Transcript of Module 1 Public Hearing on 11 July 2023

(10.00 am)

Mr Keith: Good morning, my Lady.

Lady Hallett: Mr Keith.

Mr Keith: The first witness today is Baroness Foster, the former First Minister of Northern Ireland. Could she be sworn, please.

1. Baroness Arlene Foster

BARONESS ARLENE FOSTER (sworn).

Questions From Lead Counsel to the Inquiry

Mr Keith: Could you give the Inquiry your full name, please.

Baroness Arlene Foster: Yes, my name is Arlene Foster, otherwise Baroness Foster of Aghadrumsee.

Lead Inquiry: Lady Foster, thank you very much for the assistance you have already given to this Inquiry by way of the provision of a witness statement, INQ000205274, dated 18 April 2023. At page 13, I believe you will see your statement of truth and a signature.

Baroness Arlene Foster: That’s correct.

Lead Inquiry: Lady Foster, could I ask you to remember to keep your voice up so that we may clearly hear you, but also, and it’s proven to be quite hard, try to go as slowly as you can so that the demands on our stenographer do not become impossible.

You were, between 9 June 2008 and 11 May 2015, Minister for Enterprise, Trade and Investment in Northern Ireland; is that right?

Baroness Arlene Foster: That’s correct.

Lead Inquiry: Were you then Minister for Finance and Personnel between May 2015 and 12 January 2016?

Baroness Arlene Foster: Yes.

Lead Inquiry: In December 2015 had you by then become the leader of the Democratic Unionist Party, the DUP, in Northern Ireland?

Baroness Arlene Foster: Yes.

Lead Inquiry: A position which you held until your resignation in June of 2021?

Baroness Arlene Foster: That’s correct.

Lead Inquiry: Most importantly for our purposes, were you First Minister of Northern Ireland between 11 January 2016 and 10 January 2017, and then again, during, of course, the pandemic itself, between 11 January 2020 to 14 June 2021?

Baroness Arlene Foster: Yes, that’s correct.

Lead Inquiry: I would like to start, if I may, with asking you some questions about the constitutional and governance position in Northern Ireland and its unique arrangements.

Under the Good Friday Agreement of 1998, the devolved institutions in Northern Ireland are constituted under the Northern Ireland Act 1998 along with the Good Friday Agreement, and they comprise primarily the Northern Ireland Assembly and the body which is known as the Executive Committee of the Northern Ireland Assembly, or the Northern Ireland Executive for short. Is that correct?

Baroness Arlene Foster: Yes, that is correct.

Lead Inquiry: Voting in the Northern Ireland Assembly needn’t detain us, but there are special thresholds which apply to the voting structures in the Assembly, and in the Northern Ireland Executive, which is the committee of ministers that is the ultimate decision-making body in the Northern Ireland government, do the First Minister and the deputy First Minister occupy a particularly important or unique position?

Baroness Arlene Foster: They do. The First and deputy First Minister operate in what is known as a joint office, the now Executive Office, it used to be the Office of the First Minister and deputy First Minister. Neither, my Lady, of those ministers can act unilaterally, they have to act jointly, and therefore it is a unique situation that we have in Northern Ireland.

Lead Inquiry: Is that obligation to act jointly something which has come about by way of constitutional practice or is it mandated by the Northern Ireland Act 1998 Act itself?

Baroness Arlene Foster: It’s mandated by legislation.

Lead Inquiry: Do the functions of the Executive Office need to be taken by joint agreement as well, or is this a requirement that attaches only to the two persons holding the ministerial positions of First Minister and deputy First Minister?

Baroness Arlene Foster: So the officials of the Executive Office are the officials of the First Minister and the deputy First Minister, so they will act under the direction of both of those ministers. They cannot act unilaterally on the will of either the First Minister or the deputy First Minister, so documents will have to be signed off, and all of the officials are very much aware of that practice.

Lead Inquiry: Since 1998, has the Executive continued to exist throughout that period, or have there been times when the Executive and the ministerial positions within the Executive have not been able to function?

Baroness Arlene Foster: They haven’t functioned for, I think, it’s 40% of the time. So I think the longest period of an absence without ministers was between 2002 to 2007, obviously the period between 2017 and 2020, and again today Northern Ireland is without ministerial oversight.

Lead Inquiry: In general terms, what happens when there has been a suspension or collapse in the power-sharing agreement and the Executive is unable to form? How is rule over Northern Ireland or in Northern Ireland maintained?

Baroness Arlene Foster: My Lady, as you’re aware, we are in a devolved administration, and therefore the Westminster government still has sovereignty over the Northern Ireland region. However, Northern Ireland Office ministers do not intervene in a direct rule manner, they rarely take decisions that affect Northern Ireland, but there have been some occasions where they have intervened. The budget, for example, they intervene on that to make sure that there is money available to run Northern Ireland, and, perhaps controversially, they have intervened in other areas as well, such as in the area of women’s reproductive rights and, indeed, in the area of Irish language, culture. That, again, was something that was legislated for in Westminster.

Lead Inquiry: May we take it, then, that at the time that you first held the tenure of being First Minister for Northern Ireland from 11 January 2016, that the Executive had been reconstituted before you took office? So, I think in November 2015, was a fresh agreement reached, the Fresh Start Agreement, which allowed the Executive to re-form, which led to you then becoming First Minister in January of the following year?

Baroness Arlene Foster: The Executive had still been in place at that time, I think. The last time before that that we didn’t have an Executive was 2007. There had been different political talks, processes, to deal with issues that arose, and one of those was indeed in 2015, after an incident in August of that year.

That Fresh Start Agreement was put in place and then the then First Minister decided that he would retire from public office and the appointment took place of myself in January of 2016 – alongside the appointment of the deputy First Minister, because every time a deputy First Minister or a First Minister resigns, there has to be an appointment of the two offices again, you can’t just slot another First Minister or deputy First Minister into position, they both have to be reappointed.

Lead Inquiry: Did you take over, in effect, from Peter Robinson, and was the deputy First Minister who was appointed alongside you when you became First Minister in January of 2016 the late Martin McGuinness?

Baroness Arlene Foster: That’s correct.

Lead Inquiry: The Executive of which you were First Minister lasted until 16 January 2017, when Mr McGuinness resigned; is that correct?

Baroness Arlene Foster: Yes, that is correct.

Lead Inquiry: He resigned at the time of what became known as an issue concerning the Renewable Heat Incentive scheme. After that time in January 2017, do we take it from what you said earlier that the Executive did not then re-form until 11 January 2020, when your second tenure commenced?

Baroness Arlene Foster: Yes, that is correct, because if either the First Minister or the deputy First Minister resigns, then the other office holder is also out of office. Without a First Minister and deputy First Minister, the Executive Office – or the Executive meetings do not take place.

Lead Inquiry: In the Executive there are obviously a number of other ministries, so it’s not just the Executive Office, we believe there are eight other ministries and each minister heads up their own Northern Ireland department. One of those is obviously the Department of Health.

Baroness Arlene Foster: Correct.

Lead Inquiry: To what extent, Lady Foster, when you were First Minister between 2016 and 2017, were you engaged in the affairs of departments other than the Executive Office?

Baroness Arlene Foster: Well, because we’re in a unique situation, my Lady, of mandatory coalition, where we have five political parties in the government, the – although we are the First Minister and deputy First Minister, the so-called head of the Northern Ireland Executive, we certainly do not intervene in other departments and other ministries, because they may be held by someone from a different political party. And unlike the Westminster system, where there is Cabinet responsibility and you will not see ministers going out and criticising other ministers in relation to decisions that have been taken, unfortunately that doesn’t exist in Northern Ireland. There is no Cabinet responsibility. And so the five – sometimes you will see ministers from one particular party criticising a decision of another minister in a different political party.

