in considering sending all children back to school?

Mr John Swinney: Well, I didn’t – I didn’t have that epidemiological advice from the advisory sources that were advising the Scottish Government, so I didn’t have that from the group that was led by Professor Morris, I did not have that from the group led by Professor Tannahill, so I felt that I should follow – take account of the advice that I had in front of me that was offered to me from a wide range of disciplines.

Lead 2A: Professor Woolhouse was a member of the group that was chaired by Professor Morris.

Mr John Swinney: Well, I did not have advice in front of me which said I could safely bring back schools earlier.

Lead 2A: Presumably it must have been the position of Professor Tannahill’s group, if it existed at the time, that it would be a good idea from a harm 3 perspective to get children back to school as early as possible?

Mr John Swinney: Of course, yes, and that’s the way they represented their advice to me, but it had to be done in a way that was compatible with the safety of everybody concerned and also with the overall effort within the – across the policy spectrum to suppress the prevalence of the virus.

Lead 2A: Of course, so that harm 3 consideration needed to be balanced against the harm 1 consideration; yes?

Mr John Swinney: Yes, but –

Lead 2A: But what Professor Woolhouse is telling us is that from an epidemiological point of view it would have been safe to do it earlier in the –

Mr John Swinney: Well, that’s not the advice that I had in front of me, and the – and if I also come back to the point I made earlier on, that there was a very different position about the number of people able to transmit the infection in the period to which you’re referring, Mr Dawson, in early May, compared to in late June when I took a decision that schools should return full-time in August.

Lead 2A: Over the summer of 2020, the Scottish Government’s focus was on attempting to achieve elimination of the virus such that considerations of harm 3 were put to one side?

Mr John Swinney: No, because the Scottish Government’s intent on suppressing the virus was designed to enable us to return people’s lives to something resembling normality, and a key part of that was enabling children to return to school, which they successfully did on 11 August 2020.

Lead 2A: I suspect, Mr Swinney, that those who take an interest in the business of this Inquiry are more interested in effect than intent. Would you agree?

Mr John Swinney: Well, that’s what happened, the schools came back on 11 August.

Lead 2A: As regards the closure of schools in the period we discussed earlier at the beginning of the second lockdown, we looked at the Cabinet conclusions. INQ000214456.

If we could look at that again, just to understand again what it was we were looking at.

Paragraph 14:

“The final change which the First Minister planned to announce that afternoon was a requirement for all schools to continue to use remote learning (except for vulnerable children and children of key workers) until – at the earliest – 1 February, instead of the current planned date of 18 January. This was necessary both because of the scale of community transmission of the new variant and because of the uncertainties currently surrounding the ease and extent of transmission of the new variant between symptomless young people.

“Mr Swinney noted that the current position was deeply serious and, arguably presented a set of problems of greater magnitude than in the spring of 2020. One of the main challenges over the coming few months would be to get across to the public at large that, despite almost ten months of severe restrictions, now was not the time to relax observance, despite the arrival of vaccines.”

Does – that paragraph I think encapsulates the sentiment that you expressed earlier about the urgency of this particular situation and the evidence that you had; is that right?

Mr John Swinney: That’s correct, yes.

Lead 2A: To what extent once the lockdown was announced did you take account of medical advice about whether and the extent to which school closures were assisting in the lockdown and their contribution to the overall spread of the virus in January 2020?

Mr John Swinney: That would have been part of the assessment about the prevalence of the virus and then led into the consideration of what was the right moment at which we could begin to restore full-time learning for children and young people.

Lead 2A: Yes, so – because again Professor Woolhouse told us that although it might have been legitimate to be cautious about the extent to which the Alpha variant, which was becoming – had become the dominant variant at this stage, might behave differently from the previous variant with which we dealt in March, he said:

“… it very quickly became apparent in that second wave that schools did not need to remain closed and we could still control the virus, and yet they weren’t fully re-opened here until May 2021. This was unnecessary. The – well … forgive me, this is one of the aspects of the pandemic management that I – I really feel very strongly, what we did to the children. And it would be bad enough if there was a detectable and measurable public health benefit to this, but there wasn’t. This wasn’t necessary, and we did it anyway.”

