4. Professor Ailsa Henderson
PROFESSOR AILSA HENDERSON (affirmed).
Questions From Mr O’connor
Mr O’Connor: Could you give us your full name, please?
Professor Ailsa Henderson: Ailsa Henderson.
Mr O’Connor: Thank you. You are currently a professor of political science at the University of Edinburgh; is that right?
Professor Ailsa Henderson: Yes. That is correct.
Mr O’Connor: We also see from the report, which I’ll mention in a moment, that you have more than 20 years’ experience across universities in Canada and the UK, conducting research on multilevel and multinational states, with a particular focus on the relationship between sub-state political institutions and sub-state attitudes and behaviour?
Professor Ailsa Henderson: That is correct.
Mr O’Connor: You have prepared at the Inquiry’s request a report that we have in front of us and which is entitled “Devolution and the UK’s response to Covid-19”, have you not?
Professor Ailsa Henderson: Yes, I have.
Mr O’Connor: It’s been helpfully brought up on the screen, so I won’t give the INQ number, but we can see, Professor Henderson, at the bottom of that first page, in italics, there is what’s described as an author statement, where you refer to this report, to your duty as an expert to provide independent evidence, and to the fact that the material within this report is true to the best of your belief; is that right?
Professor Ailsa Henderson: That is true.
Mr O’Connor: Thank you.
Lastly, we note it was signed by you on 25 September this year.
Professor Ailsa Henderson: That is correct.
Mr O’Connor: Thank you.
Professor Henderson, as you know, from the work that you have done preparing this report, one of the areas of inquiry for this module relates to the question of how the UK central government worked with the devolved administrations’ regional local authorities of the UK. You’re aware of that?
Professor Ailsa Henderson: Yes, I am, yes.
Mr O’Connor: And you know that that area of inquiry covers matters such as the liaison between the Westminster government and the devolved nations, communication between them, consultation and so on?
Professor Ailsa Henderson: Yes.
Mr O’Connor: The purpose of your evidence, Professor Henderson, is to establish the factual background, if you like, or context relating to devolution, the structures, the interplay between the various actors, and also to raise issues and matters that the Inquiry might consider further as we hear evidence from the various different decision-makers over the course of this module and also, as you know, the Modules 2A, B and C that are to take place in the New Year.
Professor Ailsa Henderson: That is correct.
Mr O’Connor: I just want to be clear about the mechanics and the way in which your report was drafted. You were initially instructed some time ago, months, if not more, ago, on the basis that you would prepare a report on the basis of your own understanding of matters during Covid and materials you could find in the public domain?
Professor Ailsa Henderson: Yes. Absolutely right.
Mr O’Connor: But it’s right to say that much more recently, as in fact the Inquiry has obtained its own evidence, you have been asked to look at some but not all of the evidence that the Inquiry has obtained relating to these devolution issues?
Professor Ailsa Henderson: That is correct.
Mr O’Connor: During the course of your evidence today we will touch on both your report and also some of those further documents, some of which you hadn’t seen until your report was in a very late stage of drafting?
Professor Ailsa Henderson: Exactly right, yeah.
Mr O’Connor: We will, Professor Henderson, adduce your report into evidence in its entirety. It’s lengthy, there’s an awful lot in it, and we won’t be able to touch on everything today, but what we will try to do is cover what perhaps are the core issues, the central themes.
So I want to start, if I may, as your report does, with a few points about the state of the UK before the pandemic in terms of the relations between the different nations within the UK, the structures and so on, and then once we’ve done that we’ll turn to look at the pandemic and how the different governments, administrations dealt with each other.
So turning to paragraph 1 of your report, the first sentence, you describe the UK as being a multilevel state and then, later in that paragraph, you contrast in principle a federal, the idea of a federal state with a unitary state, and then a few lines down you describe the UK as being a unitary state with asymmetrical devolution.
We mustn’t let this become a seminar in political theory, Professor Henderson, but just in a few sentences could you explain what you mean by those various terms?
Professor Ailsa Henderson: Yes. So in terms of a multilevel state, the United Kingdom is a state in which policy decisions and law is made at multiple levels.
It’s not a federation, because the constituent units of that state don’t exist as part of a constitution, the legislatures are created by statute. And it’s asymmetrical in a number of different ways. It’s asymmetrical in past in part because there is only devolution to Scotland, Wales and Northern Ireland, so they’re different from England. It’s asymmetrical because the arrangements for Scotland, Wales and Northern Ireland are different from each other. And then it’s also asymmetrical because whatever arrangements there are at a lower level within England with are also different across England as a whole.
Mr O’Connor: There is also another aspect of asymmetry which you refer to during your report, which is simply the size of England, which is larger by various measures than Wales, Scotland or Northern Ireland.
Professor Ailsa Henderson: Yes. Each of the four territories are of different sizes territorially and also in terms of population.
Mr O’Connor: You explain in your report, Professor Henderson, in a little length the origins of the various devolution settlements for different devolved nations, and we will leave much of it for the written report. I don’t want to spend too much time on it now.
Professor Ailsa Henderson: Yeah.
Mr O’Connor: But in summary, as you explain in your report, the years 1998 to 1999 were of great significance in respect of the current devolved arrangements in the UK?
Professor Ailsa Henderson: Yeah, arguably, 1997 to 1999, I would say, yes, because we had referendums on devolution in each of Scotland, Wales and Northern Ireland. We arrived at the referendums through slightly different routes, but yes, the three referendums, in those two years, 1997 to 1998, led to the establishment of devolved legislatures, with varying levels of legislative competence.
Mr O’Connor: As you have already mentioned, the settlements that were reached in each of the three nations were different from each other. You refer to the fact that Wales initially had a conferred powers model. That is, the statute which created devolution in a sense identified the matters that the Welsh Assembly could legislate on rather than those which it could not. That’s one point of difference, isn’t it?
Professor Ailsa Henderson: Yes.
Mr O’Connor: Of course, there is a great deal of complexity around the arrangements in Northern Ireland, which are very different from the situation in either Wales or Scotland?
Professor Ailsa Henderson: Yes.
Mr O’Connor: Thirdly, again as you have mentioned, the final position that was reached reflects a difference between the competence of the devolved governments in the three nations, and that’s a point I’m going to come back to.
Professor Ailsa Henderson: Yes.
Mr O’Connor: If we can look, please, at paragraph 12 of your report at page 7, you record, as it were, the position that had been reached some time later. We were talking about 1997 to 1999. By 2020 various changes had taken place, had they not, in the sense that Wales had moved from a conferred powers model to a reserved powers model?
Professor Ailsa Henderson: Yes. So that’s one change. Another change in Wales is that there were additional levels of competence. Another change is that the Assembly was no longer a body corporate but there was a separate role for the Executive, and the legislature.
So there were differences at the time reflecting the different origins of the route to devolution. There were differences in the early days because the plans put to the electorates in referendums were very different. And there were differences reflecting the fact that there have been changes to the devolution settlements over time. And the result of that has been to take some of the asymmetry that existed, particularly between Scotland and Wales, and make them more comparable than they were.
Mr O’Connor: Right. Thank you. The point, the rather narrower point you make in paragraph 12, is that by 2020 all three of the devolved nations were operating on a conferred powers basis?
Professor Ailsa Henderson: Reserved powers basis.
Mr O’Connor: I’m sorry, no longer conferred, but reserved.
Professor Ailsa Henderson: Yes.
Mr O’Connor: Yes. Thank you, we can take that down.
I just want to take a step to one side, Professor Henderson, quite briefly, because although most of your report deals with the devolution to the three devolved nations we have been mentioning, you do mention English devolution briefly, and if we can – we can see, actually, there, we don’t, perhaps, need to expand, but in paragraph 11 you refer to the fact there is no England-specific legislature, with policy on what is otherwise devolved decided either by Westminster or, in some instances, by local bodies.
Professor Ailsa Henderson: Mm-hm.
Mr O’Connor: Then, if we look at page 15 of your report at paragraphs 32 to 33, you do describe briefly the limited steps that had been taken within England towards what you describe as executive devolution. What do you mean by the term “executive devolution”?
Professor Ailsa Henderson: Well, it’s not legislatures enacting law over a set of policy arrangements. So if we look, for example, at the arrangements for London, it’s the mayor who has overall responsibility for strategy and vision, and the Assembly holds the mayor to account, it can approve or reject the budget, but they are powers that are exercised by the mayor himself.
Mr O’Connor: So that’s the model in London. It’s also broadly the model in the other mayoral areas that you refer to towards the end of paragraph 33 –
Professor Ailsa Henderson: Yes.
Mr O’Connor: – of your report, and you mention at the beginning of paragraph 33 the fact that there was, at one stage, a proposal for a rather broader type of devolution for the northeast of England but that, as we may remember, was rejected in the vote that took place?
Professor Ailsa Henderson: Yes, exactly.
Mr O’Connor: Thank you.
I want to, by way of introduction, just go to one more point, and this involves going back to pages 7 to 8 of your report, and it’s paragraphs 13 to 14.
In these paragraphs, Professor Henderson, you discuss a rather more general idea related to devolution, which is that of policy variation. You describe it as being an automatic consequence of devolution, that is the ability to engage in policy variation. Then at paragraph 14 you make a number of points about policy variation, both that it has its benefits and that others see it as a disbenefit.
Could you just expand on those points for us a little bit?
Professor Ailsa Henderson: Yes, absolutely. So one thing to mention would be that the very existence of devolution was seen as an opportunity to have policy variation. It was argued for on the basis that different electorates had different policy preferences, different policy needs, different socio-economic contexts that would encourage, that would lead to different legislatures creating different policy. So policy variation was the purpose of devolution when it was campaigned for. It is the automatic byproduct of its existence.
And it comes with benefits, and one of the benefits is that, in normal circumstances, it’s easier to understand how that might work, but policy variation makes a policy lab of the state, it means that we can evaluate the different policies that have been introduced in different parts of the state and evaluate whether they have been effective or not.
Notwithstanding the fact that it is an automatic byproduct and it comes with benefits, one thing we also know about policy variation is that support for it varies within the state and there is a considerable degree of support for policy uniformity across the state, particularly so in England, and one of the reasons for that is that it is perceived to create the possibility of, for example, postcode lotteries, where certain people get certain benefits and certain rights and others do not, and that is seen as an argument that might undermine a sense of social solidarity across the state.
Mr O’Connor: Thank you. As we shall see, this tension between policy variation, particularly in the devolved nations and, on the other hand, the argument in favour of uniformity, became very much a theme, did it not –
Professor Ailsa Henderson: It did.
