Transcript of Module 2A Public Hearing on 18 January 2024
(10.00 am)
Lady Hallett: Mr Dawson.
Mr Dawson: Good morning, my Lady. The next witness this morning is Professor Paul Cairney.
1. Professor Paul Cairney
PROFESSOR PAUL CAIRNEY (affirmed).
Questions From Lead Counsel to the Inquiry for Module 2A
Mr Dawson: Good morning, Professor Cairney.
If I could ask you, when speaking, to try to speak into the microphone, it should pick up your voice, but you’re here for a couple of hours at least, I think, so if you could try to do that so we can hear everything you’re saying, I’d be very grateful. Professor, you have produced an expert report for the Inquiry, I think, which is dated 9 January of this year. Is that right?
Professor Paul Cairney: That’s right.
Lead 2A: And that is under Inquiry reference INQ000274154. You are familiar with the content of this report?
Professor Paul Cairney: Yes.
Lead 2A: It is your report?
Professor Paul Cairney: Yes.
Lead 2A: And your position is that this represents your opinion in connection with matters upon which you were asked to provide it?
Professor Paul Cairney: It does.
Lead 2A: Thank you.
I’d just like to ask you some questions about your professional background. You’re a professor of politics and public policy in the division of history, heritage and politics at the University of Stirling?
Professor Paul Cairney: Yes.
Lead 2A: And you specialise in research on UK and Scottish Government policy processes, including their public health policies and impact on inequalities; is that correct?
Professor Paul Cairney: That’s correct.
Lead 2A: You have written or co-written 14 books, 97 articles in international peer reviewed journals and 31 chapters in edited books; is that correct?
Professor Paul Cairney: Yes.
Lead 2A: You were a special adviser to the Scottish Parliament’s commission on parliamentary reform in 2017, I believe?
Professor Paul Cairney: Yes.
Lead 2A: And in 2023 you were a special adviser to the Scottish Parliament’s Finance and Public Administration Committee, where your role included producing a report and giving oral evidence to inform the committee’s thinking about effective Scottish Government decision-making; is that correct?
Professor Paul Cairney: That’s correct.
Lead 2A: You have also published reports, articles and papers about the Scottish Government and/or the UK Government’s response to the pandemic, all of which I think are listed in your expert report; is that correct?
Professor Paul Cairney: That’s correct.
Lead 2A: I’d like to ask you a few broad questions about the scope of your instruction in preparing your expert report for us. Broadly speaking is it correct to say that you were asked to prepare a report which focused on Scottish Government decision-making during the pandemic?
Professor Paul Cairney: Yes, very much so.
Lead 2A: When you prepared your report, you separated the topics that you separated the issues that you were asked to address into a number of different topics, I think?
Professor Paul Cairney: Yes.
Lead 2A: Broadly, you were asked, first of all, to look at Scottish Government decision-making structures which existed up to and at the time the pandemic started?
Professor Paul Cairney: Yeah.
Lead 2A: And you were asked to look at some of the issues that arose as regards preparation for an emergency such as the pandemic in Scotland?
Professor Paul Cairney: Yes.
Lead 2A: Broadly speaking, that ended up covering your topics 1 and 2?
Professor Paul Cairney: Yes.
Lead 2A: You were then also asked to look at the challenges that were posed by the Covid-19 pandemic; is that right?
Professor Paul Cairney: That’s right.
Lead 2A: And you were asked to look at a number of areas relating to processes that go into Scottish Government decision-making during the pandemic, broadly?
Professor Paul Cairney: Yes.
Lead 2A: And those included the role that devolution had played?
Professor Paul Cairney: Yes.
Lead 2A: It included looking at key individuals and bodies that made decisions?
Professor Paul Cairney: Yes.
Lead 2A: It included looking at key both administrative and medical advisory bodies, in broad terms?
Professor Paul Cairney: Yes.
Lead 2A: It included looking at the challenges posed by the scale of the pandemic in Scotland?
