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

Ms Drysdale: Thank you. I appear on behalf of the Scottish Government with Kenneth McGuire, Julie McKinlay, and Michael Way.

The Scottish Government has listened carefully to all the evidence that has been led and wishes to acknowledge once again the loss and harm suffered by those in Scotland and the rest of the United Kingdom during the pandemic.

The central place of the bereaved and all those affects by the pandemic in this Inquiry is of the utmost importance to the Scottish Government.

The Inquiry will hear from Scottish Government witnesses about the strategic and overarching issues from the perspective of Scotland during Module 2A hearings in January in Edinburgh, and the Scottish Government is committed to assisting you with that.

In its opening statement to the Inquiry, the Scottish Government addressed you on five key themes. They were devolution, intergovernmental relations, the role of data in decision-making, public health communications, and inequalities. This closing statement will revisit those themes in light of the evidence.

Before doing so, however, the Scottish Government wishes to make some introductory remarks on its framework for decision-making.

The Scottish Government published its framework for decision-making in April 2020. A key part of that was the four harms approach which provided a mechanism to ensure that a balanced approach was taken, as far as possible, and that due consideration was given to vulnerable and at-risk groups as part of the decision-making process.

The four harms were direct Covid-19 health harm, other health harm caused by the pandemic, societal harm, and economic harm.

The Scottish Government took practical steps to embed these principles in its decision-making process, and consideration of these was a question of judgement for the elected representatives of the people of Scotland, not the scientists.

Decisions of the Scottish Government during the pandemic were generally made in meetings of Cabinet or in response to policy submissions, and decisions were recorded. There has not been discussion of these documents in the Module 2 hearings, but the Scottish Government looks forward to these being considered fully in Module 2A.

So turning to my first theme, my Lady, devolution.

Devolution is the context for UK decision-making during the pandemic and is thus relevant to Module 2, but the merits of devolution do not form part of the terms of reference of the Inquiry, rather it’s the response of government to the pandemic within a devolved framework that is in issue. The ability to make use of the devolved powers to respond to the pandemic in Scotland made a significant and positive difference. Scotland’s geography, demography and many of its institutions have never been the same as those of England.

The NHS in Scotland is a distinct healthcare system and public health legislation differs across the UK. These differences pre-date devolution. Devolution reflects the will of the Scottish people in the referendum of 1997, subsequently enacted in the Scotland Acts, and the intention of devolution is to allow the people of Scotland to elect representatives that reflect their priorities. The Scotland Acts create an equality of responsibilities between the Scottish and United Kingdom governments in their respective spheres.

Health and public health are devolved matters. This meant that many aspects of the responsibility in responding to the pandemic fell to the Scottish Government. Public health is intimately connected to Scotland’s distinctive systems of healthcare, justice, policing, education and local government, and to the Scottish Government’s responsibilities for economic development and most public services. Public health is also a devolved matter in Wales and Northern Ireland.

Devolution is now a fundamental pillar in the constitution of the UK, and the effect of devolution is that each of the four nations can take decisions having regard to the facts and circumstances within their respective areas of responsibility. Each has the option to align with others or to pursue different policies if it considers those best meet the needs of its people. Each starts from its distinct position in terms of its responsibilities and the characteristics of its jurisdiction.

Broadly speaking, and compared to England, people in Scotland are less healthy. Devolved control was essential to the effective public health response in Scotland. Such control should be maintained and indeed strengthened for a future public health crisis. The use by the UK Government of any powers to impose solutions in devolved areas’ responsibility would not be appropriate, particularly where the administrative and policy expertise and established relationships with relevant Scottish bodies all lie with the Scottish Government.

The clear democratic accountability of the Scottish Ministers to the Scottish Parliament for their response to public health crises in Scotland was a crucial part of good government in this area and should not be muddied by superimposing a layer of UK Government control.

