Transcript of Module 2C Public Hearing on 1 May 2024.

(10.00 am)

Lady Hallett: Good morning. Sorry, I am not quite with it. Ms Treanor.

Ms Treanor: My Lady, just before we begin, there is one housekeeping matter I would like to draw your attention to. The provisional timetable for today indicates that Sir David Sterling’s evidence should begin at 2 pm. He will now commence giving his evidence at 11.45, just to make you aware.

Lady Hallett: Thank you very much.

Ms Treanor: My Lady, may I call Eddie Lynch.

Mr Eddie Lynch


Questions From Counsel to the Inquiry

Ms Treanor: Good morning, Commissioner. Thank you for attending today and for your assistance to the Inquiry. At the outset, could I just remind you to try to speak slowly and speak into the microphone so that our stenographer can hear you for the transcript.

You have provided Module 2C with one witness statement which we have at INQ000267978. You can now see that on the screen. If we turn to page 42, we can see that you signed that statement on 6 September 2023. Are the contents of that statement true to the best of your knowledge and belief?

Mr Eddie Lynch: Yes, they are.

Counsel Inquiry: Mr Lynch, since June 2016, you have been the Commissioner for Older People in Northern Ireland. Prior to that, you were the chief executive of Age Sector Platform, a charity representing the interests of older people; is that right?

Mr Eddie Lynch: That’s correct, yeah.

Counsel Inquiry: And the Commissioner for Older People is an independent statutory role established by the Commissioner for Older People Act (Northern Ireland) 2011 and the principal aim of your role is to safeguard the interests of older people in Northern Ireland, and as Commissioner you have a number of mandatory statutory duties and powers. Could you provide us with a brief overview of your general powers and duties in illustrating what your role looks like in practice?

Mr Eddie Lynch: Yes, of course. As Commissioner, my principal aim is to safeguard and promote the interests of older people in Northern Ireland and part of this role, one of my roles is to advise government on older people’s issues, to commission research into issues that I feel are of importance, make recommendations to government on issues that affect older people here and I’ve also legal powers in relation to investigations that I can conduct, formal and informal investigations, as well.

And I suppose part of my role is to constantly review the services that older people receive, and to influence policy, practice and legislation that affect the needs of older people in Northern Ireland.

Counsel Inquiry: Thank you.

In the legislation, the primary definition of “older person” is a person aged 60 or over, and in your statement you have indicated that as of March 2021, Northern Ireland had an over 60s population of just under 440,000, or about 23% of our total population. Is that right?

Mr Eddie Lynch: That’s correct, yes.

Counsel Inquiry: Clearly that’s a very large constituency and will capture a broad range of experiences and personal circumstances. In a few sentences, can you give us a brief overview of the characteristics of that older population in Northern Ireland?

Mr Eddie Lynch: Well, it’s a very diverse population. Over 60 is a large category in terms of 60 to 100, there’s obviously many different issues for people of different ages. We’re living in an ageing population, which is a good news story, and people are living longer, healthier lives, but there’s clearly a lot of issues that affect older people in that age group as well, particularly when you get into the 70s and 80s plus group, a lot of issues around health and social care, a lot of major challenges in Northern Ireland in terms of meeting the needs of that ageing population.

So whilst there are lots of positives with ageing population and what it can provide to society, there are a lot of challenges that come with it that government needs to really address, and I think a lot of the issues that came up in the pandemic were reflective of some of the failings there have been in those issues.

Counsel Inquiry: Well, let’s turn then to look at your role during the pandemic. During that time, how did you go about gathering information as to the impact of the pandemic on older people?

Mr Eddie Lynch: It came in various ways, you know, as an independent body we rely very much heavily on what people bring to us, so we will have heard – we would have had a lot of older people themselves coming to us with concerns, particularly as the pandemic approached, we would have a lot of families with concerns in relation to care homes and domiciliary care packages and things like that, but we’d also have had a lot of organisations that would have come to us as well and would express any concerns. So for example on the care home side of things, the independent healthcare providers would have been in contact with my office on numerous occasions in those early stages of the pandemic and they would have been reflecting issues that they were hearing on the ground in relation of the preparedness of that sector to – for Covid.

So really my office, we also would have reached out to any people with expertise, you know, none of us are trained professionals in epidemiology or virology, so we would quite often have reached out to experts in those fields as well, as well as taking in the media, because obviously there was a lot of media coverage at the time about Covid and it was a steep learning curve for us all, but our aim was to try to provide as strong a role as possible to ensure that older people were protected as best they could be.

Counsel Inquiry: In addition to that, you also participated in weekly four nations meetings of the UK network of older people’s organisations. Very briefly, was that an effective forum for information sharing and to what extent did that inform your work?

Mr Eddie Lynch: It was very effective, it came together organically, I suppose, it was an informal meeting with myself, the Welsh Commissioner for Older People and many of the other older people’s organisations across the UK, and it was a very useful forum for sharing what was happening. This was new to everybody, the pandemic was something we hadn’t experienced before. The challenges it brought were new for a lot of us, and it was very useful to compare and contrast the different approaches being taken by different governments in different regions of the UK.

Counsel Inquiry: In terms of the impact, then, of Covid-19 on older people, you’ve said in your statement that statistics and lived experience would suggest that your constituents are uniquely vulnerable to experiencing long-term physical or mental health conditions, loneliness and to feel more significant physical impacts of being required to shield. Is that a fair summary?

Mr Eddie Lynch: Yes, it is, yeah.

Counsel Inquiry: If we could have on screen, please, I think INQ000237823.

Now, Commissioner, this graphic is an extract from a survey that your office commissioned in September 2023 entitled “Impact of [Covid-19] on Older People”, and I’d just like to highlight a few of the key findings.

So 32% of respondents experienced increased loneliness, 20% found it quite or very difficult getting shopping or other household necessities during Covid and lockdown, 25% find it harder than previously to access medical services such as GP surgeries.

Now, the Inquiry knows there were various initiatives progressed to try to mitigate some of those impacts. Very briefly, what is your view of the efficacy of those mitigations? Was this something about which you were receiving any feedback from older people and their families?

Mr Eddie Lynch: Yes. I mean, clearly the impact of lockdown was really significant in older people for many different reasons. It affected everyone in society, but for older people it affected them a lot more severely. More older people were – would be living alone than others in society. They were also living with the fear of Covid; they were very aware through the media that they were in the group most vulnerable, and at risk.

There were a lot of very good community initiatives that were set up in the early stages. There was a really good response around from the community and charity sectors about trying to assist older people, you know, with their shopping, making sure that they were calling in on them, making sure they were okay. But clearly there was still, you know, much higher levels of fear and loneliness caused by Covid.

I think the other major issue was, you know, a lot of older people still had not accessed the internet and that closed them off from the world a lot more than many other groups, and I think that made it even more distressing for them, and I think that contributed to higher levels of anxiety, fear and depression.

So that – they were all factors.

It was an extremely difficult time, and I think as well as we talk about, you know, the hospitals and the care homes, it is really important to reflect on how lockdown affected people in the community as well.

Counsel Inquiry: You’ve just touched on the issue in care homes.

Perhaps we can take the document down now, thank you.

You explain in your statement that, at the outset of the pandemic, your office began to receive a large volume of complaints from older people, care providers and families on a range of concerns, and one of the first issues to emerge, it appears, was the discharge of patients from hospitals into care homes. You explain in your statement that this was being raised with you on two fronts, firstly by care home providers who reported feeling under pressure to accept new residents into their homes in the absence of adequate testing, and secondly by the families of people residing in care homes.

What were the concerns being identified to you about discharge into care homes and testing at that time, at the outset?

Mr Eddie Lynch: Yeah, this was a very serious concern, as you say, raised by both families and providers, and I think – you know, this was the early stages where there was a lot of awareness about the vulnerability of people living in care home settings and how vulnerable they would be if Covid got into care home settings, given how quickly it could spread and how much at risk those people would be.

It did come to my attention several times about the hospitals being cleared out, as it was, to make space for a possible surge of Covid patients, and part of that seemed to be discharging people into care homes where they could.

I was very concerned, and so were the care home providers, that those people were put into those settings without testing. It was very clear and obvious at that stage – whilst there were lots of things in this pandemic that were very new and, you know, would have taken hindsight, I don’t think it was – I think it was very clear cut that the policy of discharging people without testing into those settings was a potentially disastrous one. I think it was quite reckless a decision to take to allow that to happen. I think the reports that I was getting from the care home providers themselves showed that, because they were very much aware of the risks that this policy could have on their residents.

And I think that is something that is a learning from this, that this Inquiry would look at, to see, you know, if this was to happen again, clearly decisions like this need to be thought through and the consequences of making those decisions need to be thought through, and I’m sure that that policy alone contributed to a lot of negative outcomes in homes.

Counsel Inquiry: Now, we’ll return in just a moment to talk about your engagement with government on these issues, but in terms of the issues being raised at the outset, was the issue of restrictions on visiting also raised with you, and if so, what were you hearing about the impact of that on older people?

Mr Eddie Lynch: Yes, at the start the issue of visiting, it was very clear that the best chance to protect life in care homes was to reduce the amount of people, the amount of footfall into care home settings, and the authorities were pretty unanimous in saying that to try to protect the residents and try to reduce the number of infections, that they would have to suspend all visiting. I thought that was probably the only decision that could be taken at the time, given that we, you know, had no vaccine, we had already saw across Europe the impact that Covid could have when it got into a care home setting. So that decision was really borne out of a desire to protect life.

I think when you look back and then the learning, as the pandemic went into a number of months, it was clear that there was negative impacts with that as well, that the impact of no social contact between residents and their families had a very detrimental effect on both, and I think one of the – you know, that lasted for a long period of time. We were aware of many cases that came to us that were really distressing cases where families were desperate to get in to see their loved ones, that they could see their loved ones deteriorating, and they couldn’t do anything about it or they couldn’t be there to comfort them and that was deeply distressing. And I think I would think that one of the things that I would like to see come out of this Inquiry would be how that sort of situation could be managed better in future, because whilst we had to have the ring of steel around homes and try to keep out infections, and I think initially that was the right decision, I do think, you know, we saw the devastating impact on the residents, many of whom lived their last months of their lives without that family and social contact.

Lady Hallett: Have you had any thoughts – by the sounds of it you think a lot about this subject, Mr Lynch – about how you can – so on the one hand you’re protecting physical life, as it were, as opposed to death, but on the other hand you’ve got the mental issues of both – as you say, on the residents and the family. I mean, do you draw a distinction between when a resident has got Covid? I mean, have you thought about how you might change the rules for the future, what guidance might be given in the future?

Mr Eddie Lynch: I think if – I think this comes down to preparedness for the pandemic as well, and it was new, we weren’t experienced in any way of dealing with this. There was steps that were taken by government, for example, making some money available to care homes so we talked about the ability for care homes to create visiting pods and spaces and safer spaces, I think in the future that would be something that you’d want to see expanded. I think now that we’ve been through this experience, I think looking back on that, you need to be thinking: well, if this was to happen again, here’s several ways that we could bring in some level of contact with families. You know, I think the situation was taken for the right reasons in terms of suspending visiting, but there’s no doubt the consequence of that was devastating for many people.

So I think – you know, having been through it, I think there are ways that contact could be increased. There are, you know, with the right infection control measures in place, there were things that came in later on in the pandemic that worked quite well, but I think one of the things that I would say is, whilst, you know, there were many people, my office was getting a very mixed response from families in relation to this, you know, whilst many people wanted changes and lifting of visiting restrictions there was an equally large number of people who wanted them kept in place and wanted the ring of steel, if you like, kept for longer. But I think it’s very clear now as we look at the evidence that it’s not hard to visualise the impact that had on so many residents, many of whom wouldn’t have had capacity to know what was going on, and I think that was what was so distressing for both them and their families.

So I think – I don’t have all the answers, but I think there are certain things that could be done in those settings that would allow care home providers and government to work more quickly in a future situation.

The other thing that I would say is I think that the care home providers themselves should have been engaged with at a higher level than they were. I think there was guidance produced, we – myself and my team – we had sight of that only a day before it was published. I know the providers would have liked a lot more opportunity to influence that guidance, so when it was introduced, it was more effective.

So I think there are – there are things that could work, that could happen now, parts of work that actually could foresee a future pandemic and could think outside the box about the different ways and different methods that we could keep some sort of human – human response.

Lady Hallett: Thank you.

Ms Treanor: Commissioner, just picking up on what you’ve just been talking about, it’s clear from your statement that the families of older people are a particularly important part of your network. They are very often, you say, the first to raise an issue; they are perhaps your eyes and ears. Recognising the importance of families as a source of intelligence for you, how did restrictions on visiting impact your ability to perform your function as Commissioner during the pandemic?

Mr Eddie Lynch: Well, you know, as you say, the families are the eyes and ears on the ground and, you know, in our social care system, particularly within care home settings, we have, you know, the RQIA who do the inspections and ensure standards are being met, but I actually think there’s nothing that beats the families on the ground being in there on a regular basis to ensure everything is well.

I think it was one of the unfortunate consequences of the restrictions that that oversight of care within homes was certainly reduced, and that was an added fear for family members in that situation.

Again, looking back, would it still have been better to have a degree of inspections going in? That may have been the case. Again, it’s weighing up the risk. But I think it did raise major concerns that there wasn’t that scrutiny and oversight at the time. My office was conscious of that. What we did a lot with was we were working with the care home providers as an organisation, we wanted to be as supportive as possible, we wanted the care homes to get as much support as they could get, because I think one of the things we were very conscious about at that time was the response to the pandemic was adding costs to care homes. You know, just by the extra, you know, the extra work they had to do, the infection control, they were under major pressure in terms of staffing as well, you know; a lot of care workers got Covid themselves. So the conditions that they were working in were very – extremely difficult and I think again that’s where, you know, I think they would have – it would be better for them to get a higher level of support in any future to ensure that they could do their jobs as best as possible and keep people safe.

Counsel Inquiry: Thank you.

I’ll just move on then to look at your engagement with government throughout the pandemic. In your statement you describe various difficulties in terms of your ability to engage meaningfully with government throughout the pandemic, and if I may summarise your evidence like this: you refer to the absence of a designated single point of contact within the Department of Health, which you say curtailed your ability to get in touch with the right people. You describe occasions where you felt you had no choice but to have recourse to the media in order to present your concerns. You explain how at times, and I think you’ve just touched on this, guidance was circulated to your office at such late notice as to really preclude meaningful consideration and response. And you also suggest that there was no proper forum for you to present your concerns in a constructive way.

Now, in your statement you referred to having established trusted lines of communication with, amongst others, the Chief Social Work Officer and the Director of Mental Health, Disability and Older People within the Department of Health, and you say that those pre-dated the pandemic and you relied on those during the pandemic. Is that right?

Mr Eddie Lynch: Yes, that’s correct.

Counsel Inquiry: Picking up on the point about the absence of a single point of contact, is it not the case that the Chief Social Work Officer and the Director of Mental Health, Disability and Older People were the appropriate points of contact for you during the pandemic?

Mr Eddie Lynch: There was a lot of issues coming to my office at the time and the Health Department is a big department and a lot of the issues I remember we weren’t sure ourselves who were the right people to speak to in the health service, so whilst it’s true to say that we had fairly regular meetings with some key officials, the speed and frantic nature of the pandemic meant issues were coming up on a daily basis, on an hourly basis at times, and there was times when we felt that we needed an urgent answer to things, and there were certainly times where we felt frustrated that we couldn’t get speaking to the right person or took some time to get responses to things.

So there was a sense, I think, that whilst we did have, you know, several meetings and contacts, because of the nature of what we were dealing with, we felt sometimes frustrated that we couldn’t get the answers that we wanted, and I certainly felt at times it took a while before we could get answers to certain questions.

Also some of the concerns that I was raising of course I didn’t get the answers that I wanted or I wasn’t assured that maybe enough work was going on in certain areas. So that sort of fed into that sort of sense of: could the communication between myself and my team and the department have been streamlined and improved?

Counsel Inquiry: Well, perhaps let’s look at an example which might demonstrate your point.

If we can have up on screen, please, INQ000267978.

Now, this is your statement. At paragraph 68 you are referring to a meeting that you were invited to by the Chief Medical Officer on 16 March 2020, and the purpose of that meeting was to discuss guidance which was forthcoming for care homes. I’ll just read what you’ve said about that. You say:

“The officials were unable to address many of the issues [the Commissioner] raised …”

I will pause here. Your chief executive attended this meeting in your stead, it wasn’t you; is that correct?

Mr Eddie Lynch: That’s correct, I was meeting the minister at the time.

Counsel Inquiry: “… and it soon became clear that that some of these issues had simply not been considered before, nor had sufficient thought been given to the practical outworking of the guidance. Importantly, the lack of consultation with the sector was raised. I, and indeed my team, regarded the draft guidance as unrealistic and impractical. In our view it required consultation. More significantly, COPNI was informed that there was simply not enough time to address the points being made as the guidance had to be issued the next day, which was St Patrick’s Day. My Chief Executive reported orally to me after that meeting that despite her drawing attention to the high numbers of elderly in Italy who were contracting and dying of Covid-19, there was an ‘air of unreality’. The view expressed by PHA seemed to be ‘that won’t happen here, they have a completely different system over there’.”

Pausing here, may I ask you this: might that suggest that, due to a lack of preparedness on those issues, there was perhaps a failure to appreciate what actions may be required in the event of a pandemic?

Mr Eddie Lynch: Absolutely. This guidance had been developed really quickly, literally within days, but, as you say, this was the middle of March at this stage. At this stage we had known for several weeks that the pandemic was going – was coming, and we certainly had a lot of concerns with regard to the care home sector given that we had the advantage of seeing what had happened in other countries, as it came towards Northern Ireland. We were very frustrated that we didn’t have more time to engage with the department on that guidance. Rather than issuing it the next day, I think the focus should have been on getting that guidance as good – make it as good as possible, rather than just getting it out.

We had met with the – my chief executive had met with independent healthcare providers on it, they had raised significant concerns about it, they felt that the guidance was actually going to be very confusing for care home operators, but also in many ways totally unrealistic. There was also a fear that if they couldn’t meet the guidance what would happen to them as well. So this is a good example of something that I felt should have been done much earlier, it should have been in place; in proper planning for a pandemic situation, we should have had guidance like this sitting there ready to go. But even in the absence of that I think there would have been sufficient time through January and February to have worked on that guidance, worked with the key – the key stakeholders which, in this case, would have been the care home providers, and actually develop something that was very much more workable on the ground, and then – and therefore more effective in managing care in this challenging situation.

Counsel Inquiry: You’ve just reiterated there your point that you thought the guidance was unrealistic and impractical. Very briefly, why did you think that?

Mr Eddie Lynch: It was – it was putting a lot of extra responsibilities on the care homes without proper consultation with them. So we weren’t experts in running care homes, but the providers were, so there was a lot of things in the guidance that they just felt was impractical, that was harder to deliver, certainly hard to deliver, you know, overnight practically. Clearly there was, there were big challenges that they were facing at this time, that they were very keen to get into discussion on, one of the big issues that they were raising was again the ongoing lack of PPE equipment that they were facing. They had raised concerns at this time around testing as well. So there was a lot of things being put on to them but they actually felt there were some really big issues that weren’t being addressed, and there really was a willingness on the care home side to really engage on these issues, they wanted to work with government to ensure that they could do their job as best they could.

This was a very worrying time, not least, you know, they had concerns around their own staff, their own workforce, you know, the implications of staff leaving or staff getting sick with Covid and their ability to manage this. So I think the approach should have been a lot more iterative, really, and really there should have been a more of a partnership approach to this, and I think more of a partnership approach to getting care right would have actually been much more effective on the ground and would introduce new practices a lot more quickly than they actually ended up being.

Counsel Inquiry: Just picking up on that point about the need for consultation and engagement, do you suggest it would have been appropriate for the department to have delayed the issue of that guidance to facilitate further consultation and engagement, or do you not consider that –

Mr Eddie Lynch: Yes, I do. I don’t think the guidance when it was introduced was effective. I think it needed – it needed a lot of work after that to actually put into place and practice good practices. So whilst I would have preferred if that engagement process had happened much sooner, you know, maybe through February, I think it would have been – we would have ended up with a lot more strong guidance if there had been allowed, you know, an extra week, for instance, to go through what care homes were required to do and how – more importantly, how it was going to be done, because guidance is fine on paper, but if it can’t be put into practice, then it’s not much use.

Counsel Inquiry: Okay.

One of the issues this module is examining is the absence of power-sharing immediately prior to the pandemic in terms of the response to the pandemic thereafter. In your statement, you suggest that weaknesses in the social care system were evident from a number of previous reports prepared both by your office and indeed the Bengoa report, and you say this:

“Therefore, when the transmission rate of Covid-19 started to rise markedly and a government response was required, those weaknesses in the structure for delivering adult social care … and their implications should have been appreciated and factored into planning to avoid potentially disastrous outcomes for older people.”

Firstly, can it be taken from your evidence there that those pre-existing weaknesses hadn’t been addressed in the interim and were in fact still very much present at the outset of the pandemic in 2020?

Mr Eddie Lynch: Yes, absolutely, they were horribly exposed and I think, as you say, my office had been calling for several years about major changes that were needed to fix the system, and I think the absence of government over that time and – didn’t allow progress to be made against the recommendations that came out of several reports advising the change that was needed.

Counsel Inquiry: And without diverting into the substance of previous reports and their recommendations, to what extent do you consider that those weaknesses had been appreciated and factored into planning and decision-making by the department during the pandemic?

Mr Eddie Lynch: I’m not sure, I mean, I think the pandemic was such a shock, I think there was very much a reactive response from the department to planning and protecting people. I think one of the most striking features of the early months of the pandemic was the difference in how the NHS was viewed and how the social care sector was viewed. I mean, Northern Ireland’s often put up as different from the rest of the UK, that it has an integrated health and social care system, but I think what the pandemic showed was just the dividing line between the two, and the approach taken by the department, there was clearly a focus on protecting the NHS, the concern was clearly about hospital capacity, but as a result of that we saw a lot of the care home and social care sector really struggle, and I had many care home providers, both care home providers and domiciliary care providers, coming to my office a lot in those early weeks saying that in their words they felt high and dry, that they were being left to fend for themselves, not least the issues around PPE where they felt they weren’t getting the support, despite reassures that the trust, the health trust should have been providing that. On the ground, that clearly wasn’t happening and it did take several weeks to sort that issue out.

Counsel Inquiry: You’ve touched there on the issue of the integrated health and social care system that we have here in Northern Ireland, which is distinct. Can you give us your views as to whether there may have been any untapped advantages inherent in that system which could have been exploited during the pandemic, and if you do think that that’s the case, your views on the extent to which those were sufficiently capitalised upon by decision-makers?