To what extent were you aware of that epidemiological information that suggested that the ongoing closure of schools was not conferring a public health benefit on the management of the pandemic?

Mr John Swinney: Well, the issues in relation to the prevalence of the pandemic were at the very heart of decision-making on this question, so the – you know, the whole assessment about what steps we could take to re-open schools was a product of what was the epidemiological assessment of the pandemic.

So in terms of the analysis that would be constructed by all of those who were looking at these questions, looking at it through the four harms framework, recognising the premium the government attached to the return of full-time schooling, those – what would flow from that information was the decisions that we could take about the timing for the re-opening of schools. And we started the re-opening of schools, if my memory serves me right – well, actually, in the second lockdown the number of pupils who were being educated within schools was significantly greater than during the first lockdown, by a factor of I think 3, so about 8% of pupils were being educated in school in the second lockdown because of the arrangements that we had for the hub provisions in schools. So schools across the country were open, more schools were open in the second lockdown than the first lockdown, and then we essentially moved to a phased re-opening of schools with some year groups coming in, if my memory serves me right, on 15 February, and then there were different stages thereafter.

So the epidemiological information and the condition of the pandemic were driving the decisions that I was able to take in relation to school re-opening.

Lead 2A: So the basis of your extensive involvement in pandemic recovery, and indeed ongoing committees and things like that which relate to the recovery from the pandemic, is it possible even remotely to quantify, now, the extent to which the prolonged closures of schools have affected the development and learning of children in Scotland?

Mr John Swinney: Well, we have undertaken in the course of the – well, we did undertake within the government in the course of the pandemic 13 children’s rights and wellbeing assessments to consider these issues. We also in the summer of 2020 undertook an equity audit which explored the impact of school closures and then led to the reconfiguration of the curriculum in the autumn of 20 – sorry, in August of 2020 to enable a much greater focus on supporting the wellbeing of children and young people who were returning to school after the first lockdown.

In addition to that, I asked Her Majesty –

Lead 2A: Can I pause at that stage to ask about that.

So in the summer of 2020 you had done an assessment, I think you said, about the impact of the first lockdown as it was coming to an end on children. Did that tell you there had been a significant impact on children’s learning and development?

Mr John Swinney: It told us there had been an impact, a negative impact on children’s learning and development, yes, it did, and therefore –

Lead 2A: So you knew that at the time you closed schools in the second lockdown; yes?

Mr John Swinney: Yes, but I – but I did not feel I had an alternative because of the gravity that I express at paragraph 15 of the Cabinet minute about the deeply serious situation that we faced. And I didn’t, in all honesty, think that I could ignore the epidemiological advice that was being put in front of me at that particular moment. I think that would have been frankly reckless on my part –

Lead 2A: I understand that that’s your position, Mr Swinney.

As regards the assessment done of the further harms that would be caused by a second lockdown, was an assessment done of those harms at the time the second lockdown was imposed and schools were closed for a second prolonged period?

Mr John Swinney: Well, at that moment I asked Her Majesty’s Inspectorate of Education to review the delivery of remote learning and to particularly explore issues around the health and wellbeing of pupils and of staff, and of the availability of digital devices. The government put in place new resources which were designed to fill the gaps in relation to access to digital devices, and we of course had access to extensive amounts of online learning through e-Sgoil venture, which the government had invested heavily in and which the teaching population around the country significantly supported to make sure that in the second lockdown there was a much stronger platform for digital learning that was available to children and young people.

Lead 2A: Thank you, Mr Swinney.

I would like to ask you about another element now of what I understand is your portfolio, namely the relationship and dealings with local government.

We’ve already heard evidence about the fact that a levels system was introduced in Scotland in October 2020; is that correct?

Mr John Swinney: That’s correct, yes.

Lead 2A: And if I get the nomenclature right, it was called the levels system, there was a similar system which existed in England called the tiers system; is that correct?

Mr John Swinney: That’s correct, yes.