So there is a difference, if you like, to the system in Northern Ireland.

Lead Inquiry: Therefore, in terms of oversight, as the First Minister, unless and until a minister in a particular department brings a matter to the attention of the Executive Office –

Baroness Arlene Foster: Yes.

Lead Inquiry: – and thereby the Executive and thereby the First Minister and deputy First Minister, you may not necessarily know what issues are engaging the time of that particular department?

Baroness Arlene Foster: I think that is absolutely the case, and it’s only matters of significance or matters that are cross-cutting across government that would be brought to the table of the Executive Committee, or indeed if a minister felt that he wanted to alert his colleagues to what was going on on a particular issue, we would not have an Executive paper on that matter.

Lead Inquiry: Therefore, does the decision to bring a cross cutting issue, for example, to the attention of the Executive Office and the First Minister and deputy First Minister depend very much on the individual position of the minister in the department as opposed to, for example, the civil servants who assist the Executive Office or who assist the ministerial departments?

Baroness Arlene Foster: So I think the Civil Service in a particular department will advise their minister as to whether a matter should come to the Executive table for discussion. That certainly was the case when I was in the Department of Enterprise, Trade and Investment. I would have received advice that this is something in terms of a decision that needs to get Executive authority as opposed to just the authority of myself. And I’m sure that was the case in other departments as well.

Lead Inquiry: Is one of the functions that the Executive Office itself is responsible for contingency planning arrangements in Northern Ireland generally?

Baroness Arlene Foster: Yes, the contingency planning and policy branch sits within the Executive Office.

Lead Inquiry: Is that to be distinguished from civil contingencies relating to, for example, health emergencies, where responsibility would be vested and is vested in the Department of Health?

Baroness Arlene Foster: So the Civil Contingencies Group, the actual operational group, my Lady, is headed up by the head of the Civil Service, he normally chairs those meetings. Depending on the type of incident or emergency that we’re speaking about, there will be a lead department allocated to deal with the incident or with the ongoing emergency. When I was in the Executive in those early days, 2010/2011, there would have been a number of flooding incidents in Northern Ireland and the lead department on those occasions would have been the Department of Agriculture, Environment and Rural Affairs or, indeed, the Department for Infrastructure, depending on whether there was something that needed to happen with those departments.

But in the incidence of the pandemic, it would have been the Department of Health.

Lead Inquiry: Did you therefore become familiar with the overarching arrangements for crisis management in Northern Ireland, namely the Northern Ireland Central Crisis Management Arrangements, NICCMA?

Baroness Arlene Foster: Yes, I was aware in my first day brief – the first day brief that has been shared with me through evidence is I think my first day brief from 2020, but something similar would have been shared with me back in 2016 as well.

Lead Inquiry: We may have had sight of the later briefing in your second tenure in January 2020. We’ve not, I think, seen a briefing document from 11 January 2016. Can you recall to what extent you were made aware of the civil contingencies arrangements in Northern Ireland? Was it a particularly specific briefing, do you recall, or were you just made aware of what arrangements exist in terms of policy and guidance for Northern Ireland?

Baroness Arlene Foster: So in the first day brief to the First Minister, my Lady, we’re made aware of the different areas under the Executive Office, and part of that would have been a general briefing in relation to civil contingencies policy which sits under the Executive Office.

Lead Inquiry: What would you have been told about the existence of the major or the greatest risks facing Northern Ireland, in particular what was then known as the very high risk of pandemic influenza? I say “very high” because in London, for the United Kingdom, it was described as a Tier 1 risk, but it had a different description in Northern Ireland.

Baroness Arlene Foster: I would have been aware – and I’m doing this from memory, my Lady – I would have been aware that the biggest risk would have been flu pandemic from a health point of view, and of course we were always kept up to date with security risks as well, which of course were of a different nature.

Lead Inquiry: Of course.

Would you have been jointly briefed with your deputy First Minister, Martin McGuinness, or were you separately briefed when you took office in January 2016?

Baroness Arlene Foster: He would have had exactly the same first day brief as I would have received.

Lead Inquiry: All right.

You would also, we presume, have been made aware then of the Civil Contingencies Group, Northern Ireland which is the overarching body within the Northern Ireland government for dealing with civil contingencies, and it’s often chaired by a senior official but it may also be chaired by, together, the First Minister and the deputy First Minister. Do you recall convening or having to convene that group during your first tenure?

Baroness Arlene Foster: No, I did not convene that group with the deputy First Minister during my first tenure.

Lead Inquiry: May we look, please, at INQ000086924.

This is the protocol for the Northern Ireland Central Crisis Management Arrangements, so the CCG(NI) protocol. If we could have page 3, paragraph 3:

“The First Minister and deputy First Minister or TEO [that’s the Executive Office] may activate NICCMA [those are the Northern Ireland Central Crisis Management Arrangements to which you have just referred] following a request to do so from the Executive; the Lead Government Department; a senior representative from the [Northern Ireland Office] Briefing Room … a senior member of the [Police Service of Northern Ireland] involved in the Police led multi-agency GOLD group; the local level co-ordinator; or in the absence of any such requests, whenever [the Executive Office] judges it appropriate to do so.”

Again, it’s obviously some time ago now, but do you recall during your first tenure the NICCMA arrangements being activated by the Executive Office as opposed to yourself or Mr McGuinness?

Baroness Arlene Foster: From memory I don’t think that the emergency structure was activated during that year.

Lead Inquiry: All right.

Page 8, paragraph 10, there is a reference to level 2 and level 3 emergencies.

As may appear obvious, Lady Foster, level 2 and 3 emergencies are the more serious emergencies within the categories of 1, 2 and 3, and they require direction, co-ordination and effective decision-making at government level.

May we presume that you would have been briefed that in the event of a level 2 or level 3 emergency, you would be expected, as the First Minister, to call for these arrangements to be triggered, to be activated, in order to be able to apply the requisite degree of governance?

Baroness Arlene Foster: I certainly would have expected to have been informed by the head of the Civil Service, who was the chair of the CCG(NI). I don’t recall any time during 2017 or, indeed, even during the pandemic, when the First Minister and deputy First Minister chaired the CCG group.

Lead Inquiry: Does it stand to reason – or maybe I can put it a different way: was there an expectation that, as First Minister, and as deputy First Minister, Mr McGuinness, you would be expected to take charge of a level 2 or level 3 emergency by virtue of the seniority of your post and, of course, the democratic accountability that you bring to bear as First Minister? Was there an expectation that level 2 and level 3 emergencies would effectively be operated by, be managed by the First and deputy First Ministers?

Baroness Arlene Foster: Yes, I think there was that expectation. From memory again, my Lady, I think that is what has happened during those flooding incidents that I’ve referred to. However, I think even during those incidents the head of the Civil Service continued to chair the CCG, but the First and deputy First Minister of the time would have been very much involved with the group.

Lead Inquiry: The reason I ask is – we will look in a moment at the impacts across the board of the collapse in the power-sharing agreement – but in the context particularly of the CCG Northern Ireland and the NICCMA arrangements, it must presumably have been a matter of real concern to you that, at the moment that you are unable to continue to discharge your ministerial functions because the agreement, the power-sharing agreement, has collapsed, you would necessarily be unable to take up the role, the important role, of leading the civil contingencies response in Northern Ireland; there could be no ministerial leadership of this group once the agreement had collapsed.

Baroness Arlene Foster: I think that is an accurate description. However, I will say that, on an operational basis, the head of the Civil Service was the chair of the group. I’m not diminishing the role of ministers at all. I think ministers had a very important role, particularly in emergencies, particularly around democratic accountability, as you’ve indicated. However, from an operational point of view, I think the group would have continued to operate, albeit without the ministerial leadership that you’ve referred to.

