2. Mr Richard Pengelly

MR RICHARD PENGELLY (sworn).

Questions From Counsel to the Inquiry

Ms Blackwell: Is your name Richard Pengelly?

Mr Richard Pengelly: It is, yes.

Counsel Inquiry: Mr Pengelly, thank you for the assistance that you have given so far to the Inquiry. You have provided a witness statement which is at INQ000195848, and if we go to page 18 of the document – thank you – we can see that you signed it on 23 May of this year. Can you confirm that it’s true to the best of your knowledge and belief?

Mr Richard Pengelly: I can indeed.

Counsel Inquiry: Thank you very much. We can take that down.

You currently hold the position of permanent secretary at the Department of Justice in Northern Ireland, but you previously held the position of permanent secretary at the Department of Health between July of 2014 and April of 2022.

Prior to that, you had been permanent secretary of the Department for Regional Development, but it’s right to say that prior to 2014 you had no experience of working in the area of health and social care?

Mr Richard Pengelly: That’s right, I was largely working in public expenditure in the Department of Finance.

Counsel Inquiry: Thank you.

My Lady, I’m conscious that you have already heard a significant amount of evidence about health matters in Northern Ireland, but I will begin, if I may, by establishing with Mr Pengelly an overview of the Department of Health in Northern Ireland.

Mr Pengelly, in 2016, there was departmental restructuring which led to the Department of Health, Social Services and Public Safety becoming the Department of Health; is that right?

Mr Richard Pengelly: That’s right, yes.

Counsel Inquiry: The Department of Health, as my Lady has heard, is one of nine Northern Irish governmental departments.

The department’s statutory responsibilities under the Health and Social Care (Reform) Act (Northern Ireland) 2009 are to promote an integrated system of health and social care, designed to secure an improvement in the physical and mental health of the people of Northern Ireland, the prevention and diagnosis and treatment of illness, and the social well – and well-being of people in Northern Ireland; is that right?

Mr Richard Pengelly: That’s right, yes.

Counsel Inquiry: Thank you.

Does the top management group and departmental board have the responsibility for the overall corporate governance of the department?

Mr Richard Pengelly: It does indeed. The overall responsibility sits largely with myself as permanent secretary and accounting officer, and I’m supported in that by the top management group, who would typically meet weekly, and the departmental board, who would meet less frequently.

Counsel Inquiry: Thank you.

Does the department discharge its responsibilities by direct departmental action and also through its arm’s length bodies?

Mr Richard Pengelly: Yes, essentially the department focused on the policy agenda and the operational delivery of services, was through 17 arm’s length bodies of the department.

Counsel Inquiry: So as permanent secretary, what is the variety of roles that you held in the Department of Health?

Mr Richard Pengelly: The permanent secretary role in the Department of Health is unique in the Northern Ireland context because there’s a dual job title: it’s permanent secretary of the department and chief executive of the health service. It’s a slightly strange title because there is no legal entity of the health service in Northern Ireland; there are, as I mentioned, 17 arm’s length bodies. The operational responsibilities sit with those individual bodies. So my discharge of the permanent secretary responsibilities was through the department and the top management group. I saw very much the chief executive role as one of trying to consolidate system behaviour as opposed to having the operational responsibility for the provision of care, for example.

Counsel Inquiry: My Lady heard yesterday from Professor Sir Michael McBride, who explained the role of Chief Medical Officer and, indeed, the Chief Medical Officers group, because the Chief Medical Officer holds overall policy responsibility for emergency planning, preparedness and response, does he not?

Mr Richard Pengelly: He does, yes.

Counsel Inquiry: In terms of multiple levels of delegation and how that fits within emergency planning and preparedness, does the level of delegation go from the Department of Health to the Chief Medical Officer, and from the Chief Medical Officer then to the Deputy Chief Medical Officer, and also the director of Population Health directorate?

Mr Richard Pengelly: It does, although I’m just wary of emphasising the delegation nature too much, because sometimes that can be erroneously interpreted as an abdication of responsibilities.

Sir Michael took a very, very close involvement in emergency planning but the day-to-day work would have been delegated down to the emergency planning branch, who – that would have been the sole focus of their responsibilities, and obviously Sir Michael would have had a broader range.

Counsel Inquiry: So what systems were in place to ensure efficient collaboration and engagement of those that needed to focus on emergency planning?

Mr Richard Pengelly: The main approach was one of the provision of assurance statements, so rather than, for example, either Sir Michael or the Deputy Chief Medical Officer completely – the phrase we use is “marking the homework” of their direct reports, it would have been set a broad range of objectives and then seek assurance at various touchpoints in the year that those objectives were being delivered or were on track for delivery, with any issues or concerns being escalated upwards, in the first instance to the Deputy Chief Medical Officer, if necessary to Sir Michael, and then to myself if they were of a significant nature.

Counsel Inquiry: During your time as permanent secretary of the Department of Health, did you have any concerns about the efficacy of that system?

Mr Richard Pengelly: No concerns – and, sorry, just to complete. There would be the upward escalation of concerns. The main way that my own involvement – and Michael and his peers, the leader of the various groups across the department – I would have had stock takes with them, normally every three to four weeks, and it would have been an hour spent together just talking through issues. From time to time we’d have touched on emergency planning, and Michael might have mentioned, you know, there’s an issue about – we have lost a member of staff, we need to bring someone in, but the sense I got was this was a very well managed and well organised area of the department, with no concerns coming to me on a formal basis.

Counsel Inquiry: My Lady has heard evidence about other relevant structures in terms of emergency planning within the Department of Health, the Northern Ireland Pandemic Flu Oversight Group, a Task and Finish Group, Health Emergency Planning Forum, Critical Threats Preparedness Steering Group, Joint Emergency Planning Board, and Joint Emergency Planning Team.

I’m going to ask you a question that’s been put to other witnesses: do you think that there was too complex an arrangement so far as emergency planning was concerned, and also I’d like you to consider: was there any risk of duplication and overlap between those various bodies?

Mr Richard Pengelly: I think the short answer has to be it is a complex landscape, and with complexity there is always the risk of duplication or overlap.

The point I would make in favour of the structures is that, in my experience, and for many years as a senior civil servant, one of the issues that causes us greatest concern is organisations retreating into their silos, and the silo mentality. We strive for cross-departmental and cross-organisational working. The delivery of effective emergency preparation work cuts across the responsibilities of a number of organisations. In Health alone we have a department and 17 arm’s length bodies –

Counsel Inquiry: Could I ask you to slow down your evidence a little for the stenographer.

Mr Richard Pengelly: The work also cuts across other sectors, so at times to bring those diverse range of organisations together effectively and to get them to work collaboratively towards a unified purpose requires the establishment of groups.

It does look complex, and it’s something we should always be alive to and seek to minimise that complexity, but I think it’s a necessary approach where responsibilities cut across organisational structures.

Counsel Inquiry: The Department of Health is the lead government department in respect of pandemic preparedness, is it not?

Mr Richard Pengelly: It is.

Counsel Inquiry: The department is therefore required to maintain a state of readiness and build resilience to allow it to effectively lead the response to such health emergencies where they occur, and part of the way in which the government department sought to carry out its responsibilities in that regard was in terms of the development of response plans. So I want to turn now to look at the arrangements that were in place over the course of time.

I don’t want us to look at this document, but can you confirm, please, Mr Pengelly, that A Guide to Emergency Planning Arrangements in Northern Ireland, which was published by the Executive Office, a guide which runs to over 200 pages, required the Department of Health to maintain and review and update its own emergency response plan?

Mr Richard Pengelly: That’s correct, yes.

Counsel Inquiry: The emergency planning branch in the department’s Population Health directorate, until January of this year, was responsible for maintaining, reviewing and updating this plan; is that right?

Mr Richard Pengelly: That’s right, yes.