Mr O’Connor: – of the debates during the pandemic?
Professor Ailsa Henderson: Absolutely, yes.
Mr O’Connor: Let me turn to another contextual topic, which is that simply of the mechanisms and structures that give effect to devolution. In your report, paragraph 23, page 10, you categorise these mechanisms and structures into three areas: the first being legislation, which as we’ve already touched on is the source of the devolved competence; second, the financial arrangements between the various nations; and, thirdly, arrangements made for intergovernmental discussion and problem solving. I want to take them in that order, if I may.
So first of all, the question of legislative competence.
Paragraph 26 on page 10 of the report, please.
Now, we’ve already touched on the fact, Professor, that the various routes that the devolved nations took towards at least the current state of devolution was a complex one, the powers that were conferred back in 1997, 1998, 1999, have changed, there is an asymmetry as you have described between the three nations. And is it those matters that have led you, if we go over the page in fact, to provide what you described as an alternative explanation for this process, which is that it’s been piecemeal, reactive and ad hoc?
Professor Ailsa Henderson: Yes. I mean, I would – one explanation is that there’s not been one devolution process but there’s been three devolution processes and the devolved settlements reflect the local context, the political context and political culture. But one way to look at it is that we also have ended up with an asymmetrical highly changing devolution settlement because changes have been introduced as a result of demands made at different points in time, and sometimes they have been responded to and sometimes they have not, and so sometimes they have lacked a unifying logic of why certain things should be devolved and certain things should not.
Mr O’Connor: Thank you.
You’ve already referred to the fact that the position as it has been reached, at least as it was in 2020, is that the competences across the three nations are not the same, and we will see that when we look at some tables in a moment, and it’s also the case, perhaps it’s obvious from what you’ve already said, that they are not fixed.
Professor Ailsa Henderson: Yes.
Mr O’Connor: Precisely because the Westminster government initially conferred the powers on the devolved nations, it is possible, and indeed it has happened, for further powers to be conferred?
Professor Ailsa Henderson: Yes.
Mr O’Connor: The other factor that you refer to, which probably stems from the same point, is that, in principle at least, Westminster retains the power to legislate, as it were, against the run of devolution. So it is in principle entitled to legislate for the devolved nations?
Professor Ailsa Henderson: Yes, I mean, that’s a reflection of the principle of Parliamentary sovereignty. Westminster tends to restrict itself to legislating in reserved areas, but it need not.
Mr O’Connor: You describe in your report the Sewel Convention, which is, if you like, the rulebook that relates to that particular issue. In summary, Westminster will not normally legislate in matters that have been devolved?
Professor Ailsa Henderson: Yes.
Mr O’Connor: You’ve given me a cautious “yes”, Professor, so do expand.
Lady Hallett: With a smile as well.
Mr O’Connor: If you thought my summary was a little bit C minus, do expand.
Professor Ailsa Henderson: No, not at all. No, you’re absolutely right that if it wishes to legislate in areas of devolved competence, then the devolved legislatures have the opportunity to pass legislative consent motions acknowledging and approving the legislation on the part of the UK Parliament. And the use of LCMs – they were always fairly high in Scotland, but the use of LCMs in Wales and in Northern Ireland, in particular, has increased over the years in terms of devolution, but so too has the – we have also seen an increase in the number of rejected LCMs and we also know, from the courts, that rejecting an LCM is no barrier to the UK Parliament legislating in a devolved area.
So it can legislate in any area it wants, which reflects the principle of Parliamentary sovereignty, but also the fact that a failure to approve an LCM is also not a barrier to the UK Parliament legislating in an area, which also reflects its Parliamentary sovereignty.
Mr O’Connor: So the legislative consent motion, the LCM, is a mechanism whereby the devolved Parliament can –
Professor Ailsa Henderson: Yes.
Mr O’Connor: – consent to Westminster legislating over its powers?
Professor Ailsa Henderson: Yes.
Mr O’Connor: But, as you say, there have been examples of Westminster legislating notwithstanding that an LCM was not given, and Brexit provides a useful example of that?
Professor Ailsa Henderson: Yes, across all three.
Mr O’Connor: I want to turn to, more precisely, the boundaries of competence of the devolved nations, and to do that could we look at page 12, first of all, of your report, table 3.
This table, Professor, identifies policy areas that, where the devolved administrations, the devolved governments, have powers; is that right?
Professor Ailsa Henderson: Yes.
Mr O’Connor: One can see immediately, as we’ve already said, that they are not common, between them there are areas where one government has a power and the others don’t, for example?
Professor Ailsa Henderson: Yes.
Mr O’Connor: We don’t need to go all the way down the list, but perhaps the most important for our purposes this afternoon is the first, we see that health, health and social services, is a devolved matter in all three of the devolved nations?
Professor Ailsa Henderson: Yes.
Mr O’Connor: Thank you.
We may need to come back to that table, but for the moment can we go on to the next page, please. This is, as it were, the other side of the story. These are the powers that have been reserved to Westminster in relation to each of the three devolved nations.
Again, the position is not uniform, and we see, for example, the first three, constitution, foreign affairs, defence. None that perhaps fit as precisely into our experience of the pandemic as health, but certainly, as it were, one can see in each of those the question of borders.
Professor Ailsa Henderson: Yes.
Mr O’Connor: Which is something we’ll come back to.
Professor Ailsa Henderson: Yes.
Mr O’Connor: And obviously if we can go back to the main table, we also see a series of entries relating to financial matters –
Professor Ailsa Henderson: Yes.
Mr O’Connor: – which is certainly something that we will need to look at in a bit more detail with relation to the pandemic.
Thank you.
I want to, in fact, stick with financial arrangements and ask you a little more about that. For that purpose, can we go, please, to paragraph 24 of your report on page 10. We’ve seen from that table, Professor, that in broad terms, matters of national finance are reserved, but that then poses the question: how are the devolved nations to be funded? And at least one of the answers to that is to be found in what’s known as the Barnett formula, which you refer to in this paragraph of your report.
Can you explain to us in a few sentences what it is, how it works?
Professor Ailsa Henderson: Yes. So it’s the largest of the block grants that are made available from UK Government to the devolved administrations, and the Barnett formula is calculated on the basis of English spending, changes in English spending, and so the same changes in English spending are then applied to the changed spending available to the devolved administrations, because they – and it was designed to stop an annual haggling over how much money was available for a devolved administration to create policy or to manage services that it controls.
Because the devolved administrations started from a different spending base, the changes – say there’s a minor, a 10% reduction in spending in England and a 10% reduction in the devolved administrations, if the devolved administrations started from a higher place, you could still end up in a situation where you had higher per capita spending in the devolved territories than for England as a whole.
Mr O’Connor: If, for example, the Westminster government decided suddenly to spend a very large amount of money, extra money, on schools in England –
Professor Ailsa Henderson: Yes.
Mr O’Connor: – the Barnett arrangements would lead to pro rata extra funding being provided for schools to the three devolved nations?
Professor Ailsa Henderson: Yes. And that’s an important point, it’s spending made by the UK Government in relation to policy areas that are otherwise devolved in Scotland, Wales and Northern Ireland. So schools is a good example, because education is devolved in Scotland, Wales and Northern Ireland.
Mr O’Connor: This Barnett formula, and these arrangements for funding, as we will see when we turn to look at events during the pandemic, create an extra complexity to the whole question of what powers are devolved, do they not, because it’s all very well to say to a devolved nation “You have power to operate in this particular field”, but if the nation doesn’t have the funding to do what it wants in that field, then that is at the very least a constraint or a factor to be taken into account?
Professor Ailsa Henderson: Absolutely. I think it’s also of significance if we’re trying to identify what is England-only legislation, when we – we were speaking for a while about English votes for English laws. If English policy, England-only legislation, has knock-on financial consequences to devolved administrations, then you can understand why MPs representing seats in devolved territories might take an interest in that legislation that would otherwise seem to have absolutely nothing to do with them.
Mr O’Connor: Yes. Thank you.
The third of those structures that I referred to a moment ago is the question of intergovernmental arrangements that exist within the UK for communication between the devolved nations and Westminster and dispute resolution.
Starting off with the Westminster government, we know, of course, that the devolved nations all have their own secretary of state. That is part of the structure, as we will see. Boris Johnson, when he was Prime Minister, created a post of Minister for the Union, which he then occupied. That was in 2019. What was the significance of that?
Perhaps we’d better ask him that.
Professor Ailsa Henderson: Yes, I think it’s a question best asked of him.
Mr O’Connor: All right. We’ll come to this, but we know that during the pandemic, in fact, in September 2021, another ministerial post of Minister for Intergovernmental Relations was created, and that was a post occupied by Michael Gove, was it not?
Professor Ailsa Henderson: Yes.
Mr O’Connor: As we will see, he had in fact already been playing a liaison role between Westminster and the devolved nations in his previous capacity as Chancellor of the Duchy of Lancaster?
Professor Ailsa Henderson: Yes.
Mr O’Connor: In terms of the, as I said, mechanisms for intergovernmental relations, you refer in your report to an important document, the memorandum of understanding. Perhaps we can look at paragraph 46 of your report, which I think is probably on page 19. You refer to this memorandum of understanding as having existed, I think, back from the days of the 1997, 1998, 1999, the very first –
Professor Ailsa Henderson: Yep.
Mr O’Connor: – devolution settlements, no doubt amended in between times. Tell us a little bit about it. What force did it have, who drafted it and so on?
Professor Ailsa Henderson: I mean, it’s more than anything it’s a statement of intent. It’s a description of how ideal arrangements are supposed to work. It describes the spirit with which different actors are to approach the concept of intergovernmental relations, and then it identifies different fora in which different actors can come together.
But it argues that it’s important to have good communication, early communication, sharing of information but also sharing of data, if it’s easily accessible and easy to process and easy to share, and it is identifying how these multilevel bodies are supposed to interact with one another.
Mr O’Connor: You say, I’m looking about five or six lines down, as you say:
“[The memorandum] calls for good communication, early notice of developments, consideration of the views of others, and sharing of scientific, technical and policy information …”
And so on.
Professor Ailsa Henderson: Mm-hm.
Mr O’Connor: Going over the page, the last sentence of the same paragraph, you refer to the fact that there’s no specific mention within the MoU of managing emergencies or crises and so on?
Professor Ailsa Henderson: Exactly. I mean, because it was a statement of intent, it was never intended to be something that offered an easy rulebook for what you would do in all situations. It was more describing the spirit with which actors should approach their interaction.