Lead Inquiry: To what extent were you made familiar, Lady Foster, with the associated civil contingency documents and policy guidance? We have been shown a number of documents, for example, the Northern Ireland Civil Contingencies Framework from September 2011, a key document, a Guide to Risk Assessment in Northern Ireland dated from January 2010, A Guide to Plan Preparation from March 2002, and A Guide to Emergency Planning Arrangements in Northern Ireland, described again as key in the evidence, running to 200 pages but not updated since its refresh, to use a terrible word, in September of 2011.

Were you aware of the existence of those underlying documents which underpinned the approach to civil contingencies in Northern Ireland?

Baroness Arlene Foster: I think, my Lady, I would have been aware that there was a structure underlying the operation of the CCG and the Hub, as it became known, which was the operational structure that integrated all of the other departments into the centre. However, I don’t think I was aware of the specific nature of all of the documents, no.

Lead Inquiry: During the interregnum, ministerially, in 2019, it became apparent that these documents were significantly out of date and a review determined that they be updated. Do you recall between 2016 and 2017 any analogous body or group of civil servants recommending that this paperwork be updated?

Baroness Arlene Foster: I don’t believe I received any submission in that regard.

Lead Inquiry: May we take it from your earlier answer that the Northern Ireland central operations room, the Hub, was in existence during your first tenure, 2016/2017?

Baroness Arlene Foster: It wasn’t activated during 2017, as far as I’m aware. It was certainly activated when I was holding other ministerial office before then –

Lead Inquiry: But it – I’m sorry, but it existed –

Baroness Arlene Foster: Yes, it absolutely existed, yes.

Lead Inquiry: All right.

The Inquiry heard yesterday from Professor Sir Michael McBride, the current Chief Medical Officer in Northern Ireland, who sits at the apex of the CMO Group, within a particular directorate in the Department of Health. It’s apparent that the CMO in Northern Ireland discharges a very wide range of functions. Do you recall advice being given to the Executive Office by Professor Sir Michael McBride when you were First Minister?

Baroness Arlene Foster: I certainly remember his excellent work during the pandemic, but I do not believe that he was present at the Executive in the year of 2017. That must mean that there was no particular health issue that he came to the Executive on.

Lead Inquiry: The evidence may indicate that structurally in Northern Ireland there is a distinct divide between the functions of the Executive Office, which deal with civil contingencies in a general sense, and the role of the Department of Health, which deals with health emergencies, both in a policy sense and operationally, and also that there’s a divide between the Department of Health, which deals with policy and operation, and the Public Health Agency, which is concerned generally with operational matters only.

There is also quite a diffuse structure and a split between planning bodies, such as the elements of the Executive Office, the Department of Health and so on, and pandemic preparedness groups, and what are known as EPGs and SPGs, the response groups, the emergency preparedness groups and strategic co-ordination groups.

To what extent were you aware of the quite broad and diffuse nature of this structure when you were First Minister, or of the fact that there were these structural divides between the various entities in the Northern Irish government?

Baroness Arlene Foster: I would have been aware, my Lady, of the different structures and responsibilities between the Public Health Agency and the department. However, I would not have been aware of the very many different groupings that there were to advise the minister in relation to all of the different threats that may come towards Northern Ireland.

I found it difficult actually sometimes to follow all the acronyms that were in the papers that were furnished to me, so I wasn’t aware of all of those, no.

Lead Inquiry: All right.

Turning to look at the importance of ministerial leadership and the consequences of the collapse in the power-sharing agreement between 2017 and 2020.

The presence of ministers and the actions of ministers is of fundamental importance to the proper maintenance of government in Northern Ireland, is it not?

Baroness Arlene Foster: It is.

Lead Inquiry: Ministers give direction to the Northern Ireland Civil Service, they can set priorities, they drive the system onwards, they may make specific decisions about resourcing. When matters are concern are brought to their attention, they have the political authority to be to bring change about. Is that all broadly accurate?

Baroness Arlene Foster: I think that is broadly accurate, but bearing in mind that the Office of First Minister and deputy First Minister, then the Executive Office, is slightly different, insofar as agreement had to be sought between the two First Ministers, if you like.

Lead Inquiry: Indeed, but that is an internal issue, I suppose –

Baroness Arlene Foster: Yes.

Lead Inquiry: – because, from the outside world, you would be seen as a seamless part of the Northern Irish government.

The ministers also liaise, do they not, with the rest of the United Kingdom, and they liaise with the Republic of Ireland?

Baroness Arlene Foster: Yes.

Lead Inquiry: In terms of civil contingencies, are those important parts of the system?

Baroness Arlene Foster: Very important parts of the system, as was shown by the response to the pandemic, my Lady. I think – and I know we’re not going into this remit during this phase, but I think if you look back at all of the documents in relation to preparedness, you will see how much integrated Northern Ireland is into the United Kingdom system, for the provision of expertise, for the provision of resource, for the provision of training in terms of preparedness, so I think that is very important.

In terms of our links with the Republic of Ireland, we do have very strong co-operation that goes on on a day – a daily basis as well. There was a planning document from 2014, a cross-border management group was set up to deal with, if you can call it the border corridor area between Northern Ireland and the Republic of Ireland, and I’m sure that’s the sort of thing that happens across the world when there are two jurisdictions sitting beside each other in terms of how you deal with an emergency situation.

Lead Inquiry: Is that the Cross-border Emergency Management Group?

Baroness Arlene Foster: Yes.

Lead Inquiry: All right.

Then thirdly, in relation to the fundamental importance of ministers, they bring leadership to bear, do they not, not just in terms of democratic accountability, but they bring a visible face to leadership? So for the people of Northern Ireland, in a crisis it’s obviously of great concern that there are leaders in place who are accountable and who may be seen to be leading the charge on the part of its citizens?

Baroness Arlene Foster: I certainly hope that that was the case during the pandemic, but yes, I take your point in relation to visible leadership.

Lead Inquiry: The reason I ask, Lady Foster, is you’re aware that, from the evidence given to this Inquiry, there were a number of ways in which deleterious consequences flowed from the absence of ministerial leadership during the interregnum in your tenureship; would you agree?

Baroness Arlene Foster: Yes, I agree that ministers could and should have been in place during that period.

Lead Inquiry: The evidence from Sir David Sterling, who was formerly the Secretary to the Northern Ireland Executive, as you’ll no doubt recall, because I think he became head of the Northern Ireland Civil Service just at the end of your first tenureship, but he was in any event head of the Executive Office, he says in his witness statement that the three-year period left public services in a state of decay and stagnation, as well as making extraordinary demands of the Civil Service, who had to devote a very considerable bandwidth to governing Northern Ireland in the absence of ministers; would you agree with that?

Baroness Arlene Foster: Indeed, there were no ministers in place during that time, and I think, my Lady, when you look at the fact that the Northern Ireland Office took a policy decision not to intervene at that time but instead leave Northern Ireland without any ministerial cover is something that I feel I need to comment on as well. Because, of course, we are a devolved administration, the Westminster government is sovereign at all times, and if there is a deficiency in the Northern Ireland administration, then those people in Westminster with responsibility for Northern Ireland have a responsibility. That’s true whether it’s in relation to female reproductive rights or indeed resilience and emergency planning, and I would think that that was a gap that should have been dealt with at that time.

Lead Inquiry: In addition, had the Stormont House Agreement of 2014 committed the Executive to a spending programme which had involved reductions in public sector costs and pay bill costs and the like, and I think a reduction in the overall size of the Northern Ireland Civil Service?

Baroness Arlene Foster: Yes, that is correct. That was known as the voluntary exit scheme, which allowed civil servants to apply for redundancy, an enhanced redundancy package was available at that time, and that meant that the number of civil servants in Northern Ireland – and of course we have a small Civil Service to begin with – was actually further reduced.