Counsel Inquiry: Versions of the plan were published by the department between 2009 and 2013, but the plan that was in place at the time that Covid hit was the 2019 version; is that right?

Mr Richard Pengelly: That’s right.

Counsel Inquiry: How often was the plan reviewed?

Mr Richard Pengelly: The plan would have been reviewed after any exercise which tested it or whether the plan had actually been commissioned in response to an issue, so there was an ongoing programme of review throughout that period.

Counsel Inquiry: Was it reviewed between 2013 and 2019?

Mr Richard Pengelly: It was, I think it was reviewed certainly as a consequence of Exercise Cygnus, the departmental plan was reviewed.

Counsel Inquiry: Was the departmental emergency response plan tested in Exercise Cygnus?

Mr Richard Pengelly: It wasn’t specifically tested because of the nature of Cygnus, but colleagues in the emergency planning team who would have been involved in that say it would – it’s an ongoing programme of constant evaluation and review of that plan.

Counsel Inquiry: The plan is said to be modular in structure and therefore flexible, scalable and capable of escalation and de-escalation, and it claims to set out how the department would carry out the responsibilities and functions associated with its role as lead government department.

So let’s take a look at it, please, it’s at INQ000184662. This is the 2019 version of the plan, as we can see from the red text at the bottom, and it’s version 4.

It we go to pages 4 and 5, please, and have a look at the contents. Now, we can see there is an introduction. There are then set out, in part 2, areas of responsibility in terms of emergency response. Part 3 covers activation procedures. Part 4, the detail of an emergency response. Part 5, a long-term response. If we can go over the page, please, part 6, training, Part 7, validation and review. Then a series of annexes, including the health Gold command templates and action cards.

Could we go to page 6, please, where I think we can see that the plan has been signed by both yourself and also Dr McBride, as he then was.

If we turn to page 11 – thank you – we can see at paragraph 1.9 the “Principles for activation”, that:

“The Department will deploy and operate an effective and resilient response and recovery for any emergency with which it is designated the [lead government department] arising from an emergency in the following scenarios …”

If we look to the third bullet there, it covers:

“- human infectious diseases (including pandemic influenza, avian influenza and smallpox …) …”

Thank you.

Could we turn to page 13, please, to look at what is said in terms of scalability. Could you explain to us, please, what the “Activation Protocol Summary” table shows us.

Mr Richard Pengelly: That’s showing moving from a local area, which is essentially an issue which would be contained to one health trust, one small geographical area, and then once we’re into levels 1, 2 and 3 there’s an escalating scale of impact.

Bronze essentially means a response by one individual health and social care trust. Silver are the arrangements where what was the Health and Social Care Board, the Public Health Agency, would come together to lead a regional response at a significant level. Then if it comes to level 2 or level 3 it would escalate it up to a Northern Ireland-wide issue and up to the catastrophic level.

Counsel Inquiry: Thank you.

Could we have a look, please, at annex G at page 63, which I think will show us the “Health Gold Command Support to Infectious Disease Outbreaks”. It says this:

“In response to any infectious disease outbreak, [the Department of Health] can provide strategic health and social care advice and direction in addition to HSC Silver arrangements (as detailed in their Joint Response Emergency Plan and other Critical Care and Acute Escalation Plans).”

Then there are a series of four bullet points which set out specific roles, responsibilities and actions that the department may take, which include:

“- Establishing a Department Reporting Rhythm …

“- Early identification and communication of the lead Policy Branch and contact details;

“- For isolated cases in [Northern Ireland], notification to other [United Kingdom]/[Republic of Ireland] health departments …”

Then, finally:

“- Identification of a Press … point of contact.”

There is reference at the bottom of this annex to:

“The Northern Ireland Infectious Disease Outbreak Plan [of] 2018 developed by the Public Health Agency in liaison with the [Department of Health] …”

And saying that it’s:

“… based on the most up-to-date guidance available on leading and managing an incident or outbreak …”

Just pausing there, does this mean, Mr Pengelly, that, in addition to the document that we’re looking at, in the situation of an outbreak of pandemic influenza, or indeed any similar disease, then this document needs to be considered in conjunction with the Public Health Agency outbreak plan?

Mr Richard Pengelly: Yes, the Public Health Agency would have had primacy in terms of the infectious disease work, so this was their plan. My understanding is that that work was predicated on an infectious disease outbreak which didn’t reach pandemic level. It was more an outbreak, as opposed to a pandemic, that they would have led on.

Counsel Inquiry: So how serious would the outbreak have to be to move from the Public Health Agency infectious disease outbreak plan to the plan that we’re looking at now?

Mr Richard Pengelly: Well, it would be along that escalation pathway where –

Counsel Inquiry: That we’ve just looked at?

Mr Richard Pengelly: Yeah, where it reached a sort of critical or catastrophic level, and that’s always assessed, in terms of impact, at Northern Ireland level.

Counsel Inquiry: Was that transition from one plan to another well understood within your department?

Mr Richard Pengelly: I’m … I’m not sure that it had ever been thought about in those terms as a transition from one to another, because Covid essentially didn’t come down the outbreak pathway and be treated under one plan and then migrate to the escalation, so I think most infectious disease outbreaks would have been contained within the PHA outbreak plan and that would have covered the response by PHA colleagues.

Counsel Inquiry: Would it be more efficient to simply have one plan rather than the need to move from one to the other?

Mr Richard Pengelly: But if the second plan we’re talking about is dealing with a catastrophic level, the infectious disease outbreak plan is dealing specifically with those infectious disease issues, and very much led by our clinical and medical colleagues in PHA, as opposed to the more administrative response of the ERP.

Counsel Inquiry: The ERP was underpinned by the United Kingdom risk assessment process, wasn’t it?

Mr Richard Pengelly: It was.

Counsel Inquiry: My Lady has heard about the National Security Risk Assessment and the National Risk Register. You may have been following the evidence that the Inquiry has heard so far about the limitations and drawbacks of the system and the 2011 strategy, the United Kingdom pandemic strategy.

So without going into the detail of those drawbacks again, do you accept that if there were drawbacks to the system of risk assessment and the United Kingdom 2011 strategy, then those drawbacks would have fed in to this ERP document?

Mr Richard Pengelly: If I follow your question correctly, if we accept the premise that there were drawbacks in a UK-wide 2011 strategy, our 2013 HSC strategy was very much piggybacking that strategy –

Counsel Inquiry: Yes.

Mr Richard Pengelly: – so it would have been a natural flow through.

Counsel Inquiry: Let’s take a look at the 2013 strategy, please.

It’s at INQ000183431. Thank you. That’s the first page. Can we go to the contents page, please, which is at page 2.

You can see there there’s an executive summary, then health and social care preparedness and response. Part 3 is the pandemic phase. At part 4, pandemic countermeasures. Part 5, summary of actions required by the HSC organisations for a pandemic. Then acronyms and glossary at the end.

You may be aware that Professor Sir Michael McBride was asked about his view of this guidance document yesterday, and he told my Lady that, in his view, it was not an effective basis for responding to the Covid pandemic because there was a need for a more generic plan that could be scaled up, but at the same time be specific enough to be tailored to a particular pathogen.

Do you agree with his view on this document?

Mr Richard Pengelly: Yes, absolutely.

Counsel Inquiry: The purpose of the guidance was to provide guidance for the healthcare system should a pandemic hit, and as we’ve established it’s closely aligned to the 2011 United Kingdom strategy. You may also be aware that Professor Sir Michael McBride was asked about the similarity between the Northern Ireland document and that of Wales, and that in some regards it is word perfect one with the other. We know that, so far as the Wales version is concerned, the version of the document was first published, I think, in March of 2010. Are you able to shed any light on whether or not the Northern Ireland document copied certain parts of the Welsh document or vice versa?