Mr O’Connor: Now, you mentioned a moment ago that it’s not a sort of entirely aspirational document, it does have within it various fora.
Professor Ailsa Henderson: Yes.
Mr O’Connor: One that we will be coming back to this afternoon is the Joint Ministerial Committee, which you address at paragraph 48 of your report.
It’s what you describe as part of the “institutional architecture by which the governments will come into contact with each other”.
Before you refer to the JMC, as we might find ourselves calling it, you make this point, which is that the MoU itself argues that much of that liaison between the nations will in fact just take the form of routine daily or weekly contact between different touching points within the various administrations.
So it would be wrong to see the JMC as being, as it were, the intended only point of contact between the governments?
Professor Ailsa Henderson: Yes, it was absolutely anticipated that most of the activity would be between officials and executives discussing the boundaries of devolved and reserved policy, and often bilateral exchanges rather than full-on multilateral exchanges involving someone from each of the four parts of the UK.
Mr O’Connor: The JMC, you say, we can see in the paragraph that’s been highlighted, was intended to meet as a plenary body once a year or at least once a year, and you also say in the paragraph below that it was a consultative rather than an executive body.
Professor Ailsa Henderson: Yes, it was for facilitating communication rather than taking decisions, and while it met, while it existed in plenary, there were also other formats discussing very specific –
Mr O’Connor: Yes.
Professor Ailsa Henderson: – very specific policy areas.
Mr O’Connor: So the JMC that perhaps we are talking about at the moment is the top of the pyramid –
Professor Ailsa Henderson: Yes.
Mr O’Connor: – which is intended to be chaired by the Prime Minister and attended by the First Ministers, but, as you say, there were bodies below that operating at ministerial level?
Professor Ailsa Henderson: Yes. I mean, one thing I would also mention is that it was intended as a forum for dispute management where parties could come together and try to resolve disputes. So in the first instance you might have kind of bilateral conversations between actors to try to resolve disputes. Then it would go to the Secretary of State for the relevant territory. Then it would come to the JMC. And if that then didn’t work it would eventually end up in the court.
So it’s also important not just as a forum for chat, but served a specific purpose in terms of trying to see off disputes and resolve disputes.
Mr O’Connor: Thank you.
One of the hallmarks of the JMC and that structure which you’ve described is that it had a sense of independence. You refer in paragraph 50 to it having its own secretariat, and the term that is used occasionally, I think, in your report, but you also refer to others using it, is “ownership”. It was, as it were, independent, not only of the Westminster government but all of the devolved governments as well?
Professor Ailsa Henderson: Yes.
Mr O’Connor: Just lastly then on the JMC, in terms of actually how it was doing in the period prior to the pandemic, going right back, during I think between 2002 and 2008 you refer to the JMC itself not meeting at all, and that perhaps being attributable to the fact that there were Labour governments in all of the different centres, and so perhaps they didn’t need to resolve any disputes.
But more recently, it had met, had it not, in the years running up to the pandemic?
Professor Ailsa Henderson: Well, I mean, I could be mistaken, but I’m fairly certain that the last one before the pandemic was in 2018, when Theresa May was Prime Minister.
Mr O’Connor: Yes. Well, just looking at – if we look at paragraph 52 of your report, going over the page, you refer to the JMC being sort of revived by the SNP after it came to power in Edinburgh in 2007 and then meeting roughly annually, before March 2020. I won’t take you to it, but later in your report you say the last meeting was actually in 2019 –
Professor Ailsa Henderson: There we go.
Mr O’Connor: – before the pandemic started.
Briefly, that’s the JMC, but there were other inter-national bodies that were part of these structures. You refer to two: one was the North South Ministerial Council, and another was the British-Irish Council. Tell us just a little bit about those.
Professor Ailsa Henderson: These come to us through the Belfast Agreement, so they’re specific to the devolution settlement in Northern Ireland. They reflect strands 2 and 3 of the arrangements, where strand 1 was the internal arrangements for Northern Ireland. And they were forums for communication. So it was to reflect the fact that Northern Ireland is embedded within an island but also is part of the UK, and so the North South Ministerial Council manages relations across the island of Ireland, and the British-Irish Council was a way of providing a forum in which a larger group of actors could meet, so it includes members from across both islands.
Mr O’Connor: Thank you.
If we can go on, finally, in this section to times, so a little bit less than annually, but paragraph 56. We have sketched, then, this network of institutions which existed before the pandemic commenced, and in paragraph 56 you offer us some of the value judgments given by academics over the years, that were critical of these arrangements, and one that’s particularly striking is the view that was offered was that they were not sufficiently strong to withstand a crisis?
Professor Ailsa Henderson: Yes. This is a kind of non-representative sample of – no, that makes it sound like it’s not representative of what academics in general think. This is a grab bag of some of the articles that have been written about intergovernmental relations in the UK, but they are almost uniform in their condemnation of the fact that there are insufficiently robust intergovernmental relations in the UK.
And partly that is attributed to three things. One, it’s to the asymmetry that I mentioned at the start. So because of the asymmetrical arrangements and also because of the way that devolution in Northern Ireland arrived in particular, it wasn’t possible to devise a kind of one-size-fits-all intergovernmental relations arrangement.
The second, as you mentioned earlier, is that Labour dominance in the UK Government but also in administrations in Scotland and in Wales in the early years of devolution meant that a lot of the interactions took place within a single political party, and so Paul Cairney, who writes on this, has said that that lent the entire area a kind of air of informality that has continued to this day.
But the other reason why we see kind of underdeveloped intergovernmental relations is partly the spirit with which the UK Government in particular has approached them and has sort of let them languish.
Mr O’Connor: That is a theme that we will pick up in, when we see, as I’m now going to turn to, the events of the pandemic and how these – the relations between the various governments developed and the extent to which the institutions we’ve just been referring to were in fact operated or not.
So of course, as we all know, the pandemic developed in the early months of 2020, and I’m going to address the question of the liaison between the Westminster government and the devolved governments, try and do it in sort of two sections. The first is just to look at the first three months or so, up to around about the first lockdown in March/April of that year, and then we’ll look at the latter period, when I think, in summary, relations declined.
Perhaps we can start by going to paragraph 67 of your report, which is on, I think, page 25.
In broad terms, Professor, the theme of this paragraph is that the first months of the pandemic reflected more or less a four-government approach where there was co-operation or certainly a degree of co-operation between the four governments leading up to the lockdown and into the first lockdown; is that fair?
Professor Ailsa Henderson: Yes, absolutely, yeah.
Mr O’Connor: So if we go through various heads or various factors within that, we know that during the period from January through to March there were a series of COBR meetings, initially chaired by Matt Hancock and, subsequently, by Boris Johnson. There was, was there not, attendance by the devolved governments at those meetings?
Professor Ailsa Henderson: Yes, in the early days, when they were held, yes.
Mr O’Connor: So there’s a debate perhaps about exactly who from which devolved nation attended. And there is a similar – if you like, a mirror image of the debate about whether Boris Johnson should have chaired the early meetings rather than Matt Hancock, there has been some debate about which minister from which devolved governments should have attended COBR. I don’t want to spend time on that now, but, as a general point, they were invited and they did come to those COBR meetings, or they probably dialled in, but they attended?
Professor Ailsa Henderson: They did. I mean, I think one of the debates is whether the right person came. The other is obviously how much they were listened to when they were there.
Mr O’Connor: Yes.
Professor Ailsa Henderson: Which I, yeah –
Mr O’Connor: That is a theme we may pick up.
We know that one of the products of those early COBR meetings was the Coronavirus: action plan, which was published in early March, on 3 March 2020, and I would like, please, to have a look at that. It’s been helpfully brought up on the screen.
The first point to note, perhaps from the very first page, Professor, is that not only does the title explain it’s “A guide to what you can expect across the UK”, but we see immediately beneath that box illustrative –
Professor Ailsa Henderson: Yes.
Mr O’Connor: – crests showing that it is the work not just of the Westminster Department of Health and Social Care, but the three devolved governments as well?
Professor Ailsa Henderson: Yes.
Mr O’Connor: I think if we go on to page 10 of this document, I think these were some paragraphs – 3.6 to 3.8 were passages within this document that you have drawn attention to in your report, or certainly I think at least paragraph 3.8. We just cast our eyes down there, I’m not going to read them all out, but there is a reference to the fact that the UK Government and the devolved administrations have been planning, there is a reference to the well known contain, delay, mitigate plan, and then at 3.8 there is an explanation that:
“The different phases, types and scale of actions depends upon how the course of the outbreak unfolds over time. We monitor local, national and international data continuously to model what might happen next …”.
I think you saw some particular significance in those words?
Professor Ailsa Henderson: Yes, because I think taken together the three paragraphs suggest that change is anticipated, change in the conditions of the virus are anticipated, and then also change in the reaction is therefore anticipated, and it’s a tying of the actions taken by different actors to the local context.
So it implies that change is anticipated, that there will be variation – that there will be change over time but also variation in the response in light of local context, as made clear by the data that was being collected and analysed.
Mr O’Connor: Thank you.
I think one more reference in this document, if we go over to page 17 and paragraph 4.40, we see there, do we not, a reference back to COBR, it’s part of the plan that COBR is going to meet as often as needed, and later in the paragraph:
“The respective crisis management mechanisms across the Devolved Administrations have also been stood up and will operate in very similar terms to that of COBR within their own nations, and all four co-ordination centres are linked up on UK-wide planning and delivery of the response to Covid-19.”
So would it be fair to say that that suggests that the plan at that stage is very much COBR-centred, COBR will be the place where the four governments come together, of course with other committees, and pursue a combined response to Covid? That seems to be the message that’s being given?
Professor Ailsa Henderson: Absolutely, I think it’s the importance of COBR but also the fact that it’s a four nation response, and so that reference to being linked up together implies that it would be all four working together, co-ordinating across them.
Mr O’Connor: So that was – we know that COBR was meeting and we see from this document that the plan seemed to involve COBR going forward. We also know that at around this time there was a plan to institute so-called MIGs, ministerial implementation groups, sitting just below COBR, that would do some of the more detailed work.
I want to take you to a couple of documents relating to those, please. First of all, can we please go to INQ000182338, which is a paper or a note addressed to the Prime Minister from Mark Sedwill, who was then the Cabinet Secretary, dated 13 March 2020.
So a week or so after the publication of the action plan that we were just looking at.