Lead Inquiry: Was the impact or one of the impacts of the collapse in the power-sharing agreement that it was impossible after 2017 for that process to be reversed because civil servants, in the absence of ministers, had no powers to change or recalibrate those spending priorities?

Baroness Arlene Foster: That is correct, they would not have been able to increase recruitment as they did not have the resource to do so.

My Lady, if I may, I do think this points to a difficulty, a more – a wider difficulty with the Northern Ireland Civil Service, because we are a separate Civil Service to the Home Civil Service. If we had have been part of the Home Civil Service, then that could have been dealt with, and we could have had that interchange not only of resource and numbers but also skills, and I’ve no doubt we will come on to talk about preparedness in the context of a lack of resource. I think one of the ways that we should have been able to deal with this, and I have felt this for some time, is that the Northern Ireland Civil Service should be integrated into the Home Civil Service.

Lead Inquiry: So in essence, Lady Foster, the public sector spending patterns that were put in place as a result of the Stormont House Agreement of 2014 remained immutable after 2017?

Baroness Arlene Foster: And indeed the wider UK spending at that time, which of course had been reduced in the context of dealing with the worldwide recession –

Lead Inquiry: So is that –

Baroness Arlene Foster: – 2009.

Lead Inquiry: That’s a reference to the general so-called austerity –

Baroness Arlene Foster: It is.

Lead Inquiry: – programme?

Just dealing – just maintaining our focus on Northern Ireland, those spending cuts and the impact on the Northern Ireland Civil Service were the direct result, of course, of a pre-interregnum programme put into place in 2014 that civil servants were unable to alter. Why couldn’t, under direct rule, Westminster step in between 2017 and 2020 and recalibrate that spending programme?

Baroness Arlene Foster: That’s actually the point I’m making, my Lady, that they should have stepped in. If there was a difficulty with resourcing in Northern Ireland, particularly around the important issue of resilience and planning for emergencies, then there was a duty on the Westminster government to note that and indeed to take the appropriate action.

Lead Inquiry: In addition, Mr Swann in evidence and in his witness statement, a fellow former politician in Northern Ireland, speaks of how the lack of an Executive between 2017 and 2020 had an adverse effect on the preparedness of the health and social care system generally, because key decisions were not taken on resources and staffing levels. There was a gap between demand and health and social care capacity that civil servants were unable to fill, so the health and social care system became significantly more degraded during that period as well.

Would you agree?

Baroness Arlene Foster: I think, my Lady, we have to put that into the context of a recognition by the Executive before the collapse that there was a need to reform the health system widely in Northern Ireland. When I began my life as a minister I think the budget for health and social care was just over 40%. By this stage the budget was 52% of the block grant. So the health and social care budget was continuing to grow, but there continued to be difficulties within the system.

So that recognition led to the commissioning of a report and work carried forward for us by an eminent person in the field, Rafael Bengoa. He reported to the health minister in 2016, I think around October, might have been September of 2016. That was brought to the Executive. And all of the parties in the Executive, the five parties, agreed that it was not just a nice thing to do, it was an absolute necessity to reform the health service in Northern Ireland.

As a result of the Executive collapsing, in January of 2017, the leadership required to take those reforms forward was not present for three years, and then because of the pandemic again those reforms have not been able to be taken forward, and now we’re in a situation where we have a report from 2016 which hasn’t actually been implemented.

Lead Inquiry: Had Professor Rafael Bengoa recommended widespread systemic change? I mean, in his review paper of October 2016, was he making a general suggestion that there should be an increase in resources and the rooting out of inefficiency, or was he recommending wholesale transformation across the health and social care system?

Baroness Arlene Foster: He was recommending system change. He was recommending that we had a – more of a focus on primary care, that we move to elective centres for surgery, that we looked at Northern Ireland in the whole as opposed to our own little parts of Northern Ireland. I know this may sound strange, but those of us who live in Northern Ireland think it’s an incredibly large place, but I think for those who look into Northern Ireland it’s not that large, and I think he was recognising that there was a need for systems change, and, as I say, that was accepted by all of the parties at that particular time.

Lead Inquiry: In essence, as we’ve heard from Dr McBride, there was a mandate –

Baroness Arlene Foster: Yes.

Lead Inquiry: – I apologise, Professor Sir Michael McBride – there was a mandate to introduce the changes recommended by Professor Rafael Bengoa, but in the short period between October 2016 and the collapse of the Executive in January 2017 it was impossible to bring about any practical change?

Baroness Arlene Foster: Yes, there may have been preparatory work taken forward, but certainly by the time the Executive collapsed there was no meaningful change having taken place.

Lead Inquiry: Turning to a different angle of the collapse, with no ministers in place, presumably it wasn’t possible for the important North South Ministerial Council to meet.

What is that council? You have referred to the cross-border management arrangements, but this is something different, is it not?

Baroness Arlene Foster: It is entirely different. So the Belfast Agreement has three strands within it. We have the internal workings of Northern Ireland, and we’ve talked about the Assembly and the Northern Ireland Executive; that’s strand one. Strand two is north-south relationships, and that’s facilitated through the North South Ministerial Council, which meets in plenary, usually about twice a year, but there are other sectoral meetings that take place throughout the year, so the health sectoral, the agricultural sector, those will take place throughout the year, with the appropriate minister attending from Northern Ireland and from the Republic. Then strand three of the agreement is the east-west relationships, the British-Irish Council relationships.

Once an Executive breaks down, there is no minister from Northern Ireland to attend the North South Ministerial Council, therefore the ministerial meetings no longer take place. However, the officials, as I understand it, my Lady, continued to meet within the policy that was already set by their ministers during that time.

Lead Inquiry: I think there’s only a relatively few number of plenary meetings, maybe two a year, but –

Baroness Arlene Foster: Yes.

Lead Inquiry: – Dr McMahon, the permanent secretary in the Executive Office, calculated that:

“In terms of the North South Ministerial Council, a rough calculation on my part would have been that there were about 46 lost … Ministerial Council meetings …”

In total, because of course there is a number of meetings between individual ministers, not just plenary meetings.

So a very significant number of meetings simply did not take place?

Baroness Arlene Foster: Yes, so sectoral committee meetings would have been lost, to use Dr McMahon’s words.

Lead Inquiry: Yes. We of course presume that those meetings are envisaged under the Good Friday Agreement for good reason, for good purpose, they have enormous utility, and they bring about significant practical benefit, so their absence was obviously a matter of very real concern and regret, no doubt?

Baroness Arlene Foster: The actual North South Ministerial Council meetings can be quite formalised, my Lady. A lot of the work that goes on between the two administrations takes place on either side of the meetings, as often happens to be the case. The meetings themselves are of a formalised nature because of the arrangements that have been set up for those meetings. So not only does the minister of that particular department attend, he is usually accompanied by a minister. So if it’s a unionist minister, if I take the Department of Health, Minister Swann, he would have been accompanied by a nationalist minister, to make sure that, in the balance that is Northern Ireland, that things are kept in equilibrium. So there would have been two ministers from the Northern Ireland Executive and one minister from the Republic of Ireland.

Lead Inquiry: All right.

Turning now to look at the civil contingencies structure more specifically, in the context of the impact of the collapse, the evidence before my Lady shows that, in a number of letters from members of the Civil Contingencies Policy Branch, in particular its head, in a letter dated 22 January 2020, significant work on sector resilience, that’s to say making preparations for the ability of the health and social care structures in Northern Ireland to meet the demands of a prospective pandemic, effectively were unable to be completed because of the resourcing problems to which you’ve made reference, the demands of the necessary preparations for a no-deal EU exit. And the risk registers, both at the civil contingencies policy board level and in the Department of Health departmental level and in the civil contingencies policy board work programme documents, were flashing red for concerns being expressed about the civil contingencies system running behind on producing assessments, sector resilience, the problems from staffing shortages, the non-attendance at Cross-border Emergency Management Group meetings and so on.