Lead 2A: And in the lead-up to the levels system being introduced there were some discussions I think, of which we have evidence, between amongst others the Chancellor of the Duchy of Lancaster about the UK Government’s plans and indeed the Scottish Government’s plans, which had given rise to documents which suggest – and also a press reporting on 12 October 2020 – that Scotland intended to implement and introduce a three-tier system similar to the one that England had – that the UK Government had proposed as at that point; was that correct?

Mr John Swinney: I’m not sure that we’d actually had – come to any formal conclusions on that. I’d have to check –

Lead 2A: But that is a matter of intention, I think, the intention was that that’s what would happen?

Mr John Swinney: I’m not sure we’d come to a –

Lead 2A: In the event it didn’t –

Mr John Swinney: We knew we were going to have a levels system –

Lead 2A: Yes.

Mr John Swinney: – because we knew we had to have some gradation of restrictions in different localities –

Lead 2A: Indeed, indeed, as was the approach in the UK Government at the time.

Why was it that the Scottish Government decided to have the five levels system rather than the three-tier system?

Mr John Swinney: We judged that we needed to have a sufficient amount of variation between levels to take account of some really very different circumstances in Scotland. Geographically and in demographic terms Scotland is a very diverse country. The circumstances that pertain in the Orkney Islands are very, very different to those that pertain in central Glasgow, and indeed the circumstances that pertain in central Glasgow can be very different to those that pertain in rural Perthshire, where I have the privilege to represent.

So we judged that we needed to have a range of circumstances that would reflect that diversity and able to – and enable us to exercise sufficient influence on – offer any restrictions to be able to exercise sufficient influence.

Lead 2A: And that wouldn’t have been served, in your view, by the three-tier system which you knew about that was going to be introduced –

Mr John Swinney: I don’t think – I don’t think the range would have been sufficient, because of the point I’ve made about –

Lead 2A: Thank you.

Mr John Swinney: – the span between Orkney and Glasgow with Stirling and Perthshire in the middle.

Lead 2A: Presumably there must be similar differences between central London and rural parts, say, of the north of England?

Mr John Swinney: I’m not sure the acute challenge – the acute differences of the island communities particularly pertain in England compared to the diversity of circumstance that pertains here, and we were anxious to make sure that we had a framework that would apply right across the country.

Lead 2A: Was consideration given to the fact that in particular those who might spend time or live around the border, this would be incredibly confusing?

Mr John Swinney: That was acknowledged, yes, and it was a source of, you know, some considerable attention during these periods, yes.

Lead 2A: Mr Gove in his evidence yesterday said that the UK Government’s perception of the Scottish Government’s position was at times that it sought to create difference for no particular apparent benefit. Was this a situation in which Scotland wished to have a five levels system just to be different from the English three-tier system?

Mr John Swinney: No, for the reasons that I’ve set out about the diversity of geography and demography in our country.

Lead 2A: As far as the relationship with local government was concerned, you say in your statement that there was good and effective communication and partnership; is that your position?

Mr John Swinney: That is my position, yes.

Lead 2A: You had some involvement in that aspect of the management of the pandemic; is that correct?

Mr John Swinney: I had a lot of – I think my involvement with local government would fit into three categories. One, a strategic relationship with the political leadership of local government and the president and vice president of the Convention of Scottish Local Authorities, who I spoke to frequently and who I always made clear to I would listen to at any time.

Secondly, I was the joint chair of the Covid education recovery group with Councillor Stephen McCabe who was the Convention of Scottish Local Authorities education spokesperson.

And, thirdly, I had quite a lot of dialogue with local authority leaders about the application of the levels.

Lead 2A: Thank you.

The Inquiry has, is aware of a report by Professor Kevin Orr of the University of St Andrews which is entitled “Good governance during COVID-19: learning from the experience of Scottish Local Authorities”. Are you aware of this report?

Mr John Swinney: I have seen that, yes.

Lead 2A: Could we look at page 34 of the report, please.

The report is one which provides findings and learning from discussions with senior officers and elected members in six Scottish local authorities; is that correct? Is that your understanding?

Mr John Swinney: That’s my understanding.

Lead 2A: And my understanding, certainly – I hope you agree with me – is that the six local authorities were chosen for this project to provide a mixture of different geographies, governance arrangements and political compositions; is that right?