He tells the Prime Minister:
“We need to step up a gear …”
But he also talks about a sense in which it’s not just a crisis, they need to plan for the longer term, they need to plan looking ahead for six months or whatever it is.
If we can go over the page, we see what is being suggested. First of all, at paragraph 4, a new structure of working. At paragraph 4 we see a small meeting to be held with the Prime Minister at 9 o’clock in the morning. I’m not sure I know why, but I think it became the 9.15 meeting.
Then on paragraph 5, we see the suggestion of what became the MIGs:
“To support this we will need a series of subgroups so you can task your ministers to solve specific problems.”
We can see that they’re being intended to deal with various different policy areas. Is that right?
Professor Ailsa Henderson: Yes.
Mr O’Connor: Then of more interest for present purposes, if we can over the page, sorry, over my page, it looks like it’s starting at the bottom of this page, paragraph 7, he says this:
“You will also need to decide how you want to involve the Devolved Administrations. Instead of inviting them to your daily 9am meetings, I propose continuing to include them in COBR as public service delivery is where their main challenges will be. I would also recommend a regular meeting with First Ministers, either chaired by you or CDL, to update them on the response.”
Do you see that?
Professor Ailsa Henderson: Yes.
Mr O’Connor: What we can see then, if we go on to another document, please, and this is INQ000182343, we can see this is a list of attendees at one of the MIGs, which is dated very shortly after this. This was the Public Sector Ministerial Implementation Group, and we can see about halfway down the page that the First Ministers of the devolved governments were on the attendee list, “As required” attendee list, of this particular MIG; is that right?
Professor Ailsa Henderson: Yes. I read this less as a list of attendees for a particular meeting and more a statement of who the core and as required members should be moving forward, but I think the thing to mention is that they were included but included not as core members but as –
Mr O’Connor: Yes.
Professor Ailsa Henderson: – as and when.
Mr O’Connor: Certainly. I think that’s right, by the way, I think this wasn’t – it’s not, as it were, a list of invitees for any particular meeting. This is the proposal as to who should be generally involved in these various meetings.
This was, as we see at the top, the Public Sector MIG, but the same – in fact the First Ministers had the same role, that is, as required invitees, for the healthcare and the economic business MIGs as well.
Then finally on this section, another letter just from a couple of weeks later. This, I think, is in fact a draft letter.
So this is INQ000218318, please. Yes, we’ve got it.
So here, this is again a letter from Mark Sedwill, although I think, as I said, it’s a draft, early April, so a week or so later again.
Now the MIGs have been set up, and that we see them listed there in those bullet points. We see immediately below the bullet points the assertion that the MIGs all have the status of Cabinet committees.
Then if we go over the page, please, the penultimate paragraph, Cabinet Secretary is stating:
“These programmes must deliver for all our citizens in England, Scotland, Wales and Northern Ireland … [there should be] a coherent Government response … wherever they are in the UK. Departments should consider how the implementation of policy will work across the four nations where aspects of the response are reserved, and engage closely with the Devolved Administrations where they are devolved.”
So looking at these documents together, as it were, they were drafted over the course of just a few weeks in March and very early April of 2020. There seems still to be, as there was in the action plan, an intention that Covid is something to be faced on a four nation basis?
Professor Ailsa Henderson: Yes, absolutely, I think they take their spirit from what was in the action plan, and so it looks to me like someone trying to take the principles of the action plan and put them into suggestions for how people should meet – or how often they should meet, who should be there in the room.
Mr O’Connor: Yes. Thank you.
My Lady, I’m just looking at the time. I’ve come to the end of one moment, but if that’s a convenient moment just for a short break.
Lady Hallett: If that’s a convenient moment for you, of course, Mr O’Connor.
We take a break every so often, Professor Henderson. We always say for the sake of the stenographer, but I suspect for the sake of everybody. 15 minutes. I shall be back at 20 past.
(3.06 pm)
(A short break)
(3.20 pm)
Lady Hallett: Mr O’Connor.
Mr O’Connor: Professor Henderson, we had discussed the Coronavirus: action plan and the attendance of the devolved government representatives at MIGs and the terms of their attendance. I want to turn and ask you some questions about the Coronavirus Act, which in fact gained Royal Assent on 25 March, so very much at the same time as those other matters that we were discussing.
Now, you address the Act at paragraph 74 and following of your report, we have it on the screen.
Professor, we don’t need to, and we won’t, get into the fine detail of the Act, which of course addressed all sorts of issues relating to the emergency measures that were taken and lockdown and so on.
But that part of it which dealt with the devolved nations, in particular Scotland and Northern Ireland, granted them, those two administrations, powers – to take powers, as it were, in order for them to implement emergency measures in particular relating to lockdown and closing schools and so on.
Is that right?
Professor Ailsa Henderson: Yes.
Mr O’Connor: I mentioned particularly Northern Ireland and Scotland. Was that because, again without getting too far into the detail, another aspect of the asymmetry that you mentioned earlier was that Wales had in fact had greater sort of emergency civil contingency type powers than the other two devolved nations?
Professor Ailsa Henderson: Yes, those had been transferred under the 2006 Act.
Mr O’Connor: As you describe in your report, at the UK/English end of things, the measures to implement lockdown were to be implemented under the Public Health (Control of Disease) Act 1984?
Professor Ailsa Henderson: Yes.
Mr O’Connor: Going over the page, please, to look at paragraph 76, what you say here, in the first sentence of that paragraph, is that:
“One purpose of the Act was to facilitate a co-ordinated and consensual approach across the UK, but also to facilitate deviation where necessary.”
Is that right?
Professor Ailsa Henderson: Absolutely, yes.
Mr O’Connor: What do you mean by that, in this context?
Professor Ailsa Henderson: I think there’s two things. One, in terms of the co-ordination and consent, or consensual approach, there’s references in the Act, for example section 87, where it makes reference to the fact that a UK minister shouldn’t make a provision and shouldn’t bring it into force without the consent of devolved administrations.
And I think that’s important because it’s stronger language than we normally see, for example in the Sewel Convention. So that’s one thing. And then the other is that it assumes that – by giving these powers it assumes that different actors in the devolved administrations might wish to use them, so by giving them the authority to use them it assumes that variation will flow from that.
Mr O’Connor: Yes. So, on that analysis, the Act is really of a piece with the approach we were discussing relating to the action plan?
Professor Ailsa Henderson: Exactly.
Mr O’Connor: It anticipated a four nations approach which would allow for variation between the nations?
Professor Ailsa Henderson: Which allowed for a consensual approach and one where there was good communication and the principle of consent, but fundamentally one that was varied.
Mr O’Connor: Yes. Now, the reason that that is of some interest is that latterly there has been some debate as to whether that particular sort of legislation approach was the right one to have chosen?
Professor Ailsa Henderson: Yes.
Mr O’Connor: And Boris Johnson – not him alone, but Boris Johnson in his witness statement for this Inquiry – has suggested that another approach might, on reflection, have been preferable.
Can we, for these purposes, go to Mr Johnson’s statement, please, which is INQ000255836, and start at paragraph 126, which I think is page 30.
Yes, thank you. So we can see this is Mr Johnson’s reflection on these matters. He says:
“Looking back, we should have thought much harder about the legal basis for the measures proposed. There is a respectable argument that we should have used civil contingencies legislation rather than public health legislation. By allowing for at least the appearance of a divergence in approach between the various parts of the UK, we were risking considerable public confusion and frustration – when clarity of message was crucial.”
Then if we may, one other paragraph in the same statement, paragraph 153, which I think is on page 37.
(Pause)
Mr O’Connor: Thank you. If we see, starting four lines down he says this:
“It would perhaps have been better, in retrospect, if we had formed policy under the Civil Contingencies Act 2004 so as to bind the UK together. We should then have met regularly, UK Government and DAs, to decide the policy [singular] together and to stick to it.”
So Mr Johnson, Professor, is describing an alternative legislative approach which, as he describes, he in retrospect thinks might have been better.
Now, there are two points I want to address there. The first is, just to, as it were, complete the factual story. We know that at the time COBR was advised that in fact it wasn’t open to the government to use the Civil Contingencies Act. And let us look briefly, if we may, at the minutes of the COBR meeting dated 20 March. If we can go to page 5, please, and if we could zoom in on the bottom bullet point on that page, please, we can see recorded that the Civil Contingencies Act could not be used as this, that is the pandemic, is not an unforeseen event and the Public Health Act was recommended instead.
Again, Professor, I’m not going to ask you to opine on that legal question, but the point, the advice that COBR appear to have received is essentially the Civil Contingencies Act is for something like an earthquake or a terrorist attack, which happens in the moment, whereas this is, albeit a crisis, something that, by the very nature of the COBR meeting, could be seen coming, they were having meetings about it, and therefore the Civil Contingencies Act wasn’t available. That appears to have been the advice that was given.
Professor Ailsa Henderson: Yes.
Mr O’Connor: And there are some other documents to a similar effect.
Lady Hallett: Is this legal advice?
Mr O’Connor: My Lady, I’m afraid I’m not sure. There are other documents, and at least one of them was referred to in the opening submissions, but I’m afraid I can’t remember exactly the source of the advice within government.
Lady Hallett: I can see it might be lawyers might have different views.
Mr O’Connor: I hope I’ve made that clear, my Lady. It does happen sometimes that lawyers have different views about things.
Lady Hallett: As if, Mr O’Connor.
Mr O’Connor: But, as I say, I certainly wasn’t inviting Professor Henderson to resolve that debate, simply to see what advice was given at the time, for completeness.
Because perhaps the more important point to draw from this, Professor, is that what we see in Mr Johnson’s statement is a very different sort of approach to the question of how the UK and its constituent parts should have approached the crisis.
Professor Ailsa Henderson: Yes, absolutely. I mean, it’s not just that differentiation and diversity was allowed to happen, it was facilitated. It was foregranted in the action plan. The means to achieve it were put into the Coronavirus Act. And that is within a general context in which devolution also leads to policy variation.
So devolution leads to differentiation, the action plan said it was coming, the Coronavirus Act facilitated it, and then the Prime Minister also equated kind of divergence and differentiation and a lack of clarity of message.
But one does not necessarily follow from the other. You can be very clear about differences that exist across the state. If you choose not to be clear, that’s your choice, in a way.
Mr O’Connor: Thank you.
We know from the witness statements, at the very least, that the witness statements that have been supplied to this Inquiry by the various First Ministers, Deputy First Minister in Northern Ireland, that their approach was very much that they wished – in the main, that they wished to take their own course, unlike the suggestion from Mr Johnson. Is that fair?