Were you made aware of the parlous state into which that part of the system had descended when you took office again on 11 January 2020?

Baroness Arlene Foster: No, I was given the general briefing, which I think I’ve already indicated. I was aware that, in terms of civil contingencies, that there had been an Operation Yellowhammer to deal with a no-deal Brexit and that there had been a number of exercises carried out and training, and the TEO, the Executive Office, had taken on a leadership role in respect of that.

But to answer your question, and those number of issues that you’ve raised, I was not made aware when I came into office in January 2020 of that.

Lead Inquiry: Although it’s a matter for further debate in the context of Module 2C, plainly you had to deal with the system as you found it to be –

Baroness Arlene Foster: Sure.

Lead Inquiry: – on 11 January in the face of this terrible pandemic, so it must have been apparent to you that things were not as well as they perhaps ought or should have been?

Baroness Arlene Foster: Well, I have to say, my Lady, that when the pandemic hit Northern Ireland, whatever about planning, the determination of the Civil Service, and indeed the National Health Service in Northern Ireland, was quite amazing, they stood up in a way that I was very proud of, and whilst Mr Keith may say that it was in a parlous state, I think the response was, given that we hadn’t ministers for three years, quite an incredible response to what was coming towards us.

Lead Inquiry: On account largely of the remarkable efforts of the individual members –

Baroness Arlene Foster: Absolutely.

Lead Inquiry: – of the population of Northern Ireland?

Baroness Arlene Foster: Correct.

Lead Inquiry: Because the reality by January 2020 was that the Civil Service, to use the words of Sir David Sterling, had become stagnant, it had been denuded of leadership, direction and ministerial control, there was a general shortage of resources, the civil contingencies structure was described by an officer in its main constituent body, the policy branch, as being not fit for purpose, and the country generally was devoid or at least suffered from a lack of proper resilience, so that it was less able and less prepared to be able to meet the demands of a pandemic; would you agree with those general propositions?

Baroness Arlene Foster: I’m not sure I agree with all of those general propositions. When I now look back, my Lady, at the planning that there was and which at the time I was unaware of in terms of the Department of Health to deal with some of the issues that came towards them, I’m not sure any planning would have had us fit for purpose to deal with the Covid pandemic, in terms of the scale and nature of it, particularly when the number one risk on the risk register across the United Kingdom was for a flu pandemic and what came towards us was not a flu pandemic but a very transmittible disease in the community. Therefore, the need to scale up and have the capability to deal with that was something that we had to dig very deep into very quickly.

Lead Inquiry: That, of course, is a perfectly proper observation to make in relation to the operational response and the way in which the people of Northern Ireland responded to the crisis. But you agree, and you’ve agreed in the course of evidence, that there was, objectively, a reduced resilience in Northern Ireland as a result of the matters that we’ve discussed.

Baroness Arlene Foster: I think there was a reduced resilience, and as I’ve said, I believe that the Westminster politicians who were in charge of Northern Ireland ostensibly from a sovereignty point of view at that time should have been made aware of that difficulty and should have acted, because if there is a gap in resilience, my Lady, in part of the United Kingdom, surely that should concern the Government of the United Kingdom, in terms of where there are gaps, whether that’s in Wales, Scotland or indeed in Northern Ireland.

Lead Inquiry: Therefore you would agree, would you not, with this proposition: that all the politicians in Northern Ireland, and perhaps also in Westminster, must bear their share of the responsibility for leaving the people in Northern Ireland in that state?

Baroness Arlene Foster: Well, as the record knows, my Lady, I very much wanted to be in government during those years of 2017, 2018, 2019, to deal with the issues that Sir David Sterling has referred to, and indeed has been referred to by Denis McMahon. Unfortunately, because we have a mandatory coalition, I cannot go in alone, and therefore we were in a situation where we did not have ministerial cover.

And I don’t want to enter into the realms of politics, my Lady.

Lead Inquiry: Indeed not.

It seems self-evident, Lady Foster, that the demands and the benefits but the exigencies of the Good Friday Agreement and the constitutional structure in Northern Ireland are what they are. Nothing can be done about the fact that if there is a collapse in the power-sharing agreement there is no ministerial leadership or control or guidance.

Baroness Arlene Foster: I believe it’s what is called realpolitik, and indeed if there is difficulty in Northern Ireland then we are left without ministerial cover, and I really do believe, my Lady, that the United Kingdom Government needs to look at that, and when there is an absence of power-sharing, which of course has been voted on by the people of Northern Ireland, and that’s their system of government that they desire, then there is a responsibility on Westminster to step in.

Lead Inquiry: So that never again may it be said that politicians have derogated from their duties to the citizens of Northern Ireland in terms of making sure that the country is ready for whatever emergencies it may confront in the future?

Baroness Arlene Foster: The preparedness of the UK is something that this Inquiry is determined to look at, and indeed the response thereafter, and I think in terms of the preparedness the Westminster government should have been aware that there was a gap in Northern Ireland.

Lead Inquiry: To what extent were you updated, as the leader of the DUP, during the interregnum, the period of time in which you were not First Minister? Were the political parties in Northern Ireland kept informed of the position in terms of public sector resources, spending, the state of the Civil Service, the structural state of play, or was it very – was it … well, were you made privy to very little information about the state of play?

Baroness Arlene Foster: So as is the case now, from time to time parties will be invited in by the head of the Civil Service for briefings in relation to the state of play, usually to deal with the most pressing issue of the time. Health resourcing was one of those issues and of course Operation Yellowhammer was another issue that we would have been briefed on as well.

Lead Inquiry: So the political parties in Northern Ireland –

Baroness Arlene Foster: Yes.

Lead Inquiry: – were made aware of the general state of affairs –

Baroness Arlene Foster: Yes.

Lead Inquiry: – where the position had been reached in terms of resourcing and the impact of Operation Yellowhammer and so on?

Baroness Arlene Foster: In a very general way, yes.

Lead Inquiry: Were you aware, therefore, that there were problems or at least aware that there had been unwelcome and deleterious consequences or impacts upon the civil contingencies structure in Northern Ireland?

Baroness Arlene Foster: I don’t believe that that is something that was briefed to the parties during those three years.

Lead Inquiry: All right.

Could we now turn to the question of the issue concerning the broad alignment between Northern Ireland’s approach to pandemic planning and – together with that of the United Kingdom.

When you were First Minister in 2016 to 2017, how aware were you of the general alignment between Northern Ireland and the United Kingdom in terms of the strategy that would be adopted to any future pandemic?

Baroness Arlene Foster: Well, Northern Ireland is part of the United Kingdom, so we’re very much involved in the strategic view of what should happen in an emergency of whatever type. So, yes, I would have been very much aware of that, and the existence of COBR should the need arise.

Lead Inquiry: What about the 2011 strategy which underpinned the approach in Westminster and was the analogue of the 2013 document in Northern Ireland? Were you aware of the, what is now quite apparent, limitations of that strategy and of that pandemic influenza document?

Baroness Arlene Foster: I don’t think that that was briefed to me during my time in 2016. I probably became more aware of that document in the early days of the pandemic.

Lead Inquiry: Does it follow that you wouldn’t have, therefore, engaged in any debate about whether or not a plan for the United Kingdom generally was suitable for a particular part of the United Kingdom which happens to share, epidemiologically and geographically, an island with another country? Was that ever issue ever up for debate?

