4. Submissions on Behalf of the Welsh Government by Mr Howells

Mr Howells: My Lady, as the Welsh Government submitted in opening, in responding to the pandemic, the four governments had, for the most part, their own powers and responsibilities. Using those powers, they made decisions that they considered to be in their nation’s best interests. If we understand your Ladyship correctly, the Inquiry will investigate how each government made decisions on behalf of the people they served and their effectiveness, rather than how and why their decisions diverged from those of the UK Government. How well the governments worked with each other, the effectiveness of those relationships, and in particular their impact on the ability of the devolved governments to respond to the pandemic is part of that wider question.

When describing the actions taken by the governments of the United Kingdom, use of the term “divergence” is misleading, as it implies a default position, namely that taken by the UK Government.

The UK Government chose to use the Public Health (Control of Disease) Act 1984 as the legal basis of the response to the pandemic, in the full knowledge that executive power under that Act had been transferred to the Welsh Government.

Part 2A of the 1984 Act, the relevant part for present purposes, was inserted by the Health and Social Care Act 2008. So when those changes were made by Parliament, it was already known that executive functions under that part had been transferred to the Welsh Government.

As reflected in part 2A of that Act, the principle of subsidiarity in the context of infectious disease has Parliamentary approval.

In Module 2B, the Inquiry will hear evidence about the Welsh Government’s decision-making about non-pharmaceutical interventions, and so the impact of intergovernmental relations on decision-making in Wales can be better assessed then. At this stage, it is useful to review the evidence of ministers, officials and experts on intergovernmental relations heard in Module 2, in order to put that evidence into context before the Inquiry examines the decision-making of the devolved governments.

Until May 2020, the Prime Minister engaged with the First Ministers of the devolved governments in COBR. However, in May, the UK Government unilaterally decided to reorganise its Cabinet committee structures, which had the practical consequence of ending the First Ministers’ attendance at COBR. In their place, the UK Government implemented Covid-S and Covid-O. When those meetings were adopted, the then Prime Minister accepted he should continue to work with the devolved governments through joint ministerial committee meetings. That did not happen.

It does not matter whether the meetings with the First Ministers were in COBR, joint ministerial committee meetings or otherwise. What mattered was the need for a regime of regular meetings attended by the Prime Minister and the First Ministers in which the heads of the four governments in this country were able to raise, discuss and decide matters of mutual interest and concern. That is what the First Minister of Wales regularly called for. When the United Kingdom is facing the greatest peacetime threat since 1945, the rationale for such meetings is so obvious that it does not and should not need to be spelt out.

Notwithstanding the clear and pressing need, there were no meetings between the heads of government between May and October 2020. On any view, it is profoundly unfortunate that no such meetings were convened by the then Prime Minister, with whom the institutional initiative lay to organise them. No good reason has been given for not organising those meetings.

Thereafter, the First Ministers were invited only to Covid-O meetings, chaired by Michael Gove MP, the then Chancellor of the Duchy of Lancaster. Meanwhile, as Lord Sedwill has explained, the big decisions were taken by the Prime Minister in Covid-S. By contrast, the second order decisions, that could be made by lower ranking ministers, were made at Covid-O. Put differently, the devolved governments were invited to the forum that dealt with implementation, but not to the forum that set the strategic direction.

The First Minister of Wales believes that better co-operation would have led to better outcomes. In that regard, it should be noted that Professor Henderson said that the UK Government’s position on intergovernmental relations was not necessarily driven by what would be best to be able to respond to an epidemiological event.

Michael Gove said that there was no perfect solution to the problem whether to include the devolved governments in UK Government decision-making structures or to invite them on an ad hoc basis. That answer ignores the basic point that the devolved governments were asking for a regular pattern of meetings, particularly between the heads of government. They were not asking to be included within UK Government decision-making structures, COBR aside, and they were not seeking a particular form for those meetings. The compelling and obvious need was for arrangements that allowed for effective and efficient participation by the heads of the devolved governments in strategic consideration of how best to respond to the pandemic.