Mr Richard Pengelly: I can’t – the development of the document pre-dated my arrival in the department – other than, I think, the point Sir Michael made yesterday, it would be very common for us to share documents back and forward with colleagues across the devolved administrations and colleagues in England.

Counsel Inquiry: The Northern Ireland document was not updated between 2013 and 2020, was it?

Mr Richard Pengelly: No, it wasn’t.

Counsel Inquiry: Do you think it should have been?

Mr Richard Pengelly: It – there was a desire to do so, and I think it was one of the lessons emerging from Exercise Cygnus, but the 2013 document hung off the back of the 2011 UK document, so the approach was we were awaiting an update of the UK document to do the refresh of the Northern Ireland-specific document.

Counsel Inquiry: As was the case with other parts of the United Kingdom, none of the Department of Health for Northern Ireland plans set out how planning might need to be adapted for a pandemic in terms of a pandemic that had significantly higher rates of transmission, or a longer or shorter incubation period, whether or not it was an asymptomatic or symptomatic spread, or indeed had much focus on the prevention of transmission of the spread of a pandemic, did it?

Mr Richard Pengelly: It didn’t, no, and I think that’s a point that’s been touched on. The reason, as I understand it, this document was reflecting what at the time was assessed as the most likely threat that was faced, which was an influenza pandemic, which wouldn’t have those characteristics that you have mentioned.

Counsel Inquiry: Indeed, none of the plans deal in any sufficient way, I’m going to suggest, with mass diagnostic testing or infrastructure of mass contact tracing or mandatory quarantine or the possibility of mass self-isolation, do they?

Mr Richard Pengelly: They don’t, but, again to emphasise, the purpose of the document was to address what was assessed by the scientific and clinical assessment of the most likely risk. We didn’t set out to prepare a document that would be of use in every possible scenario that we might face. So it was aimed at the number one threat.

Counsel Inquiry: Yes, but not just every scenario that you might face, there was no level of scalability or adaptability, was there?

Mr Richard Pengelly: Not in the terms you apply. I mean, there was reference that the – some of that repeats(?) of the plan could be used for a non-influenza pandemic. But, to be fair, I don’t think it went into much more granular detail than that.

Counsel Inquiry: No, and do you see the sense in the plans going forward containing details of different transmission situations and also plans to deal with the manner in which the population may need to be controlled in the event of a outbreak?

Mr Richard Pengelly: I think in the light of experience that would be a hugely sensible approach.

Counsel Inquiry: I’d like to move now to look at the department risk register, which again my Lady heard some evidence about yesterday.

It’s at INQ000185379. Thank you.

We can see that this is the risk register for 2018/2019, which is indeed the one that was in place at the time –

Mr Richard Pengelly: Yes.

Counsel Inquiry: – of the outbreak, wasn’t it?

If we can look at page 6, please, and go to row DR6, we can see that:

“The health and social care sector [this is the risk that’s being identified] may be unable to respond to the health and social care consequences of any emergency (including those for which the [Department of Health] is the Lead Government Department) due to inadequate planning and preparedness which could impact on the health and well-being of the population.”

Tell us, Mr Pengelly, what oversight you would have had to the creation of the departmental risk register, and indeed, specifically, the risk which is identified here as risk 6?

Mr Richard Pengelly: There’s a rolling programme of work that would be undertaken throughout the year. It starts with the articulation of the department’s broad strategic objectives and – that would be set out in our annual business plan. Once we have established the strategic objectives, the risk register is then designed to identify what are the risks that may prevent us from achieving the objectives, as we’ve articulated them.

So the first stage in the cycle would be to identify the risks, as has been done here.

Counsel Inquiry: Yes.

Mr Richard Pengelly: The next stage then is to assess and, I’m sure we’ll come on to it, the likelihood and impact: the likelihood of that risk crystallising and, if it were to crystallise, the impact it would have.

Then we develop mitigating measures. So that, in a sense, is the planning cycle. It’s: identify the risks against the strategic objectives, assess the impact of the risk and what steps can we take to mitigate the risk. Then the rest of the reporting cycle is: are we delivering the mitigating actions that are necessary? And that would happen then.

There would be – it would come on a quarterly basis. We mentioned earlier the department’s top management group. It would come on a quarterly basis to that. It would also go on the departmental board agenda and the department’s audit and risk committee would specifically look at the risk register and provide some assurance.

Counsel Inquiry: Let’s look at pages 24 and 25, please, for more details on risk DR6. My Lady was taken through this yesterday during the evidence of Professor Sir Michael McBride, and we can see that under the second column, the risk(sic) and social care sector risk is set out again in full.

In the eighth column we can see the action that was planned with target dates and owners, and my Lady has been taken through that.

But I want to ask you the same question that was asked of Robin Swann and also Professor Sir Michael McBride: why column 9 is empty, were there any actions completed, and if so what was the completion date?

Mr Richard Pengelly: Yeah. The – my – forgive me, maybe this is speculation on my part. When I was describing the process, I was separating, there’s the planning stage and then there’s the reporting stage. My sense is that the version before us now is the document at an early stage in the year, at the completion of the planning process, when the risks had been identified and what the planned mitigating measures are. I certainly have a copy of this document that has column 9 completed and I think colleagues are providing that.

Counsel Inquiry: That hasn’t so far been provided to the Inquiry.

Mr Richard Pengelly: No, but I think steps are in place to do so, my Lady. That will be – so there is a version – a version of this document would have been made available to myself and colleagues in the top management team throughout the year to monitor progress against the column 8 actions.

Counsel Inquiry: Right. Are you able to explain to the Inquiry why that fuller version has not been provided so far?

Mr Richard Pengelly: I don’t honestly know. I think this was provided as part of the corporate statement from the department, which – you know, given that now I’ve left the department, I’m not sure about the methodology that supported that.

Lady Hallett: Forgive my interrupting, I thought you told me or Mr Keith told me that, parts of this document, that column had been completed.

Ms Blackwell: Certainly so far as the column 8 is concerned. If we can go over on to page 25 –

Mr Richard Pengelly: I think this version for some of the other risks that have been identified, it has been completed. It’s an omission just for this specific risk.

Ms Blackwell: Yes. Yes. Not for any of the risks that are set out and the action that’s planned in column 8 here for this risk, my Lady, but in relation to some of the other risks – this is department risk 6 – for some of the other risks the ninth column is completed, but not for this one.

Lady Hallett: That’s what I understood.

Ms Blackwell: Yes.

Lady Hallett: The reason for my question is: how could this be a document at an early stage of planning if other risks have got column 9 –

Ms Blackwell: Completed?

Mr Richard Pengelly: Forgive me, my Lady, as I said at the start, it was – there was a touch of speculation on my part. The bottom line is there should be a version with you that has column 9 completed. That does exist. And it’s an oversight on the part of the department that that isn’t in your possession.

Ms Blackwell: Right, we will await its arrival with great interest, thank you.

Elsewhere in this document there is what I’m going to describe as a crucial warning that the health and social care sector may be unable to respond because of difficulties anticipated in terms of resources.

Now, Professor Sir Michael McBride yesterday told my Lady that, in his view, the resources for the Department of Health around about this time and in the run-up to the pandemic were not enough to meet the demands of the department and that the issue persisted.

Is that something with which you agree, first of all, in terms of the level of funding that the department was receiving?

Mr Richard Pengelly: Yes, but could I, forgive me, firstly, just – in terms of terminology, and forgive me if I’m dancing on a pin here – the risk here isn’t an ominous warning.

Counsel Inquiry: No.

Mr Richard Pengelly: It is the identification of a risk that may or may not crystallise, in the specific context of resources.

Counsel Inquiry: Yes.

Mr Richard Pengelly: The common view certainly that I held, my top management team held, and, you know, across the health and social care sector, was that the resource position was a huge and material challenge to us, and we didn’t have sufficient resources to help us meet our strategic objectives.