Baroness Arlene Foster: I don’t think the issue was ever up for debate because we’re part of the United Kingdom, therefore we work through the systems of the United Kingdom, Wales, Scotland, Northern Ireland, England. But we do of course, through other systems, recognise our nearest neighbour. We work very closely in terms of operational matters, we work through the North South Ministerial Council, and indeed, very shortly after the pandemic came to our shores, we took action to have those connections with our ministerial colleagues in the Republic of Ireland.

So sometimes I think there is a lot of emphasis on structure, but actually it’s the operational issues that matter to people on the ground, and I think we had a close working relationship with our colleagues.

Sometimes problems arise, we have a different legal system, we have a different structure, and that arose during the response phase, and I’m sure we’ll come back to that during those hearings.

Lead Inquiry: Your first period in post as First Minister ended on 10 January 2017. Shortly beforehand there had been an exercise for the United Kingdom called Exercise Cygnus. It took place over a number of days in October, and it had in fact its genesis in an earlier exercise which took place in Wales in 2014.

There hadn’t, I think, been a report on Exercise Cygnus in Northern Ireland by the time you left office in January 2017, but were you briefed orally on the outcome of that exercise, or were you made aware of the ways in which the pandemic planning or the health emergency systems in Northern Ireland required certain actions and lessons to be implemented?

Baroness Arlene Foster: Well, as I said, my Lady, in evidence, those would have been matters for the Department of Health and, given our very specific circumstances in Northern Ireland, I was not made aware of the outcome of Operation Cygnus, but I understand that the Department of Health were very much leading in that exercise.

Lead Inquiry: Coming forward to 2020, and deliberately not asking you questions about the reality of the operational responses that you were forced to make after the pandemic struck, but focusing on the structures that were in place as you found them to be, were you aware that there was no automatic Northern Ireland representation on SAGE?

Baroness Arlene Foster: I was not made – I was not aware of that immediately, but I became aware of that.

Lead Inquiry: Did you ensure, after no doubt an appropriate passage of time, that a Northern Ireland representative was to be on SAGE and had to be on SAGE?

Baroness Arlene Foster: It was a matter of concern. The Chief Medical Officer and Chief Scientific Adviser, however, assured us that they were very much in close contact with their colleagues in Whitehall, and, as I understand it, I think from March the Chief Scientific Adviser did attend most of the meetings in SAGE and then augmented that with other mechanisms, which we will discuss during the response phase no doubt.

Lead Inquiry: Did you have many dealings yourself when you were First Minister with Professor Young, one of the two departmental CSAs? There was a CSA in the Department of Health, Professor Young, and one in the Department of Agriculture, Environment and Rural Affairs, as you would have known from your previous ministerial position.

Baroness Arlene Foster: Yes.

Lead Inquiry: Was there an overarching governmental CSA, or were they the only two CSAs within the Northern Irish government?

Baroness Arlene Foster: They were the only two, my Lady, and I think that gap has now been identified in terms of having an overall Chief Scientific Adviser and is being actioned, as I understand it, now.

Lead Inquiry: Sir Michael, in the course of his evidence, observed that in April 2020 he’d had to establish a strategic intelligence group chaired by the CSA, Professor Young, and including members from a number of renowned academic institutions in Northern Ireland, as well as some others, because he believed that the scientific information that was available to Northern Ireland failed to pay due regard or sufficient regard to the specific circumstances of Northern Ireland. It needed – you needed – to have more Northern Ireland specific information.

Baroness Arlene Foster: I think what he indicated, and I had the opportunity to watch his evidence yesterday, my Lady, was that it was augmenting what was coming from Whitehall, and I think that that is absolutely the right thing to do in terms of making sure that we had the best available data, information and scientific advice given to us. So the setting up of that strategic intelligence group is something that I absolutely think was the right thing to do, and it allowed us to have the ability to pinpoint in this terrible disease the transmissibility in particular areas of Northern Ireland, and to do, indeed, Northern Ireland modelling as well. So that is something that I think is going to now be taken forward by the Public Health Agency and I very much welcome that.

Lead Inquiry: But the point is that it wasn’t until the pandemic struck –

Baroness Arlene Foster: Sure.

Lead Inquiry: – that it became apparent that there was this lacuna in the provision of scientific data and information and there was a need for a body to collate the information from London alongside the rest of the United Kingdom, but also from Northern Ireland, in order to put it into a form that was of the greatest practical utility to you in Belfast?

Baroness Arlene Foster: I think it’s one of the very important lessons from the pandemic that, as well as having the expertise and the ability to ask questions of some of the world’s top academics in London, that to have that Northern Ireland-specific part is something that was of benefit. So hopefully in any new plans we will have that available to us – or, indeed, not available to me but to the new ministers that are in position.

Lead Inquiry: May we presume that there were regular meetings and communications between yourself as First Minister and ministers in London?

Baroness Arlene Foster: Yes.

Lead Inquiry: You’re aware, of course, of the United Kingdom review of intergovernmental relations. I think a policy document for that review was published or at least made available during your second time in office, in 2020 to 2021. It states – or at least the UK review of intergovernmental relations states that ministers and civil servants across the United Kingdom are in touch on a daily basis across all areas of interest.

Was that the reality? Is that an accurate description of what you found to be the case?

Baroness Arlene Foster: Yes, because I had a particular background to engagement with ministers in the government. I had been involved in a confidence in supply arrangement with the government from 2017 to 2019, and that allowed me to get to know a number of ministers on a personal basis, which I think was very helpful during the pandemic, if I may say so.

But that intergovernmental relationships piece was really tested after the vote to leave the European Union, because Scotland, Wales and ourselves had particular issues that we needed to discuss with the Westminster government, and that’s the genesis, if you like, of that policy framework and policy document.

Lead Inquiry: Putting aside the ease and efficiency with which you conducted your communications with Westminster and with UK ministers, governmentally –

Baroness Arlene Foster: Yes.

Lead Inquiry: – would you say that the relationship ministerially between Northern Ireland and Westminster worked well? I ask because, as you know very well, your former colleague Michelle O’Neill describes meetings with the Chancellor of the Duchy of Lancaster and with the Prime Minister, the then Prime Minister, as being a last minute decision-making platform, which would perhaps tend to suggest that it was not the sort of bilateral communication device that we would all wish to aim for.

Baroness Arlene Foster: Indeed. And I certainly don’t want to enter into the realm of politics, but it is worth noting that the complexion of the government in London was completely different from Wales, Scotland and Northern Ireland, and therefore that in and of itself had its challenges, as we moved through sharing information, and I think that that is reflected in the deputy First Minister’s response.

Lead Inquiry: To the extent that you required to be linked in to COBR and to partake in its affairs, did you find that, practically, an efficient process?

Baroness Arlene Foster: I wouldn’t say it’s an efficient process, because by its very nature there are many people in the room, all trying to share information and speak, but I think it’s a very necessary part of the procedure, and something that initially the Health Minister was invited to in Northern Ireland, and then the First and deputy First Minister became involved in COBR at a slightly later stage.

Lead Inquiry: Turning, finally, to some of the lessons which you identify in your witness statement and some of the issues which have arisen out of the evidence concerning Northern Ireland in particular, Sir Michael McBride has said that he thought that there would be a significant benefit in conducting testing of emergency response plans and joint exercises on a north-south basis, which would be a development, of course, on the existing arrangements. Would you agree with that proposition?

Baroness Arlene Foster: Well, I think there’s already operational procedures and plans that take place on a north-south basis, if I think of some of the responses along the border corridor. For example, you will see health service workers, ambulances, moving across the border to help in particular incidents, which is absolutely right and should be the case. We have particular structures in place to deal with paediatric cardiac services, which I actually was involved with at the time. So I think there are some instances already taking place in terms of north-south operability and the need to work together.