The Scottish Government, by acting under its own powers, was able to map a distinct course to protect the people of Scotland, and by doing so, or having the potential to do so, on some occasions helped to steer the UK Government away from some policies which were not well thought through. The Scottish Government was not simply reacting to UK Government policies and proposals; Scottish Government policies helped shape the pandemic response across the UK, and it was better because of that.

The position of the Scottish Government is that this Inquiry should not make a recommendation that would mean that the powers and responsibilities of the Scottish Government under the devolution settlement would be restricted in a response to a future pandemic. There is simply no credible basis for such a recommendation. The devolution settlement allows the Scottish Government to take decisions in the best interests of the people of Scotland, even if that results in a slightly different position from the UK Government.

The Scottish Government was justified in assessing decisions independently. A good example of this is that Scotland’s NPI strategy from autumn 2020 differed fundamentally from that of England. The Scottish Government took a significantly different approach to extending NPIs in September and October 2020 at a time when it is suggested that there was a delay in the UK Government acting.

The Scottish and the United Kingdom governments worked together to use the Coronavirus Act 2020 as the legislative vehicle to put in place powers for Scottish Ministers to make regulations to implement NPIs. The 2020 Act was used as a rapid legislative vehicle, building on earlier work between the four governments on draft legislation for a flu pandemic. It was suggested by some, including Mr Johnson, that the Civil Contingencies Act should have been used, but he accepted on reflection that it was not a viable approach.

That accords with what the Scottish Government understood of the UK Government’s position at the time. The Scottish Government’s view is that it was right for public health legislation to be used. There was a particularly significant interaction between devolved decisions on public health measures affecting businesses and workplaces and reserved decisions in relation to public expenditure and borrowing. In effect, this meant that the Scottish Government could not deploy certain measures, even if it considered them to be justified by the state of the pandemic, without financial support from the UK Government, and such support was, in practice, only available when similar measures were deployed for England.

The Scottish Government was reliant on UK Government funding for measures that would likely involve significant costs, for example the furlough scheme, high volumes of PPE, testing and vaccines. For measures such as the use of face coverings, hand hygiene and ventilation, it was less dependent on UK Government funding, as they could be achieved through guidance, messaging and legislation without prohibitive financial outlay. Each of the four UK governments was responsible for deciding on NPIs within its own jurisdiction, but only one of the four had the ability to make funding decisions to support these interventions. This asymmetry if not addressed will affect the response to any future emergency.

Turning to my second theme, my Lady, intergovernmental relations, the issue of intergovernmental relations is closely related to that of devolution. Devolution allows all four United Kingdom governments to make decisions having regard to the facts and circumstances within its areas of responsibility. The four governments reached agreement on key elements of their strategy at several points in the pandemic, for example the Coronavirus: action plan of March 2020, the joint decision on the so-called lockdown from 23 March 2020, and a joint statement, prepared at the suggestion of Ms Sturgeon and published on 25 September 2020, setting out their shared commitment to suppressing the virus to the lowest possible level and keeping it there.

The four governments also worked together on many aspects of the response to the pandemic, such as vaccination and testing, but they took varying approaches to NPIs. Despite the deficiencies in intergovernmental relations, the Scottish Government managed to work effectively with the UK Government in the difficult context of the health emergency.

During this Inquiry, there has been an inevitable focus on differences much view which masks the fact that day-to-day co-operation on multiple levels and on a multitude of issues was constructive and effective.

The UK Government’s approach for England was not the orthodox or correct approach from which other parts of the UK diverged. The Inquiry has heard comments questioning the necessity and motivation of the devolved governments taking different approaches from those in England on some issues.

On a range of matters through the pandemic, the positions of the three DAs were similar if not identical, with the UK Government being the outlier, and yet the UK Government suggested that the DAs were diverging.

There is no hierarchy in devolved matters, and the UK Government was not the senior partner in the four nations context.

Mr Johnson has suggested that there should be one uniform UK response to a pandemic. This suggestion should be rejected. It does not take account of the practical application of devolution. The Scottish Government’s response was based on its judgement of what was the correct approach for the people of Scotland, based on a rational, documented approach to decision-making, rather than being different for the sake of it. The Scottish and the other devolved governments did, however, consistently and repeatedly seek timely engagement from the UK Government on co-ordinated, though not necessarily identical, action and such engagement was not always forthcoming.