Mr Eddie Lynch: I think there was a lot of things that could have been done better. I think the fact that, for a start, Northern Ireland’s not a very big place, the fact we had an integrated health and social care sector, that there was those relationships in place, that people knew, there was definitely clear relationships and clear contact, I don’t think those contacts were maximised in the way they could have been. I think there was a lot of expertise out there, not just in the care home sector, but across different fields, you know, academics, you know, experts in the transmission of diseases like this, and I don’t think a lot of that was tapped into in the response from government. There was a lot of guidance developed, but, as we’ve talked about already, a lot of the times that guidance when it hit the ground didn’t actually deliver effective results and it needed to be revised several times, and I think that was something that was a theme of the early stages, that there could have been a lot more bringing together of expertise and producing more effective responses.

Ms Treanor: Thank you, Commissioner.

My Lady, I have no further questions. You have already granted permission for a number.

Lady Hallett: Thank you very much.

Ms Campbell.

Questions From Ms Campbell KC

Ms Campbell: Thank you, my Lady, and thank you, Mr Lynch. My name is Brenda Campbell and I represent the Northern Ireland Covid Bereaved.

It has been touched upon briefly in your evidence already, and you stated – I think it’s paragraph 31 of your statement, if we want to bring it up – that there are a series of historic COPNI reports that in fact pre-date your tenure as Commissioner that have highlighted serious and long-standing concerns about the provision of care to older people in our society and also identify recommendations for reform. I want to look at one of them.

I don’t require it to be put up on screen, but it’s the 2015 document that I’m sure you’re familiar with about “Prepared to care? Modernising Adult Social Care in Northern Ireland”. You exhibit it in your statement. That review identifies the following: that legislation and policy guidance surrounding adult social care is, in the North, outdated, confusing and fragmented, and that it need to be fully updated to reflect and meet the needs of our modern society.

Now, you’re nodding your head. That was the situation in 2015. Is it still the situation today?

Mr Eddie Lynch: There have been, I mean, I think there – the lack of progress has been frustrating for me in terms of adult social care. There are things that are happening now in terms of reform of adult social care but, as you say, this is nine years on from that report. There have been some steps taken. For instance, there’s an Adult Protection Bill that is close to being finalised that hopefully will be going through the Assembly and that’s around adult safeguarding legislation. Hopefully that will be coming into law within the – in the foreseeable future.

But I have been, through my eight years as Commissioner, frustrated with how slow the process has been to address the very clear issues in adult social care and it has been exposed several times. As you know, as you mentioned, there’s been a number of reports. My investigation into Dunmurry Manor in my “Home Truths” report outlined over 50 recommendations for change as well, some of which are happening. But, again, the pace of change is slow and, in an ageing population, one of the things that I have been saying consistently is: these issues are issues now, but with an ageing population these issues are only going to become more serious if more action is not taken and more focus is not taken on these areas, and we can’t afford – I think what the pandemic showed, we can’t afford to sit on these issues any longer, we need actions and real change to be brought into play to best protect some of the most vulnerable in society.

Ms Campbell KC: I suppose one of the consequences that your 2015 report identified, and I suspect you’ve identified on a number of occasions since, is that the effect of legislation that’s out of date and that doesn’t meet the needs of our ageing population is to disadvantage older people in terms of accessing what social care services are available to them, and also their loved ones in terms of understanding their route through that system. Is that something that you recognise as a problem?

Mr Eddie Lynch: Yes, it is a problem. And I think one of the other things in Northern Ireland specifically is we don’t have age discrimination legislation in goods, facilities and services, so we still remain the only part of the UK or Ireland that doesn’t have that protection, and it leaves people vulnerable and not as protected as they could be.

There are other areas. For instance, in the last couple of months I’ve produced, published a report in relation to older people’s rights in care homes in relation to their ten-year contract, the contract, and how they have very little rights in terms of – and we have seen, as a result of that, issues around people being evicted from care homes, being moved out, being sent to hospital and then being refused admission back to their own home.

So these are all clearly deeply worrying aspects of the system that we have, and all of these issues need to be focused on going forward.

Ms Campbell KC: Her Ladyship heard evidence yesterday from Marion Reynolds, who explained that – I don’t know if you heard it yourself, Commissioner, but she had a long history of employment in the health and social care sector as a senior social worker, but notwithstanding her experience she found that the process of trying to access care for her aunt was really, I think, disempowering and difficult. Would that surprise you?

Mr Eddie Lynch: Unfortunately not. A lot of the cases that come to my office are with people dealing with the health system and the barriers that they face in raising legitimate concerns about care and treatment. It’s very worrying. Again, I found that a lot in my Dunmurry Manor investigation, it was very obvious that people, family members who were actually very strong advocates for their loved ones found it very difficult to get anywhere with the system, to hear their genuine concerns to be heard, and not only that but the evidence I got in that investigation also showed that people working in the system felt the same way as well, people working in the system would have raised concerns at times and those concerns went unheeded, and that’s deeply worrying so, you know, the likes of Marion giving evidence yesterday, unfortunately I have come across many older people in this role and my previous role who have worked in the health system and actually were very frustrated and actually felt quite often they’d got into campaigning organisations to try to change that and try to change that culture.

Ms Campbell KC: Ms Treanor, and I’m grateful to her, has focused on paragraph 68 of your statement, where we looked at that early guidance in March 2020, but I wonder if we could just move along in terms of the timeline to the period of autumn 2020 when again in your statement you draw attention to a letter that you had drafted to the Minister of Health, Mr Swann, on 8 October in which you highlight concerns in respect of the on-the-ground feasibility of the care partner guidance. Okay? We’ve heard something about that, and I know her Ladyship is familiar with it.

Again, I won’t ask for it to be put on screen, but you say to the minister on 8 October that your office has spent the past four weeks dealing with calls from families in distress and they are angry when their care providers cannot deliver the access to their loved ones that they believe they should be entitled to and in fact under the guidance I think were entitled to.

You also are dealing with calls from home providers stating that they can’t safely deliver the visiting arrangements that the guidance outlined, and you detail the distress on all sides when that guidance wasn’t able to be put into practice, and we heard again something of that yesterday through the evidence of Marion Reynolds, and I think you’ll know that it’s also an area of significant concern to many of our client group, including Martina Ferguson, who I think has been in contact with you about her inability to visit her mother over a nine-month period.

Is it correct to say that as a consequence of that Department of Health issued guidance in September 2020, members of the public ought to have a legitimate expectation to get in to see their loved ones, to care for them again, after a large period in which they were denied that opportunity?

Mr Eddie Lynch: Yes, and I remember that period very well, because it had been becoming increasingly obvious to me that the lack of visiting was having a negative impact on the residents and the families, and I remember the Care Partner scheme being developed and it was a very welcome scheme. There was clearly lots of communication problems around that scheme. We did get several people coming to the office who were saying that the care home that their loved one was in was saying that they hadn’t heard of the scheme, that they weren’t aware of it, they weren’t introducing it. So there was a mixed picture out there. The Care Partner scheme was a step forward in at least getting some family contact again, but I remember still that there was ongoing issues, and Martina was one of the people who came to our office and, you know, was desperate to visit her mother, Ursula, in the home, and there was clearly still a lot of uncertainty out there in the care home sector about what they could do.

There was also a lot of fear, because a lot of care home providers were coming back around liability issues, insurance issues, there was a lot of uncertainty from their behalf. But there was clearly some homes doing it better than others, and I think some homes certainly communicating that service was available better than others, because when it worked, it worked well.

Ms Campbell KC: Did those problems persist significantly after your letter of 8 October and further into the winter?

Mr Eddie Lynch: It was a gradual process. I remember that whole situation with visiting for months on end, it was gradually getting better, but it did take several months before it seemed to go through the system. And there was a lack of consistency, and I think, I don’t know whether some of that was down to care homes having the staffing arrangements, the resources in place to put it in place. I think there was certainly part of that where homes were struggling in terms of staff numbers, and again that’s something that we need to reflect on, because we need to have a stronger social care workforce going forward in the future in terms of, you know, providing them with better pay and conditions and, you know, reflecting on the brilliant role that social care workers played throughout the pandemic. So – but that whole issue of visiting was a very complicated one. I remember there was an ongoing group with members of the families, you know, with the department, with the Public Health Agency, and was clearly by that stage an area that we were very aware of and the families were very conscious of as well.

Ms Campbell KC: Just finally picking up on the question from her Ladyship earlier, that is surely an area that we can work on to do better in the future?

Mr Eddie Lynch: Absolutely, I think that issue of human contact and visiting would have to be something that in a future pandemic needs to get better.

Ms Campbell: Thank you, my Lady.

Lady Hallett: Thank you, Ms Campbell.

Thank you, Mr Lynch, for all you did and tried to do, and don’t give up, keep banging the drum.

The Witness: Thanks very much, my Lady.

Lady Hallett: Thank you.

(The witness withdrew)

Lady Hallett: Don’t get comfy, you’re going to have to stand again, I’m afraid.

Ms Dhanoa.

Ms Dhanoa: Thank you, my Lady. May I please call Mr Gerry Murphy.

Mr Gerry Murphy

MR GERRY MURPHY (affirmed).

Questions From Counsel to the Inquiry

Ms Dhanoa: Thank you for attending today, Mr Murphy, and for your assistance to the Inquiry.

Before I begin with my questions, there are just a few matters I want to bring to your attention. Whilst giving your evidence, please keep your voice up and speak into the microphone so that the stenographer can hear you for the transcript. If any question that I ask is unclear, please do say so, and I will rephrase it. If you would like a break at any time, please just say so.

You have provided this module of the Inquiry, Mr Murphy, with a witness statement. You should see that in front of you on the screen. If we scroll down to the last page, page 17, we can see there it’s dated 17 August 2023. Can you confirm, Mr Murphy, that the statement is true to the best of your knowledge and belief?

Mr Gerry Murphy: I can.

Counsel Inquiry: Thank you.

Mr Murphy, you are the assistant general secretary of the Irish Congress of Trade Unions; is that correct?

Mr Gerry Murphy: That is indeed correct.

Counsel Inquiry: You’ve held this position since 13 March 202023?

Mr Gerry Murphy: Yes.

Counsel Inquiry: Previously you held the roles of chairperson of the Northern Ireland Committee of the Irish Congress of Trade Unions as well as president of the same organisation?

Mr Gerry Murphy: Correct.

Counsel Inquiry: For the purposes of your evidence, Mr Murphy, I’ll refer to the Irish Congress of Trade Unions as ICTU and for my Lady as well to note. It’s correct that the Northern Ireland Committee of ICTU is a separate organisation to the Trades Union Congress, but in fact the organisations work together and have shared objectives. Is that correct?

Mr Gerry Murphy: That is indeed correct.

Counsel Inquiry: Putting it simply, the Northern Ireland Committee of ICTU’s role is simply to represent and advance the interests of workers. Is that a fair sort of brief summary?

Mr Gerry Murphy: Indeed it is.

Counsel Inquiry: In terms of the membership, Mr Murphy, ICTU is in fact the largest civil society organisation on the island of Ireland, it has 44 affiliated unions, north and south of the border, and it covers a wide cross-section of professions and sectors.

Mr Gerry Murphy: Yes.

Counsel Inquiry: The Northern Ireland Committee of ICTU is the representative body for 34 trade unions and it has over 200,000 members across Northern Ireland.

Mr Gerry Murphy: Correct again, yes.

Counsel Inquiry: Mr Murphy, I want to now move to consider the Strategic Engagement Forum. It was established in April 2020, and it brought together employers, trade unions and statutory bodies, including the Health and Safety Executive for Northern Ireland, and the Public Health Agency.

Please could you explain why it was created and what its purpose was.

Mr Gerry Murphy: Before I do that, today is May Day, International Workers’ Day, and I would like to acknowledge the fact that 400 people of working age, that is those aged between 18 and 65, died over the course of this pandemic. I do sincerely hope that the evidence that I give here today, and indeed the work of this Inquiry as a whole, will aid the creation of a set of circumstances where such a situation will never arise again.

In respect, then, to the Engagement Forum, the Engagement Forum was something which we at the Irish Congress of Trade Unions had long called for, indeed far in advance of the outbreak of any pandemic. We believe and continue to believe that there is a need for systematic and long-term triumvirate engagement, if you like, between the government, employers and trade unions, something which we believe is in the best interests of workers and their families, but also society as a whole, the economy in general, and good governance.

The Engagement Forum was established in March of 2020. I was a participant. There were five – six, actually, trade union representatives on the body as a whole. It was tasked with providing advice and counsel to the government of Northern Ireland around how their response to the pandemic could be managed across the economy and the workforce, the labour market.

It initially did some really good work. It confirmed, from a trade union point of view, which was much gratifying, that it was possible to work collaboratively with the government and the employers. We did that, we produced some very valuable work. We were the people who identified the list of key workers. We were the people who provided the list of essential sectors. We developed particular guidances around health advice, viral mitigations, to be distributed to the workforce and, you know, how that might be done and how it would be best shared and who needed to be informed. All of that was done by the Engagement Forum and done in a remarkably short period of time, considering how long it sometimes takes to get a decision made in this place. That was done in a matter of weeks.

Two weeks –

Counsel Inquiry: I’m just going to stop you there, Mr Murphy. It’s all extremely helpful. Was there any engagement of this kind, in the sense of a forum, that was in place between the Executive and trade unions before the pandemic?

Mr Gerry Murphy: No, indeed there wasn’t. And this forum, that was the one which we are now talking about, didn’t survive terribly long either. Effectively by the middle of 2020, this forum had ceased to function effectively at all and was, indeed, only meeting intermittently and was, by 2021, being referred – or the Department of the Economy had referred it for review to an academic in the University of Ulster, effectively ending the functioning of that body, the Engagement Forum.

It was particularly disappointing from a trade union point of view, because it had done some very good work, it had confirmed a loss and it had confirmed we believe to the government and to the employers that collaborative working across these three key sectors was possible. But it was ad hoc in nature, not what we really wanted and not what we want going forward, because we would still maintain that this is an effective way to get things done in terms of the labour market.

Counsel Inquiry: Thank you. Mr Murphy, you helpfully set out a short while ago the sort of work that the forum was engaged in and what it managed to achieve, and you noted two particular pieces of work, preparing a list of key workers and essential and non-essential businesses, and it also established an emergency code of practice to assist businesses and their workforces in complying with Covid-19 related guidance and regulations, and that work was achieved.

I want to now look at INQ000279384. You will see that up on your screen. It’s a note of a meeting that took place on 10 June, so some time after the forum had been established in April 2020, and this was a meeting that was requested by the Northern Ireland Committee of ICTU, and the deputy First Minister, Michelle O’Neill, was present, including yourself as a representative of the National Teachers’ Organisation; that’s correct?

Mr Gerry Murphy: That’s correct, yes.

Counsel Inquiry: If we look on this first page at paragraph 2, it sets out there that Owen Reidy outlined three issues, as you said, that the forum was seen as a very helpful way in which to continue the engagement between the trade unions and the Executive, and there was a request for more formal quarterly engagement, an acknowledgement about what the forum was set up to do.

If we look further on at paragraph 3, I think that’s across the page, the deputy First Minister herself paid tribute to workers, particularly those on the frontline, and we’ll look further into that later on, and she indicated her support for more regular formal engagement with trade unions and acknowledged the work that had been undertaken, and she was supportive of the idea of it continuing beyond the pandemic.

If we look also at paragraph 8, please, so that’s the last one, it looks there as if it’s in draft form, but it says:

“The meeting concluded with the deputy First Minister confirming she [would] speak to the Health Minister Robin [Swann] about the issues raised that will have significant impact in the event of a second wave … and reiterated her commitment to effective engagement … going forward.”

You noted earlier, when discussing the work of the forum, that what we know ended up happening was that it didn’t continue. Having now looked at what was discussed and acknowledged by the deputy First Minister herself, it seemed to be positively received in the sense of what it created in terms of engagement between trade unions and the Executive.

In your statement, you note that, of course, after the initial work that was undertaken, the forum was unfortunately largely ignored by the Executive, which you’ve alluded to.

Why do you think this was?

Mr Gerry Murphy: The note of the meeting there is from June. We had made numerous requests by that point to meet with the office of the First and deputy First Minister, the First Minister and indeed the two junior ministers in that office met with us on that date, and as you can see – well, I’m not going to rehash what’s in the thing. Your question is why … why …

Counsel Inquiry: It was why you thought that the engagement didn’t continue, given the positive reception that at least deputy Minister Michelle O’Neill had acknowledged and articulated in the passages that I read out from this meeting in June.

Mr Gerry Murphy: I’m not really sure why it didn’t continue, and I would suggest respectfully that, you know, that’s possibly a question that needs to be addressed to Ms Foster or Ms O’Neill, you know, in their role. We felt certainly that the Engagement Forum, as the deputy First Minister reflected or is reflected in the note, that was very useful, notwithstanding the limitations which I pointed out. But, you know, I really can’t speak for them, and I don’t really have a view as to why they didn’t wish to see it continue.

Counsel Inquiry: Mr Murphy, since the forum in 2021, as you have explained, drew to a close in the way it had been established, has there been anything else since of its kind?

Mr Gerry Murphy: There was the – there was quite a long hiatus really from the middle of 2020 until just recently, and in the last number of weeks we have, along with the employers and the Labour Relations Agency and the Department for the Economy, gone back to a body similar in nature to the Engagement Forum, indeed it’s probably going – we’re in the very initial stages of establishing this body, we haven’t even got so far as to formally confirming a name, but it’s likely to be – to include the Engagement Forum moniker, I suppose.

So we’ve had that hiatus really from 2020 until now. There is a recognition on the part of the Department for the Economy of what the deputy First Minister reflected in that note of the June meeting, you know, reflected the positive benefits of that social dialogue model. So it’s taken a while, but we appear to have the beginnings of such a model developing again.

Counsel Inquiry: Thank you, Mr Murphy.

I want to move on to now briefly consider briefings that were made by the Northern Ireland Committee of ICTU to the government in Northern Ireland.

Was the committee involved or made aware in any way in advance of the strategy that the government in Northern Ireland was going to adopt in response to the pandemic? So in the period sort of January to March, or before the forum was established in April 2020.

Mr Gerry Murphy: The short answer to your question is no, we were not. We were not involved in any planning, as I, you know, in my evidence to Module 1, you know, said.

So we weren’t involved in any planning and we weren’t involved in the initial stages of the response, the very initial stages of the response, apart from us communicating to them concerns that we had about, you know, the risks being faced by the workforce and indeed their families and society more generally. But they did not formally reach out to us, no.

Counsel Inquiry: The Northern Ireland Committee of ICTU in terms of its structure has policy subcommittees and they briefed committees of the Northern Ireland Assembly in a number of areas, so the health unions briefed members of the Legislative Assembly on the Health Scrutiny Committee on general NPI matters – that’s non-pharmaceutical interventions – in May and June of 2020, and were also asked to give detailed evidence on the situation developing inside care homes.

There were also briefings in relation to education and the situation arising inside schools in August and September of 2020, and there was also the Retired Workers Committee which was in dialogue with the Northern Ireland Older People’s Commissioner, who we just heard evidence from.

Mr Murphy, to what extent do you think that these briefings impacted decision-making?

Mr Gerry Murphy: Well, the committees to which you refer, or to which you were referring to, perform extremely valuable work and what they do is they reflect the views of the membership of the trade unions, and what they were doing to those Stormont scrutiny committees was reflecting those views.

The degree to which they impacted decision-making, I think it would be fair to say was fairly limited insofar as, you know, there was no … the committee – the committee was looking at what was coming forward, the situation was so fluid and moving so quickly that the information that the committee was gathering was in many cases already out of date probably, you know, as near as you could describe it. But it was nonetheless valuable because what it was, it was reflecting the experience of workers and their families to the Legislative Assembly and therefore informing to some degree the decision-making, but, as I was saying – or as I’m suggesting here, it was in many cases after decisions had been taken or, you know, as decisions were playing out, actually, in realtime. So limited is I think what I’m suggesting.

Counsel Inquiry: Can you provide perhaps a particular example of an area where briefings were made and albeit, as you’ve said, decisions may have already been taken or the briefings that were being given were perhaps a step behind, they were still positively received or able to make –

Mr Gerry Murphy: Well, I think the interactions between the ICTU health committee and the scrutiny committee in health are particularly helpful, they were helpful for both because what was lacking or one of the things I feel that was lacking across government in terms of decision-making was the voice of the worker directly feeding in, so it wasn’t feeding in, for example, at the level of the First and deputy First Minister, it was feeding in to a degree across some of the departments, because some of the departments, particularly those departments with established bargaining processes, you know, and established – established lines of communication, you know, allowed for – there was a mechanism to feed in at that point, but in other areas, Health and Safety Executive for Northern Ireland being an example, you know, it has a board for which there is provision in its underpinnings for three worker representatives, but for over a decade there wasn’t any worker representatives on that board. So vital workplace and workforce intelligence wasn’t available to them. So there were … there were some opportunities to feed in, and – but there wasn’t a systematic or government wide or joined up approach to that.

Counsel Inquiry: Thank you.

Mr Murphy, I want to move on now to consider the workforce during the pandemic in a little more detail. There are 30,000 workers in Northern Ireland who are employed through employment agencies, and a large proportion of them during the pandemic were migrant workers who worked in agriculture and food processing. So they were on the frontline. Is that right?

Mr Gerry Murphy: That the absolutely correct, yes.

Counsel Inquiry: And as you alluded to earlier, it’s also right that the highest proportion of deaths amongst people of working age in Northern Ireland were among workers from processing plants and machine operatives, as I’ve said.

Mr Gerry Murphy: Yes, 13.4% of that 400 who lost their lives were in that sector.

Counsel Inquiry: Mr Murphy, I just want to take a look now at a letter that was sent by Kevin Doherty, who was from the Migrant Workers Support Unit of ICTU, and it was sent to the minister, as you can see there on the screen, for communities, Carál Ní Chuilín, regarding – you’ll perhaps note from this letter, if you’ve seen it before, it was regarding the decision to halt the issuing of National Insurance numbers, the impact on new workers, and, more generally, the spread of the pandemic in workplaces. And you can see it’s dated 27 October 2020.

On that first page, the penultimate paragraph describes there some of the concerns that were articulated to the Minister for Communities, in particular regarding their inability to access national insurance numbers, which meant that they couldn’t qualify for statutory sick pay when they became ill. Other difficulties faced included: not being able to register with a GP, access free health services that they were entitled to; inability to open bank accounts if they could not provide proof of residence; and some were experiencing complications trying to register benefits for their families.

Mr Murphy, were these concerns that you were aware of?

Mr Gerry Murphy: Yes, they were. The letter which my colleague Kevin Doherty wrote to Carál Ní Chuilín, the minister at the time, reflects concerns that were coming to us from the work which we were undertaking through the Migrants Support Unit. As the letter outlines, that was a project we – a European-funded project we were engaged in with a number of other partners called Crossing Borders, Breaking Boundaries, that was about addressing or seeking to assist migrant workers in the labour force, of whom there were quite a number: 50,000 at the time, 23,000 – almost 24,000 of whom came from the EU, 26 of them, and the remainder were basically people who had come in from the rest of the world.