But I also note that Sir Michael talked about the need to have that connection between not just north and south but actually the UK and Ireland, because we shouldn’t forget that these are two sovereign governments, and therefore there is a need for them to work together. And at the risk of moving into the response phase, you could see that on international travel, you could see the fact that we do share a common travel area between the UK and Ireland, and people move freely through the UK and Ireland, and that is probably why Sir Michael was referring to that five, if you like, nation approach as opposed to just north-south.

Lead Inquiry: Exercise Cygnus was obviously a UK exercise.

Baroness Arlene Foster: Yes.

Lead Inquiry: So, to the extent that you’ve expressed concern that there isn’t enough UK testing, there obviously is a process in place for cross-United Kingdom exercises.

But Sir Michael had in mind a formalised process of testing cross-border, so not systems concerned, and they do already exist, to deal with problems associated with obesity, food poverty, there’s a British-Irish Council workstream, as you know, on drugs and alcohol, suicide prevention, and that accident & emergency system which operates cross-border but only in relation to the land over either side of the border or the counties on either side of the border. Testing in the field of emergency response, civil contingency, EPRR, would be something novel and different?

Baroness Arlene Foster: That’s why I say I think it will be better with the two sovereign governments becoming involved, and we’ve already talked about resilience –

Lead Inquiry: All right, so your position is it has merit, it has a benefit, but it must be a matter for the politicians at Northern Ireland and Westminster level and the Republic of Ireland to debate between themselves?

Baroness Arlene Foster: Yes, because inevitably if you are to have a plan north-south, there will be elements that will be reserved to Westminster, and that is why there is a need for Westminster politicians to be involved as well.

Lead Inquiry: Much evidence has been given about – and you referred to it in your own witness statement, to embedded structural inefficiencies in Northern Ireland, in particular in the context of the healthcare system, which you say you believe can only be tackled by fundamental reform.

Is such fundamental reform a necessary part of reforming the system of civil contingencies? So putting it another way, can you have a properly operated system of civil contingencies without having a properly working system of healthcare and resilience?

Baroness Arlene Foster: I believe the reforms envisaged by Bengoa are necessary, and therefore if they’re necessary for the system, that must mean that they’re necessary for resilience overall, in terms of Northern Ireland response. Particularly in a health emergency, obviously less so in other sorts of emergencies. Mind you, it’s very difficult to envisage an emergency which doesn’t involve the health service, if I’m frank.

Lead Inquiry: Another point you make in your witness statement is that it’s vital next time to have better planning and advance consideration of the potential impacts, not just of –

Baroness Arlene Foster: Yes.

Lead Inquiry: – the emergency, the exigency, the pandemic, if that is what it is, but also of the governmental responses, so lockdowns or mandatory quarantines or countermeasures and so on.

It is obvious, isn’t it, from what you’ve said, that there was no consideration at all given to any of those features or the countermeasures or the potential consequences of the government’s response to Covid in advance of Covid striking?

Baroness Arlene Foster: I think certainly when Covid struck there was a great fear and a great panic that ensued, not just in Northern Ireland but right across the United Kingdom, and indeed other jurisdictions as well, and there – felt there was a need to lock down in a particular way. I do not think that enough consideration was given to the impact, the non-health impact, if I can put it like that – and indeed there were many health impacts as well that were not foreseen.

My Lady, if I may, I mean, the devastating impact that Covid had on so many families in Northern Ireland I think is – stays with me, because it was a devastating impact. Many people lost loved ones in devastating circumstances, which have been set out by the bereaved families’ statement, and I want to take this opportunity to give them my condolences and my sympathies, and indeed to note that there are many people still suffering today with long Covid, and indeed some people in hospital today with Covid.

Therefore, I really do hope that this Inquiry is able to bring an element of closure, but more importantly to learn the very important lessons for the future, because I think that is the critical point of this Inquiry.

Mr Keith: My Lady, those are all the questions that I have.

Lady Hallett: I think we’d better break here.

We take a break for the benefit of everybody, in particular our wonderful stenographer. So I shall return at 11.30.

Mr Keith: My Lady.

(11.15 am)

(A short break)

(11.30 am)

Lady Hallett: Just before – Mr Lavery, are you asking the questions? Just before you do, can I ask one question myself, and then of course – you have finished, Mr Keith?

Mr Keith: I have, my Lady, I was just standing up out of courtesy since you were asking the witness a question.

Lady Hallett: I see.

Then, Mr Lavery, if you would ask the questions that I’ve given you permission to ask.

Questions From the Chair

Lady Hallett: Lady Foster, can I ask, you mentioned several times that, in the absence of ministerial oversight, because the power-sharing agreement’s collapsed, if there are gaps, for example in resilience, then the Westminster government should step in.

Whose duty would it be to inform the Westminster government that they had discovered gaps in resilience or preparedness?

Baroness Arlene Foster: Well, firstly, the Civil Service in Northern Ireland does have a relationship with the Northern Ireland Office, of course, and they have ongoing conversations, so the civil servants in Northern Ireland could alert the NIO. Of course, and I know this is a subject of under consideration, if there was to be a wider resilience audit of the UK that identified gaps in whatever part of the United Kingdom, then that could be brought to the attention of central government, whether that was on an annual, biannual basis. So I think that’s maybe something to consider as well.

Lady Hallett: Thank you very much.

Mr Lavery.

Questions From Mr Lavery KC

Mr Lavery: Thank you, my Lady.

Lady Foster, my name is Lavery and I represent the Northern Ireland Covid-19 Bereaved Families for Justice, and her Ladyship has permitted me to ask you questions about a couple of themes.

The first thing I want to ask you about is the scientific advice that you were getting, and you said in your statement that the decisions you made during the pandemic, including those in relation to lockdowns and other non-pharmaceutical interventions – this is at paragraphs 32 and 38 – were based on a very high level of scientific advice which were, in turn, very well connected into SAGE and central government systems. That’s at paragraph 22.

Now, with the obvious assistance that you obtained from scientific advisers during the pandemic, and the fact that, as First Minister, you were responsible for civil contingencies, do you regret not seeking the advice of the Chief Scientific Adviser, Professor Young, in any of the five years of his appointment prior to the pandemic?

Baroness Arlene Foster: Well, of course prior to the pandemic the number one risk was the flu pandemic, and it was of a different nature, the pandemic that arrived with us in 2020. The route to the Chief Scientific Adviser was through the Department of Health, because he reports in to the Department of Health through their system, and I think it is a gap in the governance that we don’t have a governmental Chief Scientific Adviser, in other words one that sits in the Executive Office.

I think that that is – that has been identified, my Lady, and is something that is now being dealt with and is certainly one of the learnings from this terrible time.

Mr Lavery KC: So you do regret not receiving advice or seeking advice from him?

Baroness Arlene Foster: Well, as I say, I wasn’t in office during those years of 2017 to 2020, so it wouldn’t have been appropriate for me to seek advice at that time.

In 2017, the year I was First Minister, before the pandemic, I wasn’t aware that there was any issue of which I needed to seek advice at that time.

Mr Lavery KC: One of the issues that has arisen during the course of the Inquiry is the topic of horizon planning.

Baroness Arlene Foster: Yes.

Mr Lavery KC: Is that something that you’re aware of, in scientific terms, that scientific advisers should be conscious of the advice that they should proactively be giving?

Baroness Arlene Foster: Yes, I became aware of this phrase and the meaning behind it obviously in preparation for the hearing today, and it certainly seems to me, particularly in identifying risks, however likely or unlikely they are, the impact – and I go back to the evidence of Sir Oliver Letwin – I think the impact should be flagged up that if it does happen that this is the impact that it’s going to have on society, and I think certainly if there had have been horizon planning for this type of pandemic, it would have been very helpful to know what then we needed to put in place to deal with that type of pandemic.