If the view of some in the UK Government was that the devolved governments required to be managed, that is a matter of great concern. The overall experience of the Scottish Government of intergovernmental working was a wide range of close, effective relationships and collaboration at both ministerial and official level. There was a wide range of intergovernmental engagement mechanisms that played essential roles.

The Scottish Government is grateful to the wide range of people across the three other governments that worked with it at a strategic, policy and operational level in the pandemic.

There were at times significant gaps in the UK Government’s engagement with the devolved governments. For example, on 4 April 2020, the heads of the three devolved governments wrote jointly to the Prime Minister to seek a COBR meeting to allow for proper individual and joint analysis at heads of government level, review of restrictions, and a transparent and collaborative approach to analysis and options appraisal. Ministerial COBR meetings were held in April and May. There was frequent contact between officials, and four nations calls were convened by Mr Gove. But the transparent and collaborative process sought by the devolved heads of government did not happen for that or subsequent reviews, and the next COBR meeting between the Prime Minister and the heads of the devolved governments was on 22 September.

The Inquiry has heard evidence about whether the UK acted too late in imposing greater restrictions in the autumn and winter of 2020. There was engagement between the four governments including in three ministerial COBR meetings in September, October and November. On 23 September the First Minister wrote to the Prime Minister to seek urgent four nations discussion and agreement on necessary actions to bring the R number below 1 and on support for affected sectors. She asked that if agreement was not possible on measures to reduce R below 1, there should be funding flexible to allow the devolved governments to take essential public health decisions. A fully satisfactory resolution to the furlough issue was not reached though the UK Government did extend the scheme when England went into its autumn lockdown.

The Inquiry has heard evidence on the professional relationship between Ms Sturgeon and Mr Johnson. In a time of crisis the best relationships are tested, and it is inevitable that there were differences of opinion. While Ms Sturgeon has made clear that she found the meetings with Mr Gove valuable, we have heard that there was a reluctance by Mr Johnson to engage with her and the other heads of the devolved governments.

It has been suggested that the Scottish Government’s approach was politically motivated, but such suggestions are unsubstantiated. Ultimately decisions involved judgement by ministers informed by scientific and other considerations, including through the Scottish four harms process. This was the norm in democratic countries. The Scottish Government reaffirms the position that its actions were evidence-based, founded on a rational documented approach to decision-making, and guided by a desire to protect the health and wellbeing of the people of Scotland.

One of the criticisms levelled at the UK Government has been a lack of diversity amongst decision-makers and in SAGE and its subgroups which adopted a consensus approach. We have heard evidence about how a lack of diversity and of life experience can impact decision-making.

The Scottish Government recognises the value that greater diversity and lived experience can bring to policy.

Turning to my third theme now, my Lady, the role of data in decision-making. The UK is in a unique position to realise the potential of health data, thanks to the NHS and its cradle to the grave records. At the start of the pandemic there was a need for up-to-date data. This requires systems that can track pandemic activity in real time. Important progress on this was made during the pandemic throughout the UK. In Scotland the development of the vaccination management tool provided real-time data on vaccination, including ethnicity.

Data sharing requires collaboration, and evidence has been heard as to the EAVE II study, which was an excellent example in Scotland of this collaboration. It was the first national real-time multidimensional surveillance platform in the world, with data from all people resident in Scotland, and it was praised by Sir Patrick Vallance. Sir Chris Whitty recognised the quality of the data from Scotland, and that any difficulty accessing data at the start of the pandemic was not unique to Scotland.

Nevertheless, the sharing of data has been a significant issue for many years, one recognised by the Scottish Government. The Scottish Government’s Standing Committee on Pandemic Preparedness has recommended building on Scotland’s existing data and analytic strengths to advance the development of these as core infrastructure for future pandemics. The Scottish Government will pay careful attention to any recommendations by the committee and the Inquiry.