Professor Ailsa Henderson: Yes, and I think that has its roots in the fact that, you know, when – you often see in the documents a phrase that “the science says this”, and “The science says this, therefore we are going to do this, and I can’t understand why you, the devolved administrations, are doing something different”. But I think there’s a number of points to be made there. One, the data was not uniformly accessible and data from different parts of the state could have led to different conclusions about what might have been the best thing to do.
One could also imagine a situation in which different administrations would look at the same data and the same modelling and come to different conclusions about the appropriate plan of action. And I think it’s also slightly disingenuous at times for people to claim “the science said X” when in fact we know there were arguments within the scientific community, including the scientific community of advisers advising the UK Government, there were differences of opinion there. So the science didn’t say one thing. And what we arrive at is a situation in which the UK Government has interpreted the data to which it had access, often England-only data, and had identified a course of action, and then expressed frustration that the others did not fall in line with that course of action, when in fact the devolved administrations say, “Well, this is the point of devolution, of course we’re going to make our own evaluations”.
Mr O’Connor: Indeed.
Let me move on, but in doing so back to a topic that we’ve already touched on, which is the whole question of funding.
In paragraph 81 of your report, Professor, so it’s – we’ve got it up on screen already – you deal with – you can see the title there – “Changes to funding January 2020” onwards, so if we look at that and then go over the page, this is a paragraph or two in which you describe the effect of the Barnett mechanism.
We don’t need to go through all this detail, but, Professor, in summary, the Barnett mechanism or the consequence of the Barnett mechanism was that where the Chancellor of the Exchequer and Westminster set up these extremely expensive schemes, we know about the furlough scheme, and the various – the job retention scheme, that’s the furlough, the Bounce Back loans and Business Interruption schemes and so on, they had possibly a complicated but a read-through into the Barnett mechanism and then extra funding for the devolved nations; is that right?
Professor Ailsa Henderson: Yes, when it was England-only spending, that then had Barnett consequentials for the devolved administrations, so – look, I think later in the paragraph it says by one estimate that meant the arrival of £7 billion to the devolved administrations by November 2020.
Mr O’Connor: Yes, I was going to take you to that. It’s towards the end of that paragraph, isn’t it? It’s an OECD report, but in November 2020, so that’s spending in the first seven or eight months –
Professor Ailsa Henderson: First part, yes.
Mr O’Connor: – of the pandemic, £7 billion, and you can see that you’ve broken it down there between the three nations. So very large amounts of money, extra money, that was going to the devolved nations through the Barnett mechanism.
Then sticking with the chronological –
Lady Hallett: Sorry, just before you do.
Mr O’Connor: Yes.
Lady Hallett: Sorry to ask, I meant to ask earlier, with the Barnett formula mechanism, if an England-only measure is – something like the furlough scheme, so support for workers, is that ringfenced when Scotland gets extra money or do they just get extra money which they can allocate to whatever they want to?
Professor Ailsa Henderson: Yeah, Barnett is not ringfenced, so if it’s spending on health in England, it doesn’t have to be spent on health outside of England.
Lady Hallett: Thank you.
Mr O’Connor: As I said, Professor, sticking with the chronological theme, we’re sort of still in about March/April, and I just want to take you to a series of further references about First Minister engagement in core decision-making.
First of all, can I ask you to look at a letter dated 4 April. It’s INQ000217032, I see it’s already up on the screen.
I know you’re familiar with this letter, Professor. This is a letter, is it not, in fact, from all four – I was going to say all four First Ministers, but the three First Ministers plus the Deputy First Minister of Northern Ireland –
Professor Ailsa Henderson: Yes.
Mr O’Connor: – to Boris Johnson on 4 April, so in the middle of the first lockdown, and we see from the second paragraph they refer to the fact that the lockdown measures were to be reviewed after three weeks, and the letter essentially contains a request for a considered process whereby they can take part in that review; is that a fair summary?
Professor Ailsa Henderson: Yes. They’re identifying what they perceive to be weaknesses with existing opportunities to express their views and to influence UK decision-making.
Mr O’Connor: So they say: we had these sort of crisis COBRs which were called at the last minute in the run-up to the first lockdown. But now they describe a predictable milestone, that is the three-weekly review, and can we have an orderly process.
And, going over the page, they also say a “transparent and collaborative approach to sharing and producing analysis, options”, and so on, in advance of a COBR. And they describe their proposals as being the minimum commensurate with an approach founded on partnership across the four nations.
On a similar theme, if I could take you to a second letter, this time written just by Mark Drakeford, the First Minister of Wales, to Michael Gove.
I see it’s already up on the screen, thank you.
This is a couple of weeks later on 20 April. Perhaps if we could go to the middle of the page, he requests what he describes as establishing a “regular rhythm” to meetings between the devolved nations and the Westminster government, where initially officials meet in the early part of the week, then there is a meeting with Michael Gove in the middle of the week, and then finally a COBR at the end of the week.
So, again, it’s an attempt to put a sort of orderly process in place to capture that four nation decision-making, is it not?
Professor Ailsa Henderson: Yes. I think there are two things that are important here. The last line of the second paragraph, so “assist appreciation of difference where that is necessary”, so it’s kind of an expectation that difference will be there, but in the previous line, this argument that there should be a “common approach” is also a call for consensus and communication.
So it’s not a letter from someone who is pursuing deviation or difference for the sake of it.
Mr O’Connor: Yes. Yes. And the final, the third of these documents from around this time is INQ000091348, and this is a different type of document, this is an email within Whitehall. It is, at any rate the part of it that we will look at, is a read-out from a meeting between Michael Gove and other members of the Westminster – the UK Government, in particular the Secretaries of State for Wales, Scotland and Northern Ireland, and they are discussing, in fact, I think, that very letter that we have just looked at from Mr Drakeford.
Again, I’m not going to read it through, but the summary point is they’re against it. And in particular – I think, in fact, if we can go to the next page – I know there are certain parts of this document that you find significant, Professor, and we’ll go back to them.
I’m sorry, I just need …
Yes, so if we can go to about halfway down this page, we see CDL, it’s not the bottom CDL bullet point but about four or five bullet points up?
Professor Ailsa Henderson: Yeah.
Mr O’Connor: Can we see “CDL - conclusion”, yes?
Professor Ailsa Henderson: Yeah.
Mr O’Connor: So it’s the earlier of the two conclusions from the CDL. He says:
“… he’d heard SoS TOs’ [that’s the territorial officer, so it’s the Scotland, Wales, Northern Ireland Secretary of State] caution that regular meetings won’t mean DAs agree on the approach to Covid …”
And then this:
“… regular meetings could be a ‘potential federalist Trojan horse’.”
And he talks about being “attracted to individual meetings”.
It’s certainly a different view from that expressed by the joint letter from the First Ministers and then the letter from Mr Drakeford?
Professor Ailsa Henderson: Yes, this is the most remarkable document I have read in a number of years. I mean, the phrase “potential federalist Trojan horse” jumps out, but so too, on the first page, a few references to the fact that the devolved administrations were “exposed” to UK Government decision-making, as if being in the room and listening to what the UK Government was going to do was enough and satisfied commitments in terms of intergovernmental relations.
I mean, it’s also clear that the Secretary of State for Scotland thought that weekly contact was too frequent and certainly didn’t want it to roll on after Covid, and wanted bilateral meetings rather than multilateral ones.
So if we take it in the round, I think there’s a number of things going on, but for me what it looks like is that there were positions on intergovernmental relations and how the devolved administrations should be integrated within a UK-wide response that were not driven necessarily by what would be best able to respond to an epidemiological event.
It’s clear that there was a desire to structure intergovernmental relations for ad hominem reasons, so there’s a clear effort to control or handle one of the First Ministers in particular, there is a fear of federalism, there is a fear of leaks, there is a perceived kind of venality or self-serving nature to the motives of the devolved administrations, and never a reflection that this might also be true for all actors, and no real expression in this document that it might improve decision-making if more voices from more parts of the UK were included in the decision-making.
So that’s one thing to say.
The other thing is that it looks to me like Michael Gove felt caught in the middle by this, and so we see this tension developing between the principles as laid out in the action plan and the principles in the Coronavirus Act and the reaction of Mark Sedwill and the reaction of Michael Gove on the one hand, and then the views of the Prime Minister, the views of the Secretaries of State for Scotland, Wales and Northern Ireland, the views of Number 10 as well in later documents, and there is a tension at the centre in terms of how the devolved administrations should be accommodated.
Mr O’Connor: Thank you, Professor.
I’m going to move on. Those, let’s remind ourselves, were in April 2020. We will look at some later documents, and they will bring us back to similar themes. But, as I said, I was going to address this by reference, first of all, to the first three months or so, which we’ve finished now, and then to look generally, more generally, at the later period, and it’s paragraph 102 of your report which starts to talk about this later period.
You make the point that in general terms the variation that we’ve discussed expanded, and from the time of the sort of lifting the first lockdown, then on into the later part of 2020, the different devolved nations increasingly took their own course, whether it was the date of lifting the lockdown, the Welsh early circuit breaker in October, there are other examples, but the close sort of consensus on approach which we saw in March broke down and that was the context during the rest of the year, was it not?
Professor Ailsa Henderson: Yeah, I wouldn’t say broke down, it just changed.
Mr O’Connor: It was no longer the case –
Professor Ailsa Henderson: Yes.
Mr O’Connor: – and different – more different policies were pursued?
Professor Ailsa Henderson: Yes, absolutely.
Mr O’Connor: Taking a step to one side, one of the mechanisms that we haven’t talked about so far is SAGE.
Professor Ailsa Henderson: Yes.
Mr O’Connor: Now, SAGE is an organisation – probably there are many of us in this room that know more about them than we thought we ever would, and we’re going to be hearing evidence from a number of people who sat on SAGE in the coming weeks. But you have referred to it in a number of respects in your report, and of course it was meeting throughout this period and in fact throughout the pandemic.
There are a couple of points you make about SAGE. First of all, relating to attendance by members of the devolved governments. You refer at paragraph 98 of your report to the membership lists which you’ve looked at indicating what you describe as patchy engagement with the devolved administrations, and you also refer to the fact that at least one of them had what he described as part-time observer status. So can you expand on those points a little?
