10. Submissions on Behalf of Scottish Ministers by Ms Drysdale KC

Ms Drysdale: Good afternoon, my Lady. I appear with Julie McKinlay advocate, on behalf of the Scottish Government.

My Lady, the Scottish Government wish to acknowledge the scale of the loss and suffering of those in Scotland and the rest of the United Kingdom during the pandemic and recognise the central importance of the bereaved and all those affected by the pandemic to the Inquiry process.

In this context, the Scottish Government wish to emphasise their full commitment to the Inquiry to ensure that the response to the pandemic is properly scrutinised.

The Scottish Government wishes to assist the Inquiry, to participate fully in it, to listen to the evidence and to learn lessons for the future.

My Lady, I wish to address you on five key themes, which are: devolution, intergovernmental relations, data, public health communications, and inequalities.

Turning to the first of these, my Lady, devolution. The Scottish Government’s decisions and actions in relation to its devolved responsibilities will be examined, of course, in Module 2A. However, devolution forms the context for the decision-making of governments in the UK and is therefore also relevant to Module 2.

My Lady, devolution does not necessarily imply difference, nor does a reserved or centralised decision-making necessarily imply uniformity.

The Scottish Government’s strategic objective in responding to the pandemic was to contain and suppress the virus, to minimise the overall harm it could do, taking into consideration the available scientific, clinical and public health advice. Its engagement with the UK Government was undertaken with that objective.

My Lady, the Scottish Government recognised the harms caused by the impact of the pandemic and the government response. A key part of that was consideration of the four interrelated harms which were: direct Covid-19 health harm, other health harm caused by the pandemic, societal harm, and economic harm.

Devolved control of the public health response was crucial to the effective handling of the pandemic in Scotland. The Scottish Government respectfully submits that the Inquiry should exercise caution in considering the merits of devolution as a political concept, which is a constitutional settlement.

The issue of the operation of devolution is relevant to the pandemic and response, but the merits of devolution are an issue that is collateral to the pandemic. Devolution allows the people of Scotland to choose political representatives that reflect their views, and the Scottish Ministers are accountable to the Scottish Parliament rather than to the UK ministers.

There is a close connection in Scotland between the devolved powerless and the administrative benefits of a cohesive and efficient system. The close connection ensures clear lines of democratic accountability which are essential to good government.

My Lady, it was for the devolved governments rather than for the UK Government to take decisions about devolved matters, including NPIs, and to be accountable to their respective legislatures and electorates. Given the widely varying geographical and epidemiological circumstances across Scotland, and conscious of the need to balance the impact on social and economic activity of measures necessary to suppress virus transmission, the Scottish Government took the approach of tailoring restrictions to local circumstances.

The Scottish Government took decisions at all times based on its best assessments combining evidence and judgement of what were the most appropriate actions to minimise the harm of the pandemic to the Scottish population.

Naturally the Scottish Government recognises that devolution must be accompanied by effective arrangements for co-operation between the four nations of the UK, and the Scottish Government’s objective in engagement with the UK Government and the other devolved governments was not uniformity of approach, which would not have been appropriate or proportionate, but rather co-operation on matters of mutual interest and where there was an interface with devolved decisions.

Overall, the Scottish Government considers that there were benefits of devolution in the context of the pandemic response due to subsidiarity, with decisions taken at the lowest possible level, reflecting regional variations and promoting trust and compliance with restrictions.

Turning to my second theme, my Lady, intergovernmental relations, where devolution allows all four UK administrations to take decisions having regard to the circumstances within their areas of responsibility, effective intergovernmental relations allow each to align with others to the extent necessary to meet the needs of the people they serve. Devolution requires effective intergovernmental relations both routinely and in exceptional circumstances.

Generally it is the view of the Scottish Government that intergovernmental arrangements worked effectively. COBR was a well tested mental mechanism enabling effective intergovernmental relations when necessary.