Mr John Swinney: Yes.

Lead 2A: As far as you understand it.

Page 34, he notes that:

“One chief executive was directly critical of what was felt to be an unnecessarily centralised approach by Scottish Government.”

It says:

“‘The public face of the pandemic for both governments, was their respective political leader. In Scotland’s case, that was the First Minister. It was clear from a delivery partner perspective, that the political involvement in all the decision-making associated with the response was all pervading and on some occasions, the political “optics” seemed the guiding force. And of course, because of the 24/7 media world we now live in, the respective national political leaders were centre stage of that 24/7 media world. In the gold command structures put in place by the Scottish Government, there was no scope for any departure from the nationally set approach, which was an unrelenting single focus on health harm rather than the 4 harms approach that was claimed. There was no real local decision-making and no real opportunity to influence the response actions to be taken. It was a here it is and it’s to be implemented. Since devolution in Scotland, there has been a growing tension between Scottish Government and local government and the pandemic has exacerbated that tension not only between respective politicians but also across officials. Local political leaders were being held to account for decisions they had no locus in and privately were being criticised by the Government for not doing enough to support the response, when they were not being treated as a partner in the response’.”

We have available to us in this Inquiry a number of responses from a number of councils – including Aberdeenshire Council, North Lanarkshire Council, South Lanarkshire Council, West Dunbartonshire Council and Angus Council – the general tenor of which is that they felt they had no involvement in Scottish Government decisions which would affect their local authorities.

Does this suggest, Mr Swinney, that your assertion that there was a good working relationship during the course of the pandemic with local authorities is misguided?

Mr John Swinney: I don’t think it does. I’m sorry that’s how they feel, but let me just talk a little bit about the circumstances around the Covid education recovery group. That was, you know, a gathering jointly chaired by myself and a representative of local government. The Auditor General of Scotland said:

“… in my … report with the Accounts Commission Improving Outcomes for young people through school education we highlighted effective joint working by the Education Recovery Group … during the pandemic.”

“This strong foundation helped in the delivery of a rapid and nationally co-ordinated response to the pandemic in exceptionally challenging circumstances.” So I’m disappointed that people don’t share my view that there was a good partnership, but I put a lot of effort into chairing the Covid recovery group, you know, I don’t know – I don’t know how many times we met, actually it must be about, I don’t know, probably about 50 or 60 times, with, you know, a group of people from national and local government totally focused on the solutions and wrestling with the problems, working together, not a – you know, a very constructive atmosphere. So I’m really disappointed to see kind of text of this type, because it’s not my feeling. President of

Cosla: if I look back at my diary I was speaking to the president of COSLA on 3 March 2020 to make sure that COSLA were bound into the resilience arrangements for handling the pandemic because I realised how significant they would be, and if I had – you know, I was involved in one conference call with local government leaders. I couldn’t begin to count how many I was involved in. So I’m very disappointed to hear that conclusion. I think that’s also – that quote that you’ve read to me, Mr Dawson, I have to say sits quite at odds with the evidence that I think was led from the Convention of Scottish Local Authorities to the Inquiry some time ago, which I think was of a very different character to that, which would largely have reflected my impression.

But, you know, I valued what Scottish local government did. I saw, you know, in my own community about how the local authority that in my area adapted to respond to the local circumstances.

There would inevitably be tension about levels, because somebody had to take a decision about what was going to be the appropriate levels, and that fell to the Scottish Government, we were being scrutinised about it in the – as your commentator here says – in the 24/7 media world, and we did our best to engage with local authority leaders about the contents of that.

Lead 2A: Is your assertion that the Scottish Government enjoyed a good constructive working relationship with local government during the pandemic mere rhetoric?

Mr John Swinney: No, it’s a statement of my honest view.

Lead 2A: It is a common theme of the Scottish Government’s statements to this Inquiry that, in its dealings with the UK Government, the Scottish Government felt far from an active participant in decision-making. Is that broadly the tenor of some disappointment that the Scottish Government has expressed?

Mr John Swinney: I think it’s – I think it’s slightly more nuanced than that. I think there’s some of that, yes, but there’s also other evidence of good and constructive working.