Moving on to my fourth theme, my Lady, public health communications, the Scottish Government believes that in some matters differences of approach between the four nations of the UK could have been more effectively handled by the UK Government. On a number of occasions during the pandemic, the Scottish Government sought clearer communication by the UK Government on the geographical extent of the measures it was announcing for England.

Mr Johnson stated in his evidence that he considered that in a future pandemic a unified approach should be taken to public messaging for reasons of clarity. This is an example of the UK Government considering that its approach was the orthodox approach and that a uniform approach was preferred. Decisions on NPIs in Scotland were not within the remit of the UK Government, because health is a devolved matter. Much if not all of the confusion on public messaging resulted from the UK Government and its repeated failure to clarify when the NPIs it was announcing applied only to England.

By contrast, the First Minister explained in clear and straightforward terms the public health conditions and restrictions that applied in Scotland and communicated decisions to the public as quickly as possible.

On 10 May 2020 the UK Government changed the Stay at Home slogan to Stay Alert, without providing advance notice to the Scottish Government, which did not adopt this message. As health was devolved, it was inappropriate for the UK Government to communicate public health messages for another nation of the UK in Scotland. It was reasonable for Scotland not to use the Stay Alert message. Dr David Halpern called it the worst of all worlds, because it told the public to worry but not what to do.

This example reflects use of the term “UK” to describe decisions relating to England only, something which Mr Johnson did when giving evidence.

Scotland was not alone in taking a different approach to England. The Welsh and Northern Irish declined to use the Stay Alert message too, and like Scotland retained Stay at Home.

Professor Henderson observed that the Scottish and Welsh electorates trusted the devolved administrations more, which may be due to differences in communication. The Scottish Government was seen as trustworthy by most of its electorate and the First Minister was perceived to provide steady leadership through her daily press conferences. The Scottish Government used British Sign Language in these to support accessibility, an approach that the UK Government later adopted.

Which brings me to my final theme, my Lady, of inequalities. The Scottish Government has listened carefully to the evidence of expert witnesses in respect to structural inequalities and to the ways in which the pandemic and government response affected at-risk and vulnerable groups. It welcomes the Inquiry’s commitment to ensuring such evidence is fully considered and is committed to learning lessons for the future.

The Scottish Government has been committed to the eradication of inequalities in health and social care over a number of years, and it considers the Inquiry to be an opportunity to make changes to address them.

The Scottish Government acknowledges that there remains work to be done. During the pandemic, consideration of inequalities was an integral part of the four harms decision-making approach and the framework for decision-making recognised that harms caused by the pandemic do not impact everyone equally.

The first set of NPI regulations were necessarily developed quickly, but with consideration of equalities and human rights. Thereafter consideration of equalities was included in the framework for decision-making, the roadmap, the strategic framework, and the four harms decision-making process.

The Scottish Government considered equality impact assessments which were fundamental to the design of the NPI regulations and guidance. When taking strategic decisions in the pandemic, the Scottish Government was mindful of section 1 of the Equality Act 2010 to have due regard to reducing inequalities of outcome resulting from socioeconomic disadvantage. The duty came into force in Scotland in April 2018, but is not yet in force in England.

Lady Hallett: I have to ask you to bring it to a close, I’m afraid.

Ms Drysdale: I’m moving on to my closing, my Lady.

The Scottish Government will consider closely the findings and recommendations that the Inquiry makes in relation to Module 2. In closing, it understands that the most meaningful way to recognise the loss, hurt and suffering of the people of Scotland and of the wider UK population during the pandemic is to learn from the evidence and to make improvements to core decision-making for the UK. To that end, the Scottish Government considers that in a future pandemic response the governments of the four nations must play an integral role in decision-making with full engagement and co-operation between them, in a structure which ensures parity of status for the DAs within their spheres of competence.

Thank you.

Lady Hallett: Thank you, Ms Drysdale.

Finally, Ms Studd.