Professor Paul Cairney: Yes.
Lead 2A: It included looking at decision-making structures?
Professor Paul Cairney: Yes.
Lead 2A: And ultimately all of those many topics you brought together in your topics 3 and 4?
Professor Paul Cairney: Yes.
Lead 2A: You were also asked to look at the Scottish Government’s systems for communications, in particular its public communications strategy?
Professor Paul Cairney: Yes.
Lead 2A: And that became your topic 5, I think?
Professor Paul Cairney: Yes.
Lead 2A: You were asked to look at parliamentary processes by which primary and secondary legislation were enacted during the pandemic in Scotland?
Professor Paul Cairney: Yes.
Lead 2A: And that became your topic 6?
Professor Paul Cairney: Yes.
Lead 2A: You were asked also to look at the issue of, broadly speaking, how public life and public services are funded in Scotland?
Professor Paul Cairney: Yes.
Lead 2A: And you were asked specifically to look at how funding worked for Scotland during the pandemic?
Professor Paul Cairney: Yes.
Lead 2A: And those matters were brought together under your topic 7?
Professor Paul Cairney: Yes.
Lead 2A: You were also asked to look at, drawing all of these things together, whether you were to provide an opinion on successes and failures, with a view to providing suggested recommendations for the future?
Professor Paul Cairney: Yes.
Lead 2A: And that became your topic 8, as I understand it?
Professor Paul Cairney: Indeed.
Lead 2A: I’d like to ask you some questions about the methodology that you adopted in compiling your very long and detailed report. We won’t, this morning, I should say, cover the report in huge detail. We will try and focus on some of the key areas, but I am keen to try to understand, broadly, the methodology that you adopted in its preparation.
The Inquiry, as I understand it, provided you with copies of a number of witness statements which were received from the Scottish Government’s directorates, in the first instance.
Professor Paul Cairney: Yes.
Lead 2A: And subsequently you received additional directorate statements which were by way of addenda to the original statements.
Professor Paul Cairney: Yes.
Lead 2A: You also received some additional directorate statements on subjects that hadn’t been covered in the first bundle.
Professor Paul Cairney: Yes.
Lead 2A: And you also received copies of the individual witness statements of key decision-makers, former First Minister Nicola Sturgeon, and former Deputy First Minister John Swinney; is that correct?
Professor Paul Cairney: Yes.
Lead 2A: In your expert report at page 4, if we could just have a look at that, you list 25 such witness statements from the Scottish Government and these two key individuals, and you took these reports into account in the preparation of your report?
Professor Paul Cairney: I did.
Lead 2A: I think it’s also fair to say that, as one goes through your report, one can see that you had regard to certain other materials; is that correct?
Professor Paul Cairney: That’s correct.
Lead 2A: And those materials included materials relating to key strategies within the Scottish Government’s decision-making process; is that right?
Professor Paul Cairney: Yes.
Lead 2A: And that included things like the four harms framework from April 2020?
Professor Paul Cairney: Yes.
Lead 2A: It also included other things like the statement of the route map from May 2020?
Professor Paul Cairney: Yes.
Lead 2A: And it included another key document that we have referred to already in the Inquiry, which was the levels system, broadly speaking, which was set out in October 2020?
Professor Paul Cairney: Yes.
Lead 2A: I understand from your report that you also had regard to places where people have provided commentaries on those key documents?
Professor Paul Cairney: Yes.
Lead 2A: Which you also drew on to try to understand the Scottish Government’s strategy during the pandemic?
Professor Paul Cairney: Yes.
Lead 2A: And you discovered, I think, when preparing your report, in connection with these areas and on the basis of these materials, that there were in existence a broad range of other reports or literature connected to a number of aspects of the Covid-19 pandemic in Scotland?
Professor Paul Cairney: Yes.
Lead 2A: These came from a number of different areas, including, for example, epidemiology, care, vaccination strategy, and the like?