Professor Ailsa Henderson: Sure. So one thing to mention is that the representatives from the devolved administrations weren’t included from the very beginning, so there was an early attendee on – in one instance, but then when we get to later in the period then we start to see more regular attendance from representatives of the devolved administrations. So they weren’t included at the start and only included afterwards. And we have a shifting group of people who are invited to this, and because they weren’t full members of SAGE, they – you know, in some of the Inquiry testimony we see that they felt that they didn’t have the same ability to feed information into SAGE.
Lady Hallett: Doesn’t it depend on what the purpose of SAGE was?
Professor Ailsa Henderson: Yes.
Lady Hallett: I think I’ve already heard that the purpose of SAGE was to provide scientific advice, and therefore the people who attended were selected for their expertise, rather than their representative nature. So in other words, is your criticism, if it is a criticism, which I think it is, is that fair if they’re being selected for their expertise, not their representative nature?
Professor Ailsa Henderson: But they’re talking about data, and, so SAGE focused overwhelmingly on England data, and if you don’t have anyone in possession of Scottish data or Welsh data in the room, then your evidence base is partial.
Mr O’Connor: Professor, that links in to the next point I was going to take you to, and that’s paragraph 139 of your report, where you do make a series of points about, a criticism really of SAGE focusing too much, I think, in your view, on English data, even though they would sometimes describe it as UK data.
Professor Ailsa Henderson: Yes.
Mr O’Connor: Is that the point you’re trying to get across in that paragraph?
Professor Ailsa Henderson: Yes, absolutely right. I mean, there’s a unit of analysis problem. And it’s not restricted to Covid, it is everywhere. People talk about the UK when they don’t mean the UK, they mean England – or they mean Britain, they don’t mean the UK, because Northern Ireland is almost always just sort of hived off at the start. So when people talk about having access to UK data, then they often don’t actually, they have England-only data.
So England, it’s a way of – there’s an elision between England and the UK, but it also means that there’s a kind of inability to look at England as England as well, that it’s seen as, you know, good enough to have data from England and for the rest, and just assume that what applies in England applies in the rest of the UK. But there are demographic and socio-economic elements about England that are not replicated elsewhere in the UK. So there is a unit of analysis problem.
Mr O’Connor: The elision point is one we will come back to –
Professor Ailsa Henderson: Yes.
Mr O’Connor: – in other contexts, but sticking with SAGE, it’s not just a data point, the point you make about – in paragraph 140, so the next paragraph, you describe it as being a terms of reference. So, for example, one of the examples you give is that SAGE thought about schools, whether schools should go back early, not go back, but seemed to have addressed their mind solely to the question of English term dates and left out of the equation the fact that Scottish term dates are very different?
Professor Ailsa Henderson: The Scottish schools were already back when they were talking about whether they should be concerned about potential mixing in English schools. So it’s just an English frame of reference tied to an English calendar and English data.
And it’s also the case that when they turned their minds to certain things, it was often because there had been a change in the rules that applied to England, but a comparable change did not apply in Scotland or Wales or Northern Ireland, so issues moved their way on to the agenda to an English rhythm.
Mr O’Connor: Well, these are matters we can take up with the SAGE scientists when we see them, in fact later this week and on into next week.
Professor, turning our attention to a different organisation, although associated with it, you are rather less critical of the Joint Biosecurity Centre, which was established in May 2020. The “Joint” is an indication of its four nation basis, and I think your view, and it’s paragraph 99 I think we have, is that it was successful in its ambition of being a four nations organisation?
Professor Ailsa Henderson: Four nations by default, absolutely.
And when we talk about intergovernmental relations, we often distinguish between vertical and horizontal relations, so vertical would be the centre and the other parts, and horizontal would be across the different units of a state. So the JBC is an example, a rare example of pure horizontal intergovernmental relations: it brings in representatives from Scotland, Wales and Northern Ireland. And the representative is there as the relevant health minister for England. Because often in intergovernmental relations in the UK they are neither vertical nor horizontal, or in a way they’re both vertical and horizontal by virtue of the fact that the UK Government wears two hats, so it renders everything a vertical form of intergovernmental relations and everything a horizontal – or a horizontal one, and that muddiness of roles can cause problems. This is a pure instance of horizontal IGR and also one where it was seen as a four nations by default, but also it’s a continuation of this understanding that different approaches are anticipated and normal.
Mr O’Connor: Thank you.
I want to come back now, Professor, in this slightly later chronological period to the question of the engagement between the four nations at senior ministerial levels.
If we can, please, go to paragraph 126 of your report, where you summarise the position later in 2020. You refer to the fact that really COBR ceased to meet after about mid-May for several months, until well into the autumn. You record the fact that in late September, early October, Mark Drakeford said he hadn’t spoken to the PM in months. There were more letters of the type we’ve seen, I’m not going to take you to them, requesting a more secure rhythm of meetings and for COBR to meet again. And in fact it did during the autumn.
You also make the point, in fairness, that that frustration cut both ways –
Professor Ailsa Henderson: Yeah.
Mr O’Connor: – and that when, in the example you give, a member of the Westminster government asked to attend Welsh Government meetings he was given a fairly short answer?
Professor Ailsa Henderson: Yeah, received little response, yes.
Mr O’Connor: Against that backdrop, I want to ask you about one or two other documents.
First of all, can we look, please, at INQ000137215, which is a submission to the Prime Minister towards the end of May 2020.
If we can go over to the next page, please, we see, I won’t take you to it, but this is in fact not from Mark Sedwill but from Helen MacNamara and Simon Case, so two very senior members of the Cabinet Office team, Simon Case not having taken over as Cabinet Secretary quite by this time, but it’s a minute to the Prime Minister, and it is a similar document to the one we were looking at from Mark Sedwill earlier in the sense that it is proposing a new scheme, a new set of arrangements for handling the crisis, and the intention is to replace the MIGs with what we now know as Covid-S and Covid-O, that structure, and we see in the bold passage at the top, just as with the Mark Sedwill document, also raised is the question of how to “manage” the DAs and the suggestion is that there would be a Joint Ministerial Committee mechanism.
So if we can just pass through the document, we see without zooming in at paragraph 3 they are suggesting having a ministerial group shaping strategy. That’s what became Covid-S. Then at paragraph 4, here, a Covid Operations Committee that became what we know as Covid-O. Then the DA, the devolved administrations, are addressed at paragraph 6. It says:
“Thus far the DAs have been involved in decision-making through the MIGs and in COBR. There needs to be a mechanism to discuss and agree on a four-nation approach.”
There is a suggestion that a Joint Ministerial Committee should be convened when needed.
“Covid(sic) would stop meeting on Covid unless we re-enter a crisis situation and need to engage with the mayors.”
Question to Mr Johnson:
“Do you agree to use the JMC to manage conversations with the DAs, only use COBR if we re-enter a crisis situation?”
We know from his witness statement Mr Johnson did agree with that proposal, but in fact the JMC did not meet during Covid, did it?
Professor Ailsa Henderson: No, it did not.
Mr O’Connor: What we see from the materials and we see from witness statements and so on is that starting very much at the time of this document, and then carrying on through 2020, the engagement between Westminster and the devolved nations primarily took the form of telephone calls with Michael Gove, the Chancellor of the Duchy of Lancaster, and the First Ministers; is that right?
Professor Ailsa Henderson: Yes.
Mr O’Connor: It’s fair to say that Boris Johnson in his witness statement says, “Well, that’s what I meant. When I agreed to JMCs, I agreed to liaise with the devolved nations, and those phone calls with Michael Gove were sort of more or less what I had in mind”.
It doesn’t seem to have been seen that way, at least by the First Ministers, as we’ve seen from your report, that they were later in the year pressing for more COBR meetings, they weren’t satisfied with the engagement that they were receiving; is that fair?
Professor Ailsa Henderson: Yes. I don’t think it’s the case that – I mean, you’ll have to ask them, but I don’t read from that dissatisfaction with the conversations with Michael Gove, I just think there was a perspective that they weren’t sufficient.
Mr O’Connor: In fact I think that’s very fair, because many of the statements say, in terms of receiving information and having routine, frequent communication, they served their purpose?
Professor Ailsa Henderson: Yes.
Mr O’Connor: It’s just not the level of engagement that they wish for.
Can we look, please, following in this vein, at paragraph 129 of your report.
Lady Hallett: Were the calls conference calls or were they calls one-to-one?
Professor Ailsa Henderson: I don’t know.
Mr O’Connor: I think the evidence will show that they were group calls, but there was also, you’ll recall, in that earlier email, a suggestion of individual calls as well. I think you’ll find that it was a mix, my Lady.
Lady Hallett: Thank you.
Mr O’Connor: But the routine engagement was conference calls.
Paragraph 129, Professor. It’s here that you first of all refer to the fact that, contrary to that suggestion, the document we just looked at, the JMC in fact was never –
Professor Ailsa Henderson: Yeah.
Mr O’Connor: – convened during the pandemic. We see it recorded there Mr Drakeford addressing the Senedd and indicating that at no point did anyone reach for the JMC structure. He says that that’s not fit for purpose. But you make the observation towards the end of that paragraph, you say:
“In a way, these were cultural rather than institutional obstacles. Or, put another way, it was the spirit in which actors approached intergovernmental work that mattered.”
What do you mean by that?
Professor Ailsa Henderson: So I think one example of that would be the document that you raised earlier where there was a conversation between Michael Gove and the Secretaries of State for the territories. I mean, you can see there a very particular vision and understanding of intergovernmental relations that is not the one that you see sometimes from members of the devolved administrations.
There is a lot of talk about the importance of having secretariats housed in particular ways and staffed in particular ways, but I think two things are relevant: one, what is the body and what is its purpose? And two, is its presence or is the frequency of its meetings down to the whim of individual leaders?
So I think there’s a concern that the JMC structure was not just not fit for purpose in a crisis situation like this. You can well imagine that routine intergovernmental relations are really not helpful in a crisis, but I think, you know, there were noted weaknesses of the JMC. It wasn’t seen as a decision-making body. And so therefore, in a crisis, you do kind of want a decision-making body where you can all contribute to joint decisions, if the principle of joint decisions and consensus is something that you say is important from the start.
So it’s about the organisation itself and then it’s about whether it’s ever called into action. And we know that the other weakness of the –
Lady Hallett: Can you slow down, please.
Professor Ailsa Henderson: Oh, sorry, I’m just getting excited about JMCs.
So one thing is the weakness of the organisation itself, and the other is that it was just in abeyance for most of the time. And so how – you kind of wonder, when people complain, well, they were never called, and it’s said, “Well, you didn’t like them anyway, so how annoyed can you be?” That they were never called.