What we discovered in that work – so the project was about, as I said, then, addressing, you know, discrimination, other issues that were presenting here for those individuals, exploitation and the like. What we had discovered was that – what you’re highlighting here was one issue, so the absence of the National Insurance numbers was having serious implications, like the inability to register for a GP at this point was lethal for some of these people. The benefits, not being able to access benefit was equally, you know, just very difficult for some families.

There was the issue of statutory sick pay, of course, as well, which some of them weren’t able to qualify for.

By the way, the statutory sick payment at that time was £94.25 a week, it rose to a whole £95.85 by the end of the pandemic, completely inadequate in the modern world, not sufficient in any way to support a family or even an individual. Despite us, by the way, raising the issue of statutory sick pay a number of times separately with the government of Northern Ireland. So there was those two issues.

There was also the issue that these migrant workers were bringing to our attention around what they felt was disregard on the part of some employers for health and safety advices that was provided to them, you know, from the Public Health Agency and other people, including us.

Ms Dhanoa: Mr Murphy, I’m just going to stop you there.

My Lady, I’ve been asked if we can take a short break, and this would be a convenient moment to do so.

Lady Hallett: The usual morning break?

Ms Dhanoa: I think, yes. I think that would assist the stenographer, I’m sure.

Lady Hallett: You were mid-sentence, Mr Murphy. Did you want to …?

The Witness: I’m at your …

Ms Dhanoa: Mr Murphy, you were moving on to a matter I was going to consider in terms of health and safety in workplaces, so unless you wanted to say anything else, I think we can come back to that as I move along.

Lady Hallett: Very well. I shall return at 11.30.

(11.15 am)

(A short break)

(11.30 am)

Lady Hallett: Ms Dhanoa.

Ms Dhanoa: Thank you, my Lady.

Thank you, Mr Murphy. Before we took the break we were looking at one particular area of concern for workers and we looked at a letter sent by Kevin Doherty of the Migrant Workers Support Unit, which was in relation to National Insurance numbers and what the widespread ramifications were of new workers on the frontline who didn’t have those.

As you expressed, that was just one particular issue that you were aware of as an organisation.

One of the notable impacts of the pandemic was how it affected workplaces, and those in frontline roles doing essential work. Those engaged in that sort of work tended to be in lower paid roles and tended to be already suffering with exacerbated health issues, and they of course couldn’t work from home doing the essential work that they were.

Agrifood was a sector of that kind that required people to be at their place of work. In doing that sort of work, how did it affect those who were part of that workforce during the pandemic that you became aware of? What sort of issues were they facing?

Mr Gerry Murphy: Okay, well, that particular sector of the workforce tended to be – tended to have a very high proportion of migrant workers in it, so a lot of EU26 and a lot of rest of the world migrant workers working there, a lot of them actually working for agencies as well, which, again, lessened the protections available to them, in our view.

The issues that they were facing, in addition to those already outlined, included struggling with the language, which made communication difficult. It also – they also felt, and were communicating to us, particularly through the Migrant Services Unit, that they were being, on occasion, misadvised around what their entitlements were. They felt very strongly that the health and safety protections available to them weren’t always at a level which was entirely appropriate and indeed necessary.

They – it became clear also, in the course of our interactions with that community, that the Public Health Agency, for example, appeared to have a very poor dataset around, you know, their vulnerabilities, indeed how many of them there were, and where they were located. We wrote to them and brought that to their attention. And then of course the other issue was the access to statutory sick pay and other welfare entitlements.

Can I just make a further point about statutory sick pay? It had a number of – well, there were a number of consequences which flowed from that very low rate of statutory sick pay which I think would be of interest to the Inquiry. The first of those was that, because it was so low, it meant that a lot of workers felt they had no option, even though they were sick, but go to work. The consequences of that were that the risk to their fellow workers in their place of work increased, so the virus spread further, but it spread beyond the workplace, because these workers – because it was asymptomatic, of course, these workers were taking the virus home with them, so it was spreading out beyond that.

I seem to recall Dr McBride may have made a similar – or may have made that point as well in his evidence, I think in his evidence to this module, or perhaps Module 1, I can’t exactly recall, there’s so much paper here.

So, in the agrifood sector, manufacturing, service industries and retail, you had very high concentrations of low paid and migrant workers and, as I previously pointed out there, a very large part of the 400 people who lost their lives were in those particular sectors.

The migrant worker population there in the agrifood was largely EU26 in nature – in origin, rather, and one of those workers in particular lost his life in a Moy Park processing plant in Dungannon in County Tyrone in very early 2020, in March of 2020. I believe the senior Unite the Union official in the North here, since retired, Jackie Pollock, wrote to the First Minister and the deputy First Minister, and indeed copied in the Minister for the Economy, I believe, raising concerns which Unite the Union had which reflect the concerns which we had been reflecting as a Congress on behalf of all the unions to the same people.

You know, and Jackie Pollock in his letter on behalf of Unite the Union, on the workers’ behalf, was making the point that there should be mass testing in that sector. That never happened. That there should be more unannounced inspections. That didn’t happen either. And that, you know, there was, they felt, Unite the Union felt, and we shared this view up to a point as well, that there was some wilful disregarding of the advice on the part of some people, some of the employers.

So there was – interestingly, those workers, you know, working in those processing plants were particularly at risk, as were those who were in front-facing occupations such as retail. You know, that was the other big proportion of those 400 lives that were lost that I referred to, I think that was 12 – over 12% of that 400 were in retail and service.

Interestingly, that – there’s a couple of things about that number which I think bear looking at as well. The first of those is that those were by and large rest of the world migrant and low paid workers, so not EU26, and we believe that a very high proportion of those people were actually women, and the disproportionate impact of this virus on women in particular in those low paid and migrant sectors of the economy is something which we feel has been completely under-investigated and under-reported, possibly. We – unfortunately, while there are some general figures from the Northern Ireland Health and Safety Executive, we don’t have very complete sets of data from them, so it’s impossible to tell what we in congress or ICTU are of the view that it’s certainly an area which bears further examination.

Counsel Inquiry: Thank you, Mr Murphy.

Would it be fair to say, from all that you’ve said, that those on the frontline and in lower paid roles were left behind?

Mr Gerry Murphy: I think that that is a fair enough description here, and left behind, that is despite the very huge effort on the part of their trade union representatives and belatedly on the part of the government, if you like, and the employers too, in fairness, but I think help such as it was when it came to that sector of the labour force was too late, the harm had already been done.

Counsel Inquiry: Mr Murphy, I just want to raise or explore another concern which was in relation to the impact of the pandemic on black, Asian and minority ethnic people, in particular there was a lack of specific data on the actual impact that Covid was having on these groups and migrant worker communities in Northern Ireland.

There was a letter sent to the health minister, Robin Swann, on 28 October 2020, in which a request was made for ethnicity and occupation to be recorded in Covid-19 data collection systems for health and social care in Northern Ireland.

The letter was responded to, and the health minister, Robin Swann, articulated that that work was under way and recognised the need for it.

How important was it to have such data, and was that then included in the data collection systems?

Mr Gerry Murphy: The letter that you’re referring to reflects the concerns which my colleague, Kevin Doherty, had previously articulated in his communication as well. It was very important, we felt, that this data would be collected, simply because these workers were in the lowest paid occupations, they were in what we now know but we suspected at the time to be the highest risk occupations. We also know that they were living in the most deprived communities and the figures then and now confirm that, you know, they were at two-thirds, you know, more risk than those that were living in the best or in the least deprived areas.

So the collection of basic data like how many people, black, ethnic minority people, are we talking about here, you know, where are they located, what age, you know, what age groups are they falling into, all of this would have greatly assisted and informed a response, a more targeted and complete response not only for working people, whom we represent, but also their families and indeed the community as a whole.

So was it fed in? I’m not entirely sure. But to be quite honest with you, I haven’t seen where it was fed in. All I can tell you is that I know that both our experience of the PHA’s data, as, you know, articulated by Kevin Doherty in his communication, and our experience of the Health and Safety Executive in NI and indeed confirmed by the HSENI’s own evidence to this module, it would suggest that those datasets are less complete than might have been optimum.

Counsel Inquiry: Thank you.

Mr Murphy, one of the particular issues that this module is considering is the absence of a functioning Executive, so between the three years preceding the pandemic, 2017 through January 2020.

In your view, how did the absence of a functioning Executive impact the response to the pandemic, but in particular in relation to the interests of workers?

Mr Gerry Murphy: I think the absence of a functioning Executive was extremely negative to the experience of workers during Covid. First of all, the absence of the Executive meant that, well, it was a failure of political leadership, in our view. On top of that, it meant that vital workplace intelligence and workforce intelligence wasn’t made available directly to, you know, the key decision-makers. Indeed, once the Assembly was – or the Executive was restored in January of 2020, until – up until the period when it collapsed again in early 2022, we weren’t successful in getting a meeting with the Office of the First and deputy First Ministers during that period. It also impacted – it undermined already fragile political relationships, and threatened community cohesion, right at the very wrong time for everyone. It impacted negatively on policymaker policymaking and on policy development, so, for example, during this period, immediately preceding this period you had the publication of Bengoa, the Bengoa report into the health service, and the very necessary reforms there which, you know, had come about as a consequence of underfunding, demographic changes and other pressures, historical and otherwise, on the system. So there was nobody and no Executive to enact those necessary changes. So it meant, for example, that the health service going into the pandemic was … was struggling, you know, Robin Swann I think said operating on a hand to mouth basis, I don’t think I could disagree with that.

Further, then, the fact that there was no Executive meant that a very dire public finance situation couldn’t really be addressed so we lurched from one annual budget to the next annual budget, there was no strategic planning in financial terms over the piece which had allowed, you know, some effort to be made to address clear inadequacies and deficiencies across the entirety of the public services, not only health.

Counsel Inquiry: Thank you.

Mr Murphy, I just want to end on this note by looking ahead. You refer in your witness statement to the Fire Brigades Union who have a tripartite arrangement in place: they represent firefighters across the UK, and the arrangement that they have which applies in Northern Ireland is one which they work with employers and fire officers.

In your view, how successful is this, and would you recommend a similar arrangement for the Northern Ireland Committee of ICTU and the Executive?

Mr Gerry Murphy: I think what you’re pointing to is one of the things that we need to do going forward, and yes, it was extremely successful. You can tell it was successful – or the evidence for its success is the fact that, right across the British Isles, not one single member of the fire and rescue service lost their lives during this period as a result of the virus. It’s a tripartite arrangement that they entered with the Fire Brigades Union with their employers and with the Chief Fire Officers. It meant that when the pandemic kicked in they were able to implement system wide mitigations which worked extremely effectively in preventing any disruption to either cover or, you know, the health of individual firefighters.

So it was pretty – it’s a pretty effective approach and one which we would certainly advocate, but it’s only one, and it needs to be replicated, we believe, at a system wide, economy wide, government wide level, you know, this tripartite approach, you know, we began actually with this when your very first question was about the Engagement Forum, I’m suggesting that that model or a model very similar to that is essential going forward.

Other things I think which we would really want to consider here is, you know, an active inclusion of the workers’ voice in the planning going forward for future pandemic scenarios in the hope of course that we never find ourselves back there, but I think it would be essential that the workers’ voice would be included in any planning for that.

Additionally, we need to address some of the other issues, the issues around sick pay, around access to

services and benefits, particularly from those who are

new to our country who have come from other places, we

need to be more considerate of that. And, you know, the

other thing I think which we need to do is be a lot

kinder to those that we work with more generally.

Ms Dhanoa: Thank you, Mr Murphy.

My Lady, those are all the questions I have.

I understand there are no pre-approved Rule 10s, and

neither have any come in during the course of the


Lady Hallett: Thank you, Ms Dhanoa.

Thank you very much for your help, Mr Murphy.

The Witness: Thank you.

(The witness withdrew)

Ms Dobbin: My Lady, may I call the next witness, please,

Sir David Sterling.

Sir David Sterling


Questions From Lead Counsel to the Inquiry for Module 2C

Lady Hallett: Sir David, I don’t know if you had to make

significant changes to your arrangements, but if you

did, thank you very much for coming forward earlier.

The Witness: Not at all, my Lady.

Ms Dobbin: Could I ask you to give your full name to the

Inquiry, please.

Sir David Sterling: It’s David Sterling.

Lead 2C: I know, Sir David, you have said that you would rather not be referred to as “Sir David”, but I think it’s only right that we do refer to you by your formal title in these proceedings?

Sir David Sterling: That’s fine.

Lead 2C: Could I ask you to just look in front of you, I think there’s a witness statement there that you’ve signed on 20 March 2024.

Sir David Sterling: Yes.

Lead 2C: Can you confirm that the contents of that statement are true to the best of your knowledge and belief?

Sir David Sterling: I can, yes.

Lead 2C: Sir David, there’s quite a lot to get through this morning and we are going to go to some documents as well. If at any point I refer to a document that I haven’t gone to or if at any point you need me to slow down so that you can properly read something, will you please say.

I think it’s right that you became the head of the civil service in Northern Ireland in 2017?

Sir David Sterling: That’s right, in the – 17 June, I think it was.

Lead 2C: I think that was at a point whenever the power-sharing arrangements were under suspension?

Sir David Sterling: That’s correct.

Lead 2C: In fact, it wasn’t until 2020, until they were resumed,

that you became head of civil service with a functioning

Executive committee?

Sir David Sterling: That’s correct, on 11 January 2020.

Lead 2C: Just in terms of your general role, then, I think it’s

three-fold: first of all, you acted as principal adviser

to the First Minister and the deputy First Minister?

Sir David Sterling: Yes.

Lead 2C: Right. I’ll come back to that. You were also head of

the Executive Office; is that correct?

Sir David Sterling: That’s correct.

Lead 2C: And can you just tell me this: does that have

an analogue, so to speak, at Westminster or is it

something very specific to Northern Ireland?

Sir David Sterling: It would have some similarities to the Cabinet Office

and maybe to Number 10, but in many respects it would be


Lead 2C: Sorry, I didn’t mean to stop you. Can you just help us,

then, with what the overlap might be in terms of the

Cabinet Office or what it shares in terms of its

functions with the Cabinet Office?

Sir David Sterling: Well, yes, in my role I would have performed many of the

functions that would have been carried out by the

Cabinet Secretary, and – but I would have had

an overarching responsibility for the Northern Ireland

Civil Service, which was perhaps a little different to the role that the Cabinet Secretary would have had. Certainly for some periods of time the management of the civil service in Whitehall would have been carried out by a different person, and the Cabinet Office would have had a different set of responsibilities compared with the Executive Office in Northern Ireland.

Lead 2C: Can you just help me then with what the main differences might be with the Cabinet Office and the TEO?

Sir David Sterling: Your … my knowledge of the Cabinet Office today is a little limited, but certainly the Cabinet Office would have had responsibility for co-ordinating certain actions against – sorry, across Whitehall.

Lead 2C: Right.

Sir David Sterling: Which we wouldn’t necessarily have had in the Executive Office. The Executive Office’s broad responsibilities were providing support to the Executive, there were then a range of functions which had been accumulated in the Executive Office over the years to do with maintaining good relations and a variety of other things as well.

Lead 2C: All right. Then can you help me with what parts of the Executive Office might overlap with Downing Street as well or the – I think you said that there was some overlap with Cabinet Office, some overlap with something analogous to Downing Street, could you help me with that?

Sir David Sterling: Well, I suppose in Number 10 they would be providing support to the Prime Minister, and you would have had a secretariat there that would – and you would have had communications facilities, if you like, support for the Prime Minister. And we had – in the Executive Office we had, obviously, an Executive secretariat, which would have been performing similar roles, and we had the Executive information services, which was responsible for providing communication support to the First Minister and deputy First Minister but also to the other departments as well.

Lead 2C: All right, so is the principal difference, then, that lack, as it were of, cross-departmental overreach or co-ordination?

Sir David Sterling: Yes, that would be the main difference, and obviously the administration in Northern Ireland is a multiparty Executive, whereas in recent times, you know, the Prime Minister has normally commanded a government from the same party. I think the exception would have been the Lib Dem/Conservative coalition between 2010 and 2015.

Lead 2C: All right. I’m going to come back to that issue of cross-departmental control, but I think you’ve just referred really to your third function, which was head of the Civil Service, and I’m going to come back to the distinct role of civil servants in Northern Ireland, but if we can just focus for a moment on that departmental issue. You deal with it at paragraph 6 of your statement, but can I just check, please, that I have it right.

So in Northern Ireland each governmental department is headed by its minister, and it’s the minister essentially who has autonomy or who has control over that department. The permanent secretary of that department is accountable to the minister; is that right? And only the minister?

Sir David Sterling: That is broadly correct. The Departments Order 1999, I think it’s section 4, requires or provides that the department is at all times under the direction and control of its minister.

Where the head of the Civil Service might have influence over departments would be if, for example, there’s a programme for government in place, and if you have a programme for government which has been agreed by the Executive, it would be expected that the head of the Civil Service would hold permanent secretaries to account for the delivery of the commitments which fall to particular departments within that programme for government. But as head of the Civil Service, I would have no powers of direction over the permanent secretaries in the other eight departments.

Lead 2C: All right. We’ll come back to how that operated in the context of the pandemic.

So really there are two issues, then: you can’t direct permanent secretaries; correct?

Sir David Sterling: That’s –

Lead 2C: Save for the circumstances in which you’ve just mentioned –

Sir David Sterling: Yes.

Lead 2C: – when it comes to programmes for government. Equally, is it right that the First Minister and the deputy First Minister, that they can’t direct the minister either, that they effectively have operational control over their department?

Sir David Sterling: Do you mean the First Minister and deputy First Minister obviously have direction control over the Executive Office?

Lead 2C: No, sorry, forgive me if I confused you. No, in terms of – do they have control over departments, might be the most simple way to put it?

Sir David Sterling: Not – not in strict legal terms, but obviously as First and deputy First Minister, they would have influence over the other departments and, you know, again, if there’s a programme for government in place, they, as the sort of co-chairs of the Executive Committee, will have, again, that influence that sits within the Executive Committee.

Lead 2C: I’m going to take you in due course to an email exchange that relates to the deputy First Minister, and indeed the First Minister, where there is, certainly, a sense of them feeling impotent – and that’s my word, not the words in the email – in terms of their ability to control what was – the Department of Health during the pandemic. And there’s reference in that email to the operational independence of the health minister.

Is that an accurate way of putting it, that effectively they are operationally independent of the First Minister and the deputy First Minister?

Sir David Sterling: Yes, they would. Each departmental minister would have a certain degree of independence, but obviously there is a requirement that any matters which are cross-cutting, in other words which affect more than one department, which are novel or contentious, you know, any issues like that which would require a decision, there’s a requirement that they be brought to the Executive Committee. So in that sense, you know, the First Minister and deputy First Minister have a degree of control over issues which, as I say, are cross-cutting, novel or contentious. But on issues which fall entirely within the remit of a department, then individual ministers do have a certain discretion.

Lead 2C: All right, we’ll come back and look at that perhaps in context.

Sir David Sterling: Sure.

Lead 2C: I’m just going to go back, if I may, to the composition of the Executive, then, which formed in January 2020.

You obviously had ministers from five different parties; correct? Three of those ministers were from minority parties, so to speak. I think five of the ten of them didn’t have any ministerial responsibility at all. Is that also correct?

Sir David Sterling: That’s my recollection, yes.

Lead 2C: And I assume in addition to all of that these were individuals who obviously weren’t used to working with each other in that context either?

Sir David Sterling: They wouldn’t have been used to working with each other within that sort of Executive framework but they all knew each other, you know, Northern Ireland’s a small place politically and a lot of them would obviously have known the other ministers pretty well, and some might have worked indeed in councils together, that sort of thing.

Lead 2C: All right. Again we will come back and look at just how the committee operated when we get past January 2020, I just want to stick on some general principles or issues at the moment, if I may.

You’ve set out in your statement that the concept of collective cabinet responsibility just doesn’t have application to the Executive Committee; is that right?

Sir David Sterling: That’s correct, it doesn’t apply in the same way that it would in Westminster.

Lead 2C: And that’s effectively because there is no government of the day, so to speak, whom everyone serves; correct?

Sir David Sterling: Yes, and I think it’s also in recognition of the fact that our form of government, which is a mandatory coalition, it would be more difficult to apply that type of collective responsibility.

Lead 2C: I think the concept of collective responsibility breaks down into two parts: the first part of it is that all discussions in cabinet are confidential, and there’s an expectation that what’s discussed around the cabinet table will stay confidential between ministers; that’s the first part of it.

The second, that once a position has been agreed in cabinet, that all ministers are expected to abide by whatever decision is made.

I think you’re nodding, you’re familiar with those two key characteristics?

Sir David Sterling: Yes.

Lead 2C: Can I first of all ask you about the requirement of confidentiality and look at that in terms of the ministerial pledge of office that’s taken in Northern Ireland. Is there again an analogue to that part of collective cabinet responsibility?

Sir David Sterling: Yes, whilst we don’t have collective cabinet responsibility in the sort of Whitehall/Westminster sense, there is a requirement within the Ministerial Code that ministers do not criticise decisions taken by the Executive outside the Executive. There would also be a requirement that papers which are submitted to the Executive are not disclosed outside, they should remain confidential to members of the Executive.

Lead 2C: We will see or it’s quite clear from the minutes of the meeting that there’s constant reference to leaking and this is during Executive Committee meetings, just to be clear, and reference, for example, to discussions being tweeted as they’re happening as well, obviously by parties external. Was that a normal feature of Executive Committee meetings in other times, in other words outside the pandemic, or was that something very specific to the pandemic?

Sir David Sterling: Certainly discussions I have had with my predecessors going back a number of years, back even to the Executive, back in 1999/2000, there has been a persistent problem of papers being leaked. It’s probably fair to say that the problem has got worse in more recent times, particularly when we have, you know, mobile phones with cameras, when we have social media, that kind of thing. I don’t have any hard evidence to show that there’s been an increase but certainly the perception amongst my former colleagues would be that the problem has become more difficult in recent times.

Lead 2C: The reason why it exists is obviously so that there can be full and frank discussions between ministers without fear of it being put into the public domain. Does it or did it have an inhibiting effect during the pandemic, that ministers couldn’t trust that that principle would hold?

Sir David Sterling: I think there was a – there was a practical impact, and that was, I would have detected a tendency amongst ministers bringing papers to the Executive to submit them as late as possible, just to reduce the chance that they would leak, and that of course creates difficulties for other ministers who maybe were not getting papers until very close to the start of the meeting, even right up to the actual due time that a meeting was meant to start. And, yes, I think there probably was an inhibiting factor as well, you know, that ministers were reluctant to bring forward items which were extremely sensitive.

Lead 2C: But that did have a real consequence, didn’t it, during Executive Committee meetings during the pandemic, because quite often I think it was Ministers Long and Mallon, for example, wouldn’t have had the papers until quite late in the day and sometimes that meant that meetings, for example, had to be adjourned even if they were quite urgent?

Sir David Sterling: It didn’t happen on all occasions –

Lead 2C: No.