Professor Paul Cairney: Yes.
Lead 2A: And you, as I understand it, looked at these reports in order to inform yourself as to what other commentators in their specialist areas had identified as potential issues with the way in which the pandemic had been handled in Scotland?
Professor Paul Cairney: Yes. I was very academic about it.
Lead 2A: Right, and you make frequent reference to these and, in academic fashion, you reference all of these as you go through?
Professor Paul Cairney: I do.
Lead 2A: And they include, for example, the wide range of reports commissioned by the UNCOVER group for the Scottish Inquiry?
Professor Paul Cairney: Yes.
Lead 2A: Setting out a number of proposed issues and questions for that Inquiry to examine?
Professor Paul Cairney: Yes.
Lead 2A: Some of those reports relate to questions that are relevant to this module.
Professor Paul Cairney: Yes.
Lead 2A: In particular, reports relating to preparedness and Scottish decision-making?
Professor Paul Cairney: Indeed.
Lead 2A: And when you had analysed these reports and other sources, you developed a knowledge about issues which may exist and then addressed, within your own specialist expertise, yourself to the question as to whether political decision-making or structures may have played a part in these perceived issues with the pandemic?
Professor Paul Cairney: Yes.
Lead 2A: Could we go to page 122, please. This is annex 1 to your report where you list from page 122, going on for, I think, 17 pages, of – reports, papers, articles and books which you have considered as part of this instruction. Is that right?
Professor Paul Cairney: Yes.
Lead 2A: Are the materials listed here the basis upon which you completed your report, along with the documents I’ve already mentioned that you were provided with by the Inquiry?
Professor Paul Cairney: They are.
Lead 2A: Are there any other important sources of information which you have used which are not listed in the report?
Professor Paul Cairney: Only indirectly. Some of the sources I use as a proxy for a wide range of other sources. So, I mean, for example you will see quite some self-citation, and that is an efficient way to refer to a whole other body of other sources that I didn’t get into in detail.
Lead 2A: I see, so you’re referring to publications that you have authored yourself?
Professor Paul Cairney: Yes.
Lead 2A: But within them are included a lot of other sources that you looked at for that purpose –
Professor Paul Cairney: Yes.
Lead 2A: – which you are effectively telling us you may have taken into account for the purpose of this report as well?
Professor Paul Cairney: Yes.
Lead 2A: Thank you.
You have not had access to the Scottish Government’s Cabinet papers, have you?
Professor Paul Cairney: No.
Lead 2A: And you have not had access to its internal documents relating to decision-making processes, have you?
Professor Paul Cairney: No.
Lead 2A: But you explained to us earlier, I think, that you had had access to a number of key strategic documents which you have taken into account?
Professor Paul Cairney: Yes.
Lead 2A: Taking into account your areas of expertise, your own writings, the volume of material you have been provided to consider in the preparation of your report and the type of material you have not had access to, do you consider that you have sufficient knowledge of the facts to provide your professional opinions on the matters you were asked to address by this Inquiry?
Professor Paul Cairney: I do.
Lead 2A: Thank you very much.
If I could then move on to some of the substance – as I say, I don’t think we’ll touch on every area that’s costs order in your extremely extensive report, Professor, but we would like to focus on the ones that appear to us to be of most significance to the types of decisions that the Chair will ultimately have to face and make in this module.
Am I correct in saying, Professor, that one of the areas in which you have expertise and have an interest is generally the area of government policy?
Professor Paul Cairney: Yes.
Lead 2A: You define in your report in the context of the pandemic various policy problems which might be defined as the issue with which government is presented, to which it requires to come up with a broad strategy as to how to deal; is that right?
Professor Paul Cairney: Yes. I would say an issue is only a problem when a government pays attention to it and makes sense of it. So there’s quite a technical definition of problem definition in this field. It is how they pay attention, how they interpret what’s going and therefore what they think is feasible to do as a result.