The UK is not the only state that had a kind of intergovernmental machinery that wasn’t really pressed into service. And as we know, the whole point of it was to facilitate communication in plenary, it wasn’t meant to be convened very often. So you can understand why it wasn’t pressed into service.
Mr O’Connor: So when you talk in that paragraph about cultural rather than institutional problems, and what lies at the heart of this is the spirit in which people approached their engagement, would another way of making that point be to say that the problem here is much larger than just whether the JMC was convened and told to meet?
Professor Ailsa Henderson: Yes, absolutely.
Mr O’Connor: There’s much more going on, isn’t there?
Professor Ailsa Henderson: Yes, but the fact you have an organisation you don’t convene is a symptom of that same lack of a kind of spirit.
Mr O’Connor: Let me ask you about another passage from Boris Johnson’s witness statement.
So can we go, please, back to his statement, which is INQ000255836, and it’s paragraph 188. This is a statement or a part of his statement which, as you may know, Professor, the First Ministers have all been asked to comment on. He says this:
“It is optically wrong, in the first place, for the UK Prime Minister to hold regular meetings with other DA First Ministers, as though the UK were a kind of mini EU of four nations and we were meeting as a ‘council’ in a federal structure. That is not, in my view, how devolution is meant to work.”
This of course takes us right back to your evidence at the beginning of this afternoon about the difference between a multilevel state, or rather a unitary state and a federal state.
What’s your view about this statement?
Professor Ailsa Henderson: Well, we often evaluate mechanisms and organisations for implementing intergovernmental relations. We evaluate them on a number of criteria, and one of them is parity of esteem. So the task then becomes, in each instance, is there parity of esteem? So the JBC, parity of esteem across the health ministers, so that’s a good thing.
This is an instance of the Prime Minister saying, “But parity of esteem is not a goal. In fact I find it distasteful because it implies that there is parity of esteem. I don’t believe there is”.
Mr O’Connor: This, after all, is exactly what Mr Drakeford and the other First Ministers had been asking for in those letters we looked at earlier: regular meetings between Mr Johnson and the other First Ministers so that they could meet, to use Mr Johnson’s words, as a council to decide on a joint – not necessarily uniform, but joint approach to Covid; and Mr Johnson appears to take the view that that is not only not the right answer but there’s something constitutionally wrong about that answer?
Professor Ailsa Henderson: I don’t even know if the wish was joint – you’ll have to ask them, but I don’t know if the wish was joint decision-making so much as an opportunity to inform UK Government decision-making, and I think that’s an important distinction. But certainly this, the spirit of this paragraph and the spirit of the statement from, you know, the record of the meetings with Secretaries of State for Scotland, Wales and Northern Ireland help one to understand why we have the intergovernmental relations architecture that we do.
Mr O’Connor: And it’s – again I won’t go to them, we can ask them themselves when they give evidence in the later modules – but it’s certainly the case that, by and large, the First Ministers profoundly disagree with this statement?
Professor Ailsa Henderson: Yes.
Mr O’Connor: I want to –
Professor Ailsa Henderson: As would most in a multilevel state, to be honest, I mean …
Mr O’Connor: I want to go back, if we can, to your report and go to page 43, please, because there you refer to Mr Gove’s, Michael Gove’s angle on this issue, if I can put it that way.
At the top of the page you refer to one devolved minister as having said, “The choice not to talk with us as equals was plain and obvious.” Then you refer to Mr Drakeford saying something similar.
But then you can see in the indented passage you refer to Michael Gove’s account where he said they were, as it were, faced with a problem, “What are we supposed to do? Are we supposed to invite them to our Cabinet committee meetings, where decisions need to be taken urgently, or do we make an agreement and then, as it were, tell them what it is and they’ll complain that something’s being imposed on them?”
And I think your analysis is that that might be a – or at least a self-created problem on the part of the British Government, or the Westminster government?
Professor Ailsa Henderson: I think in this instance Michael Gove is treating – is portraying as external constraints that are of the UK Government’s making. The reason it’s difficult to decide, “Well, should we have them in a Cabinet subcommittee or not?”, well, you decided to have the decisions made in the Cabinet subcommittee. You didn’t need to, they could’ve been in COBR. Admittedly that’s for a crisis at the start, so you can understand why it’s not COBR all the way through, but you had the MIGs, you could have kept with those. The reason you have this problem about the Cabinet subcommittees is because you created the Cabinet subcommittees and wanted decisions to be made there.
And likewise if there’s a lack of clarity about status and role, that’s because since 1999 we have perhaps devoted less attention to clarifying what that status might be and how we generate organisations or mechanisms for good intergovernmental working.
Mr O’Connor: Sticking with the theme of whether the devolved ministers should or shouldn’t be present at Cabinet meetings or Cabinet committee meetings, and COBR for that matter, the evidence also raises perhaps a rather more basic practical point about trust, and whether these individuals that we’re concerned with were actually capable of working together as sort of trusted partners or not.
Let me take you to one or two documents.
First of all, I’d like to take you to a sort of letter that the Inquiry received from Dominic Cummings, which contains screenshots, amongst other things, of WhatsApps between him and Boris Johnson.
So can we go, please, to INQ000048313, page 22. This takes us back to the early days, back to – so if we can look at the bottom half of that, please. So this is a WhatsApp from Dominic Cummings to Boris Johnson on 12 March, so back before the first lockdown. He says:
“You need to chair daily meetings in the Cabinet room – not COBR – on this [I mean, I think we can assume that means Covid] from tomorrow. I’m going to tell the system this.
“Not with the DAs on the [fucking] phone all the time either so people can’t tell you the truth.”
We can ask him when he comes to give evidence, but the inference there is that the devolved ministers are not trusted partners, that Boris Johnson can’t receive sort of full, truthful advice when they’re at the meeting because they can’t be trusted, perhaps, to keep it confidential.
Professor Ailsa Henderson: Yeah, it’s not clear whether – and this is something that could be put to Mr Cummings is that: is the issue that, by their mere presence, people were constraining what they were saying and therefore, you know, a propensity to be more free-talking might have led to better decisions, or is it a fear of leaks? I don’t know what’s implied by that.
But on the former, it’s worth asking whether there was such a more free-talking COBR possible and, if so, whether that more free-talking COBR would have made different decisions than the ones that were made. I think that’s unknowable, but perhaps he has evidence.
Mr O’Connor: Well, it’s certainly something we can pursue, but it is possible to take this matter just a little bit further on the statements we have. I’m going to take you briefly to two further references.
First of all, if we can look at Arlene Foster’s witness statement, please, it’s INQ000274192, page 1. This is a recent account she has given. If we can zoom in on the first paragraph, or the (a), starting about five lines down, where it says:
“Nicola Sturgeon would brief …”
That’s fine. Can you say five lines down it says:
“Nicola Sturgeon would brief the media ahead of an upcoming announcement by the Prime Minister. I imagine this led to UK Government being perhaps less open about its decision-making than it otherwise might have been, in a bid to stay in control of messaging.”
So for what it’s worth, that might help us to understand what Dominic Cummings was referring to –
Professor Ailsa Henderson: Yep. Yes.
Mr O’Connor: – in his WhatsApp.
Then let’s also see what Nicola Sturgeon had to say about this, and that is in her recent witness statement, INQ000273749, page 11, please. It’s the last paragraph of her witness statement, she says:
“On the issue of briefing the media, I considered that to be a core part of the job I had to do. Given the situation we faced, and the extraordinary sacrifices people were being asked to make, my judgment was that building trust in Government was essential to achieving the compliance that was necessary. A key part of that … was ensuring quick, clear, and open communication that explained what we were asking people to do, and why. That is why I undertook daily media briefings.”
So she –
Lady Hallett: Mr O’Connor, I think we’re stretching a bit beyond this witness’s expertise.
Mr O’Connor: Yes, my Lady.
Professor Ailsa Henderson: Except that we do have data on trust, and we do know that the Scottish electorate and the Welsh electorate trusted their own devolved governments more than they trusted the UK Government in terms of its handling on Covid, and given that so many of the decisions were actually not wildly different but were variations, and we also asked questions about the roll-out of the vaccine, which was also very similar across … the explanation for that is largely to do with the different scores that people gave in terms of communications.
So the electorates in Scotland and Wales did have higher levels of trust in the devolved administrations, and we can attribute that almost exclusively to the different way that those governments communicated their decisions to their electorates.
However, the other side of it, I can well imagine that routinely briefing news ahead of the Prime Minister was deeply annoying to the Prime Minister, and it’s not just that, I think also that in building trust in the Scottish Government there is a possibility that by briefing early, it also undermined trust in the UK Government, and on that we don’t – we don’t know.
But we do have decent trust data, for Scotland and Wales in particular.
Mr O’Connor: Yes, and those are matters which you go into in a little bit more detail in your report, are they not, Professor? Thank you.
Just now there are, I think, really perhaps three short points I want to finish with. The first two of those are two obstacles to policy variation that you address in your report. The first of those takes us back to the Barnett situation and economic levers, as you describe them in your report.
So can we go, please, to paragraph 134 of your report, page 44. The high level point you make here, Professor, is that – and this was a point I referred to when we were looking at those tables – it’s one thing saying to a devolved government that it has power to act in a certain area, but often undertaking that action will cost money. And it may be that the example of Covid is a very good one in that respect, because to initiate a lockdown, to use a general term, couldn’t be done practically without a great deal of funding for – to make up for, you know, the furlough scheme, Bounce Back loans and so on.
And that was a problem, or an issue at any rate, that devolved nations faced during the pandemic, wasn’t it?
Professor Ailsa Henderson: Yes. Yes, absolutely, because the funding for the furlough scheme came from the UK Government, and the UK Government – you can think of it like – in the report I use the metaphor of a money tap being turned off and on. The tap was turned on when England was in lockdown, and so if England wasn’t in lockdown, the tap had not been turned on, and it made it very difficult therefore to impose a lockdown in Scotland, Wales or Northern Ireland if you didn’t have the fiscal levers to support individuals and businesses that could not earn income. And so there was frustration that perhaps a clear policy path had been identified but the devolved administrations couldn’t act on it because they didn’t have the financial resources to do so. And in fact some have said that actually that – the fact that that fuelled policy convergence was a benefit of the arrangements.
Mr O’Connor: Those who thought, like Boris Johnson, that policy convergence is a good thing expressed that view?
Professor Ailsa Henderson: Yes.
Mr O’Connor: Of course not everyone did think that was a good thing.
Professor Ailsa Henderson: Yes.