Sir David Sterling: – but it did happen fairly regularly that some ministers would say, I think with justification, that they hadn’t had sufficient time to read the papers and that there would then have been an agreed adjournment, and in fairness the First Minister and deputy First Minister were usually quite happy to concede such adjournments, although it obviously did make – it made it harder to do business efficiently.

Lead 2C: All right.

I’m just going to come back, if I may, to some of the more constitutional issues, Sir David. I think one of the things you suggest in your witness statement, and certainly the experts in Module 2C suggest, is that the departmental structure in Northern Ireland means that ministers are often quite reluctant to confront difficult decisions, and I think because they get fixed with the difficult decision as opposed to colleagues in a cabinet or a government being fixed with a difficult decision.

Is that right?

Sir David Sterling: That would be my clear perception and my experience is that there is a reluctance, in my view, amongst all the political parties to do things which they would perceive would have a negative – give rise to a negative public reaction, and that could be, you know, the reconfiguration of a public service such as health or education. There has been, I think, a reluctance in the past to do some things which, you know, reviews, strategic reviews and other things have suggested need to be done.

So, yes, I have seen that.

Lead 2C: Right.

One of the issues that’s probably going to be quite important, certainly in the course of your evidence, is the suggestion again by some of the witnesses and by the experts in Module 2C that departments in Northern Ireland did operate in quite a compartmentalised way, and that there were a number of reasons for that. I’m going to ask you about the reasons in a moment, but can I just ask whether or not you agree with that observation that has been made?

Sir David Sterling: I agree with it to an extent, but I would say in the early weeks of the new administration one of the immediate tasks was to prepare a programme for government, we hadn’t had a programme for government since the one that applied between 2012 and 2016 and –

Lead 2C: I’m just conscious and I apologise for interrupting you, but it’s probably sensible if you explain what a programme for government is.

Sir David Sterling: Sorry, yes.

Lead 2C: I assume it’s something akin to a manifesto that’s agreed between the –

Sir David Sterling: A programme for government in simple terms is a plan and it is a plan which the Executive would agree for a period of usually three years or more. It should usually contain a statement of what the Executive’s priorities are, what the commitments and actions it is – it has agreed to take over that three-year period, and ideally it should be linked to a budget, so in other words there should be a clear linkage which shows how the commitments which are set out in the programme for government are going to be paid for, in very simple terms.

I think the point I was going to make in the early weeks was that I actually did detect a strong desire amongst the new ministerial team to work together. I think they clearly felt that after three – a three-year absence they needed to step up, they recognised that there was a lack of public confidence in the institutions, and for example we held two away days, one in January, one in February, where we were exploring what would need to go into the next programme for government, and I was quite impressed with the sort of collegiality that was on view on those two days.

Unfortunately, the onset of Covid meant that we were actually never able to translate all that preliminary work into a programme for government at that particular time.

Lead 2C: All right, so essentially what you’re saying is that if there is a tendency or if these departments have quite a lot of autonomy and independence, nonetheless that ability to work together is something that can occur and it’s just a question of willingness on the part of the ministers to overcome any of those –

Sir David Sterling: Yes, “willingness” I think is a very good word, and what I would have found is that a lot would have depended on the personality of individual ministers and the extent to which people had built relationships with each other, which crossed maybe party boundaries. But, as I say, in those early weeks I was quite encouraged by what I was seeing.

Lead 2C: All right, obviously the fundamental question is whether or not that willingness held up as time progressed, but perhaps if again I can just stick to some of the really fundamental constitutional issues and then we’ll revisit that. I wanted to ask you – and again it’s an important point about the role of civil servants then in Northern Ireland and their distinct position from counterparts in Westminster, and again I wonder if you could help me with that, that this idea that what distinguishes the civil servant in Northern Ireland, is that part of their role, being to help maintain or to facilitate power-sharing or to mediate political relationships? Could you explain a bit more about that, and whether you agree with it, of course?

Sir David Sterling: Yes. I don’t – I’m not sure anything is written down which makes that a clear responsibility of Northern Ireland civil servants, you know, at its simplest level we are there under the direction and control of our ministers to serve our ministers to the best of our ability, but certainly custom and practice, you are going back 24 years to the first Executive post the Good Friday Agreement, there was always a strong sense amongst the Civil Service that our role was to help make the institutions work, you know, recognising that, you know, a mandatory four or five-party coalition is an inherently more difficult form of government to manage than, say, a single party type of government that you would usually see in London.

So there wasn’t a sort of set of tools or levers that we would pull to do this, but I think we all in our own way felt that we had a responsibility to encourage ministers to work together within the framework of the programme for government, et cetera.

Lead 2C: But presumably then a key part of your role is that idea of forging compromise so that you can get all of the parties fundamentally to agree common positions with each other?

Sir David Sterling: Yes, certainly, and my own experience over the years in different departments, I would have always thought it important to work across departmental boundaries, and the reality is on most occasions ministers are willing to do that, I think sometimes this idea that ministers operate in departmental silos is a little overstated. In my experience, the ministers I worked with, was that they were keen to work across boundaries, and there are practical reasons for that, and that is that there are very few things that ministers want to do that they can do solely within the powers and responsibilities that they have within their own department.

If you look at the big issues, the big challenges in Northern Ireland, most of them require a cross-departmental response, so yes, at times you would see people retreating into departmental silos, but it wasn’t, that wasn’t something that was always evident.

Lead 2C: All right, I just wanted to come back to the point you made in your witness statement, this idea that sometimes the need for compromise could drive decision-making towards the lowest common denominator. Is that right? I mean, those are your words.

Sir David Sterling: Yes, unfortunately there was evident and it would be particularly evident where we were maybe – let me think.


Sir David Sterling: Think of an example, let’s say in the Executive Office issues around culture, language, et cetera, could be quite difficult, and what you might tend to see is it would be difficult to get agreement on a way forward on issues of that sensitive nature, you know, flags, symbols, emblems, all that type of thing. That would require quite a bit of effort to try and find common ground, and, you know, I think history shows that on occasion that common ground simply cannot be found. On other issues what you might find is that one party, and I’m talking about the Executive Office again, which, you know, in my time would have always been – we’d always had a sort of Sinn Féin/DUP partnership there. You might have found that a difficult thing for one party might be conceded if a difficult thing for the other party was, you know, traded, if you like.

Lead 2C: So it’s a sort of bargaining process –

Sir David Sterling: Bargaining process you would get. So, you know, what you would find is the difficult issues, they might just not be agreed or it might be that they were agreed on the basis that something else was being agreed.

Lead 2C: Right.

I’m going to move on then to a distinct topic, which is the absence of ministers between 2017 and 2020, and I think you’ve been candid in your witness statement, as I think you’ve been before, before the Inquiry about the impact that that had on public services in particular in Northern Ireland up until the eve of the pandemic.

Is that right?

Sir David Sterling: Yes, I felt that I had to be candid about this. When I came to the Executive Office in June 2017, the ministers had been away for six months or so. Nobody thought it would last much longer than that, and there were political talks that summer, there were high hopes that would reach a conclusion, didn’t prove to be the case, and I would have said regularly in my role at the time that I thought this was totally unacceptable that civil servants were being left to operate, to – you know, to run a government without the direction and control that would normally be expected from ministers.

I never believed at that stage that it would be allowed to go on for three years, and I said at the time I can’t imagine in any other part of the United Kingdom such a thing would have been allowed to prevail.

Nonetheless, it did, but it has had consequences, and the fact that, you know, we had that three-year hiatus and then another three-year – sorry, another two-year hiatus, which only ended earlier this year in February, has, in my view, left public services in a very bad state. I talked about stagnation and decay.

Lead 2C: Yes.

Sir David Sterling: But I think that the problems that you’re seeing in particularly our health service and in our educational services but in pretty much all our other services are, to a large extent, in part down to the fact that for five years out of the last seven we have had not had ministerial direction.

Lead 2C: I just want to go back to the period before the onset of the pandemic in January 2020. The Inquiry is aware that obviously there had been a number of papers advocating radical reform in Northern Ireland health services and particularly – in particular the Bengoa report.

I mean, first of all, was there a need for radical reform? Was that an imperative before 2020?

Sir David Sterling: Yes, very much so, and in fact in my witness statement I have set out an extract from Fiscal Council’s report, a sustainability report they did on the health service, and that actually itemises a number of strategic reviews which have been carried out on the health service going back, I think, maybe 30 or 40 years, and there has been common theme to a lot of those reports: basically they are suggesting that the health service needs to be reconfigured, that there needs to be greater focus given to primary care, that there needs to be the collection of specialisms in specialised units. You know, a range of things like that. And sadly, that transformation has not happened and the Bengoa report is now eight years old.

Lead 2C: So I think there are two aspects to that. I think the first question is whether or not, in your view, the state that services had reached prior to January 2020, whether or not that conditioned in part the response to the pandemic thereafter?

Sir David Sterling: I think the absence of ministers for those three years left the health service in a weaker position than it ideally would have been in to deal with a pandemic.

Now, I would much prefer to defer to my Department of Health colleagues to talk about that in more detail, because, you know, my knowledge wouldn’t be as good as theirs, and obviously I’m now three and a half years retired as well, so I wouldn’t want to be seen as an authority on just how bad things were in the health service, but I don’t think it would be an understatement to say that the health service – that the neglect that it suffered for three years left it less well prepared to deal with a pandemic than it otherwise should have been.

Lead 2C: All right. And just – there’s a second part to the question, which is obviously when power-sharing then resumed in January 2020, it was with all of the work that had accrued over the previous three years that required ministerial decision-making, presumably, and I take it that’s what your programme for government was intended then to address in that first year; is that right?

Sir David Sterling: Yes. And again, in fairness, there was – as I’ve already said, I detected a really strong willingness among ministers to tackle some of these big issues. And it’s also worth noting that we had the New Decade, New Approach agreement in place; that contained some financial resources to help address some of the problems in the health service, and it contained commitments as well to address some of the particular challenges facing the health service at the time.

So, you know, that was a piece of work which needed to be developed and taken forward, and I saw that as something that would sit alongside the development of a new programme for government, and I would have seen those two things being brought together as a means of addressing the big structural challenges in the health service. And indeed in other services as well.

Lead 2C: All right, and I think one of the issues that’s linked to that was that there had previously been an absence of multi-year budgets as well; is that correct?

Sir David Sterling: Yes, we hadn’t had a – the last programme for government had been agreed in March 2012, the last multi-year budget had been agreed in the previous year, 2011. Now, the absence of multi-year budgets in Northern Ireland wasn’t solely down to issues here. There would have been quite a number of years where the Treasury would not have produced spending reviews, you know, spanning more than one year, so there had been a number of single year budgets in Whitehall, which obviously meant that Northern Ireland couldn’t produce a multi-year budget either.

Lead 2C: And the consequence of that is simply your ability to pre-plan any reforms is limited because you can only say “This is what we can do in the year to come”?

Sir David Sterling: Well, indeed, and if you’re looking at big, complex services like the health service or like education, it is much more difficult to plan if you only know what your – you know, what your financial envelope is going to be for the next year. And, indeed, one of the other problems we’ve had in recent years has been that we haven’t even had single year budgets agreed well in advance of the start of the financial year, and that makes it incredibly hard for those who are running public services to manage those services. Like, for example, the budget for 2024/2025 has just been agreed by the Executive and we’re at the beginning of May.

Lead 2C: Right.

That idea or the understanding about the fragility of the health service in January 2020, was that one of the principal concerns then of the Executive Committee? I mean, was that one of the key issues that needed to be addressed at the start of that year?

Sir David Sterling: Yes, I would have said at the start of 2020 the problems in the health service would have been considered by pretty much all ministers as one of their top priorities, if not the top priority. We had had strikes in the health service which had just been settled, in part due to the finances that were put forward in the New Decade, New Approach package, but we also were – we were seeing very high waiting lists, which, again, I think, there was a clear desire to tackle. So that – you know, those issues and then the knowledge that the Bengoa report was sitting on the shelf waiting to be taken forward would have been at the front of, I think, all ministers’ minds in January/February 2020.

Lead 2C: As the pandemic started to unfold in January and February 2020, do you think that there was cognisance or thought about the extent to which the fragility of the health service might actually be a really important thing for the entire Executive Committee or the Executive Office to also think about in terms of what was unfolding?

Sir David Sterling: Yeah, I think the – I think there would have been a recognition, there would have been an understanding that particularly as we got to understand the nature of the coronavirus, that the health service would be under particular stress, and that that stress would in a sense have been exacerbated by the structural problems which had built up over a number of years.

Lead 2C: I think in your witness statement, but forgive me if I’m wrong about this, I think you say that that understanding crystallised in and around the start of March. Is that right?

Sir David Sterling: Yes, I think that’s fair.

Lead 2C: All right. I’m going to come back and ask you about that in more detail.

Sir David Sterling: Yep.

Lead 2C: Just again I’m going to move on to ask you about civil contingency arrangements, but before I do, I think one of the other things that is suggested by the Module 2C experts is that not having had ministers in place before January 2020 also meant that they hadn’t been able to develop relationships with counterparts either in Westminster or in the Republic of Ireland as well. I wanted to ask you, from your experience, whether or not those kind of relationships, those individual relationships, are actually important and matter in government in Northern Ireland?

Sir David Sterling: They are important. Their importance will vary depending on the particular portfolio that a minister has. So, for example, if I take the Minister of Agriculture, Environment and Rural Affairs, you know, just given the history, you know, our history in the EU and then having now left the EU, there would have been a very close relationship between local agriculture and environment ministers and the DEFRA minister in Westminster. There would equally have been strong relationships in that regard on the North/South, Belfast/Dublin basis as well.

Other departments would have relationships as well, like, for example, the economy minister would have had strong relationships with the economy departments in London and perhaps in Dublin as well. A lot would have depended – sorry, the extent to which those relationships were developed would have depended, in my experience, on the personality of the individual minister, but also their party affiliation.

Lead 2C: I see, so in effect, I don’t want to simplify this, but you would expect those politicians who were of a Nationalist background to more naturally want to foster relationships with counterparts in the Republic, and vice versa, or is that too simplistic?

Sir David Sterling: It’s not too simplistic, it wouldn’t completely accurately portray what was actually happening. There would have been that tendency that, you know, that ministers from a Nationalist background would have looked to Dublin, Unionist ministers would have looked to London, but there would have been plenty of examples where that didn’t hold entirely and there would have been examples I can think of, of Unionist ministers have very strong relationships, for example, with their health counterparts in Dublin, and equally, you know, I can think of examples where, say, a Sinn Féin agriculture minister would have had a good relationship with a DEFRA minister in London. So there’s an element of truth to it, but it’s –

Lead 2C: It’s slim.

Sir David Sterling: Yeah.

Lead 2C: So there’s probably a pragmatic consideration, first of all, and then a question of willingness again on the other …

Sir David Sterling: Yes, and I suppose it goes back to one of my earlier points, that ministers in wanting to do things will often find that they need the co-operation of people in London and Dublin or even Cardiff and Edinburgh, and that, you know, whatever their party affiliations, they will build relationships with that aim in mind.

Lead 2C: Before I leave this topic, then, can I ask you about the First Minister and the deputy First Minister role, and ordinarily or whether it mattered here that those relationships didn’t exist prior to January 2020 in terms of counterparts with the Republic of Ireland and Westminster as well?

Sorry, that was a clumsily put question, but I suppose what I’m asking you is whether or not they hadn’t had an opportunity to establish relationships with their counterparts, whether or not that mattered?

Sir David Sterling: I’m not sure that would be a major issue, because if you take the First and deputy First Minister in January 2020, Michelle O’Neill and Arlene Foster, they would have known each other very well, they were both ministers in previous Executives, they would have known their counterparts in Dublin pretty well through the talks processes that had gone on over – on and off, over the previous three years. So the personalities would have been known. There would have been relationships there which could have been built on. What you wouldn’t have had would have been the relationships that you would expect to deliver, you know, from two people who were responsible for similar portfolios in different jurisdictions, and that obviously would require a bit more development.

Lead 2C: Can I just ask you again, then, coming back to January 2020, what the state of general relationships were like, and I’m referring here to ministers, in terms of their Republic of Ireland counterparts, or if it’s possible to characterise the relationship generally or not?

Sir David Sterling: Let’s say the two health departments, I think my understanding was that the Northern Ireland health minister fairly quickly established a good working relationship with his counterpart in the South. Now, I stand to be corrected by Robin Swann if that’s not the case, but that’s my understanding. I know certainly as we moved through the year the relationship between the two departments at both official and ministerial level was good.

If you look at the First Minister and deputy First Minister, again the relationship between the First Minister, Arlene Foster at the time, and the Dublin administration, on a personal level, I think Arlene Foster got on really well with Leo Varadkar and with Simon Coveney, but at a political level there would have been tensions there.

Lead 2C: Is that because of EU exit?

Sir David Sterling: Yes, it would have been over EU exit, and again I’m sort of wary about making – sort of passing comment on these issues, but my sense would be that there would have been, you know, a good working relationship between the deputy First Minister and the Taoiseach at the time, but then you’ve got to bear in mind that the political – the political arithmetic in Dublin is also a factor there, you know, given Sinn Féin’s growing strength in Ireland.

Lead 2C: Yes, so a complicating factor was the fact that Sinn Féin were an oppositional party to the government in Dublin –

Sir David Sterling: Correct.

Lead 2C: – at the same time?

Sir David Sterling: Correct.

Lead 2C: And I think we might see that play out then a bit later in events in the pandemic when Northern Ireland is perhaps not informed about steps that the Republic of Ireland is taking in response to the pandemic?

Sir David Sterling: Yes, although I think those party differences, as we’ve moved into the pandemic, were of less relevance, you know, they were less evident to me than the differences that might have occurred between what was being done North and South.

Lead 2C: All right. I’m going to move on, then, if I may, to ask you about some of the arrangements for civil contingencies in Northern Ireland, and I think we’ve got ten minutes before lunch, so let’s see if we can fit those in.

I wonder if I could ask to be brought up on screen, please, INQ000092739.

I think you said, Sir David, in your witness statement, that you were familiar with this protocol, and you’ve referred to it in your witness statement.

Can I just check, though, was this the key protocol from the perspective of the TEO that would guide the response to the pandemic?

Sir David Sterling: Yes, that would be correct.

Lead 2C: All right, and we can see that it’s dated September 2016. If we could just go to the first page of it, that’s page 3, sorry. So we can see from this that this protocol applies, first of all, at paragraph 1, Sir David, when an emergency has occurred or is anticipated which is likely to have a serious impact either on part or the whole of Northern Ireland; yes?

Sir David Sterling: Yes.

Lead 2C: And it sets out that the arrangements can be activated as required, and then the first bullet point is to:

“… provide strategic co-ordination of the response … or recovery across [Northern Ireland] departments …”

Just looking at paragraph 1, obviously the emergency doesn’t have to have eventuated, does it, it can be an anticipated emergency, something that’s coming down the line?

Sir David Sterling: No, certainly if you’re dealing with a contingency, whether it’s one that is happening or one that’s emerging, you would normally go through a process where there is a prepare phase, then a response phase, then a recovery phase.

Lead 2C: Yes.

Sir David Sterling: So in early January/February we would have been very much in the prepare phase.

Lead 2C: But nonetheless guided by this protocol?

Sir David Sterling: Yes, absolutely.

Lead 2C: Right. So this protocol does apply whenever you’re at that prepare phase?

Sir David Sterling: Yes.

Lead 2C: All right. If we look at paragraph 2, I’m just mentioning this because we’ll hear plenty of reference to it, the arrangements were known as NICCMA; yes?

Sir David Sterling: Yes.

Lead 2C: If we look at paragraph 3, it sets out that:

“The First Minister and the deputy First Minister or the TEO may activate NICCMA following a request to do so from the Executive …”


Sir David Sterling: Yes.

Lead 2C: And I think if we look to the very last line of that paragraph, in the absence of any such requests whenever TEO judges it appropriate to do so?

Sir David Sterling: Yes.

Lead 2C: Yes, so in other words there’s no – we’ll come to the lead department in a moment, but it doesn’t require the lead department, so to speak, to ask the First Minister and the deputy First Minister to activate these arrangements, they have the power to do that?

Sir David Sterling: That’s correct.

Lead 2C: If we just go over the page, please, and if we look at paragraph 9, we see that this applies to two types of emergencies, the local one and then over the page the strategic one. Again I think that’s put in very broad terms, Sir David, at the top, that the government role in this kicks in whenever strategic level intervention is required; is that right?

Sir David Sterling: Yes.

Lead 2C: Then if we go over the page, please, to paragraph 12, again it’s set out there the sorts of things that might require a strategic level approach and, as you might expect, things like very large numbers of people affected; yes? I think if we see, as we work through this, a high degree of public anxiety or implications beyond Northern Ireland; yes?

Sir David Sterling: Yes.

Lead 2C: Then if we look at paragraph 13 it sets out the different levels of strategic emergency, and maybe if we just look at “serious”, and that’s defined whenever a number of sectors might be affected or impacted; yes?

Sir David Sterling: Yes.

Lead 2C: Or a number of organisations might be involved in responding.

Then level 3, catastrophic, so that applies to an emergency which has or which threatens catastrophic impact; correct?

Sir David Sterling: Yes.

Lead 2C: And it sets out there:

“TEO will facilitate the strategic multi-agency co-ordination through the activation of the NICCMA. UK-wide co-ordination will be delivered through activation of the Cabinet Office Briefing Room … arrangements.”

We know obviously that those COBR arrangements began in January 2020.

Sir David Sterling: Yes.

Lead 2C: Level 3 suggests that there’s some parity of arrangement or that this will kick in at the same time that COBR kicks in; is that your understanding as well?

Sir David Sterling: Yes. It depends what you mean by “kicking in”.

Lead 2C: All right. What this tends to suggest is when an emergency reaches this stage –

Sir David Sterling: Yes.

Lead 2C: – that COBR will be operating in the United Kingdom, and that these arrangements will be expected to be in place, again as a sort of – I’m sorry to keep using this word – but as an analogue to the COBR arrangements. Is that also your understanding?

Sir David Sterling: Yes, we will be in this process, but I think what – when people talk about activating NICCMA, I think what they quite often mean is the setting up – sorry, the establishment of the Civil Contingencies Group.

Lead 2C: Yes.

Sir David Sterling: And also the establishment of the Northern Ireland hub.

Lead 2C: Yes.

Sir David Sterling: My view would be that you don’t need to do either of those two things, which are response functions, until you’ve moved out of the prepare phase. So, you know, my view would be that, yes, we were clearly being invited to attend COBRs, we were getting the briefings that were coming from them, but we had not reached the stage in sort of January/February where in my view it was appropriate to activate NICCMA in the sense of establishing the Civil Contingencies Group, and the – setting up the Northern Ireland hub, and certainly I think it’s also mentioned earlier in the document here, the role of the lead government department –

Lead 2C: Yes.

Sir David Sterling: – and for a health pandemic it was well established that the Department of Health would lead on health pandemics of that nature. So in a sense, Department of Health was taking the lead in responding, in preparing for and responding to the pandemic, and we were in, you know, regular contact with the Department of Health, like daily contact, so we would have been, you know, liaising very closely with them, and I was always very clear that at any point in time they asked us to activate NICCMA, and by that I mean establish the Civil Contingencies Group and set up the Northern Ireland hub, we would have done so.