Counsel Inquiry: Are you able to expand upon that and explain to my Lady in what way was the department receiving a shortfall of funding and what was suffering as a result of that?

Mr Richard Pengelly: In high level terms, and I can’t recall the exact figure, but the figure that Sir Michael used yesterday certainly resonates with me from my memory, that on an annual basis typically inflation, in terms of delivering health and social care, runs at about 6% per annum. Now, that would have been the figure before we’ve gone into the current period of high inflation.

Counsel Inquiry: Yes.

Mr Richard Pengelly: So the period in particular we’re looking at here, 2018/2019. So to run the same health service in year 2 as you did in year 1 you need a 6% increase. Typically throughout the period our budget was increasing by something in the region of 2% to 3%. So that meant year on year there was 3 percentage points of a squeeze in terms of the availability of resources.

Counsel Inquiry: I would like to ask a follow-up question about resources as well, please, and could we go back to page 14 in this document – thank you – and have a look at column 2, which sets out the detail of risk number 1:

“That available financial resources are insufficient and are not deployed effectively to ensure that essential services are maintained and the strategic objectives for the HSC and Public Safety are progressed …”

Again, you have explained that that is the identification of a risk rather than a warning, but were there concerns, certainly whilst you were in position as permanent secretary of the department, about the way in which resources were managed and the direction in which resources were focused within the department?

Mr Richard Pengelly: Yes, it wasn’t so much a concern about the way resources were managed, it was just the total quantum of resources that were available. If I go back, when I arrived in the department in 2014 the waiting list position was in a reasonable state. We didn’t have the very long waits that we currently see. The reason for that was that the resource position of the Executive had allowed additional money to be made available to the health service each year for what’s called the waiting list initiative, where there is a special initiative to try and increase activity.

As we moved past 2014 and the financial environment tightened, that additional funding for waiting list initiative disappeared. That meant – so the real manifestation of the financial crisis was that waiting lists started to escalate, and they escalated year on year up to the period we now face where it’s commonly reported Northern Ireland has the longest waiting lists across the United Kingdom.

Counsel Inquiry: Was there a concern within the department, though, that resources were not being deployed effectively?

Mr Richard Pengelly: Yes, the view within the department would be the reason we needed additional money to run a waiting list initiative was because the health and social care system wasn’t structured enough, wasn’t structured in the right way that we could meet the demands upon it.

The language we used was there was a mismatch between demand and capacity, and any transformation strategy, and I’m sure we’ll come on to talk about that, is fundamentally aimed to try to align capacity and demand. But for as long as the system faces more demand than it has the capacity to meet, waiting lists will be the obvious manifestation of that.

Counsel Inquiry: Well, I want to come on and deal with the Bengoa report, because, as my Lady heard yesterday, in November of 2015 the then Minister for Health, Simon Hamilton, announced that, in response to the recommendation in The Right Time, The Right Place report by Sir Liam Donaldson, he would appoint an expert clinically-led panel to have an informed debate and prepare a report on the best configuration of health and social care services in Northern Ireland.

Is that right?

Mr Richard Pengelly: That’s right, yes.

Counsel Inquiry: That was a review, as my Lady has heard, led by Professor Rafael Bengoa, who reported in October, I think, of 2016?

Mr Richard Pengelly: That’s right, round about.

Counsel Inquiry: Now, the resultant report covered a myriad of areas: inequalities, an ageing population, recommendations for an overhaul, really, of primary care and hospital services, a look at workforce. And recommendation 1 was that the triple aim of improving patient experience, the health of the population, and creating a system with better value, should be very forefront of the health and social care system; is that right?

Mr Richard Pengelly: That’s right.

Counsel Inquiry: My Lady has heard this morning from Baroness Foster that the absence of ministerial oversight and input into the recommendations of the Bengoa report meant that unfortunately, at the collapse of the power-sharing agreement in January of 2017, the recommendations had not been implemented and, as far as she was aware, had not been implemented at the time that Covid hit.

Do you agree with that assessment?

Mr Richard Pengelly: I think I would take a slightly different journey to reach – I think the broad conclusion there is that the necessary transformative work hadn’t taken place in terms of the Northern Ireland health and social care system. I would absolutely agree with that. But if I can explain –

Counsel Inquiry: Yes, please.

Mr Richard Pengelly: – the journey was a little different.

Counsel Inquiry: I should also say, to put the full picture, that when questioned about this before my Lady yesterday, Professor Sir Michael McBride described that what had happened was a mandate had been agreed and building blocks had been set up, but that no further work had been done thereafter. So I tell you that just to put it in its full context.

Mr Richard Pengelly: Okay. The … I think the point has been made previously that one thing we’re not short of in the Northern Ireland health and social care system is reviews about how we improve. The traditional issue has been the implementation and delivery of those reviews.

Counsel Inquiry: Yes.

Mr Richard Pengelly: At the point I arrived in the department the live piece of work at that time was a document called Transforming Your Care, which had been a previous attempt at transformation. I think, from memory, there was something in the region of 70 plus recommendations, about half of which had been implemented at that stage. The Liam Donaldson work was commissioned by the then health minister in response to a specific set of circumstances that we don’t need to labour. But it meant then we had two live documents, each of which were trying to chart a pathway towards transformation.

The then minister, Simon Hamilton, thought it would be useful to commission a clinically-led piece of work that Rafael Bengoa had chaired, and there was input from, you know, a consultant surgeon on our system, a general practitioner, a former chief executive of one of the trusts. But the Bengoa report was never designed to be the transformation strategy that would be implemented. It was an input to the then health minister.

Now, by the time Rafa reported the health minister had changed and Michelle O’Neill was in post. But what we did towards – in the autumn of 2016 was we effectively took the outstanding recommendations from Transforming Your Care, the live recommendations from the Liam Donaldson piece of work and the Bengoa recommendations, and we developed the Delivering Together transformation strategy, which became the health minister’s blueprint for transformation.

That was presented to the Executive and agreed in October 2016.

Counsel Inquiry: So just to interrupt you, if I may, that piece of work and the presentation of that to the ministers therefore must have taken place a very short time after Sir Rafael Bengoa produced his report?

Mr Richard Pengelly: Yes. It was a very short time after the formal receipt of his report, but we had been working very closely with Professor Bengoa in the run-up to the formal delivery of the report and he had shared with us in detail the direction of travel that he was making in terms of recommendations. So we had a good line of sight on that.

Counsel Inquiry: I’m sorry I interrupted your flow.

Mr Richard Pengelly: The key point in terms of where I have a slightly different perspective on the journey, the Delivering Together transformation strategy was a ten-year transformation journey. It included, at the point of agreement, 18 actions that would be undertaken in the early stage of that ten-year journey.

Counsel Inquiry: When did the ten-year journey begin?

Mr Richard Pengelly: 2016, so it was –

Counsel Inquiry: I see.

Mr Richard Pengelly: – Delivering Together 2026 was the full title of it.

Counsel Inquiry: Yes?

Mr Richard Pengelly: Those 18 actions – the department, if I roll forward to May 2019, so well into the period where there was no Executive in place, a progress report was published, all 18 of those actions that were in the original document were marked as completed and achieved. So a huge amount of preparatory work had taken place in the period with no ministers. The important point is – but in a ten-year transformation journey, the first couple of years are putting the building blocks in place and not the big strategic decisions which would follow.

So those actions were delivered, but they alone were not delivering the strategic transformation of the service. So I think I end up in the same place but albeit a slightly different journey to it.

Counsel Inquiry: Professor Sir Michael McBride said this yesterday:

“… we put together the building blocks, we did some very good work in terms of what we would need to do, but there were clearly elements of this that required ministerial decision, and those areas that required a ministerial decision … were not possible [and so] it was not possible for us to progress.”