Mr O’Connor: And if we can look, please, at a letter, another of the letters from Mr Drakeford, this one is INQ000228013. We’ll note this one is much later than the other documents we have been looking at, so this is December 2021, so during the Omicron wave.
He really makes the point that we have been discussing. If we look at the paragraph starting “However, in the circumstances we now face …” he’s talked about the approach so far to the public health crisis, then he says this:
“ … the Welsh Government is inhibited from considering a full range of mitigation measures because we are unable to access Treasury funding to support public health options. Put plainly, Wales and the other devolved nations can only access Treasury funds when the UK government decides the time is right for such measures in England.”
That’s, in a nutshell, what you have been describing, isn’t it?
Professor Ailsa Henderson: Yes.
Mr O’Connor: We can see that in the rest of the letter he is asking for funds to be made available so that the Welsh Government can impose their own measures, even if those measures aren’t imposed throughout the UK.
Professor Ailsa Henderson: Yes.
Mr O’Connor: That was one of the points.
Another point just to touch on briefly – in fact it’s in the next paragraph of your report, so 135 – is the question of borders. Again, it’s something I mentioned right back when we were looking at those tables.
There was an issue, was there not, with whether borders were properly something that were to be dealt with by Westminster government, as it were, as an international matter which was therefore reserved, or whether border – access through borders was something that was a health matter that was therefore devolved?
Professor Ailsa Henderson: Yes, and I think that’s why, when the devolved administrations took action that related to the external border, it was variations in terms of health rules about quarantining or testing upon arrival and things like that, rather than – certainly members of the devolved administrations at different times have complained that they were not – because they were not able to control the arrival of people from outside the UK into their territories, it meant that the virus continually was re-seeding. And that’s obviously something that was relevant in Scotland and Wales, but it’s a particular issue in terms of Northern Ireland, given the open border with Ireland, and there was not just frustration about – it wasn’t so much frustration about jurisdictional competence, but the arrangements with the Republic and whether they could get the information they felt they needed, for example from arrivals who were coming to Ireland and then travelling on to Northern Ireland, they felt not being able to access that information caused them problems.
Mr O’Connor: Yes.
Then finally, Professor, a point which you address in a little detail in your report, but I’m just going to ask you a few questions about it now. It takes us back to the point you were making earlier about the elision between the UK and England. We talked about it earlier in the narrow context of SAGE, but I think you hinted at that stage that it’s a broader question, and you certainly describe it in your report as being a broader issue and you refer, for example, to Ofcom talking to broadcasters –
Professor Ailsa Henderson: Yes.
Mr O’Connor: – about whether they had got their message straight about whether particular measures were focusing on the UK or in England, but you go on to say that the government, or the UK Government itself, made similar mistakes and was guilty of referring to the UK when it really meant England.
Professor Ailsa Henderson: Yeah. So I coded all the daily press conferences, the printed pre-prepared material that’s available online, you can analyse it to see whether the UK Government clarifies when something about the UK is clarified as being about the UK, or when something that applies only to England –
Mr O’Connor: Sorry, just I think you need to slow down –
Professor Ailsa Henderson: I’m getting excited again.
Mr O’Connor: – a little bit more again.
Professor Ailsa Henderson: When something that applies only to England is clarified as such, and in the first two months this almost never happened. Whoever was the spokesperson of the day typically did a better job in clarifying when a UK-wide issue was indeed UK-wide, but that’s often because the UK-wide issue was information about data and so they were clarifying that it was UK-wide data.
Almost never in the first two months did they clarify when an England-only issue applied only to England, and in fact I can find, in all of the daily press conferences, only one instance in late May of 2020 when I think it was Matt Hancock clarified, “These are rules that apply only to England, and this is what the rule is in Scotland, and this is what the rule is in Wales, and this is what it is in Northern Ireland”.
Sometimes, in a handful of situations, the spokesperson would say, “These rules apply only to England, the devolveds have their own rules”. Right? But persistently you get this failure to clarify that changes to rules about the re-opening of car showrooms or the re-opening of offices or bike voucher schemes – the report lists about 20 different types of policies that it talks about – never once clarifies that those were changes or policies that applied only to England.
And that’s important because a lot of what they were talking about had an impact on behaviour. They wanted citizens to change their behaviour, but when the rule applied only in England, it was only English residents whose behaviour would need to change, and that wasn’t clarified at any point, and it led to confusion on the part of electorates in Scotland, Wales and Northern Ireland, and it meant that the media picked up those statements and ran with them, and also didn’t clarify what applied to England alone and what applied to Scotland, Wales and Northern Ireland; and so bad was the lack of clarity that Ofcom got involved and Ofcom issued three different kind of statements about media reporting on Covid, and the first two are urging for more clarity about medical matters, but the third one talks about the representation of diversity across the UK and urges broadcasters and print journalists to be clear when a rule or a change applies only to a particular part of the UK.
There was a chronic lack of clarity from the UK Government about when it was speaking on – with its England, government of England hat on, and when it was acting or speaking with its UK Government hat on.
Mr O’Connor: If I may, in conclusion, just to round off this point, Professor, just to provide one illustration of this problem, if we can look at one last document, please. It’s INQ000216525. This is a – it’s similar to other documents we’ve seen, because it’s a read-out, an email describing one of these calls, Michael Gove’s calls with the devolved ministers.
It’s an email that’s written not at Westminster this time, it’s in Cardiff, in Mark Drakeford’s office, I think, but we can see this is – so this is in July 2020 that Michael Gove has told them about “the next chapter in our plan to rebuild document”, and we see that – and I’m looking in the third paragraph down where it says “MG” – that they say, well, they’d actually received it 15 minutes before the meeting.
Then if we could zoom back into the main part of the document, please, that the FM, that’s Mr Drakeford, first of all he says he’s only had time for a quick scan of the document, then he says it mixes up UK and England in a number of places, and he explains where, and then he once again:
“Plea for the clarity that when the PM speaks he makes clear when the actions he’s announcing are England-only measures.”
Then a couple of paragraphs down he picks up on another strand of all this, which is to say, “Well, actually our message is not the same”, and at that point Boris Johnson was encouraging people to go back to work, and we see Mark Drakeford saying, “We’re keen to maintain home working because of its benefits in reducing risk of transmission”, and there were other examples, were there not, where the devolved governments declined to adopt Westminster government messaging?
Professor Ailsa Henderson: Yes.
Mr O’Connor: Professor, thank you very much indeed. Those are all my questions. There are just going to be five minutes or so, I think, of questions from one of the other barristers.
Lady Hallett: Ms Shepherd.
Questions From Ms Shepherd
Ms Shepherd: Thank you, my Lady.
Professor Henderson, I act on behalf of Covid-19 Bereaved Families for Justice Cymru. I’ve got two questions to ask you, and they are on disparate topics, but the first one relates to border control.
If we could have up on the screen, please, INQ000083851, on the front page we can see there that these are the minutes of a COBR meeting held on 12 October 2020.
If we could turn, please, to page 7, at paragraph 11 of page 7 the First Minister of Wales, who we know is Mark Drakeford, raises a number of points. The fifth line down, it is said that he was disappointed that the travel restrictions from parts of England to Wales remained subject only to guidance as opposed to enforceable restrictions. It goes on to say that the ability for cross-border travel between areas of England with high infection levels and Wales left people situated within medium and low areas of infection in Wales susceptible to increased risk.
As you discussed earlier, we know from your report that all four nations issued their own regulations to restrict international travel. My question is this: were internal border restrictions between England and Wales a matter for the Welsh Government, the UK Government or both?
Professor Ailsa Henderson: Yeah, it’s an interesting question, and one probably – that particular phrasing of it is probably best put to a constitutional lawyer. But one thing we do know is that the – if we look on the website of the Senedd, they have a list of all the regulations and restrictions that they approved during the pandemic, and they have a handy little table that locates the parent Act from which they think they have the authority to make that regulation or that restriction. And in the case of the restrictions that were made just a few days later, I think this was 12 October and then on 16 October there were restrictions made for people travelling from areas where there was higher rates of illness to areas inside Wales, not just in terms of England, it’s clear that they felt they had the authority to do this because of the Public Health (Control of Disease) Act 1984, and particularly they were drawing on section 2A of the Act and section 45, and I think it’s – three different sections, three different parts of section 45, and then the last fourth one is section 45R, which says that they don’t have to lay that before the Senedd, they can just issue the regulation.
So there was one in October, there was another one in December. So certainly they felt they had the authority, as a result of the powers that they had by virtue of the Public Health (Control of Disease) Act 1984 to make that change.
It’s noteworthy that no other devolved administration made that change, but I think schedules 18 and 19 of the Coronavirus Act give similar powers to Northern Ireland ministers and Scottish ministers.
The only thing I would say is that we know this was not – this was a controversial regulation. Erecting internal borders within the union was highly controversial, and for the most part one’s view of the union and one’s understanding of the union kind of helps us to understand how someone might react to it.
So those in the devolved administrations, certainly those who want constitutional change or greater powers for the devolved administrations were generally more satisfied with it, but on the more unionist side of things there was deep discontent with the establishment of internal borders.
Ms Shepherd: Thank you.
Then my next question is: at paragraph 93 of your report – I’m not suggesting we bring it up on the screen – you discuss how the Joint Biosecurity Centre was integrated with Public Health England into the UK Health Security Agency.
What was the impact of the JBC being subsumed into UKHSA on intergovernmental working?
Professor Ailsa Henderson: Well, the most obvious change is that its minutes were no longer available for me – for anyone to read, me included. So there is some lack of clarity. But if I had to summarise the effect of that change, it would be that the JBC, which had worked on the principle of parity of esteem and horizontal – good horizontal intergovernmental working then became subsumed into an organisation, although it had “UK” in its name, was fundamentally concerned more with England than with the UK as a whole.
Ms Shepherd: Thank you.
Thank you, my Lady.
Lady Hallett: Thank you very much, Ms Shepherd.
Thank you very much, Professor Henderson. I hope you don’t get teased by family and friends for getting excited about JMCs, but you’ve been extremely helpful, thank you. And I think you’ve travelled down from Scotland to be with us today?
The Witness: I did, I did.
Lady Hallett: Well, thank you for making the journey.
The Witness: Thank you very much.
(The witness withdrew)
Lady Hallett: 10 o’clock tomorrow?
Mr O’Connor: My Lady, yes.
Lady Hallett: Thank you very much.
(4.30 pm)
(The hearing adjourned until 10 am on Tuesday, 10 October 2023)