Now, it’s now a matter of record that we didn’t do that until, you know, the third week in March, and, you know, I think that was felt to be appropriate at the time but I’m sure you’ll want to push me on that.

Lead 2C: No, you’re covered quite a lot of ground and I’ve got quite a lot that I want to ask you about almost everything that you have said. I’m just focusing at the minute on this document, Sir David. But I don’t think it’s – I mean, there’s no question, there wasn’t an analogue, so to speak, to COBR operating in Northern Ireland from January, and I think the first CCG meeting took place on 20 February.

Sir David Sterling: That’s correct, yes.

Lead 2C: And then I think there was another one on 12 March, that was a ministerial one?

Sir David Sterling: That’s correct.

Lead 2C: All right. We’ll cover the ground probably in a bit more detail after lunch. But I’m just – I don’t know if I’ve got time to just finish this document and then we can come back, having done it, but if we look at paragraph 16 we can see that in terms of the Northern Ireland Executive role as foreseen in this protocol, at paragraph 16 it refers to them possibly – or:

“… may wish to meet to consider the impacts of the emergency and to offer … support to members of the public affected …”

I’ll come back in a second to that, if I may.

Then just if we continue over the page, please, to page 8, and we look at paragraph 19, again that sets out that:

“Level 2 and Level 3 emergencies require direction, co-ordination and effective decision-making at government level.”


Sir David Sterling: Yes.

Lead 2C: And, again, presumably that applies as much to the preparedness phase as it does to the –

Sir David Sterling: Yes.

Lead 2C: – response phase.

Then at paragraph 21 it sets out the structures for responding, and we can just see, if we follow that down to paragraph 22, certainly I think this protocol suggested that the Civil Contingencies Group was the strategic co-ordination group; yes?

Sir David Sterling: Yes.

Lead 2C: That it would be responsible for the overarching strategy; yes?

Sir David Sterling: That’s correct.

Lead 2C: And also that it would direct –

Sir David Sterling: When we’d moved into the response phase, yes.

Lead 2C: And it says there it would direct the response and commit resources across Northern Ireland; yes?

Sir David Sterling: Yes.

Lead 2C: Then it sets out the various roles that it might have, so, for example, directing and co-ordinating the efforts of government – sorry, of departments, and then, second, assessing the wider impact of events as well.

In terms of your delineation between preparedness and responding, obviously this protocol doesn’t set out any such delineation, the premise of it is that it will apply when an emergency is anticipated. Why do you say that paragraph 22 is whenever the government is in response mode?

Sir David Sterling: In a health – sorry, in the circumstances we were facing, where there was an emerging pandemic, the role of CCG, you know, led by the Executive Office, would have been to co-ordinate the work of the departments other than the Health Department. You know, the Health Department would still have been in the lead when it came to the actual health response to the pandemic.

So, you know, the view I would have had at the time, and with my colleagues in that area, was that you don’t want to establish CCG until that point in time where there is a need for departmental co-ordination in terms of response.

Now, we didn’t actually establish CCG until it was 18 March.

Lead 2C: Yes.

Sir David Sterling: I will concede now that it would probably have been prudent to have established it a few days earlier, perhaps at the end of the previous week, and I say that for two reasons. Firstly, and again this is knowing what we know now, we didn’t get the number of volunteers coming forward to staff up the hub, which provides support to CCG, that we had anticipated, and for that reason it would have been sensible, I think, to have established it a little earlier, so that we could have known this and mitigated it sooner than we did.

Now, in my view, we did mitigate the immediate absence of volunteer – sorry, the immediate shortage of volunteers quickly.

Lead 2C: I’m just going to stop you because we will come back and deal with staffing in more detail. I think the point, really, though, is that this foresees the setting of an overarching strategy. Why isn’t that as much a part of preparedness as it is of responding?

Sir David Sterling: Well, the – it’s the preparedness phase where you will be, in a sense, developing your planned response. And again, we can talk about resources later, but the people who were doing the preparation work in the Executive Office but also in departments would have been the same people that would have been staffing up the hub. So our reluctance to – not reluctance, but the decision to establish CCG when we did was in part because we wanted to use the resources available to us to best effect. So, for example, in early March we had commissioned impact assessments from all departments. There had been a workshop on 6 March, facilitated by Chris Stewart and the CCPB team, which was looking at how we actually co-ordinate that exercise across departments. So that work was part of the preparedness work, and had we established the hub and Civil Contingencies Group earlier, it might have compromised that work.

Ms Dobbin: All right. I think that’s –

Lady Hallett: I think it’s too important a subject to try to get you to squeeze it in before lunch, Ms Dobbin.

I’m sorry, Sir David, as you know we have to take regular breaks, so we will break now for lunch and I will return at 1.50.

(12.52 pm)

(The short adjournment)

(1.50 pm)

Lady Hallett: Ms Dobbin.

Ms Dobbin: Thank you.

Sir David, just before the short adjournment we were looking at the protocol, if I could just go back to that, please, and ask for it to be brought up on screen.

It’s INQ000092739, and page 9, please.

So we were just looking at paragraph 22, Sir David, so the role of the Civil Contingencies Group, and I think that you agreed that this protocol certainly foresaw at least that it would direct the response to the emergency, commit resources and that it would have a strategic decision-making role as well, and that as part of its role – and we see that at the first subparagraph – that it would have the ability to direct and co-ordinate the efforts of the other government departments as well. Again, I think uncontroversial between us that that also could be done as part of the preparedness phase.

Sir David Sterling: Yes.

Lead 2C: If we just go on in this document, please, to paragraph 36, that’s page 14.

Again, if we look at paragraph 36, it foresees the linkage between NICCMA, doesn’t it, and COBR? And specifically it foresees that the Northern Ireland arrangements will feed directly into COBR. Correct?

Sir David Sterling: Yes.

Lead 2C: And again, just coming back to the fact that COBR had been on foot since January 2020, who was then – who had that role in the absence of the NICCMA arrangements having been stood up at that phase? Who was providing that government feed, as it were, into COBR?

Sir David Sterling: There had been a number of meetings of COBR from late January onwards, and – I don’t have the exact numbers in front of me, but in most of the COBR meetings there would have been somebody from Northern Ireland. So on some occasions there would have been the First Minister, deputy First Minister, on some occasions there would have been the health minister. There would usually have been somebody from the Civil Contingencies Planning Branch accompanying ministers, and some occasions, sorry, the minister for health would have been there. So on most of those occasions where COBRs took place and Northern Ireland had been invited, there would have been ministers – sorry, there would have been ministers present supported by officials as well.

Lead 2C: All right. So I think the short answer to that is it would depend on who was going to COBR, and if it was the health minister you would expect him to feed in to COBR; is that right?

Sir David Sterling: Yes.

Lead 2C: He would present the position on behalf of Northern Ireland, and then when the First Minister and the deputy First Minister started to go, I don’t think that was until March, you would then expect them to take that role on; is that right?

Sir David Sterling: Yes. I think it’s fair to say that the perception from ministers who attended COBR during that period was that they were being advised what UK Government was up to, but there wasn’t much two-way transmission of information. I think some ministers have been quoted as saying they felt that their attendance at COBR was often a tick box exercise.

Lead 2C: All right, we’ll come back to that, if I may, and address that in the context of some of the evidence and communications with the Cabinet Office. I just wanted to finish, if I may, in terms of the document, on paragraph 41, and that sets out, doesn’t it, the role of the lead government in NICCMA?

Again, I think it’s right, it’s set out in fairly simple terms, isn’t it, that it has that role because it has expert knowledge of the cause of the emergency?

Sir David Sterling: Yes.

Lead 2C: Which – it can inform the response by formulating a prognosis, so allowing other emergency responders to understand the implications for their sectors. Then it also goes on to say that under NICCMA it is possible that there could be multiple lead departments as well?

Sir David Sterling: Yes.

Lead 2C: All right.

In terms overall of this protocol, you’re obviously very familiar with it, do you agree that it was wholly inadequate for dealing with an emergency like a pandemic, because it does only seem to foresee or apply to the sort of very short-term type of emergencies like floods and that kind of thing?

Sir David Sterling: Yeah, I think that’s generally a fair comment. I think we would have recognised that there was a need to update the protocol. We had operated the civil contingencies arrangements for an extended period during 2018 and 2019, in anticipation of the risk of the UK leaving the EU without a deal with Europe, the sort of no-deal Brexit that was talked about, and we had in 2019 commissioned a review of the arrangements, there was a report done by PwC –

Lead 2C: It’s been referred to in this Inquiry as “the futures report”.

Sir David Sterling: Indeed. There was a recognition in early January that there was a need, as I say, to update our arrangements. That didn’t happen for a variety of factors. One was CCPB was short of resource, and I’m happy to talk about the context for that, but also the other factor was the emerging Covid pandemic, which really required us to activate the arrangements and they were not subsequently updated until 2021, and in part I helped to facilitate that by re-directing a senior civil servant from elsewhere in the Executive Office into CCPB in August 2020, Mr Andy Cole, and he over the next year actually did update those arrangements and there are – there’s a new protocol in place since, I think, August 2021, and I think I understand that has been further updated in autumn 2023.

Lead 2C: But just going back to the position as it stood in January 2020, that report had made 85 recommendations about civil contingency planning in Northern Ireland, none of which had been acted on by the time the pandemic had started to unfold; is that right?

Sir David Sterling: I – I’m not sure none of them had been acted upon, but certainly I would accept that there had been at very best very limited implementation of those recommendations.

Lead 2C: Okay, and I think we will come to, if we don’t come to it with you, but certainly we know that Mr Stewart put forward a proposal on 25 January –

Sir David Sterling: He did.

Lead 2C: – setting out the need for there to be a review of the arrangements; is that right?

Sir David Sterling: That’s correct.

Lead 2C: So notwithstanding there had been that report making those recommendations, the recommendation in January was that there be a further review in order to determine how those arrangements could be improved or made more robust; is that right?

Sir David Sterling: Yes. That could make it sound as if Mr Stewart was in a sense delaying the implementation of the PwC recommendations, but I think what he meant was there that the review would make sure that the arrangements were updated, not necessarily implementing all of the 85 recommendations, because from memory I don’t think we agreed that all of them would be needed in the revised arrangements.

Lead 2C: One of the things that he identified in his paper – and I’ll touch on it now, because you’ve raised it – was the need to think about the role of the Executive within the civil contingency arrangements, and was that because it was recognised that it wasn’t clear what its role and what the role of the Executive Committee was supposed to be in an emergency?

Sir David Sterling: Yes, that’s fair comment. The emergencies that I had been involved in over the years tended to be weather events, storms, that sort of thing, floods, they tended to be short in duration, they tended to be events where it was quite clear who needed to do what and ministerial involvement was not a significant issue, but clearly the pandemic was of a completely different order of magnitude, and our experience in dealing with the first wave I think did indicate that we needed to be much clearer about what the role of ministers would be in similar contingencies in the future.

Lead 2C: All right. So I’m just going to stop there, and in terms of where we’ve reached about the arrangement that we’ve just looked at, the protocol, I think you agree with me it’s a document that applies to planning and response as well?

Sir David Sterling: Yes.

Lead 2C: As it sets out that in the case of a threatened emergency it provides that the TEO will facilitate multi-agency co-ordination –

Sir David Sterling: Yes.

Lead 2C: – through those arrangements, and it foresaw that the CCG would be the strategic body that had set the strategy for the response?

Sir David Sterling: Yes.

Lead 2C: But again that could obviously be in advance of any emergency eventuating; yes?

Sir David Sterling: Yes, and I think when you’re talking about strategy here, there was probably two elements to that. The most important strategy, in my view, would have been at that time the strategy that was being prepared by the Department of Health to deal with the pandemic, to deal with the health impacts of the pandemic. What we were doing in the Executive Office, under Mr Stewart’s lead, was assessing the readiness of departments, and that’s why the impact assessments had been commissioned, and why the workshop on 6 February was convened. But I think it’s worth recognising that, as we moved on into March, you know, into the second, third week of March, and it became increasingly clear just the magnitude of what we were having to deal with was going to be so much greater, I recognised that we needed additional resource just to deal with this, and for that reason I had asked the permanent secretary of the Department of Justice, if he could release one of his members of staff, Mr Anthony Harbinson, to become the chief of staff for the hub, and that was in recognition that there was going to be just too much for Chris Stewart alone to deal with.

Lead 2C: Yes.

Sir David Sterling: And around about the same time I also asked Dr Andrew McCormick if he would release Ms Karen Pearson who was leading on our Brexit preparations to also join the pandemic effort, because she and her team had particular expertise in risk assessment, in dealing with cumulative impact assessment, in looking at cross-sector resilience and planning and co-ordinating around that.

So I moved from the position where there was, in a sense, Mr Stewart alone in this area to having three people by the end of the week beginning the 16 March.

Lead 2C: I just want to be clear about this, if I may, that when it comes to the – in terms of this idea that there needs to be a cross-departmental strategy, that you didn’t consider that that needed to be in place until 18 March?

Sir David Sterling: No, no, sorry. Sorry if I’ve misled you. The preparatory work that was being done, led by Mr Stewart and CCPB, was in a sense preparing that cross-departmental strategy, built on the impact assessments that we had commissioned from departments. I think my point would be that we did not feel that we needed to formally activate CCG(NI), to do that preparatory planning work.

Lead 2C: All right. Well, I’m going to come to the planning in due course.

Sir David Sterling: Yeah.

Lead 2C: One of the things that happened quite early on, so at this point in time, in January 2020, was that Sir Chris Whitty had sent an email, you might be familiar with it, on 28 January where he set out essentially two scenarios that he foresaw could play out. So one of them was China would experience a widespread break-out but would nonetheless be able to control it; or the other one, which was the worst-case scenario, which was that there would be a break-out and China wouldn’t be able to control it. Those were the binary options as he saw them at that point in time.

Can I just ask you how much awareness there was on the part of the TEO at the end of January that effectively that’s what the UK CMO was seeing as the two possible courses that the pandemic could take, obviously the uncontrolled outbreak being the reasonable worst-case scenario?

Sir David Sterling: I think there was general awareness. Obviously we were relying in Northern Ireland on advice from the Department of Health, we knew that the Chief Medical Officer, through his connections with his counterparts in Great Britain, was keeping abreast of what was going on. So, you know, it would be through that sort of arrangement that we would have been being kept aware of what was happening.

Now, I think in my evidence bundle there’s a note that I sent to the permanent secretary of the Department of Health on 6 February, I had been to a meeting in London of –

Lead 2C: I’m going to stop you, I’m going to come to that in a moment.

Sir David Sterling: Okay.

Lead 2C: Because we’re moving on in a bit, aren’t we, to 5 February and I do want to ask you about that.

Before I do, though, I did just want to ask you about a communication that comes around about that time. If I could ask for this to be put on screen, please, it’s INQ000218470.

Have you seen this, I think you might have?

Sir David Sterling: I have, yes, I am familiar with the letter.

Lead 2C: So we know that it’s from the Director of Population Health, we see that at the very top left-hand corner, of the Department of Health. If we, just so obviously setting out about sector resilience, but I think the importance of this letter is over the page, and – yes.

So that was certainly, it appears to be the advice that was being given by the Department of Health on 6 February, and we see there that the author is saying she didn’t:

“… consider it was necessary to activate NICCMA arrangements at this time unless and until the infection appears in [Northern Ireland] and impacts are experienced here.”

And then goes on to say that the CCPB have oversight of civil contingencies and if we read down, says that it would be helpful to consider setting up a multi-agency meeting.

Can I just ask: was that the basis upon which the TEO was working at that point in time; in other words, in accordance with this advice, that there wouldn’t be any need or that the civil contingency arrangements wouldn’t need to be set up unless and until the virus had arrived in Northern Ireland and started to impact?

Sir David Sterling: Yeah, I think as I mentioned earlier, this letter is significant, but as I mentioned earlier we would have been in pretty much daily contact with our colleagues in the Department of Health and we would have been reviewing things on a regular basis, and we were not being asked to activate the NICCMA arrangements really until March. So, you know, the letter is significant, but it needs to be seen in a context where there was active and ongoing engagement pretty much on a daily basis.

Lead 2C: We’ve just seen from the protocol obviously you didn’t need to wait for the Department of Health to ask for civil contingency arrangements to be stood up.

Sir David Sterling: Yeah. Sorry, I think a point I want to make here is some people are maybe thinking that because we didn’t activate the NICCMA arrangements nothing was going on. That is not the case. There was a lot of preparatory and planning work going on. It’s quite a big step to activate CCG and establish the hub, it requires the redirection of a lot of resource. That resource at the time was in departments and in the Executive Office, and it was working on the preparatory stage of dealing with all of this.

When we did actually activate the hub on 18 March, and begin the daily CCG meetings, again, as I say, that was a significant step. It required quite a lot of effort to support that. I did concede earlier that it would probably have been prudent to have maybe done it a few days earlier, but I’m talking a few days, not a few weeks, and I think I would make the point as well that the Chief Medical Officer didn’t ask us to activate NICCMA until, I think it was, the end of the week beginning 9 March. So somewhere around 14/15 March.

Lead 2C: So can you help me, then, when all of this preparation was going on in, say, January and February, who had oversight of all of the different plans that were going on in departments, and who was pulling those together to make sure that they were intersecting with each other?

Sir David Sterling: Well, Mr Stewart in CCPB would have been co-ordinating the work that was being commissioned from departments, but we would have been, at that stage, relying on departments, you know, in a sense preparing the plans that they needed. So, for example, as it became clear that we might be looking at a scenario where our schools would be closed, it was the permanent secretary in the Department of Education that was leading on that, and that was quite appropriate because the permanent secretary in the Department of Education is best placed to prepare the plans that deal with the consequences of schools being closed.

Similarly, the permanent secretary in the Department for Infrastructure was best placed to deal with the plans that would be necessary to ensure that public transport continued, that our water and sewerage services continued to be delivered, and that our ports and airports continued to function.

The Department for Communities had a clear responsibility in terms of looking after the interests of vulnerable people.

What we were doing at the centre was, in a sense, co-ordinating that work, but we did not have the expertise, nor were we in a position to sort of second-guess, if you like, how credible the plans being drawn up in departments were.

Lead 2C: But I think the answer to my question, who has over all of the plans and who understands how they intersect with each other, I think the answer to that, then, is no one had that role?

Sir David Sterling: Well, Mr Stewart is here tomorrow but certainly I think he was the person who would most closely have had that role, and I would accept, as the later chair of Civil Contingencies Group, I had an overarching responsibility to make sure that the co-ordination of effort across all departments was being managed efficiently and, in a sense, that’s what CCG(NI) was doing in conjunction with the hub.

Lead 2C: I think we’ve agreed that there wasn’t a meeting of that until 20 February. That was the first meeting of the CCG.

Sir David Sterling: Was it? I thought it might have been the 18th. I stand to be corrected. My head is full of dates at the moment.

Lead 2C: 20 February for an official one.

Sir David Sterling: Yeah.

Lead 2C: I think it’s 12 March for a ministerial one.

Sir David Sterling: Yes, sorry, that’s right, 20 February. But the daily CCGs began on 18 March.

Lead 2C: Yes.

Sir David Sterling: And it was at that stage that we were getting the daily reports on the management of impacts across all departments, and indeed local authorities, the blue light services, et cetera.

Lead 2C: And can you just help me, in terms of the planning that you’ve referred to that was going on, whilst there were no civil contingency arrangements, when do you say that planning actually started in earnest in departments?

Sir David Sterling: Well, the impact assessments were commissioned, I think, around the end of February, beginning of March, and there was the workshop on 6 February, but I think the other point I would want to make is this was an intensely fast-moving period. You know, out of 42 years’ service, I cannot remember as demanding or challenging a period in my career as those two or three weeks. And when you think about it, we were planning for something that was changing on a daily basis. I don’t think any of us had certainty that we would go into a full “everyone must stay at home” lockdown until that was announced by the Prime Minister on the Monday 23 March. So up to that point the plans we were preparing would not necessarily have anticipated the type of lockdown that we were actually dealing with.

So it may sound as if I’m being evasive here, but we were trying to work in a very fast-moving environment, where things were changing rapidly on a daily basis. Plans that we would have produced at the end of February would have been on the basis of a pandemic flu, not the coronavirus that we had to deal with, as it emerged.

Lead 2C: We’ll look at some of the material –

Sir David Sterling: Yes.

Lead 2C: – that was sent during that –

Lady Hallett: Can I just interrupt for a second? I’m sorry. The passage that’s still up on the screen, Sir David, as a principle it just – I’m not experienced in running these matters, obviously, but the principle of activating the NICCMA arrangements, ie arrangements to deal with a catastrophic event, the principle of waiting until that event has arrived in Northern Ireland seems a little late to me.

Sir David Sterling: I’m probably not explaining myself sufficiently –

Lady Hallett: Maybe it’s the writer of this letter I should be asking, but you don’t seem to have disagreed with the writer of this letter that it wasn’t “necessary to activate the NICCMA arrangements … unless or until the infection arrived in [Northern Ireland]”. Isn’t that a bit late?

Sir David Sterling: When you’re dealing with a catastrophic event of this nature, again we still have the prepare, respond, recover phases, and you activate NICCMA when you move into the respond, but the respond phase, in our judgement, really couldn’t kick in much before the second week in March.

Now, it’s for the Inquiry to conclude whether we were right in that assessment, but that was our judgement at the time. I have conceded – excuse me.

Lady Hallett: The few days earlier.

Sir David Sterling: I have conceded that we probably should have done it a few days earlier, I think I’ve conceded elsewhere that in early January/February we weren’t as prepared as we ought to have been. I acknowledge that.

Lady Hallett: Sorry to interrupt.

Ms Dobbin: I’m grateful.

Sir David, I’m going to come to the point you were just making, because you’ve noted that in your bundle there was the message that you sent on 5 February. I think you’d been at a meeting in London, and what you recorded at the time was that the UK CMO had said, at the meeting that you were at, that the Chinese government hadn’t got to grips with it, the Covid-19, and that it would almost certainly become a global pandemic.

I think we know there are a clutch of messages at around that time that all speak to that, I think, penny having dropped that the situation was quite as serious as it was.

Is that right as far as you are concerned, that that was a moment of importance?

Sir David Sterling: Yes. And as we moved through February into March, there was more and more information which was alerting us to the gravity of the situation.

But a point I think I need to make here is: we were taking our lead from the UK Government, and I think it was reasonable for us to do that. Northern Ireland is a population of 1.9 million people, we’re a small regional administration. I think I – acknowledged yesterday, a comparison was, you know, we’re smaller than Greater Manchester. I think we had every right to put our faith in the UK Government’s ability to plan and manage this crisis, given the scientific and other resources they had available to them.