Speaking, as he was asked to do, about the time period between January of 2017 and 2020 and the lack of any ministerial oversight.

Mr Richard Pengelly: Yes.

Counsel Inquiry: So what could have been done in that time period, had there been ministerial oversight, that couldn’t be done?

Mr Richard Pengelly: Just to be clear, I’m not contradicting or disagreeing with what – the evidence Sir Michael gave yesterday. I think the point I’m getting at, and forgive me if it’s rather precious of me, but at a point in time when I was the chief executive of health and social care in Northern Ireland, I think it’s really important to acknowledge that, despite the absence of ministers, a huge amount of energy and work went in by colleagues across the system to achieve transformation. And I say that to rebut the notion that nothing happened in the absence of ministers. Lots of things happened, but the next stage of that would have been when we had done the preparatory work, and we’d delivered – and some of those 18 actions were reviewing the configuration of particular services – when we had done the preparatory work to undertake the review and develop what a refreshed and reformed service might look like, that required ministerial agreement to make those changes.

So I’m trying just to differentiate, preparatory work was happening, but the strategic change still required ministers and that couldn’t happen. But it wasn’t that we weren’t moving.

Counsel Inquiry: It needed ministerial input, for instance, to arrange and to ensure that there was significant additional investment or legislative changes or structural changes within the department, didn’t it?

Mr Richard Pengelly: Yes, and – or a combination of all those.

Counsel Inquiry: Yes.

Mr Richard Pengelly: A lot of the actions were things like developing a new workforce strategy, because having an effective and – a workforce of the right size is critical to the delivery of care, but when you have the workforce strategy and you know how to get the workforce in place, it requires ministerial input to get the resources in place to be able to afford that workforce with the right skillset.

Counsel Inquiry: Yes. Recommendation 2 in Professor Bengoa’s report is that the health and social care department should formally invest, empower and build capacity in networks of existing health and social care providers.

I mean, that was something, looking at it starkly, and the words that I’ve just read out, that would have required the input of ministers to take it forwards, wouldn’t it?

Mr Richard Pengelly: There’s a continuum there. Building the network – and at one level it’s a network of clinicians across the health and social care sector in Northern Ireland. The end point of building a network is the network has to give effect to change. One of the issues, and it’s shorthand in terms of the public debate, is that there are too many hospitals in Northern Ireland. I think that’s shorthand for: we have too many places where we have small units delivering care. And if there was a strategic approach to that, that would be the end point of the development of those clinical networks. That end point absolutely would require ministerial endorsement and without it we couldn’t progress. But the level of engagement leading up to that could happen. So it’s not that nothing could happen, but you can’t reach the end point without ministers and that could never happen.

Counsel Inquiry: No, I’m not suggesting for a moment that nothing did happen. But what I’m asking you, I go back to my previous question, is: was there, in relation to any of the 18 recommendations that you’ve identified, a period of time during January of 2017 and January of 2020 when the preparatory work had been completed or was ready for ministerial input but the lack of ministerial oversight, given the collapse of the power-sharing agreement, meant that that couldn’t happen?

Mr Richard Pengelly: Yes, we reached some issues, and one of the issues that I can remember specifically is the reconfiguration of stroke services, for example. We reached the point that we had to hold that until ministers returned because we couldn’t – and there was the opportunity for a quantum increase in the effectiveness of the provision of stroke care with some restructuring, but a very contested issue that required ministerial input.

Counsel Inquiry: All right, thank you.

Just before we break, I want to develop your evidence on this issue of a lack of ministerial oversight during the Executive’s suspension, because what you tell us in your witness statement, Mr Pengelly, is that your general views on the systems, processes and structures for pandemic preparedness in Northern Ireland were that they were robust and appropriate and that you couldn’t identify any respect in which they could be improved.

Do you still stand by that?

Mr Richard Pengelly: Yes. The point I was making there, in terms of the system structures, that it’s predicated, as we’re a constitutional part of the UK, on a UK model, that flows through all regions. We’re heavily linked into that. We have a mechanistic and structural approach to it which we follow. So, in terms of that, the logistics and the mechanics of that, absolutely.

Counsel Inquiry: And that you are not aware of any issues that would have gone to either ministers or an Executive had they been in place between 2017 and 2020, and that in that context it couldn’t be asserted that the political hiatus had any direct impact on planning and preparedness. Do you still stand by that?

Mr Richard Pengelly: But just to be clear, if my language wasn’t completely clear, that’s in the context of emergency planning, it’s not the broader transformation piece that we’ve touched on. In that three-year period there were no issues about the work that we were doing in the department as regards the development of our emergency response plan or emergency preparation that, had a minister been in place, they would’ve landed on the minister’s desk.

Ms Blackwell: My Lady, that’s slightly earlier than normal but I’m about to move on to a different topic.

Lady Hallett: Certainly.

Can I just ask one question before we break, Mr Pengelly. I don’t know if you heard Baroness Foster’s evidence about when you have a collapse in the power-sharing agreement and experts in the field discover that there’s a gap in resilience or preparedness, that that should be relayed to Westminster or Westminster should know about it and therefore intervene.

What would happen, in your experience, if, as permanent secretary at the Department of Health, as you then were, that you discovered such a gap, how would you go about making sure the Westminster government knew about it?

Mr Richard Pengelly: My Lady, if we’re talking about a gap that we felt was outwith our powers, because it would require a minister, and if it was such a critical nature, we would routinely be engaged with colleagues in the Northern Ireland Office. And even if in the current climate, where there are issues of a critical nature that we feel, as permanent secretaries, we don’t have the power to take decisions on them, we would engage with the NIO with a view to either asking the Secretary of State to take the appropriate legislative power to make that decision or to find an alternative way to deal with it. So it would be through that dialogue.

Lady Hallett: Were you aware of anybody in the department or the Chief Medical Officer or anyone engaging with the Northern Ireland Office about any possible gaps in resilience or preparedness?

Mr Richard Pengelly: I wasn’t, but I would assume that, to the extent that such a conversation was needed, it would be between colleagues in the Executive Office and the Northern Ireland Office rather than the Department of Health. I think it would more be the civil contingencies planning work that sits with TEO rather than the departmental activity.

Lady Hallett: Right.

Thank you very much, I shall return at 1.45.

(12.42 pm)

(The short adjournment)

(1.45 pm)

Lady Hallett: Ms Blackwell.

Ms Blackwell: Thank you, my Lady.

Mr Pengelly, I’m going to ask you to keep your voice up a little bit, you’re very softly spoken and a request has come in for you to perhaps move a little closer, as you have done, to the microphone. Thank you very much.

The Inquiry has heard that Robin Swann took up his role as Minister for the Department of Health on 11 January 2020, and he told my Lady last week that pandemic readiness was referenced in his first day briefing, which I would like to bring up on screen, please. INQ000188802.

This is the first page, and in fact I think the document only runs to two paragraphs.

“Under the NI Civil Contingencies Framework … the Department has been identified as the Lead Government Department for responding to the health and social care consequences of emergencies arising from …”

Then we see the third bullet:

“- Human infectious diseases, eg Pandemic Influenza …”

3.2:

“This requires the Department to not only develop and maintain appropriate emergency plans and response arrangements to manage its own response to an emergency, and that of its associated agencies and NDPBs, but also to co-ordinate the inter agency aspect of civil protection for those emergencies for which it has been designated lead. In such circumstances the Minister would be required to lead, direct and co-ordinate the response for [Northern Ireland], reporting as necessary to the Executive under the Northern Ireland Central Crisis Management Arrangements …”

Let’s just go down to check if there’s any more. We can see that there is another paragraph on this page:

“EU Exit”:

“9.1. The primary focus for [the Department of Health] has been to ensure the Health and Social Care Sector in Northern Ireland was prepared for EU Exit so that patient care was paramount. Preparedness was progressed across three workstreams …”

Including emergency planning.