Boris Johnson was more forthcoming about the reason why he did not regularly meet with the First Ministers for long periods of time. In short, he wanted to avoid creating the impression that the United Kingdom was a federal state, an apprehension shared by the territorial secretaries of state, who described regular meetings between the Prime Minister and the First Ministers as a “potential federalist Trojan horse”.

Mr Johnson’s concern with appearances did not recognise and so did not meet the scale of the events confronting the four nations, nor did it recognise the practical reality, which was that the relevant powers to impose non-pharmaceutical interventions, as was appropriate, were devolved. As a reflection of the UK Government’s attitude to the need for close and effective co-ordination between the heads of the four governments, Mr Johnson’s evidence is telling.

Also, current and former ministers of the UK Government recognised that differences in approach, pace and emphasis between the four nations were reasonable and in accordance with the principle of subsidiarity. For instance, Boris Johnson stated that the interests of the devolved governments did not always align with those of England, and that was an inevitable part of a devolved system. He also said that he understood why, given that the incidence of the virus was rising in Wales and tiering had not worked well, the Welsh Government had imposed a firebreak. On 28 May 2020, he told the First Ministers that he fully appreciated the different ways in which the devolved governments were responding based on different transmission rates, and that he would communicate that clearly.

In oral evidence Mr Johnson accepted that the UK Government had excellent relations with the devolved governments and overwhelmingly things worked well across the United Kingdom. He also stated that there was a greater degree of caution in Wales and Scotland than there was in the UK Government, and that went with the grain of public opinion in those countries.

He rationalised the less cautious approach of the UK Government on the basis that there was no point getting R below 1 if you were not going to take advantage of the freedom that resulted.

However, he accepted that the devolved governments have the perfect right to pursue more cautious policies. Michael Gove acknowledged in May 2020 that the UK Government accepted that measures needed to change in different ways at different times in different parts of the United Kingdom. Mr Gove also conceded that the purpose of devolution is to allow different parts of the United Kingdom to tailor decisions according to local need, and that it was reasonable for the devolved governments to take the decisions they considered necessary for the different circumstances in their countries.

In oral evidence, he accepted the suggestion that different parts of the UK would approach the same problem in different ways because of differences in the epidemiological position and available healthcare facilities, so there were bound to be difficulties in terms of an absolutely common approach, which was unrealistic.

Finally, Dominic Raab MP was not persuaded that decision-making should be centralised, because there were benefits in the devolved governments taking difficult decisions and working with the UK Government. Mr Raab felt the devolved governments worked effectively with the UK Government and there were strong examples of teamwork. He did not consider the case had been made for more centralised power in similar circumstances in the future.

My Lady, the weight of the evidence is that the principle of subsidiarity overwhelmingly worked well, to borrow Boris Johnson’s language. The blunt truth is that those who have suggested that responsibility for a future response should be centralised have not established a case for doing so.

These matters will be considered in our written closing statement for this module, and examined in Module 2B. However, two examples demonstrate how intergovernmental relations affected the response to the pandemic.

Firstly, the UK Government’s refusal to co-ordinate communication with the devolved governments was reflected in its routine failure to make it clear that the UK Government’s rules and messaging applied only to England.

Secondly, the lack of any arrangements to address the financial implications of any decisions taken other than those taken for England.

The Treasury’s unresponsiveness to the needs and public health requirements of the devolved governments meant that it treated the needs and public health requirements of England more favourably than the other nations of the United Kingdom.

These and other matters are directly relevant not only to the subject matter of this module, but also your consideration of the Welsh Government’s decision-making in Module 2B.

My Lady, those are my submissions, unless I can assist further.

Lady Hallett: Very grateful, thank you very much, Mr Howells.

Now I think it’s Ms Drysdale.