So we in a sense were looking what they were doing, and again the Chief Medical Officer was building advice that was based on a presumption or an assumption that the transmission of the virus would lag by maybe, I think, up to two weeks between it coming to Northern Ireland. So that didn’t create any complacency, but it did mean that we, I think, recognised that we might have a little bit more time just to do the things that would need to be done.

Lead 2C: I think you’ve also got in your bundle a message that Dominic Cummings sent as well, I think at around exactly the same time, referring to the fact the Chief Scientist had told him it’s probably out of control now and will sweep the world and I think someone else in that message, which you will have seen, said the COBR meeting was I think clear that China is probably losing it.

So again just to be clear, I think that you’re saying that that was again your understanding at the time that you wrote your message –

Sir David Sterling: Yes.

Lead 2C: – that that was the direction of travel –

Sir David Sterling: Yes.

Lead 2C: – and obviously that this was becoming extremely serious?

Sir David Sterling: Yes.

Lead 2C: Just, if we may then – sorry, forgive me, Sir David.

If we could just go then to the meeting that had taken place on 30 January, so it’s slightly before that information came to you. This is the meeting that Ms Bernie Rooney had noted. I think we’ve got that at INQ000232515. Again, Sir David, I think you’ve seen this.

Sir David Sterling: Yes.

Lead 2C: We see it’s addressed to the First Minister and the deputy First Minister. Would that have been – would you have seen that at the time, if it’s addressed to them?

Sir David Sterling: I think I was on the copy list for that.

Lead 2C: All right. As we can see, this relates to the COBR meeting which had taken place on 29 January, and if we could just go over the page, please – forgive me, that’s the wrong one. It’s the one that ends 56166. Sorry, forgive me.


Lead 2C: Sir David, just quickly, this is linked to what I’m going to ask you about. This CRIP was referred to in Ms Rooney’s note, which I will take you to, but can I just check: at the time that you were receiving updates from COBR, were you receiving or were you seeing the documents that sat alongside them, so in other words these information pictures?

Sir David Sterling: I’m not sure that I would have seen every CRIP that was produced, but I was getting a daily sit rep from the Cabinet Office, the civil contingencies unit in the Cabinet Office. As I say, I got that first thing every morning. I can’t remember exactly when it started but it would have been around about this time.

Lead 2C: All right, and I’m going to see if I can bring up the correct document for you. Sorry, I haven’t got anyone sitting beside me to check.

Lady Hallett: You said it was the one ending 56166?

Ms Dobbin: Which I think is this, and I think the one that’s 2515 has already been brought up.


Ms Dobbin: My Lady, will you forgive me a second? There’s two memos of the same date so I just want to make sure I’ve got the right one.

Could I just check what page 2 of that one is, please?

Lady Hallett: It certainly says “provide an update on COBR the day before”.

Ms Dobbin: Can we try page 3 of it? There we go. It was the right one, INQ000232515.

So if we just look at this, Sir David, this we can see is the update that Ms Rooney prepared, and you can see from the background that she set out what had – that there had been that meeting on 29 January, and if we just go to paragraph 4, please, so she set out what the current situation was, having regard to that meeting, and refers to the fact that it was – and we see that at the first subparagraph – spreading throughout China and globally. She referred to it being asymptomatic, and the vulnerability in terms of older people and those with an underlying illness.

If we just go over the page, please, again, she set out – and we go to paragraph 7 – the planning assumptions, and we see there reference to all devolved administrations reviewing their reasonable worst-case scenario pandemic plans for preparedness.

If we could just go to the next page as well, please, and I think there should be a page after that as well. And again. And if we see on this page, she’s setting out the agreed actions.

Again, if we see paragraph 1, it’s the next section, please, at the bottom of the page, paragraph 1, so we see there, Sir David:

“… increased planning for a reasonable worst case scenario, using the … pandemic flu assumptions as a starting point, with the … information that the elderly and those with existing health conditions will be disproportionately affected.”

Again, can I just ask, then, at that point, whether your understanding was – or what you understood by the reasonable worst-case scenario at that stage. In other words, did you fully – or did you appreciate that that meant an uncontrolled outbreak stretching beyond China and into other countries?

Sir David Sterling: Yes, I think that was something that we were increasingly coming to recognise from that point onwards.

Lead 2C: What part did TEO play, then, in terms of the planning for the reasonable worst-case scenario at this point?

Sir David Sterling: Well, again, given that this was a health pandemic, we would have been relying on the Department of Health as lead government department to prepare the plans to deal with the health impacts of the – you know, what again was … I forgot the words you used there, but the reasonable worst-case scenario that was being developed in London.

Lead 2C: So, again, is the answer to that that that would have been seen purely as a health matter at that point in time and not something that required the sort of cross-departmental approach foreseen by –

Sir David Sterling: I wouldn’t want me saying that, you know, we would be looking to the Department of Health as lead government department, I wouldn’t want that to be seen as us sort of washing our hands of having any responsibility. What I think I’m saying is that we would have been looking to the Department of Health to provide advice on how they were going to deal with the pandemic and also to, you know, provide advice to us on what other departments would need to do as well.

Lead 2C: Can we go to the next document, please, and this is –

Sir David Sterling: Sorry, and saying that, what other department – you know, the issues that would face other departments, if you like. I’m not trying to suggest that the Department of Health had a particular responsibility that extended beyond their own department. But clearly their knowledge and understanding of the characteristics of the virus were going to be very important to all departments.

Lead 2C: Can we just look, then, please, at another document, this is INQ000309096.

We’ve moved on now to 17 February, and if you see the second paragraph, Sir David, this sets out that:

“[The Department of Health] remains in the lead and has staffed up their DOC … however there is now a need to make preparations for a wider response involving Departments and other key stakeholders.”

Then as we read on down, there’s some reference to some of the figures around planning.

If we look at the third paragraph as well, at the bottom line.

So, again, as well, this seems to be a communication at this point in time suggesting that the sort of arrangements foreseen in the protocol needed to start or needed to kick in at this point. Do you agree?

Sir David Sterling: Yes. Although it’s interesting that the RWCS at that time still envisaged an absentee rate of 17% to 20%, which would have been consistent with what we would have expected in a pandemic flu. So the point I think is that it was later than this that we – sorry, at this stage it still wasn’t clear just how difficult the Covid virus was going to be to manage.

Lead 2C: I think, though, if we look at a document that bears the same date, and this is INQ000398434, this is a document that you refer to in your witness statement at paragraph 117, so this is a script for the reasonable worst-case scenario, and it sets out – it’s the second substantive paragraph, not in the box – about the contingency planning being based on the knowledge that … so we can see there, for example, reference to the doubling rate, that sustained human-to-human transmission couldn’t be ruled out, the fact that there was no vaccine.

Then if we go down to “The Government” – and this is in the last paragraph, please – so we see there a reference to “80% of the population”, so that refers, I think, to the figure you’ve just referred to, the flu plan.

But then if we go over the page, and if we go to paragraph 4, we see there reference then, at the end of that paragraph, to the fatality rate being 2% to 3% in terms of cases. Yes?

Sir David Sterling: Yes.

Lead 2C: So as I understand your evidence and your witness statement, that document was provided to you or to the TEO on 17 February?

Sir David Sterling: Yes, yes.

Lead 2C: So again, obviously, the picture that is being presented here is one – it’s making absolutely clear, isn’t it, what the case fatality rate –

Sir David Sterling: Well, that is the reasonable worst-case scenario –

Lead 2C: Yes.

Sir David Sterling: – which of course isn’t a forecast.

Lead 2C: No.

Sir David Sterling: It’s the worst-case scenario. So we would have been – again, we were aware of that, but we would still have been looking to the Department of Health to, in a sense, advise what the implications of that were for us in Northern Ireland.

Lead 2C: So are you saying, then, at the time this was being provided to you, that notwithstanding that it’s making clear what the potential fatality rate could be, and notwithstanding your own understanding and awareness that the virus had spread beyond China, and there was no question of that, that you didn’t foresee or did not think that this was a realistic prospect or that it was –

Sir David Sterling: No, no. No, I’m not saying that at all, and I’m not in a sense – not in any sense playing down the significance of this. I think all I’m saying is that we would still have been looking, I suppose, at the highest level, to UK Government to see what they would have been doing in terms of planning for this, and then obviously we would have recognised that our own Department of Health was working in conjunction with UK Government or would have been getting an understanding of what might be necessary to actually deal with the – respond to the pandemic in that regard.

We did have, on 3 March, the UK Government’s Coronavirus: action plan, and it did talk about the sort of contain and delay phases. So at this stage we were still in the contain phase, where the, you know, management of the virus would have been through contact testing and tracing and that sort of thing.

I think we didn’t have the first case in Northern Ireland until 27 February. So we were looking at this in the context of what was actually happening. Knowing what we know now, should we have been doing more? I’m happy to accept that perhaps we should have been doing. But in the context we were in at the time, you know, I wasn’t being pressed to do anything more than we were actually doing at that time.

Lead 2C: I think you’ve gotten straight to the heart of the matter, which is why this doesn’t appear, in Northern Ireland, to have prompted any greater sense of urgency or galvanised any more central government planning in response to this.

Sir David Sterling: No, I would probably have to accept that, yes, at that particular time, which – this was mid-February, yes –

Lead 2C: 17 February.

Sir David Sterling: Yeah. I would accept that that didn’t prompt us in the Executive Office to do anything more.

Now, having said that, the – Mr Stewart and the CCPB team were working hard on the sectoral resilience issue, which has been mentioned before, and certainly Mr Stewart has advised me – and I’ve no reason to doubt him – that by early March that sort of 18-month lag that we had in sectoral resilience preparation had been caught up. So it’s not as if nothing was being done at this stage.

Lead 2C: You have referred to the fact that obviously at this stage something like test and trace would have been the most important part of responding. How much insight or understanding was there, though, at the centre of government of Northern Ireland about the sort of capability that there even was at this point in time in order to be able to do that?

Sir David Sterling: I’m not sure on 17 February we would have had a clear understanding of how much test and trace contact tracing capability we had, nor how much would actually have been needed at that stage. But I think I would have to defer to Department of Health colleagues to just confirm what the position was at that time. Obviously this was a new virus, and testing capability was, from my perspective, from my memory, at that stage was uncertain.

Lead 2C: I think it’s right that there’s no, certainly no sense, and we don’t see any reference as such in the notes of the Executive Committee having any sort of role at this point in time in terms of overseeing what was being done, for example, in the Department of Health in order to prepare for this reasonable worst-case scenario eventuating.

Sir David Sterling: No, and I think the expectation would be that the Department of Health was in the best position to manage this aspect of the emerging pandemic. You know, we in the Executive Office wouldn’t have been in a position to sort of second-guess what the department was doing. I certainly had complete confidence in the Chief Medical Officer, I knew the permanent secretary and the minister as well, I thought they were a good team, and again I thought it was reasonable at the time to place reliance on their ability to actually deal with the crisis as we knew it at that time.

Lead 2C: If we could go, please, I think this is the document at around the same time, this is dated 27 February, it’s INQ000274690. This is sent to you from the Civil Contingencies branch. On the first page, the second paragraph is:

“Note plans for the activation of the NI hub and the operations room …”

Then if we go over the page to paragraph 3, we see reference here to being asked to draw up plans for the reasonable worst-case scenario, drawing on existing assumptions and emerging scientific advice in relation to the virus causing Covid-19.

Then I think we see, over the page, please, at paragraph 5, and if you just look at that, Sir David, reference to Covid-19 becoming more widespread, more impacts beginning to emerge, potential cumulative impact becoming more complex, preparedness work being undertaken at pace.

I will come back and ask you about that, but there being, as it were, a number of calls for information in return, yes?

Sir David Sterling: Yes.

Lead 2C: Then at 6:

“It is now essential that appropriate preparations for civil contingency arrangements are formally established …”


Sir David Sterling: Yes.

Lead 2C: So that’s by 27 February, but again we still don’t see a response to that, because we know that the emergency arrangements still aren’t set up for another couple of weeks. So why, with all of this information that was accumulating at this point in time in February, why is there still not any response in terms of the central civil contingencies arrangements being set up?

Sir David Sterling: I’m perhaps not explaining myself well enough, but our view at the time was that setting up the hub, establishing the hub and the Civil Contingencies Group regular meetings was something that would not need to be done until we moved further into the response phase. We were still at the planning phase. We’d only had the first case in Northern Ireland on 27 February. So, as I say, I look to the Inquiry to conclude whether what we did was sufficient in the circumstances. All I’m doing is explaining that, as we saw it at that time, there wasn’t a need to put in place the response mechanisms at that particular time. And again I’m not trying to duck any responsibility here, but we were not being asked to do so by the Department of Health for another couple of weeks.

Lead 2C: If we could just ask on that, if we could look, please, at INQ000317435. If we could go to page 2 of that, please. In fact, we may, just to put it in context, need to go over the page as well.

So we can see here we’ve reached 4 March, there had been a COBR, and we see, the third line down from Ms Rooney, that Minister Swann and Dr McBride were going to contact you:

“… to request ramping up the NI Hub to support the Executive!”

If we go over the page, and if we go to page 2, please, we can see the message from Mr Stewart back to her:

“Don’t worry … One can only advise, others must decide.”

If we can go to the first page in that, please.

So this was your response to what was being sought by the health minister about ramping up the arrangements.

“We’ll need to be smart about how we respond to this. A flat ‘no’ … will get back to [the First Minister] and [deputy First Minister] and be received badly.”

What was the reluctance on your part at this stage in the face of that request from them off the back of COBR to setting up the arrangements?

Sir David Sterling: I think the message I was getting was that what we were being asked to do was to set up something that would deal with calls that were coming in from businesses, et cetera, for advice. And I think our conclusion, it’s somewhere else, is that there are other ways in which we could deal with that, using NI Direct, NI Business Info, et cetera, and that we should look at that.

So I didn’t read this as the minister of health and the CMO calling for the NICCMA arrangements to be activated in full at that time, and certainly I wasn’t contacted in that sense either.

Lead 2C: Well, it does say in terms they’re going to contact David Sterling to request ramping up of the NI hub –

Sir David Sterling: Yes.

Lead 2C: – to support the Executive.

Sir David Sterling: Yeah.

Lead 2C: And I think, by her exclamation mark, that was regarded as quite a big thing?

Lady Hallett: I think the exclamation marks come at virtually every sentence, to be fair.

Sir David Sterling: Yes.

Ms Dobbin: So, in other words, it is very specific about setting, it’s a specific email about setting up the hub, it doesn’t seem to be about setting up business lines or – I mean, obviously the hub plays a very different role.

Sir David Sterling: Yes. Well, look, you know, I … as I say, I didn’t respond to this. I didn’t consider that we needed to set up the hub just exactly at that stage, and there wasn’t actually a – like a formal communication from the CMO for another week or so after that in that regard. So perhaps I should have checked with the CMO at this stage exactly what it was that was meant, but I think I – and again, I would say this was at a period of time where things were moving very quickly, and I can’t remember exactly what I did in response to every email, et cetera, that I was getting at that time, but I may well have concluded that, look, the CMO’s going to get in touch with me, and he didn’t do so.

Lead 2C: All right, and we will come back to some more of the communications at around this time, I just wanted to pick up on something that you did mention, which was the UK-wide Coronavirus: action plan.

You mentioned that just a short time ago.

Sir David Sterling: Yes.

Lead 2C: Can I ask you some questions about that. In paragraph 130 of your witness statement, you suggested that it was around the time – and I think you confirmed at the very start of your evidence – that it was now becoming obvious that there would be important differences between preparing for Covid-19 and preparing for a pandemic flu plan.

Sir David Sterling: Yes.

Lead 2C: Is that notwithstanding the information that had been sent to you on 17 February, for example, about the case fatality rate and about the reasonable worst-case scenario? Were you still working at basis at the end of March – sorry, at the start of March, that in fact it was the flu pandemic plans –

Sir David Sterling: I think by –

Lead 2C: – that were relevant, and that this would look something like a flu pandemic?

Sir David Sterling: By the beginning of March, I think we had recognised that this was going to be more serious than a flu pandemic, but we hadn’t, I think, fully appreciated exactly what would be required in response to that. And again, we would have been looking to UK Government for a steer on what actions were appropriate.

You know, if you roll forward a couple of weeks, we went into full lockdown. My view is that Northern Ireland could not have moved into a lockdown before the UK did, for a variety of reasons. So we were always going to take our lead from what was happening in London.

Lead 2C: Just on that, then, can we look at the communications –

Sir David Sterling: Yes.

Lead 2C: – that you were being sent by Cabinet Office at this time, then.

If we go to INQ000309229, and if we could go to page 9, please.

I think you’re probably familiar with this, Sir David.

Sir David Sterling: Yes.

Lead 2C: This is the email that was sent, and it’s the second email in a series that was sent around this time. I’m just going to use it because it’s the easiest way in.

It was the email that asked all government departments and the devolved administrations to send back a return, and it set out what it wanted each to consider, paragraphs 1, 2 and 3.

Sir David Sterling: Yes.

Lead 2C: I won’t read out all of it, but obviously it’s set out, we can see in the paragraphs below, it wanted information on what the impact of those measures would be, and had asked whether or not there would be regional impacts, and at the very bottom it said:

“Are there specific implications for devolved policy areas and the Devolved Administrations?”

I think if we then go to page 6, we can see, just at the bottom, we can go on to see the rest of this over the page – thank you – we can see the reaction from Mr Stewart, and I think Derek and Tracy is a reference to two permanent secretaries; correct?

Sir David Sterling: That’s correct, yes, education and communities, yeah.

Lead 2C: He starts:

“Brace yourselves.”

So obviously this wasn’t something that he was expecting; correct?

Sir David Sterling: Well, he was I think recognising this was going to be a challenge for the two departments.

Lead 2C: And if we can just work our way up this email chain, please, we see that there’s a reply from Mr Baker, if we could just go slightly further up, please, so what he says, and we can see he replies at around 6.30 that evening, that it would be impossible for him to answer any of those questions from the perspective of the Department of Education. In fact he goes on to say that the questions are unanswerable as far as the Department of Education is concerned.

If we can just go up a bit more, I think he provides some more information, and if we could just scroll up, and to the next bit of the chain, please, thank you, and just so that we can see the start of that email, please, that starts “It is a matter of fact”.

So we see then that the CMO replies to this email; correct?

Sir David Sterling: Yes.

Lead 2C: And we see that he indicates in the second paragraph that there wasn’t the modelling capability to replicate and provide such granularity. We see at the third paragraph he says that the timeframes are unrealistic, that it wasn’t possible to provide any meaningful analysis, he didn’t know why that was regarded as a “must do”, that it was a marathon and not a sprint.

At the next paragraph we see that he refers to the fact that this is on the back of what had happened or what was happening in England; correct?

Then at the next paragraph, he refers to the fact that there was evidence of deeply troubling and significant community transmission in the Republic of Ireland, but that Northern Ireland was probably a few weeks behind.

So can I just ask you, please, about this. This obviously indicates that notwithstanding it’s a Cabinet Office communication to the TEO seeking a response on the issues that it had set out in terms of potential non-pharmaceutical interventions and asking for information about their possible impact, it’s the CMO who intervenes to say that Northern Ireland couldn’t respond, and I think in fact it’s right that that wasn’t responded to for that reason?

Sir David Sterling: Not immediately, I think we did put a response in, but it was two or three days late.

Lead 2C: I think eventually you respond on 9 March –

Sir David Sterling: Yes.

Lead 2C: – to this, but just focusing on that, it’s the CMO who effectively says “We shouldn’t be replying to this”; correct?

Sir David Sterling: That’s – yes.

Lead 2C: Was it right that there was simply no capability in Northern Ireland to responding to this, or was the fact that you were able to respond within a few days an indication that in fact you could?

Sir David Sterling: Well, the fact is that we did respond. I’m not sure, in this particular instance, I would have agreed exactly with what the CMO is saying here. It’s rare that I would disagree with the CMO, but in a sense I understand where he’s coming from, in that this was an impossibly short deadline and we probably didn’t have the data analysis capability that ideally we would like to have had. So I understand those points, but clearly we were in a position to provide a response, albeit on the 9th rather than the 7th, I think, was the requested date.

Lead 2C: I won’t take you to it now, but there are a series of messages about this, because I think you were contacted by Mr Stewart to say “We’re being pressed for this information” and that it was a choice between annoying the Cabinet Office or annoying the CMO, to which you replied “My advice would be to annoy the Cabinet Office rather than the CMO, and you can hold me to that”.

That rather suggests that, when it came to the CMO, that the relationship was such that there was – that not incurring his annoyance was the most important thing at this point –

Sir David Sterling: Yeah.

Lead 2C: – will you help a bit with that?

Sir David Sterling: I wouldn’t want to override the particular point I was making here. Again, when you see something like that in a room like this, you do quite rightly raise eyebrows, but I would say that in the context we were working at at the time, I actually don’t remember writing that now, but I clearly did write it, it was an instantaneous response to something that came across my desk and, as I say, I wouldn’t read too much into it. The reality is, even if the CMO hadn’t intervened there, I doubt we would have been able to provide a response on the 7th as requested. I think we were only being given one day’s notice or something like that. So set aside what I said about not annoying the CMO, and we did get a response in, as I say, albeit a couple of days late.

Lead 2C: There is another chain in this email. I don’t know if we have time to go to it before the break?

Lady Hallett: Up to you, whatever suits you.

Ms Dobbin: Let’s see if we can get through this before the break.

Sir David Sterling: Sure.

Lead 2C: If we go to INQ000398439, I think so – what we see is that there is pressure being applied by the Cabinet Office that this response was three hours overdue and they hadn’t had it. I mean, that obviously suggests that there was an urgency on the part of the Cabinet Office and that this was regarded as important information.

Sir David Sterling: Yes, and I never like to miss a deadline, but it happens, and, you know, I regret that, but it wouldn’t have been the only deadline that we missed, as I say, we were being asked to move at unbelievably rapid pace on a whole range of areas at that time.

Lead 2C: Forgive me, it wasn’t that the CMO was saying “Delay, respond – you know, we need a few days”, he was advising at this point in time “We can’t respond, we just don’t have this data”. I mean, what he says in that email is “Well, wait for the next SAGE update”, so it’s not a question of being a bit late, it’s a question of not responding because you’ve been advised.

Sir David Sterling: Yeah, well, I can’t remember exactly what it is we responded with, but we would have responded to the best of our ability with the information we had at that time.

Lead 2C: Could we please just go up in the chain of this email, please, and up again, please, and up again, so that we get to the start of it. So we can see this is an email from you on 8 March, and I think that your responses are set out in red; is that right?

Sir David Sterling: No, mine is the blue, the red responses are Mr Stewart.

Lead 2C: I see. So what we can see from here in terms of what the advice was and the basis upon which you were working at that time, we can see very clearly that as of 8 March his advice was, and we see that at the second line: “we should not move to Delay here immediately”. Yes?

Sir David Sterling: Sorry, the second line of the first –

Lead 2C: First paragraph.

Sir David Sterling: I had jumped ahead.


Sir David Sterling: Yes.

Lead 2C: So in other words the advice as at 8 March was Northern Ireland was still in the contain phase; correct?