Mr Lavery KC: Now, at paragraph 22 of your statement, you say that your impression was that the Northern Ireland scientific advisers had the same rights and access to central government scientific systems, and Mr Keith in your evidence earlier asked you about Northern Ireland’s membership of SAGE, and you said that that’s something that you weren’t aware of prior to the onset of the pandemic; is that right?

Baroness Arlene Foster: That’s correct, yes.

Mr Lavery KC: So that did come as a surprise to you, no doubt?

Baroness Arlene Foster: It did. I suppose that that’s something that, again, operates in our system of government, which you will be familiar with, Mr Lavery, that operates through the Department of Health, so I wasn’t aware that we weren’t sitting members, but then when I listened to Sir Chris Whitty giving his evidence, he was very clear that the only permanent position in SAGE is actually the Chief Scientific Adviser to the UK Government, and then they bring in whoever they need to bring in.

I absolutely think we should be there of right in SAGE when SAGE is stood up, and in terms of horizon planning that’s something that should happen across the UK on an ongoing basis, and again leads me back to the point I made to my Lady about resilience planning and the need to audit what’s going on across the UK in terms of preparedness for whatever may come our way.

Mr Lavery KC: In fact in your evidence earlier you suggested we should be more integrated into the UK system in terms of scientific expertise and resources.

Does this then come as a surprise to you or were you aware that the Chief Scientific Adviser, Professor Young, was denied membership of the Chief Scientific Adviser UK network?

Baroness Arlene Foster: Yes, well, that isn’t something that I would have been made aware of, because, as I say, his sponsor department is the Department of Health.

Mr Lavery KC: Did you know about that before I asked you, for instance?

Baroness Arlene Foster: No, I didn’t. No.

Mr Lavery KC: From what you said earlier, do you think that would have been a good thing for him to be involved in that?

Baroness Arlene Foster: Yes, absolutely.

Mr Lavery KC: Or essential?

Baroness Arlene Foster: I think it’s essential that we have as much opportunity to be involved in seeking information, seeking expertise, as we possibly can, and therefore I think – and I know, Mr Lavery, probably there is a need to keep some of these organisations small and agile, to make sure that they work properly, because if there’s too many people in the room it becomes a difficulty. However, I think from a Northern Ireland point of view, and I’m sure it’s the same for Scotland and Wales, it’s important that we are plugged in to the expertise that is there.

Mr Lavery KC: If you had been made aware of this, no doubt you would have talked to people and tried to make him a part of that?

Baroness Arlene Foster: I certainly would have spoken with the Minister of Health to have a discussion about his concerns around the provision of scientific advice. As we’ve already indicated, we don’t have a governmental chief scientific adviser. I think that is something that we need to deal with, and when that person is in post I would hope that that person would have access to all of the relevant meetings that he needs to attend.

Mr Lavery KC: Just lastly on this topic, did you know that the Senior Medical Officer for Northern Ireland only had observer status, with no speaking rights at the Joint Committee on Vaccination and Immunisation, and that Northern Ireland only had observer status at the Advisory Committee on Dangerous Pathogens meetings, the ACDP?

Baroness Arlene Foster: I think I became aware of that on reading the evidence before I came to this hearing.

Mr Lavery KC: Then I want to ask you about your role as minister responsible for civil contingencies.

At paragraph 27 of your statement, you said that Northern Ireland needs more “access to sufficient suitably qualified draftspeople”, and at paragraph 8 you said that during the period of collapse 2017 to 2020 that there was no Assembly present to – no Assembly there to pass legislation.

You’ll also be aware that large parts of the Civil Contingencies Act in 2004 do not apply to Northern Ireland, and those parts of the Act contain important statutory obligations on public authorities.

The reason that happened was that in 2005 there was an expectation on the part of the Secretary of State that equivalent devolved legislation would be introduced to Northern Ireland to ensure a similar level of protection as experienced elsewhere. In fact, Cygnus recommended that Northern Ireland should consider developing legislation on pandemic response.

Now, you may or may not be aware that Peter May, then, the former permanent secretary for the Department of Health, in his statement, paragraph 101, says that civil servants at the request of the Chief Medical Officer decided to divert resources away from the development of the Northern Ireland public health Bill to other areas, stalling the progress of that legislation.

Now, as minister responsible for civil contingencies during the relevant period, do you believe that Northern Ireland does deserve the same level of pandemic preparedness and civil contingency legislation protections as those in the rest of the UK?

Baroness Arlene Foster: So there’s quite a lot in that, Mr Lavery.

Mr Lavery KC: Yes.

Baroness Arlene Foster: But just to say that when Operation Cygnus reported, unfortunately the Executive had collapsed by that stage and, as you’ve indicated, the work began on pandemic flu preparedness in terms of legislation, but that was then stopped in order to deal with Operation Yellowhammer. When I came back into office, I wasn’t made aware of the fact that we hadn’t progressed the Pandemic Flu Bill, but I think by that stage it had actually begun again, and indeed that work had been paused right across the UK and not just in terms of Northern Ireland.

In terms of the statutory duties, as I understand it, there are only two organisations that are at a category 1, the Police Service of Northern Ireland and the maritime authority, but that the other authorities in category 2 do operate alongside those two bodies, and it is a moot question as to whether, if there were statutory duties attached to those people they would have done – or they would have engaged in different planning in preparation for an emergency. I’m not qualified to say whether they would or they wouldn’t. Perhaps someone from those organisations could indicate whether that was the case.

Mr Lavery KC: Well, Dr McMahon suggested that there were perhaps three, maybe four areas in which legislation imposing mandatory duties was necessary: one was that the duties would be clearly set out; secondly, that those duties would be properly resourced; and, thirdly, that during periods which are recurrent and do last for a long period of time where there is no Assembly, that public authorities would know exactly what they had to do.

Baroness Arlene Foster: Yes, I think there’s much merit in what Mr McMahon has said around that. And as I don’t have the recommendations from Operation Cygnus in front of me, I can’t really comment any further at this point.

Mr Lavery KC: Did you ever discuss the legislative changes and how these disadvantages should be addressed?

Baroness Arlene Foster: No, they were never brought to my attention.

Mr Lavery KC: Were you aware that the Northern Ireland public health Bill had been stalled?

Baroness Arlene Foster: Well, I wasn’t in office until January of 2020, so I wasn’t aware, when I came in – back into office in 2020, that it had been stalled, but I think by that stage it had begun the planning again, because Operation Yellowhammer obviously was behind us at that stage, having ended in December of 2019.

Mr Lavery KC: Do you agree that it was an inappropriate position for the Chief Medical Officer and civil servants to have to make the decision to stall that legislation in the absence of ministerial oversight?

Baroness Arlene Foster: Well, I think I’ve given evidence to my Lady about the fact that when there isn’t devolved ministers in office, that really United Kingdom Government ministers should take responsibility for something as important as resilience and emergency preparedness.

Mr Lavery KC: But just going back to your earlier response, you weren’t aware of this legislation or this lacuna, it wasn’t brought to your attention?

Baroness Arlene Foster: No, it wasn’t, no.

Mr Lavery KC: Do you think it should have been?

Baroness Arlene Foster: Yes.

Mr Lavery: Thank you, my Lady.

Lady Hallett: Thank you, Mr Lavery.

Mr Lavery: Thank you, Lady Foster.

The Witness: Thank you.

Mr Keith: My Lady, that concludes the evidence of Baroness Foster.

Lady Hallett: Thank you very much indeed for your help, Lady Foster, and as you have envisaged in your evidence we shall meet again for the response phase. Thank you.

The Witness: Thank you, my Lady.

(The witness withdrew)

Ms Blackwell: My Lady, the next witness is Richard Pengelly.