Lead 2A: Is the evidence that we have seen not indicative of the fact that the Scottish Government adopted that very same approach to local authorities?

Mr John Swinney: I wouldn’t say so, because we provided the opportunities for meaningful engagement and involvement by Scottish local government in the decision-making process in which we were involved.

Mr Dawson: Thank you, Mr Swinney.

Those are my questions. There are some core participant questions, as I understand it.

Lady Hallett: Thank you very much, Mr Dawson.

Ms Mitchell.

Mr Swinney, don’t worry, you’re not alone in this, but you’re inclined to give very long answers. Maybe it’s a politicians thing, I don’t know.

Ms Mitchell has limited time, so to be fair to those whom she represents, Scottish Bereaved, please could you try to focus on her questions.

Ms Mitchell: I’m very much obliged.

The Witness: My apologies.

Ms Mitchell: Very much obliged, my Lady.

Questions From Ms Mitchell KC

Ms Mitchell: Mr Swinney, I appear as instructed by Aamer Anwar & Company on behalf of the Scottish Covid Bereaved.

In your written evidence to this Inquiry you say that you experienced no tangible presence of Alister Jack, Secretary of State for Scotland, in any aspect of the work of handling the pandemic in Scotland.

My question to you is: were there efforts made to engage him in this process? If so, what?

Mr John Swinney: I think the … the short answer is probably no, because there was no real value in it. Because, as I explain in my witness statement, if the Scottish Government had a problem with the UK Government, the best way to solve it was to go directly to the person in the UK Government, and indeed we had interlocutors who were quite helpful in trying to help resolve these issues. In my experience, the Secretary of State for Scotland would have contributed nothing of any useful value in assisting us in that process.

Ms Mitchell KC: Well, the Secretary of State for Scotland indicated that he was concerned in relation to data not being available, Scottish data not being available, and that not being a satisfactory basis for decisions in Scotland, ie England-only data being used, and my learned friend touched on that with you earlier.

Were you aware of his concerns in that regard?

Mr John Swinney: I wasn’t aware of his concerns, but what I do know is that significant efforts were put in place to ensure that good, accurate Scottish data was available at all times. Now, I don’t know if – it may be that the Secretary of State for Scotland is making that remark in relation to information that was available to the United Kingdom Government, but certainly in the Scottish Government I felt we had very good Scottish data available to us at all times.

Ms Mitchell KC: I think he was making it in relation to decisions that were being taken by the UK Government in relation to matters which also affected Scotland and that only had English data.

You say that Scotland had Scottish data at all times, but it’s clear from the evidence in the previous module and from this module that they didn’t have access to Scottish data to assist them in that decision-making process.

Mr John Swinney: Well, certainly I felt in Scotland we got datasets really very quickly in the pandemic that were developed and that we had available to us. I obviously am not intimate about what was going on in the United Kingdom Government and what information was available there. I think it’s a very good example. If there was a problem with Scottish data being available for the United Kingdom Government, you know, that – bluntly, that’s an issue for the Secretary of State for Scotland to try to address because that’s supposed to be his job.

Ms Mitchell KC: Do you not think that it’s a loss of good use of someone who has that contact with the UK Government to use as a conduit for issues exactly on that basis?

Mr John Swinney: In my experience of dealing with the current Secretary of State for Scotland – and I would not be saying this about his predecessor – is that the current Secretary of State for Scotland is not a help to get things resolved. His predecessor was. His predecessor, the Right Honourable David Mundell, was of enormous assistance in trying to get things sorted out. I don’t – I’ve not – it’s not been my experience of the current Secretary of State for Scotland.

Ms Mitchell KC: But it’s your evidence that you didn’t try, you didn’t try and engage with him to assist?

Mr John Swinney: Because of my experience before the pandemic.

Ms Mitchell KC: Moving on to my next question.

Were you aware of, by the start of March, a growing concern that decisions on the pandemic response were being taken too slowly by the Prime Minister?

What I’m trying to get is your sense of what was going on at that time.

Mr John Swinney: I think there was a – during February, during January and February, there was a growing alarm about the situation, and – I’m talking about in Scotland – and there was growing preparations to deal with what we thought would be a very serious situation coming in our direction.