Sir David Sterling: Yes, and my recollection is UK Government moved from contain to delay on 12 March.

Lead 2C: Then at paragraph 3:

“Cabinet Office request for Impacts and Mitigations analysis … the CMO has advised that there is no particular need for this work to be completed … impossible to produce …”

And then you point to the fact that there was a “need to mend fences” with the Cabinet Office.

Then the fear that that was going to come to the First Minister and the deputy First Minister that that hadn’t been replied to.

Lady Hallett: I’m sorry, Sir David, I’m not following how yours can be the blue, forgive me. It’s an email from you to Mr Stewart?

Sir David Sterling: Yes.

Lady Hallett: 8 March, 12.55.

Sir David Sterling: He has replied to me by annotating my email with red comments.

Lady Hallett: Yes, that’s what I initially thought you meant – sorry to interrupt you – but if you look at the top, the heading is from you. Wouldn’t it be from her to you if she had annotated it?

Sir David Sterling: No, sorry, it’s from –

Lady Hallett: It looks as if you’ve annotated it, doesn’t it?

Sir David Sterling: It’s from me to Chris Stewart, who’s male, and then – so my – I’m colour blind, just in case I get this wrong.

Lady Hallett: Oh, that’s going to help a lot!

Ms Dobbin: I think if we scroll up as well, I think we can see the point, Sir David –

Lady Hallett: Oh, so you’re entirely happy –

Ms Dobbin: Yes –

Lady Hallett: Forget what I said, I’ve obviously entered into dangerous territory, especially colour blindness.

Ms Dobbin: So just looking at paragraph 4, then, Sir David –

Sir David Sterling: Yes.

Lead 2C: – I think we’re moving on to a slightly different point, there was an issue at this point in time with travel to Italy, I don’t know if you recollect that?

Sir David Sterling: Yes.

Lead 2C: But there was concern because people were still able to travel back from Italy into Northern Ireland, and I think that it’s right that I think certainly the deputy First Minister was concerned about that.

Sir David Sterling: Yes.

Lead 2C: And I think in fact Mr Baker of the Department of Education was also concerned about that as well.

But we see reference in this part of the reply to the fact that Minister Swann had asked for the hub to be set up for centralised decision-making as well, and that it was still being explained at this point, on 8 March, that stand-up would be premature. Is that right?

Sir David Sterling: Yes, that’s Chris Stewart’s comment, yes.

Lead 2C: But correct that Minister Swann was asking for the hub to be stood up, and it remained Mr Stewart’s advice on 8 March that there wasn’t – that that would be premature?

Sir David Sterling: Yes, he – Chris Stewart is saying that Derek Baker from education approached him indicating he had already … yeah. Yep. Yeah. Yes, sorry, I don’t think I’ve anything to add to it, yes.

Lead 2C: The point is it’s 8 March, Sir David.

Sir David Sterling: Yes.

Lead 2C: Covid-19 was obviously well and truly in Northern Ireland, and yet at this stage there’s still a reluctance to set up one of the most basic components of the civil contingencies arrangements in Northern Ireland and, it would appear, despite the fact that the minister of health himself was asking for them to be set up.

Sir David Sterling: Yeah. This might sound … I don’t want to be overly defensive of my position here. If the Inquiry concludes that we got this wrong, I will accept that. At the time, my judgement was that we were still very much in preparing for something that was coming. The – I don’t think I’m explaining clearly enough the role that the hub had. You know, the hub is not a planning mechanism, it’s a response mechanism, it is there, it works in conjunction with departmental operating centres, so the hub, in a sense, is collecting information about what is happened on the ground. We weren’t at the position where that was, in my view, necessary, but, as I say, if the conclusion is that I got that wrong, and I’ve already conceded we should have done it a few days earlier, I don’t recall Minister Swann approaching me directly to say “You should set up the hub”, and I would have been seeing him and the permanent secretary and the Chief Medical Officer on a regular basis.

So, yes, there’s evidence here that they were asking me to do this, but they weren’t pushing me, which leads me to conclude if it had been a really big issue for them they would have come to me directly.

Lead 2C: All right. I don’t want to lead you into a mistake. I’m afraid I also have very, very bad eyesight. It may be that that line is slightly ambiguous, that it’s either Robin Swann or Mr Baker, the permanent secretary –

Sir David Sterling: Well, I think it is, and I think it is actually Mr Baker.

Lead 2C: But is that not even more important, that the permanent secretary to the Department of Education is asking for the central arrangements to be set up?

Sir David Sterling: Well, again, yes, it’s significant, Derek didn’t approach me and I can’t remember whether we were still having weekly permanent secretary meetings, and had it been a major issue I’m pretty sure Derek, who I had very good relations with, would have been in touch with me.

Ms Dobbin: I think that’s probably a good moment for a break.

Lady Hallett: Certainly. I shall return at 3.20.

(3.05 pm)

(A short break)

(3.20 pm)

Lady Hallett: Ms Dobbin.

Ms Dobbin: Thank you.

Sir David, I wonder if I could take you, please, to the next document, which is INQ000086935.

You talked earlier about the planning that was going on behind the scenes whilst the civil contingency arrangements hadn’t been activated, and I think we certainly see here, this is version 2 of a resilience return, I don’t know if it had been prepared or if it was linked to any Cabinet Office communications, but what this appears to be is drawing together the principal concerns and setting out what the potential impacts would be.

Is this a document that you recognise?

Sir David Sterling: I do, yes, and I think it’s coincidental to the request from the Cabinet Office for returns.

Lead 2C: Right.

Sir David Sterling: This is work that we had commissioned independently ourselves. That’s my recollection at the time.

Lead 2C: So if we look at, for example, just taking the very first entry on that page, we can see that, in terms of economy and business, closure of businesses is the issue, the risk is loss of jobs, loss of labour, impacts, increased unemployment, and no potential mitigations are set out there.

I mean, this doesn’t look like any kind of developed or considered plan or – I mean, it looks as though it’s a really basic document. Do you agree?

Sir David Sterling: Yes, I would agree, and that probably reflects the fact that, this being completed at the beginning of March, there wouldn’t have been a lot of clarity about exactly what was going to happen and what mitigations might be possible to put in place.

Lead 2C: This was 13 March, so it’s not the –

Sir David Sterling: Yeah, it’s a version 2, so it’s probably an amended – I think I saw an earlier version which was dated earlier than that. I suppose my point would be here that I think it was on – I think it was 18 March that – maybe the 19th – no, I can’t remember, it might have been that week the Chancellor announced the financial support that would be provided to business, and I think for our own department, the economy, there would have been very limited actions they could take to support business in the event of a major closure due to absence or, as it turned out, to businesses being told “unless you’re absolutely essential you must close”.

So in one sense I’m not surprised the document is as it reads there at that time.

Lead 2C: But, I mean, one might have thought that if you didn’t know what central government was going to do, all the more greater need to have your own potential mitigations thought through and developed in a properly detailed set of plans?

Sir David Sterling: That – that’s – I couldn’t argue with that, it’s entirely rational, but just at the time the economy department would have been wrestling with still a fair amount of uncertainty as to exactly what was going to happen to individual businesses. You know, I think I’ve made clear in my witness statement that I did not see any realistic prospect that Northern Ireland would move ahead of UK Government in terms of lockdown or partial lockdown, and I think there are three factors in that regard that need to be taken into account. For such a thing to happen, first of all, the Chief Medical Officer would have had to have recommended it. The second option would have been for the political parties to come together to agree that they would – they’d decided to put in place a lockdown. And then the third factor that would have been needed would have been some mitigating measures, essentially finance, to compensate businesses for being forced to close down.

None of those three factors, in my view, were likely at that particular time. So that’s why I have said on a number of occasions that I never saw Northern Ireland moving ahead of UK Government in terms of its response to the pandemic as it emerged.

Lead 2C: But this isn’t about taking a decision that pre-empts the one made by the UK Government, this is about planning for what might actually happen, about which you had had warning over a number of weeks before reaching this point.

Sir David Sterling: Yes, and, you know, we were relying on individual departments to make assessments about what might be done in each of these areas based on the knowledge that they had at that time. So, you know, I would accept some of this looks light in terms of departmental or governmental response, but I think you need to recognise there was limitations on what departments could actually do at that particular time.

Lead 2C: Could we look at page 30 of this document, please, it relates to schools.

So, again, this is the first page of the part of the return that had been provided by the Department of Information, and we can see that a key area of concern is school closures. The issue is foreseen as absenteeism of staff. The risk is regarded as a lack of staff to teach. Then potential impact: disruption to curriculum, children losing food, loss of business to transport companies. And the potential mitigation is: larger class sizes and a substitute register.

So even the planning at this stage, when it talks about school closures, it’s because of a risk that there may not be teachers, as opposed to any risk that children might not be able to go to school because there will be a closure of education.

Sir David Sterling: My recollection isn’t entirely clear, but my assumption is that this was prepared on the basis of an expectation that there would have been absenteeism of around 20% or more amongst teachers. This wasn’t constructed on the basis that schools would be instructed to close.

Lead 2C: But that’s what I’m asking: why isn’t that being addressed in this document that’s setting out the potential mitigations, having regard to the risks that might arise?

Sir David Sterling: Because at that time, rightly or wrongly, there was no expectation nor instruction that schools should plan on the basis that they’re going to be closed for a significant period of time.

Lead 2C: I mean, I think we can see, I won’t go back to it, that the potential for school closures had been raised by SAGE a considerable period before this. Are you saying that that message had never filtered through to Northern Ireland, that that was something that might have to be done in the eventuality –

Sir David Sterling: Yeah, look, we may well have been aware at the time that there were suggestions from SAGE that schools might have to close, but we had no indication from the UK Government that this was likely to become a policy that would be recommended either in England or in GB or in the UK as a whole. So when the Department of Education was preparing this, you know, again knowing what we know now, it may have been that we should have been saying to them “Please prepare a plan which assumes that you’re told to close schools”, but that was something we did not foresee at this particular time in early March.

Lead 2C: Was it foreseen before the decision was actually made by the UK Government that schools would close on 18 March?

Sir David Sterling: It was, because, as you will recall, the sequence of events began on 12 March, when the Taoiseach announced that Irish schools were to close for a period of, I think it was, several weeks, and that led to particular difficulties within the Executive because there were differences of view on whether Northern Ireland should follow suit.

I’m compressing a very difficult period of several days into a couple of sentences. The issue was only, in a sense, resolved in Northern Ireland on the 18th – the Taoiseach made his announcement on Thursday 12 March, Gavin Williamson the Secretary of State for Education in England announced that schools would be closed from, as I say, the end of that week, so it was 20 March, and given a decision that had been taken at the Executive, albeit on a vote, on the Monday evening of 16 March, Northern Ireland followed suit.

So there was only – the period of time in which it became clear that there was a probability rather than a possibility of school closure emerged, it was a very short period of time, as I say, kicking off on 12 March.

Lead 2C: So just to be clear about that, it was because the Republic of Ireland had done that that it became something that you regarded as realistic for Northern Ireland?

Sir David Sterling: Yes.

Lead 2C: Okay.

I am going to ask you about that, and about what happened on 12 March. But just coming back to the point that you made about – it postdates what happened on 12 March but I do just want to pick it up whilst we’re at this point. I think it’s right that there was the Executive Committee meeting on 16 March?

Sir David Sterling: Yes.

Lead 2C: So it postdated the decision in the Republic of Ireland. And it’s right that one of the ministers essentially put to the vote whether Northern Ireland should close its schools on that date. Is that right?

Sir David Sterling: That’s correct, it was the finance minister.

Lead 2C: Prior to that there would only have been a couple of days, obviously, before the Republic of Ireland had made its announcement. Had there been any contemplation about the closure of schools or meaningful discussion about the closure of schools –

Sir David Sterling: Not that I recall. I got the call from the secondary general to the Taoiseach around about lunchtime on the Thursday, the Taoiseach had made the announcement in Washington DC, so they were five hours behind us, I think he’d made the announcement at 6 or 7 o’clock in the morning, so I had got around 20 minutes’ notice of that announcement. I instantly advised the First Minister, deputy First Minister, we were in Stormont Castle that day, we had a discussion about this, I had got advice, I can’t remember whether I got it directly from the Chief Medical Officer or indirectly, but the advice I was getting from the Chief Medical Officer was that they did not believe there were grounds for closing the schools in Northern Ireland. I relayed that information to the First Minister and deputy First Minister –

Lead 2C: Can I pause you there, because let’s have a look at the document that records that. This is INQ000232525. I think we see at the first paragraph that you clarify:

“… there are no medical/scientific evidence to support measures announced by the Taoiseach earlier today. Expect COBR will confirm UK measures later today.”

Sir David Sterling: Yes, sorry, can I just be clear here, some have construed this as I was giving medical advice, the note of that meeting could have been amplified a little, I was simply passing on the advice I had received from the Department of Health and, as I say, I can’t remember whether I got it directly from the Chief Medical Officer or from one of the senior team in the Department of Health.

But what I had asked was the – my recollection is that the permanent secretary, the Minister of Health and the Chief Medical Officer were in the Assembly, and I asked them to leave whatever meeting they were in urgently to come and brief the First Minister and deputy First Minister, which they did. I think they were a little annoyed with me that I had pulled them out of a meeting, but I saw that this was a highly significant issue that was going to prove difficult for the Executive. So they then joined a reconvened meeting and I think the rest of the minute records what was said at that –

Lead 2C: Yes, so if we could perhaps go on to the next page. So I think we can see that, it’s the third paragraph down, so Minister Swann said that containment measures were working in Northern Ireland and that following the Republic of Ireland position would crash the NHS and create unnecessary panic and fear. Is that correct? Does that accord with your recollection?

Sir David Sterling: Yes, broadly, yeah.

Lead 2C: Does that in fact demonstrate what the position was at that time – I mean, we’re at 12 March – that it was regarded as correct that containment was working in Northern Ireland?

Sir David Sterling: That’s what was recorded there, yes.

Lead 2C: I mean, it’s also right, I think, that on that day test and trace was stopped in Northern Ireland.

Sir David Sterling: That’s correct. That was the same day that UK as a whole moved from contain to delay.

Lead 2C: So how was it reconcilable that containment was working in Northern Ireland, yet there was no need for test and trace to remain on foot?

Sir David Sterling: I – I would have to defer to Department of Health on that.

Lead 2C: What was your understanding on this day about the reasons why test and trace was stopping in Northern Ireland if in fact containment was working?

Sir David Sterling: Well, it was, I think it was tied into the movement from contain to delay, but I think – and again I stand to be corrected on this – there was limited capacity for extensive testing and tracing, and this was across the UK as a whole. Testing kits were in, I think, reasonably short supply and certainly you may recall this became a big issue at UK level with the Secretary of State for Health being pressed on the need to have – I can’t remember what the number was, something like 100,000 tests available a day, but they simply were not available at this time.

Lead 2C: I think there are two points that arise from that. The first point is you’re saying it was linked to the fact that the UK Government had said that “This was the end of containment, we’re moving to delay”, why did that need to be followed in Northern Ireland if that wasn’t in fact the position in Northern Ireland as was being said on that day?

Sir David Sterling: Well, as I say, I cannot recall exactly why the Department of Health concluded that testing should end that day, you know, I simply don’t know whether the rationale was because of the movement from contain to delay or whether there were other factors such as the lack of capacity for extensive testing.

Lead 2C: Given your role, is that not something that would have been of vital importance, I mean in terms of understanding: have we actually reached the point where we don’t have the capacity to test more people than –

Sir David Sterling: Yes, and apologies, it’s the passage of time that is leaving me with a certain uncertainty about exactly what the reasons were. I’m pretty sure on the day I would have known more about that.

Lead 2C: I think then in terms of what happened after this, I’m just going to go back to this point about the meeting on 16 March, if I may. So that meeting took place amongst the Executive Committee, and obviously it was being pressed by some ministers that there ought to be a decision to close schools in Northern Ireland because that decision had been made in the Republic of Ireland; correct?

Sir David Sterling: Yes, and it’s probably worth recognising that it was foreseeable on Monday that this was going to be difficult, because if you roll forward from Tuesday afternoon, there was a press conference on Thursday evening, the evening of Thursday the 12th, where the First Minister and deputy First Minister showed a certain amount of unanimity in the approach which essentially was that schools would be closed whenever it was considered appropriate in Northern Ireland. So it wasn’t so much that schools weren’t going to be closed, it was a matter about timing, but then there were different – different messages were being sent out in the media from Thursday evening and through Friday, so we could see that there was going to be a difficult meeting on Monday.

Lead 2C: We’ve already discussed one vote, which was whether or not to close schools. The vote that was carried at that meeting was a vote that the closure of schools should be handled in accordance with the CMO’s advice. Do you recollect that?

Sir David Sterling: I do, yes.

Lead 2C: So in other words what the ministers were saying was “We’re not going to decide whether or not to close schools, we’ll essentially – or the vote will be we will await the advice and we’ll act in accordance with it”; correct?

Sir David Sterling: Correct.

Lead 2C: So in other words, it wasn’t essentially a decision for them that they would do whatever the CMO said about it; correct?

Sir David Sterling: Yes, that’s correct, yes.

Lead 2C: Was there –

Sir David Sterling: The vote wasn’t carried unanimously.

Lead 2C: It wasn’t carried – but it was carried?

Sir David Sterling: It was carried.

Lead 2C: And it was that schools would be handled in accordance with the CMO’s advice?

Sir David Sterling: Yes.

Lead 2C: It wasn’t “We’ll await his advice”, it would be in accordance with his advice?

Sir David Sterling: Yes, and that was why on the Wednesday, whenever the Secretary of State for Education in England decided that schools should close from the end of that week, the fact that a decision had been taken to follow CMO’s advice, CMO’s advice on the Wednesday was “we should follow suit” and therefore there didn’t need to be another Executive meeting, the First Minister and deputy First Minister essentially acting on the advice of the Chief Medical Officer agreed that Northern Ireland would follow suit and the announcement was that schools in Northern Ireland would close from the Friday evening.

Lead 2C: But effectively that precludes them having a role or discussing whether or not that’s right for Northern Ireland, it becomes a decision for the CMO, not them?

Sir David Sterling: Well, yes, but ministers will always take decisions on the basis of the advice they receive. They won’t always accept the advice they receive, and that’s perfectly right, so long as there is an explanation as to, you know, why they have taken the particular decision. But in this case, my view was that the Secretary of State for Education in England having taken that decision, got the Executive Office off the hook: they were clearly not in agreement as to how schools should close but essentially the decision how it would be taken that schools essentially across UK and Ireland were going to close made it easier for them to move forward.

Sorry, I should say I have been quoted in the media today about, you know, my concerns about ministerial decision-taking, and that was probably the most difficult two or three days that I experienced during the first wave, but what I would like to say is that from there on, in fact from the following Monday onwards, whenever we went into full lockdown, I actually found that ministers were working together on a much more collegiate basis. We had long discussions at times and we had the Chief Scientific Adviser, the Chief Medical Officer probed at length on a range of issues, but by and large decisions were reached albeit after a period of time and I think the Executive did work much more collegiately from that point onwards.

So I just think it’s important to just correct that sort of line that has been running in the media.

Lead 2C: I wonder if you’re looking at that with slight rose-tinted glasses, because –

Sir David Sterling: Yes, I know you’re going to point to various comments that I’ve made at various times, and certainly there were many points of difficulty after that, but by and large we got through them.

Lead 2C: Well, I’m going to take you to something that I think suggests that maybe it was a bit more fundamental than that, but before I do, I mean, you’ve obviously foreseen that I’m going to ask you about your comment –

Sir David Sterling: Yes.

Lead 2C: – that that meeting on 16 March was excruciating –

Sir David Sterling: Yes.

Lead 2C: – “no leadership on display”, this is at the very earliest staging post, this was the first decision that ministers had been called to make and this was the way that it went.

What was excruciating about it?

Sir David Sterling: Well, it was a protracted discussion, you know, people had got into fixed positions, it had split along Nationalist/Unionist lines.

My frustration, as expressed in a message that night, was born of a concern that this might be how things played out from here on. Now, there were difficulties on occasion afterwards, but by and large not of that magnitude, and fortunately on most issues things didn’t necessarily break down along Nationalist/Unionist lines.

Lead 2C: Can we look at a document that might suggest why that was the case. This is INQ000309200.

I think it’s the third bullet point. You say this in terms:

“Our ministers have not shown strong leadership and have been too quick to retreat into campaigning or community activist-mode – they’ve got away with this partly because UKG has thrown so much money at mitigation that they haven’t had to take many difficult decisions. Yet when they have (eg school closure and defining ‘essential’ businesses) they have been found wanting. The irritation of the minor parties is likely to increase.”

There is a truth in that, isn’t there, that effectively any big decisions that the government in Northern Ireland had to make were effectively superseded by the fact that they were taken by the government in Westminster; correct?

Sir David Sterling: That is true, and again I think it’s just recognising our context, you know, where we have five parties in an enforced coalition, very different ideologies, very different aspirations for this place, having to work together. But, you know, what I think is important to recognise is that on all the big issues they eventually did reach decisions, and I think one of the strengths of our arrangement is that when decisions were reached the five parties represented just short of 90% of the electorate. So it was painstaking, it was difficult at times, but decisions were taken, and I think it’s important to recognise at the high level that, by and large, we introduced the restrictions in line with elsewhere in the UK. We developed a process for agreeing to the easing of those restrictions. The guide to decision-making which was published on 12 May I think was a good document, I think it was as clear as the documents, similar documents that were produced in GB. And I think that we moved to ease restrictions by and large in line with GB and with Ireland.

So, yes, it was difficult, it was clunky, it was awkward, time consuming, but we got there, and I think recognition needs to be given to that.

Lead 2C: So in terms of the big decisions that you’ve said that the Executive Committee made, what big decisions would you point to as demonstrating their ability to come together as a cohesive whole, given that they didn’t really make the decisions at the outset of the pandemic, they were made for them?

Sir David Sterling: I think there was – there were lots of different views about how we should approach the easing and removal of restrictions. It was quite a tortuous process to agree the guide to decision-taking which was published on 12 May, but through hard work with the parties we actually got that document agreed. And again the handling of individual proposals for reducing restrictions were worked through; again, it was painstaking at times but we did get agreement on that.

Lead 2C: So that’s agreement about a framework about how you will make decisions?

Sir David Sterling: Yes, it’s agreement about the framework and it’s then the agreements that followed on the individual issues within that framework.

Lead 2C: So, in other words, you mean the decisions to re-open different parts of –

Sir David Sterling: Correct.

Lead 2C: – society? And I think that that process would have been ongoing in and around the time that you actually retired in August?

Sir David Sterling: Yes.

Lead 2C: So you weren’t in situ and you weren’t in place for the more difficult decisions, effectively, that had to be made in the autumn of 2020?

Sir David Sterling: No, and I didn’t foresee at that time, you know, that the autumn would be a difficult period.