And:

“9.2. The Department worked closely with the Executive Office, the Department of Health and Social Care in England … and the other Devolved Administrations as part of these preparations.”

So if we can zoom out, please, two sections of the first day briefing, emergency planning and EU exit, Mr Swann confirmed to my Lady, last week, that this briefing was not accompanied by any other documentation or guidance to expand what we see on this one sheet.

Can you explain to us, please, Mr Pengelly, how this briefing was created? Did you have a hand in it?

Mr Richard Pengelly: The briefing would have originated really on a bottom-up basis and we touched earlier on the structure of the department and the number of groups led by the likes of Sir Michael and his peers across the department.

It would have been prepared, that would have been the building blocks for it at group level, where they would have had transparency on the live issues that warranted just being aired with the minister on his or her arrival into the department. So it would have been prepared.

Given the pace that it was prepared, I cannot recall whether it came to me to approve before it went to the minister or it came to me in parallel with going to the minister because, you know, things happened quite quickly in terms of restoration back in January 2020.

Counsel Inquiry: If it had come across your desk would you have noted that it’s quite sparse in the detail?

Mr Richard Pengelly: I would have noted that, but I wouldn’t have been critical of that, because the purpose of the first day brief is just to sight the minister, it’s not a document in which we convey a request for any decisions, and the first day brief is really a pack that will be given to the minister on appointment, basically as their homework to read before they arrive in the department, at which point a series of meetings with individual to go into a bit more detail on some of the areas will be discussed.

Counsel Inquiry: Well, this isn’t a pack, is it, it’s a sheet of paper, and Mr Swann has confirmed that this was all that he received, certainly in terms of emergency planning.

And where on the document does it direct Mr Swann to engage in additional reading in order to bring himself up to speed with what the emergency planning issues are?

Mr Richard Pengelly: Well, this is one sheet which is an extract from the first day brief. The first day brief was not one piece of paper.

Counsel Inquiry: But the first day brief didn’t contain anything else in terms of emergency planning, did it?

Mr Richard Pengelly: No, but it contained a lot of detail on other areas, and it was just a sighting document, and – and I don’t have access to it now, but I imagine the cover sheet that went with the first day brief would have made reference to it being supplemented and followed up with discussions and dialogue across the department, which would be the routine practice.

Counsel Inquiry: Not only did Mr Swann tell the Inquiry that this document was all that he received by way of emergency planning information, but also that during his time in office he was not made aware of the department risk register. So that appears to be something that isn’t contained within the first day briefing and, according to Mr Swann, wasn’t brought to his attention at all during his time in office. Do you find that surprising?

Mr Richard Pengelly: Not necessarily, because – I mean, if we think back to January 2020, when Minister Swann took up post, at that stage the immediate crisis that an incoming health minister was dealing with was the industrial action, and all energy had to be focused on that. So there is an issue just about pure bandwidth and how much information you can bombard an incoming minister with.

So it’s always a balance between trying to get something that’s proportionate but sufficiently detailed.

In terms of the risk register, that’s an issue that is dealt with at a corporate level by myself, and it was my responsibility as an accounting officer. I didn’t feel the need to escalate that to the minister. Again, that’s an issue just about trying to manage, you know, a very, very demanding workload and the volume of paper that routinely goes to the minister.

Lady Hallett: Could I just intervene here? I’m afraid I didn’t understand your answer about who would have prepared the briefing, Mr Pengelly, and I’ve looked at the transcript and I’m afraid I still don’t follow.

You were the permanent secretary of the department and you had an incoming minister. Wouldn’t you have had overall charge of making sure the briefing was adequate?

Mr Richard Pengelly: Yes, I would have had overall responsibility, but – I can’t recall, my Lady, the exact timeline, but in the run-up to the restoration, within each department we would commission first day brief from what we called each “business area”, but the nature of the first day brief is to sight the minister on the nuances and particulars of that business area, so that’s where the knowledge base resides. That is pulled together and then it would come to the permanent secretary for overall approval.

I’m just – you know, I want to avoid erroneously misleading you in this. I can’t recall specifically whether this iteration of the document came to me to formally approve before it went to the minister or, given that it was a document for information rather than decision-making, given the pressing time constraints, it might have been compiled and sent to me in parallel with going to the minister, on the basis that I read it at the same time as him and if there were any issues in it I noted I could raise directly with the minister, in terms of clarification.

Lady Hallett: But if you read that as a new minister, you would think, forgive the expression, everything was hunky-dory. It wouldn’t have alerted the minister to any potential problems, would it, or risks?

Mr Richard Pengelly: In terms of just focusing on emergency planning? But this section of the document was just citing the fact about the departmental responsibilities. The emerging issue at that stage about the evolving position in Covid, I think at this stage, in January, it was so fast-moving that it was captured through dialogue with the minister, because anything that was written down and sent would have been out of date by the time it had arrived with the minister.

Lady Hallett: Sorry for interrupting.

Ms Blackwell: Not at all, my Lady.

As my Lady has observed, it doesn’t indicate that there are any difficulties perceived in the area of emergency planning. There’s nothing on this document about the National Risk Register or the National Security Risk Assessment. There’s nothing about the PFRB workstreams which had been set up but then paused for 12 months because of Operation Yellowhammer. There’s nothing about any previous learning or identification of recommendations such as that that came out of Exercise Cygnus. And there’s nothing at all about the existence of a departmental risk register.

Is your evidence, Mr Pengelly, that those matters would have been brought to Mr Swann’s attention in subsequent conversations?

Mr Richard Pengelly: To the extent that they needed to be, but if we take – this is, I presume, section 8. I mean, the numbering seems to have gone a bit awry on this document, because EU exit is section 9, whereas this is section 3 –

Counsel Inquiry: Yes. This is the document that we’ve received from your department, your old department, the Department of Health, and we have been led to understand that there was nothing else in the briefing on emergency planning apart from these two paragraphs.

Mr Richard Pengelly: My point is that I don’t think that’s unreasonable, because the purpose of a first day brief is to sight the minister. The reason I’m making the specific reference to the numbering is, if I assume that this is section 9, if the emergency planning section had been unpacked with all that granular detail in the way you suggest, that would have had to happen – I mean, a similar approach would – could be taken under that approach for every other section, and a short, high-level document that is meant just to sight an incoming minister would become an unmanageable, unwieldy and virtually unreadable document in which any important issues could be lost.

Counsel Inquiry: Accepted, but this does not telegraph Mr Swann to other documentation, to other pieces of guidance or pandemic planning, in order for him to inform himself as to the position that was in place at the time that he came into the role of Minister for Health?

Mr Richard Pengelly: I accept this document doesn’t do that, no.

Counsel Inquiry: Is it your evidence, Mr Pengelly, that you personally briefed Mr Swann on the matters which we’ve agreed were not in this document?

Mr Richard Pengelly: No, I didn’t personally brief him. The point is that an incoming minister would have access and would read the first day brief, which is the very high level overview. That would be followed up with the detailed engagement with the group heads and they would make a judgement call about the extent to which they needed to go into the detail of the sorts of issues that you have referred to.

So that – there would have been a supplementary briefing, because, as came out yesterday, this is an area that was in Sir Michael’s directorate. Sir Michael then would have had a more detailed briefing with him, and I don’t know that – you know, sitting here, to what extent he would have unpacked these issues.

Counsel Inquiry: Does the lack of detail in the briefing and what I’m going to describe as a subsequent failure from the permanent secretary to verbally brief the incoming minister on these matters indicate that there was an expectation that the department could be run without the involvement of ministers?