As we got into March – now, during January and February, I think it was very difficult to be certain what was the right moment to absolutely escalate and operationalise those decisions.

By the end of February, the beginning of March, it became apparent we were in that zone, and the point –

Ms Mitchell KC: Well –

Mr John Swinney: Please forgive me, Ms Mitchell.

And essentially there was growing frustration within the Scottish Government that we felt we needed to be doing more. We might not have the crystallisation of the case load and the problem in Scotland, but it was growing, and therefore there was a frustration that things were not moving fast enough.

Ms Mitchell KC: Well, speaking of frustration, were you aware of the views of Professor Sridhar and Mark Woolhouse at the speed of which actions should be being taken but weren’t yet being taken by March?

Mr John Swinney: I was aware of those views being expressed publicly, and indeed was paying particular attention to those views, and was considering, as the rest of the government were considering, what were the right steps and the moment to escalate, for all the reasons that we’ve talked about today about the moments to capture public attention and public involvement.

Ms Mitchell KC: Well, you speak of their comments publicly. If I may take you to the private conversations in relation to the CMO or Deputy CMO, were you aware as to their views on whether action should have been taken earlier by the Scottish Government?

Mr John Swinney: I don’t think it – I certainly felt I was being briefed by the Chief Medical Officer at the time of the growing severity of the issue and we were wrestling collectively with what was the right moment at which to act, and we felt that it would be impossible for Scotland to move into a period of lockdown without doing that on a United Kingdom basis. We thought that would be incredibly difficult for us to put into effect, not just in legislative effect but in terms of how that would have been perceived by people in Scotland and whether it would have secured compliance if the United Kingdom Government was not doing the same thing.

Ms Mitchell KC: And those were views being exhibited internally in the Scottish Government at that time that they were considering lockdown?

Mr John Swinney: Well, we were considering what was the – you know, what are the stages of escalation we have got to go through, what are the things we have got to do, and – as I’ve just rehearsed with Mr Dawson in detail – the dilemma about school closures in which the position changed dramatically. You know, if we’d had a conversation on the morning of 17 March, I would have been saying, you know, I’m not persuaded of the argument for school closures; but the morning of 18 March, I’d be having a very different conversation, and such was the pace at which events were changing in front of us.

Ms Mitchell KC: If I may ask you about a specific issue, and that’s in relation to mass gatherings. I know my learned friend’s already touched upon this with you as well.

In your evidence to this Inquiry, written evidence, you say:

“The Scottish Government took the decision that all indoor and outdoor events of more than 500 people should be cancelled to protect emergency service capacity.”

I would like to know a bit more about why that decision was taken. Was in part that decision taken, in part or in whole, by the fact that large venues and those in the entertainment industry, artists, et cetera, were starting to take the initiative themselves to, for example, cancel gigs or to close venues to protect the public, and it was only after this that the Scottish Government acted?

Mr John Swinney: As I said to Mr Dawson, I wasn’t intimately involved in that decision, for the reasons that I set out. But I think, as with the situation in our schools, there was – people were beginning to take their own course of action, and I certainly felt on the school issue that there was a danger of there being real uncertainty about whether schools were open or closed unless we gave some leadership to it, and that – it may well have been the case that that was part of the consideration in relation to the issue on the limit on 500 people. But, as I say, I’m not in a strong position to give detail –

Ms Mitchell KC: Have you heard evidence that it was said by those in the UK Government that that decision in relation to mass closures at the time was totemic? Were you aware of that and, if so, what do you think about that?

Mr John Swinney: I haven’t heard it being described as totemic. I don’t quite understand why that would be the case. It doesn’t sound like something I would describe as a totemic decision.

Ms Mitchell KC: Moving on to question 4.

I want to ask you further about intergovernmental relations. In your written evidence, you say:

“At different stages in the pandemic there would be issues of real concern about the conduct of the pandemic, and Scottish Ministers would raise the concerns we held. Often the means of resolution involved escalating these issues to calls that would take place between the First Minister and the Prime Minister [Rt Hon Boris [Johnson] MP] or the Chancellor of the Duchy of Lancaster [Rt Hon Michael Gove MP]. This was not an efficient or effective way to manage the pandemic response. These meetings took the format of many of my experiences of dealing with the UK Government which was that the meetings were not meetings of equals or partners.”