Lead 2C: I think you’ll agree, though, that – certainly before you went, and it was being flagged at a very early stage by the CMO, and I think in fact the framework for coming out of restrictions was predicated upon this, was the fact that a second wave was foreseen and regarded as highly –

Sir David Sterling: Oh, yes, sorry, when I said I didn’t foresee the difficulties in the autumn, that doesn’t mean I didn’t foresee there would be a second wave. I think even at the time I left there were – there was a sort of marked increase in transmission, et cetera, so it was foreseeable, yeah.

Lead 2C: Two points. I think the first one was it was flagged at a very early stage that coming out – that lifting the restrictions would lead or there was a real risk that there would be a second wave, and I think, as you rightly say, by the time you left in August in fact the rates were already starting to go up by that point.

I’m going to go to a very different topic, if I may, and to ask you about the role of the Department of Health as the lead department, and I wanted to ask you about a specific communication, and this is INQ000287536.

I think we might need to go down a little bit, please. Yes. This is an email from you towards the end of March, and it’s the second paragraph that I’m interested in on behalf of the Inquiry, Sir David.

Sir David Sterling: Sorry, which one is this?

Lead 2C: It’s the –

Sir David Sterling: “dFM want to move to a three …”

Lead 2C: Yes.

Sir David Sterling: Yeah. That’s 26 March. Yes.

Lead 2C: Also the paragraph after that, about ministers being worried about being held corporately responsible or liable if things go badly wrong.

So can I just ask you some questions about this?

Sir David Sterling: Yeah.

Lead 2C: I mean, first of all, that first paragraph also would tend to speak to an issue I’ve asked you questions about at the very outset, this idea of the First Minister and the deputy First Minister not having control, as it were, over the Department of Health or the Department of Health having its own operational mandate and operating within it.

Can you help, was that the position at the end of March, as conveyed in that email, that they didn’t feel they had sufficient –

Sir David Sterling: Yeah. No, very much so. I got a very clear sense from particularly the deputy First Minister that – and the First Minister as well, that they wanted to be seen to have grip over the totality of the issues around the Covid-19 pandemic, and we – at this particular time, following the lockdown – just before the lockdown … sorry, this requires a bit of an explanation, but in the run-up to the 23rd it was quite clear that we were going to need to change the daily rhythm, if you like.

And what we did, with the agreement of the First and deputy First Minister, we moved to an arrangement whereby the day started with a Civil Contingencies Group meeting at 8.30, which I chaired, and which all departments dialled into along with local authorities, the Northern Ireland Office, the police, the fire and rescue service, the ambulance service, and First Minister, deputy First Minister and/or the junior ministers used to join that. And that gave them an opportunity to hear at first-hand what was happening on the ground. And again, issues were raised there. If they didn’t require Executive decision they went on to an action log which CCG maintained and which we updated on a daily basis.

So we then moved from there to the Executive meetings, which we re-formed for a period of six days –

Lead 2C: Yes.

Sir David Sterling: – and we called – it was Executive Covid crisis management meetings, and they weren’t meetings destined to take decisions, they were meetings that were designed to give ministers a greater oversight of what was happening outside the health domain. So using a piece of risk analysis that was done by Karen Pearson and her team, we identified some of the highest risk areas outside the health sphere, and we asked ministers to give presentations on how they were going to address those. And that was across the six – sorry, across the seven other departments apart from health.

And it was during that, you know, those proved useful but it was during that period that again I think the health – sorry, the deputy First Minister was again making a case to us that she wanted to be sure that the Executive was who was managing this. So what we did was we – the Health Department had agreed to produce a strategy, which was the Department of Health’s strategy for dealing with the health aspects of the pandemic. That was produced around the end of March, the beginning of April, I can’t remember exactly when, and then that sat alongside the various action plans which the departments themselves had identified that they were putting in place to deal with the wider impacts.

So when we went through those six ECCMC meetings, it was agreed that we would move back to a rhythm of having three Executive meetings a week, so then the daily rhythm was: CCG meeting 8.30; Executive meeting three days a week at 10 o’clock; press conference jointly hosted by the First Minister and the deputy First Minister and/or the health minister in the afternoon; and with attendance at the Assembly to give read-out to the Assembly committees as appropriate.

And that rhythm ran for most of April and into May.

I think worth noting that the Executive was also provided when it met with the – all ministers were provided with a daily situation report from CCG and also with an update on the action points which CCG were dealing with as well.

So that was the process that we entered into. And again the deputy First Minister may wish to correct me in this, but my impression was that they did have greater confidence from that point on that the totality of issues that were being addressed by departments were being addressed, and certainly she has – she said to me at the time that she got value out of attending the CCG meetings every morning, just to get a sense that things were being gripped on a cross-departmental basis.

Lead 2C: Because I think we’ll see – we know that there was the Executive Committee meeting on 18 March, and I think that’s the one where we see evidence or certainly the notes would tend to reflect that ministers didn’t think that they were in control of what had happened thus far, and we see reference to them saying “We’re in reactive mode”, and I think it’s the meeting where Minister Swann says “We have been preparing for seven weeks”, which one assumes was a reference to the Department of Health; is that right?

Sir David Sterling: Yes, I guess so, yeah.

Lead 2C: And again, can I just check that that was your understanding as well, by the time they got to that point, ministers felt that they hadn’t been sufficiently in control of what had been going on until that point in time?

Sir David Sterling: I’m hesitant to express a view on what ministers, all ministers’ view was at the time. There wouldn’t have been a collective view amongst ministers about this, but I know certainly the deputy First Minister and her team had concerns that they didn’t have sufficient understanding of all that the Department of Health was doing. I think it was in response to that that the minister of health brought forward a strategy that was to cover a period of, I can’t remember, I think it was two or three months, it was – you know, that was the sort of horizon for that strategy, and again I can’t remember exactly when that was, but I think it was early April. Other ministers would have had concerns as well, but I wouldn’t like to just characterise exactly what the Executive’s concern was as a whole.

Lead 2C: Right, well, we can ask those ministers.

One of the other things that happened before you retired which I wanted to touch on before my learned friends ask you some questions was the Storey funeral and the attendance of the deputy First Minister at that.

I think it’s clear from your witness statement that that was something that caused difficulties or schisms within the Executive Committee; is that correct?

Sir David Sterling: Yes. I’m not going to comment on the issue itself. All I would observe is that it did cause divisions and the atmosphere in the Executive was difficult after that, one of the most immediate practical implications was that the joint press conferences which took place most afternoons by First Minister and deputy First Minister, they stopped, and that was significant because the feedback we got from the sort of attitude surveys, et cetera, that we were doing was that the community found those press conferences very helpful, very reassuring, and, you know, it was a very visible manifestation of ministers working together, and the absence of that I think did reduce public confidence for a period of time. I think they did resume later, but there was certainly a period of weeks before that happened.

Lead 2C: Could I just ask you, I mean, you obviously look at this from the perspective as being an interlocutor in that relationship as well, between deputy First Minister and First Minister, did you observe then a fracturing in their relationship from that point onwards?

Sir David Sterling: Yes, you could, you could … people on the outside perhaps don’t fully understand that even parties who were diametrically opposed on a whole range of issues, they can actually work together quite well behind the scenes, but there was a discernible chill after that.

Lead 2C: And did that affect then how the Executive Office worked, if there was that division between them?

Sir David Sterling: Business was still transacted, but I think I made the point the most practical manifestation of the chill was the fact that the joint press conferences ended after that. But business was still – as I say, issues were still brought to the Executive, discussions still took place, decisions were taken. I don’t recall that that became any more difficult than it had been.

Lead 2C: But it must make a difference, having two people in those positions who are able to get on with each other and have a normal working relationship with each other? I mean, it can’t be helpful to government business to have that relationship –

Sir David Sterling: It wasn’t helpful.

Lead 2C: And in what sense was it not helpful? What did it mean – besides the press conference, what impact did it have on day-to-day work?

Sir David Sterling: I can’t point to any tangible examples of things that didn’t happen because of it.


Sir David Sterling: No, I’m – honestly, I –

Lead 2C: But generally, then, I think you’re saying –

Sir David Sterling: Generally, it’s just – it’s harder to do business whenever the relationship is not as it should be.

Lead 2C: And did you try to resolve that, or reconcile the two offices, so to speak?

Sir David Sterling: I didn’t see myself as a peacemaker in that regard, but certainly the discussions, the helpful discussions I would have had would have been with the two lead special advisers on both sides, and, you know, we would have met most Friday afternoons, and that would have been the way I think I would have had most traction.

But this was one of those issues that was only ever going to work itself out over time.

Lead 2C: Had it resolved itself by the time of your retirement?

Sir David Sterling: I can’t recall whether the joint press conferences had resumed by the time I retired, but that did happen around about that time, I think.

Ms Dobbin: All right.

My Lady, I think I need to allow some time for my learned friends to ask questions.

Lady Hallett: Right, certainly. Is it Ms Campbell or Mr Wilcock? Mr Wilcock.

Questions From Mr Wilcock KC

Mr Wilcock: Good afternoon, I represent the Northern Ireland Covid Bereaved Families for Justice, and I’ve got three topics to cover with you.

Before I do so, can I just make sure I understand three things you’ve said in your evidence. You’ve conceded, haven’t you, that in early January/February Northern Ireland was not as prepared as well as it might have been?

Sir David Sterling: Yes.

Mr Wilcock KC: It’s right, isn’t it, that the NICCMA process wasn’t activated and the hub, which was part of that process, wasn’t set up until mid-March?

Sir David Sterling: Yes, the hub and the Civil Contingencies Group weren’t set up – Civil Contingencies Group didn’t start to meet regularly until 18 March.

Mr Wilcock KC: Then finally, your standpoint is that Northern Ireland had every right – and this is as good a quote as I can give you, because I wrote it down as you were saying it – to put its faith in the United Kingdom’s Government and ability to plan and manage this crisis given the scientific and other resources they had available to them, and that’s your perspective?

Sir David Sterling: That’s correct.

Mr Wilcock KC: All right.

So bearing those in mind, can I start with my first topic and ask you to have a look at INQ000008436, please, I think it’s the second document in the list I gave you.

Could we have page 2 on screen, please. I think you will see there that on 6 February you sent a message to Richard Pengelly stating that:

“… WMC in London yesterday we got an update on coronavirus.”

WMC, did that stand for the “Wednesday meeting colleagues”?

Sir David Sterling: It’s “Wednesday morning colleagues”.

Mr Wilcock KC: Wednesday morning colleagues?

Sir David Sterling: It’s a rather quaint title for a meeting, but yes.

Mr Wilcock KC: That is a meeting of permanent secretaries which is chaired by the Cabinet Secretary of the UK Government, and held physically at the Cabinet Office in London, although you may have attended by Zoom, one imagines, but that’s where the meeting takes place?

Sir David Sterling: Yes.

Mr Wilcock KC: Just to remind ourselves in the context of your comparison between the dangers of disturbing the Cabinet Office or the CMO, the Cabinet Office had a varied role and in terms of contingency planning it contains a contingency secretariat and it co-ordinates between the various government departments particularly in times of crisis?

Sir David Sterling: The Civil Contingencies Secretariat, yes, and for example we had worked closely with them during the Brexit preparations.

Mr Wilcock KC: Just jumping forward a bit, you were asked questions by my learned friend Ms Dobbin about communications on 7 March where you said “If pressed now, my advice would be to annoy the Cabinet Office rather than the CMO and you can hold me to that”. I’m just asking: did you really regard the CMO as more important in terms of Northern Ireland’s coronavirus response than the Cabinet Office?

Sir David Sterling: I think, as I was explaining in my responses to Ms Dobbin, it was a slightly flippant remark, and I wouldn’t want that to be seen as me making a sort of concluded judgement about the relevant significance of both organisations –

Mr Wilcock KC: You were asked questions on it, as you said –

Sir David Sterling: The Cabinet Office and the Chief Medical Officer were both highly important to me, so I wouldn’t want to overread that comment.

Mr Wilcock KC: I understand.

Can I take you back, please, to the message that we have on screen. You go on in that message to say that the CMO had said that the Chinese government has not “got to grips with this and it will almost certainly become a global pandemic”. Do you accept, therefore, that you were aware in early February that Northern Ireland would be faced with a global pandemic of some sort in the very near future that would only peak in about three to four months and would be with us for six to seven months? That’s what you put in your message, isn’t it?

Sir David Sterling: Yes.

Mr Wilcock KC: If we go over the page, please, I think we can see that Mr Pengelly replies, and Mr Pengelly is the permanent secretary at the Department of Health, isn’t he?

Sir David Sterling: Correct.

Mr Wilcock KC: He replies:

“At one level this was very worrying, although at peak time here will present ‘only’ as a bad flu …”

Leaving aside the fact that sadly you were both wrong about the imminent pandemic being a flu virus, do you read the fact that Mr Pengelly put the word “only” in quotation marks as an indication that he at least accepted the coming pandemic was going to be very serious?

Sir David Sterling: Yes, and I think the comment here is just reflecting what the advice by and large was at that stage –

Mr Wilcock KC: Yes.

Sir David Sterling: – which I was passing on, which was pandemic flu plans will be sufficient to deal with this.

Mr Wilcock KC: Absolutely, absolutely, and is that why, if we go on to 15.37 I think it’s the next, you ended your reply to that message with the words:

“I guess the problem will be if (when) it hits care homes and hospitals.”

Now, your evidence to us today has been at this stage you are the – regarding Northern Ireland as being in the prepare phase of your three-stage process.

Sir David Sterling: Yes.

Mr Wilcock KC: Reading this message from early February 2020, do you agree that planning should have been under way at this stage to ensure measures were in place to protect those in care homes or hospitals before whatever pandemic hit this jurisdiction?

Sir David Sterling: Yes.

Mr Wilcock KC: Was it?

Sir David Sterling: I don’t want to be seen to be sort of passing the buck on this one, but that would have been a matter the Department of Health would have been clearly covering.

Mr Wilcock KC: Okay.

Well, that’s one of the themes of this period, isn’t it? There’s a tension between the Department of Health as the lead department and the Executive Office as the sort of co-ordinating department, with cross-cutting?

Sir David Sterling: No, I wouldn’t say there was a tension. There was – there was a good relationship between the two departments, like I always enjoyed a good relationship with the health minister, the Chief Medical Officer, the permanent secretary. We understood and respected our different responsibilities and positions, and I think we worked well together.

Mr Wilcock KC: You know that I wasn’t referring to tension in terms of bad feelings towards each other, I was meaning there was a difference of emphasis between the departments as to who was in charge of this show in February, wasn’t there?

Sir David Sterling: I wouldn’t even say a difference of emphasis. We had different responsibilities, if you like.

Mr Wilcock KC: All right.

In your statement, and we can put it up on screen if you want, you state that the first occasion on which the Executive discussed Covid-19, and then you used the words “in some depth”, to be fair to you, was on 3 February 2020.

Do you remember saying that in your statement?

Sir David Sterling: I do.

Mr Wilcock KC: And do you agree that anything that was said in that meeting about Covid came not under a specific agenda item about Covid, but under the catch-all “Any other business” section of the agenda?

Now, if we could have –

Sir David Sterling: Sorry, can I take –

Mr Wilcock KC: I’m sorry.

Sir David Sterling: The fact that it was under “Any other business” shouldn’t be taken to – people shouldn’t conclude that that meant it was not a significant piece of business. That simply suggests that there wasn’t – it was brought to the attention of the Executive, perhaps at shorter notice.

Mr Wilcock KC: So the fact that it was under “any other business” doesn’t mean there wasn’t a substantive discussion?

Sir David Sterling: Correct.

Mr Wilcock KC: Right.

Could we have INQ000002903, paragraph 65 on screen, please. This is the statement that Robin Swann, the Minister of Health, has made for this Inquiry. He says something different. He says in paragraph 65:

“The Executive Committee held its first substantive discussion about Covid-19 on 2 March 2020 …”

Then he goes on to say:

“… and during that discussion, the Chief Medical Officer observed …”

We can all read what is said about what the Chief Medical Officer reported about what was coming. Is he right, or are you wrong?

Sir David Sterling: Well, he’s making a judgement on what the reaction of other ministers and departments was at that stage. His judgement is entirely valid, I wouldn’t challenge him on that. I … like, he may well be right, at that stage in early February it’s probably fair comment that people had not fully appreciated how serious this was.

Mr Wilcock KC: Well, I want to come on to that section in a minute, but in terms of the first substantive discussion taking place on 2 March, do you accept that, bearing in mind the meeting you were referring to was only a discussion under “AOB”, that he’s right in his recollection that the first substantive discussion took place a month later than you do?

Sir David Sterling: Sorry, say that again, the first substantive discussion was on 2 March?

Mr Wilcock KC: Correct.

Sir David Sterling: Yeah.

Mr Wilcock KC: You just said your recollection is that the first substantive –

Sir David Sterling: Oh.

Mr Wilcock KC: – discussion was a month earlier.

Sir David Sterling: Sorry, I hadn’t picked up the significance of that. I would need to look back over the handwritten notes of the meeting in early February.

Mr Wilcock KC: Okay.

Then what you were going on to deal with is the fact that in Robin Swann’s statement he says that whilst he thought there was a high level of urgency and activity by his department, health, at this stage, “even as the conditions and outcomes were described by the CMO”, that he outlined in that paragraph, he was not entirely sure that the overall impact on society was fully understood by other ministers and departments, as in his opinion they still perceived this was a health issue that would only impact hospitals.

Now, we’ve seen what you were saying in the messages to Mr Pengelly shortly before about the problem coming when this hits care homes and hospitals. I want to ask you: did Mr Swann have a point that other departments did not fully understand the overall impact of what was to come?

Sir David Sterling: I think I’ve already conceded that –

Mr Wilcock KC: Yes.

Sir David Sterling: – if that was his conclusion at the time, I wouldn’t want to challenge it.

Mr Wilcock: All right.

Now, my Lady, the third topic relates to a matter that Ms Dobbin has taken Sir David through, and she knows what I’m going to ask, it’s not on our pre-approved, but I think I have permission to go to it.

Lady Hallett: Give it a go, Mr Wilcock.

Mr Wilcock: Thank you very much.

Could we please put on INQ ending 7435 again, please.

If we go to the bottom of page 2, you will see, Sir David, the passage that Ms Dobbin took you through in the exchange at 18.45, and just to refresh your memory, do you recall being taken through that –

Sir David Sterling: I do.

Mr Wilcock KC: I want to take you through a reply to that message, which came about 45 minutes later, which at the top of the same page, where Bernie Rooney says in the first substantive paragraph under the list:

“A key message that I failed to deliver, would be a proportionate response. The Minister [that must be Mr Swann] did ask where people were as David had said we were set up so I had to show him our CCPB folks on the corridor …”

Had you told Mr Swann that you were set up on that date?

Sir David Sterling: I do not recall that at all.

Mr Wilcock KC: As a matter of fact, if you had said that, you couldn’t have been referring to anything to do with NICCMA or the hub, could you?

Sir David Sterling: No, I – well, we hadn’t set up the hub, so I would not have been saying we had. There were – it would have made no sense for me to have done that, because –

Mr Wilcock KC: Was there anything else you could have been –

Sir David Sterling: – when the – setting up the hub would have required a notification to the Executive that we were doing that, and we hadn’t done that at that stage.

So I’m not entirely clear what is meant when Ms Rooney says “David had said we were set up”, so I just don’t know what that actually means.

Mr Wilcock: I’m afraid I can’t enlighten you because I didn’t write the message.

My Lady, they’re all the questions we wish to ask.

Lady Hallett: Thank you very much, Mr Wilcock.

Questions From the Chair

Lady Hallett: Sir David, I’ve got just one question, and I’m trying to reconcile evidence you gave at the beginning of your evidence about the operation of the Executive Committee and the leaks and the not bringing papers until the last minute for fear they might leak, and I got the impression when you gave that evidence that the question of leaks, for example, undermined the efficacy of the way the Committee worked, but then you had what Ms Dobbin described as the rose-tinted view.

How do those two different aspects of your evidence, how do you reconcile them?

Sir David Sterling: It’s a very good question, and … I think what I would say is government is difficult. It’s particularly difficult at the moment, it was particularly difficult then. It’s even more difficult in Northern Ireland, given the nature of our constitutional arrangements.

So we, you know, the civil servants who are supporting the Executive, will always expect that things will not run smoothly, and, you know, certainly I showed on many occasions, as the evidence has shown, my frustration with behaviour that fell well below best practice, but in that context what I was saying later was that once we got past 23 March and into April, I did see better collegiate working, and I just thought that needed to be said to just counter the message. And again, I think my witness statement concludes with a recognition that it is difficult working in the Executive and that there nonetheless was some good co-operative working.

So I don’t think what I said today is contradictory to what is in my witness statement; it may sound a little odd to people, but working with the Executive can be a little odd at times.

Lady Hallett: I think we can follow that, but, I mean, the leaks carried on. Even in the period when you say there was better collegiate working, the leaks carried on, did they?

Sir David Sterling: The leaks have been endemic –

Lady Hallett: So I gather.

Sir David Sterling: – in Executives going right back to 2000. Sadly, in this day and age, if people are determined to leak, it’s very hard to stop it. You have to go to some quite extraordinary lengths, you know, creating documents with hidden, you know, misspellings or whatever in them so that you can identify, like. But if somebody wants to leak and cover their tracks, it’s not too difficult. And I don’t want to sound pessimistic in this note, but when you have the five, four or five-party Executive and things get difficult, it may be that leaks are just an occupational hazard. I wish it wasn’t so, but I’m afraid that’s probably my conclusion.

Lady Hallett: Sorry to sound too much like a retired judge and too legalistic, but isn’t that a clear breach of the ministerial pledge?

Sir David Sterling: Yes.

Lady Hallett: But no one seems to bother about that. What’s the point of taking the pledge?

Sir David Sterling: Well, indeed. I suspect part of the problem is that it has been extremely difficult to identify culprits, and in that case perhaps if there are no fears of sanctions then it may well go on.

Lady Hallett: One last question: in relation to the Civil Service in England, Wales and I think Scotland, there’s the Civil Service Code. I appreciate that you’re not part of what people call the Home Civil Service, do you have a similar code for civil servants here?

Sir David Sterling: We do, and it was revised in January/February 2020 in the light of the New Decade, New Approach agreement, it was revised by the Department of Finance at the time. It’s a very similar document to the GB code of conduct for civil servants – sorry, code of conduct – did you say code of conduct?

Lady Hallett: Yes.

Sir David Sterling: Yes, yes, it’s very similar.

Lady Hallett: Code. No, I said code.

Sir David Sterling: Code, yes.

Lady Hallett: I think they call it the code, rather than –

Sir David Sterling: It’s code I mean, not the code of conduct, which is a different thing.

Lady Hallett: Yes.

Thank you very much indeed, Sir David. I think that’s all we need from you, so thank you for your help.

The Witness: Thank you.

(The witness withdrew)

Lady Hallett: Right, 10 o’clock tomorrow?

Ms Dobbin: Yes, my Lady.

Lady Hallett: 10 o’clock, please.

(4.25 pm)

(The hearing adjourned until 10 am on Thursday, 2 May 2024)