Mr Richard Pengelly: No, not at all. It was an issue about prioritisation and focus, because there was a huge work programme for an – an incoming minister to a department that accounts for over 50% of the public expenditure in Northern Ireland that had been without a minister for three years, so it was a question about prioritisation and ensuring the ministerial focus on the key areas, and, as I’ve mentioned, in the context of health at that time the number one issue which consumed a huge amount of time for the incoming minister was trying to settle the industrial dispute, which was really crippling at that stage to the health service.

Counsel Inquiry: All right.

I want to ask you about exercises, please, and whilst appreciating that an exercise that my Lady heard about yesterday, Goliath, took place in 2003, so well before your involvement as permanent secretary in the department, nevertheless it was a Department of Health and Health Protection Agency exercise to explore the Northern Ireland response to SARS in order to identify the potential for improvements and amendments.

Professor Sir Michael McBride told my Lady yesterday that although he had not, by that time, been appointed as the Chief Medical Officer, in actual fact he was involved in the exercise in another capacity.

The lessons identified from Exercise Goliath included the following: that operational contact tracing mechanisms with the potential for scaling up needed to be developed, that hospital surge arrangements needed to be developed, that PPE had not been distributed according to plan, and that there had been little discussion heard during the course of the exercise on primary prevention to avoid further spread of the disease.

These problems were identified 17 years prior to Covid-19 hitting, and were perhaps prescient of the matters which will come to the Inquiry’s attention in Module 2.

But does the fact that – I think, if asked, you will say that this exercise wasn’t brought to your attention at all, was it?

Mr Richard Pengelly: No, that’s right.

Counsel Inquiry: No. Does the fact that you didn’t know about any of these matters during the time that you held the role of permanent secretary in the department reflect the fact that there is a problem with corporate memory?

Mr Richard Pengelly: I can fully understand the premise of the question. I’d be reluctant to jump to that conclusion, because two of the issues in particular that you mentioned – the development of contact tracing capability, there was a contract – contact tracing capability in the Public Health Agency at the time of the Covid pandemic. The issue was the scale that was subsequently needed. So I don’t understand the – you know, the link between the point that was made, so clearly something was done about developing contact tracing.

Separately, surge plans, now there’s a separate issue, which was touched on yesterday and we may come to, about some of the surge planning work that had been parked because of EU exit preparations, but surge planning – surge planning work had been taken forward.

So without seeing the detail I couldn’t conclude the extent to which corporate memory had sufficiently and adequately addressed Exercise Goliath.

Counsel Inquiry: But it’s a simple issue: this exercise had taken place prior to you coming into the role of permanent secretary, you knew nothing about it, so whether or not certain workstreams had been taken forwards or not, does the fact that this exercise and its recommendations had not been identified to you in your role as permanent secretary indicate that perhaps there is a disconnect, that something should be in place by way of a procedure to ensure that these lessons learned and recommendations are captured and passed on to people who need to know about –

Mr Richard Pengelly: And I’m not trying in any way to be unhelpful, but if I offer the scenario that – I think it was 2003 this exercise took place.

Counsel Inquiry: Yes.

Mr Richard Pengelly: If the assessment was that those particular issues about developing surge capacity and looking at contact tracing, for example, by 2010 they had been addressed, I don’t think that a new permanent secretary four years after that would necessarily be briefed on that. If something had arisen, been considered and the assessment was that it had been adequately dealt with, because this was 11 years before I took up post, and if, you know, everything– taking it to a ludicrous extreme, if everything that had happened in that 11-year period was the subject of briefing an incoming permanent secretary, the here and now issues might risk being squeezed out.

Counsel Inquiry: So is your answer that it was too far in the past for you to expect to be knowledgeable about it?

Mr Richard Pengelly: No, no, sorry. Forgive me if I’ve … my answer would be: if there had been important and critical recommendations in 2003 that hadn’t adequately and sufficiently been acted upon by 2014, that is an issue that could and should have been put on my desk. What I’m saying is that recommendations in 2003, if the assessment is in the intervening period they had been adequately dealt with, there would be no need to put them on my desk in 2014. And I don’t, sitting – I don’t know the answer as to how well or not they were addressed.

Counsel Inquiry: Well, were you briefed about the report that was published into the swine flu pandemic which happened in November of 2010, which was four years before you coming into post?

Mr Richard Pengelly: I cannot recall if I received a specific briefing on it. I was aware, possibly aware, because in 2009, although not in the health service, I was working in public expenditure and was working closely in terms of the financial package that was being made available to the Department of Health to respond to the H1N1 issue. So I – coming into health, I had an awareness, but I would need to go back and look at the record in terms of the exact nature of any briefing that was given to me.

Counsel Inquiry: Given your evidence on this subject, if there were outstanding actions that needed to be taken forwards from that report and from the Northern Ireland-specific recommendations that were contained within the report, and that you hadn’t had those brought to your attention, would that be concerning?

Mr Richard Pengelly: Sorry, not to throw another caveat. It’s the extent, the significance. If recommendations had been made and not adequately implemented, if work was ongoing, it mightn’t have reached the stage of escalation to the permanent secretary at that stage. It certainly should have been a live issue in the department, with monitoring and reporting about the progress of it. But if we follow the position, it was said earlier that there’s a hierarchy and the escalation – there needs to be a filter mechanism – whether they’d have reached that threshold at that stage in terms of the work, ultimately yes, but just at the point of arrival I’m not sure.

Counsel Inquiry: Certainly you were in post at the time that Exercise Cygnus took place, weren’t you?

Mr Richard Pengelly: Yes.

Counsel Inquiry: 2016, and the Department of Health participated in the exercise that took place in October of that year, and the Inquiry has heard evidence that as of June 2020 there were 14 of the 22 recommendations that came out of Exercise Cygnus which had not been fully implemented. Is that a figure that you recognise?

Mr Richard Pengelly: The figure I recognised for Exercise Cygnus is ten recommendations, of which six were implemented.

Counsel Inquiry: For Northern Ireland specifically?

Mr Richard Pengelly: Yes.

Counsel Inquiry: Well, can we look at the Department of Health Exercise Cygnus lessons learned report.

Thank you, it’s at INQ000188775.

This is a specific Department of Health document and I want to look specifically, please, at page 2. We can see there that the contents of the report include an introduction, regional health command centre strategic cell analysis and recommendations, emergency operations centre analysis and recommendations, evaluator analysis and recommendations, Exercise Cygnus planning team comments, and feedback on exercise organisation and outcomes.

Can we go to page 3, please. Thank you.

Now, we can see that the objectives at 1.2, the UK objectives were initially agreed with the four UK countries as follows:

“To exercise organisational pandemic influenza plans at local and national levels in the [UK].

“To exercise co-ordination of messaging to the public.

“To exercise strategic decision-making processes around managing the wider consequences and cross-government issues at both local and national levels …

“To exercise the provision of scientific advice, including SAGE …”

Then the following additional objectives were added by England in 2016 but these were not being tested by the devolved administrations, and if we can go over the page, please:

“To explore the social care policy implications during a pandemic.

“To explore the use of the 3rd sector to support the response.

“To exercise the co-ordination of resources to cope with excess deaths in the community.

“To identify issues raised around the impact of flu in the prison population.”

Are you able to explain to the Inquiry, Mr Pengelly, why the issues at numbers 5, 6 and 7 on this document were not taken forwards by the devolved administrations?

Mr Richard Pengelly: I – in terms of item 5, I suspect that because the structure for social care is so radically different between Northern Ireland and England – this was predominantly an English-led exercise – I cannot recall and I certainly haven’t read anything in preparing for today that gives me the specific detail of why items 6 and 7 weren’t taken forward.

The excess deaths I know was an issue more for the Department of Justice than the Department of Health, which may be a partial explanation. But, sorry, I can’t add any more than that.

Counsel Inquiry: All right.

Can we replace this document, please, with INQ000006210, which is an undated document, but it appears to be the record of a roundtable discussion with devolved administrations coming out of Exercise Cygnus.