I’d like to ask you a little more about this. Firstly, can you please give the Inquiry examples about the issues of real concern which had to be escalated in the way you describe? What were these issues?

Mr John Swinney: They would be issues perhaps about funding, which I know the Inquiry heard with Kate Forbes earlier on today. They may also be issues in relation to the relaxation of restrictions, so there may be concerns about how that was, you know, proceeding and what the level of engagement and knowledge would be about that.

The contrast of all of this is really with, I suppose, the decision in relation to taking of lockdown. That was a decision taken on a collaborative basis by the four governments of the United Kingdom.

Ms Mitchell KC: Well, what I’m really more interested in is focusing on the – what you raise in relation to the idea that this way of doing things wasn’t a good way of resolving matters, and what you’ve said at, I think, a later stage in your statement is that there need to be urgent and wide-ranging reforms of intragrovernmental structures.

Given your position that this escalation to the small group of people wasn’t a good idea, have you given consideration as to the mechanism that would be good in those circumstances?

Mr John Swinney: I think a format, which is collaborative in its nature, that treats different governments as having legitimate interests in arriving at a consensus decision-making approach would be an advantage.

Ms Mitchell KC: Isn’t that –

Mr John Swinney: What happens – if I can explain. In my experience as finance minister, essentially we could have four nation discussions but if we couldn’t persuade the Treasury then it was a lost cause. They had the veto. Now, in the fiscal framework in 2016, I secured in the Smith Commission a provision that the fiscal framework had to be agreed with the Scottish Government. That gave us equal status with the Scottish – with the United Kingdom Government in establishing a fiscal framework for the operation of Scotland’s public finances. That’s protected Scotland, and it only happened –

Lady Hallett: Could we avoid going into politics, Mr Swinney.

Ms Mitchell: I’m obliged to my Lady.

If I could just ask this final question, then: given that you’ve said about this collaborative approach, doesn’t that point directly squarely in the direction that the Joint Ministerial Committee way of coming to decisions ought to have been used during the pandemic?

Mr John Swinney: I think that would be greatly advantageous, if it had operated in a fashion where governments were treated as equals; and the problem in a lot of the discussions that we had was that governments, all governments were not treated as equals in the process.

Ms Mitchell KC: And did the Scottish Government ask for those Joint Ministerial Committee meetings?

Mr John Swinney: We have worked assiduously – I say “we”, I’m no longer in the Scottish Government – but the Scottish Government has worked assiduously to try to improve intergovernmental frameworks, for all the years I was a minister, because I’ve – you know, I would be able to establish that my good experiences are in the minority of intergovernmental experiences.

Ms Mitchell KC: Forgive me, but I asked the specific question, with my Lady’s forbearance: did the Scottish Government directly address the issue of the use of Joint Ministerial Committees and ask that they be used in these sorts of circumstances to create the sort of partnerships of equals that you suggest is the proper way forward?

Mr John Swinney: I think that will have been the case. I’m pretty sure the former First Minister will have advanced that argument in her discussions, but I can’t be definitive about that.

Ms Mitchell KC: So you, as Deputy First Minister, aren’t aware of that?

Mr John Swinney: I can’t be definitive about that, but I’m pretty sure it will be the case.

Ms Mitchell: No further questions, my Lady.

Lady Hallett: Thank you, Ms Mitchell.

That completes the evidence for today.

Thank you very much, Mr Swinney. I know we’ve now imposed upon you twice. I can’t guarantee that we won’t again, but I think it’s unlikely, looking at the nature of the future modules. It’s just possible education, I suppose, when we come to that. But thank you very much for your help so far.

The Witness: Thank you, my Lady. Thank you.

(The witness withdrew)

Lady Hallett: 10 o’clock tomorrow, please.

Mr Dawson: Thank you, my Lady.

(4.30 pm)

(The hearing adjourned until 10 am on Wednesday, 31 January 2024)