A range of Covid-specific groups then evolved to meet the needs of intergovernmental relations in the pandemic, and as the pandemic developed the four nations took different decisions, particularly in relation to NPIs that differed in timing and nature.

An effective response does require the ability to tailor approaches to geographical circumstances, and it would be incorrect to consider that the approach followed by the UK Government for England was the orthodox approach from which other UK nations diverged. Across the UK, there is a wide range of geographical and social circumstances, and a uniform approach would not have been able to take account of such variation.

The Scottish Government took the approach of tailoring measures to circumstances within different parts of Scotland using the Scottish levels system. The government considered different Scottish circumstances and its own responsibilities to the Scottish population. The Scottish Government invites the Inquiry to recognise that where circumstances were justified, a geographically tailored approach was appropriate.

The arrangements for intergovernmental liaison evolved during the pandemic from an initial focus on emergency mechanisms such as COBR to a range of Covid specific groups, but throughout the pandemic there were mechanisms for regular and frequent communication across the response and the development of strong working relationships between governments.

My Lady, it’s been suggested that the Civil Contingencies Act 2004 should have been used rather than public health legislation to bind the UK together due to the risk of divergence. The implication is that in a future pandemic the UK Government should lead the response using its emergency powers under the 2004 Act. The Scottish Government submits that this should remain as devolved decision-making rather than using emergency legislation, that the 2004 Act was not an appropriate vehicle for the government response to the pandemic, and would not be if a similar pandemic occurred in the future.

The Scottish Government refutes any suggestion that its decisions were at times politically motivated. Justification of divergence was set out contemporaneously and the Scottish Government’s shared intention with the UK Government was to save lives and minimise the harm from the pandemic.

Turning to my third theme, my Lady, data. The Scottish Government recognises the importance of efficient communication between the UK Government and the other devolved governments about data. It worked collaboratively with the other governments of the United Kingdom. The core structures at UK Government level were COBR, SAGE and its subcommittees, and the Scottish Government participated constructively in these to the extent that it was invited to do so. It also participated in various four nations meetings and liaised extensively with four nations counterparts.

Overall, the Scottish Government was impressed by the quality of the advice that emerged from the four nations processes but there was often an English focus. This prompted the establishment of a new advisory group, the Covid-19 Advisory Group in Scotland.

My Lady, turning to my fourth theme, public health communications. Communicating information about the government response and the actions of the population was critical. Therefore a priority for the Scottish Government from the outset was to ensure the most effective public communication possible. Generally, information sharing between the UK and Scottish Governments about public health communications enabled both governments to plan, but trust in the Scottish Government was consistently higher than trust in the UK Government throughout the pandemic. This is possibly a reflection on the effect of devolution on communication.

As the public health advice and response to the pandemic between England and Scotland started to differ, communications had to differ, and the Scottish Government submits that UK Government public health communications could have been clearer as to their territorial scope.

My Lady, turning to my final theme, inequalities, the Scottish Government welcomes the Inquiry’s commitment to learning the detailed lessons on inequalities and welcomes the expert evidence on the effect that existing structural inequalities in society had on vulnerable and at-risk groups during the pandemic. The Scottish Government recognises that we have an opportunity to make fundamental and lasting changes to address these issues.

The Scottish Government has been committed to the eradication of inequalities in health and social care for years. During the pandemic, consideration of inequalities and the principle of fairness were integral parts of the four harms decision-making approach.

The Scottish Government commits to listening carefully to the evidence of witnesses in respect of structural inequalities and to learning lessons for the future.

My Lady, in conclusion, the Scottish Government will examine and consider closely the recommendations that the Inquiry makes in relation to Module 2. It understands that the most important way to recognise the loss and suffering of the people of Scotland and the wider UK population during the pandemic is to learn from the evidence, to identify what could have been done better, and to improve government decision-making in a pandemic to save lives and to prevent future suffering.

Thank you.

Lady Hallett: Thank you very much, Ms Drysdale.

Ms Studd, sorry you’ve had to wait so long.