If we look at the background to the exercise itself, those details are familiar. The third bullet point underneath the heading “Background” is:

“The DAs [devolved administrations] participated throughout the exercise, and were comprehensively involved in the planning.”

There is then a paragraph dealing with the exercise itself. If we can move down the document, please, we can see DA feedback, and the penultimate bullet point under this paragraph reads that:

“Although the [devolved administrations] were complimentary of the planning on clinical management, some felt it was at the cost of social care.”

Can you explain, Mr Pengelly, what was meant by those concerns?

Mr Richard Pengelly: I can’t, and I don’t know whether “DAs” is used there just as a generic term or, given that the previous point about – the items that you read on social care – whether that is all the DAs or some that could be specific to Scotland, Wales. But, sorry, I’m not familiar with the detail behind that point.

Counsel Inquiry: Do you remember ever reading this document?

Mr Richard Pengelly: I can’t specifically remember, sitting – this document. But, you know, re-reading in preparation for today, there was clearly a familiarity about it. But you will appreciate the volume of documents that land on the desk, particularly going back seven years.

Counsel Inquiry: At the time of this exercise and at the time that this document was prepared – because although, as I said, it’s undated, it must have come in a relatively short period of time after the exercise itself – there was a health minister in role in Northern Ireland, wasn’t there? Michelle O’Neill was in place from May 2016 to March 2017.

Mr Richard Pengelly: That’s right.

Counsel Inquiry: And as principal adviser to the minister of health, do you accept that it would have been your role, your duty to bring to her attention the lessons learned and recommendations from Exercise Cygnus?

Mr Richard Pengelly: Well, it would have been a responsibility that I carried, but it doesn’t necessarily mean that I discharge each of those responsibilities personally. And with the other point that, if this is undated, I’m not sure whether this was available pre or post Michelle O’Neill’s departure from the department.

Counsel Inquiry: Do you remember ever discussing Exercise Cygnus with Ms O’Neill?

Mr Richard Pengelly: I don’t recall discussing it in detail with her, I suspect it was mentioned in terms of some broader issues. But, again, this was a specific responsibility within the Chief Medical Officer’s group where the granularity, and the colleagues who had actually participated in the exercise, so any briefing would have more come from that source.

Counsel Inquiry: If you didn’t become involved yourself in the briefing, would you accept this, Mr Pengelly: that, given the matters that were discussed and the lessons that were identified to be learned from Exercise Cygnus, it would have been important to have brought Ms O’Neill into a certain level of knowledge about the exercise itself and the report?

Mr Richard Pengelly: Oh yes. Yes, absolutely.

Counsel Inquiry: All right, thank you. We can take that down now.

I’d like to seek your views on evidence that was provided to my Lady from Professor Sir Michael McBride in terms of the island of Ireland being a single epidemiological unit, and the fact that he said there would be significant benefit in conducting testing of emergency response plans and exercises on a north-south basis involving respective Northern Ireland and Republic of Ireland health departments.

Do you agree with that?

Mr Richard Pengelly: I would absolutely agree with it, although I would have some concerns about the practical out-working of that, because at the moment if we plan and prepare on a separate jurisdictional basis, that there’s a suite of UK preparations and a suite of Irish preparations, if they were fundamentally different in nature, I just wonder about coming together to test them in practical terms, how that would happen and how beneficial. But the principal point about greater collaboration and working together I think the point was well made by Michael.

Counsel Inquiry: Thank you.

Then finally I’d like to take you to two draft reports. The first is a draft report from the Department of Health emergency planning branch which we have at INQ000188797, and it’s titled “A review of health gold command response to SARS-CoV-2 or Covid-19”.

We can see that this is a document that’s dated 11 November of 2021, so outwith our period, but what I would like you to consider, please, is what we had at page 6 of this report, and to take this into consideration in terms of planning and preparation for a pandemic.

Thank you. If we look at the top of the page, we can see in relation to what didn’t go so well. There is a reference to the release of PIPP stock:

“There was a sense of panic across the HSC and independent sector in relation to PPE and an expectation that [the Department of Health] would release its entire emergency stockpile … to BSO without appropriate justification, including items already in good stock across trusts.”

If we go down to recommendation 2:

“Recommendation … that roles and responsibilities for managing PPE during a pandemic, including when and how the emergency stockpile is used, need to be established and embedded in emergency plans.”

Does that recommendation and what lies before it and behind it suggest that the emergency plans in relation to the establishment and embedding of PPE were not sufficient?

Mr Richard Pengelly: This isn’t an issue, because it comes after the end of the module. I accept its relevance, but just to say that I haven’t gone back and, in preparation for today, refreshed myself fully on this. My sense of – that this recommendation is much more about clarifying the position to stop the sense of panic that was referred to, as opposed to there not being a mechanistic and sensible approach to actually management of the PIPP stock.

Counsel Inquiry: Well, that might be what created the necessity for a recommendation to be made, but the recommendation, with respect, is clear, that roles and responsibilities need to be established and embedded in emergency plans. My question is: does that suggest that they hadn’t been sufficiently established and embedded in emergency plans?

Mr Richard Pengelly: I – forgive me, but I would need to go back and refresh the document. My clear sense is that roles and responsibilities for managing that stock were very clear, so I don’t know whether this recommendation is saying – is trying to suggest there was a lack of clarity about those roles and responsibilities, which I would push back against, or whether it’s simply saying that those roles and responsibilities, although clear, need to be better articulated in emergency plans. I’m just not sure of what – the exact point that’s being made there.

Counsel Inquiry: All right.

Well, this was the review of the gold command response, and perhaps we don’t need to put up the document, but there was also a debrief in terms of the silver response, which also has a similar – I’m going to suggest – recommendation in that at page 2 it says:

“It is strongly recommended that a review is undertaken on how the emergency stockpile is controlled and managed regionally.”

Did you, in your role as permanent secretary, ever consider whether or not there was sufficient planning and clarity in terms of the level of PPE, where it was kept, and whether or not it was easily available in the event of a pandemic?

Mr Richard Pengelly: If I could separate the issue. There’s issues about PPE during the pandemic, which I suspect we’ll want to leave –

Counsel Inquiry: Yes.

Mr Richard Pengelly: – and come back to in future modules. In terms of the preparedness work –

Counsel Inquiry: Yes.

Mr Richard Pengelly: – there was no issues that I was ever drawn into about any lack of clarity about roles and responsibilities and where oversight and management of that stock lay. That was a clear responsibility of the CMO group and, as far as I was aware, there was clarity throughout the department and the business service organisation about where that responsibility lay and what the approach to applying for and securing any release of that stock, what those mechanisms were.

Counsel Inquiry: So if those were concerns held by members of your department, that was certainly never brought to your attention?

Mr Richard Pengelly: Not at the planning and –

Counsel Inquiry: Prior to –

Mr Richard Pengelly: – stage, no.

Ms Blackwell: – the onset of Covid. Thank you.

My Lady, that concludes my questioning and, as I understand it, there are no questions suggested by any of the other core participants, and so that concludes Mr Pengelly’s evidence.

Lady Hallett: Thank you very much indeed, Ms Blackwell.

Thank you, Mr Pengelly. See you in the next phase.

The Witness: Thank you.

(The witness withdrew)

Ms Blackwell: My Lady, that concludes the evidence for today, although I should say although we’re having an early day, we have a lot of evidence to get through tomorrow, so we will be working hard behind the scenes.

Lady Hallett: Well, even the best laid plans can sometimes have a gap, so I’m sure that a lot of people will be grateful for a slightly early day.

10 o’clock tomorrow morning.

Ms Blackwell: Thank you very much.

Lady Hallett: Thank you very much.

(2.22 pm)

(The hearing adjourned until 10am on Wednesday, 12 July 2023)