Lead 2A: Right. As far as policy is concerned, as far as the area we are looking at, it really is predominantly to do with the strategy that was – the overall strategy that was adopted by the Scottish Government in the pandemic; would that be fair?
Professor Paul Cairney: Yes.
Lead 2A: And once one has developed a strategy, one has to work out a way as to how one implements that strategy –
Professor Paul Cairney: Yes.
Lead 2A: – to deal with what you have defined as the policy problems.
Professor Paul Cairney: Yes.
Lead 2A: In order to implement the policy, the government requires to take decisions about matters on a more granular level?
Professor Paul Cairney: Yes.
Lead 2A: It is normally thought to be good governance policy, is it not, Professor, that the policy, the strategy, will guide how those decisions are taken?
Professor Paul Cairney: Yes.
Lead 2A: The systems in place aim, broadly, to try to maximise the quality of the decisions when faced with problems in order to meet the aim of the policy?
Professor Paul Cairney: Yes.
Lead 2A: Would that be fair?
Professor Paul Cairney: Yes.
Lead 2A: So in order to assess whether there is good governance, would it be fair to say that you need to assess broadly, perhaps, three things: first of all, do you need to assess the quality of the policy which aims to provide better lives for the people of Scotland?
Professor Paul Cairney: Yes.
Lead 2A: You need to assess the quality of the more granular decisions which seek to put that policy into practice?
Professor Paul Cairney: Yes.
Lead 2A: And you need to analyse and address the quality of the systems which lead to the making of the decisions?
Professor Paul Cairney: Yes.
Lead 2A: I think, broadly speaking, if I’ve summarised it correctly, that’s what you’ve sought to do in your report, analyse all of these areas?
Professor Paul Cairney: Yes.
Lead 2A: You’ve looked at the quality of the policies?
Professor Paul Cairney: Yes.
Lead 2A: You’ve looked at the quality of the systems?
Professor Paul Cairney: I have.
Lead 2A: And you’ve looked at the quality of the decisions?
Professor Paul Cairney: Yes.
Lead 2A: Perhaps not at a granular level, but broadly?
Professor Paul Cairney: Yes.
Lead 2A: And you’ve tried to do so in order to assist the Inquiry with reaching its conclusions about whether any of these things played a role in affecting the outcome and quality of the decision-making?
Professor Paul Cairney: Yes.
Lead 2A: And your expertise helps us in that process?
Professor Paul Cairney: Good.
Lead 2A: Well, that’s a question.
Professor Paul Cairney: Yes, it should do.
Lead 2A: You say a number of things in your report. Very helpfully, you set out a very long section dealing with what you’ve defined as topics 1 and 2, the background, and we’ve already had Module 1 which – as you know, because you draw on some of the evidence that was heard in that module, which has looked in detail at UK-level preparedness, but has also looked at Scottish-level preparedness. So I don’t want to dwell too much other than as necessary to inform the key elements, topic 3 and onwards in your report, on that.
Professor Paul Cairney: Yes.
Lead 2A: However, we will come to that in due course as necessary.
You tell us something in your report about – at paragraph 1, if we could go to that. A number of bullet points which I think summarise aspects, I think, of your assessment of Scottish Government decision-making culture, I think it would be fair to say?
Professor Paul Cairney: Yes.
Lead 2A: And you say in paragraph 1 that:
“Devolution promised ‘new Scottish politics’ but delivered a Westminster-style system.”
If I could just also take you to paragraph 10 – thank you very much – and in that paragraph you talk about the Scottish Government using “aspirational ‘new politics’ language” to describe its culture of decision-making.
What are the characteristics of this story of a new Scottish policy style from the Scottish Government?
Professor Paul Cairney: So, I won’t dwell on this too much, but if I take you back to the 1990s, the push for Scottish devolution took place during a time of low faith in political institutions, so the language was very much that Scottish politics would be a very strong improvement on old Westminster politics, you know, which was too adversarial, too centralised, too “winner takes all” and suchlike. So the Scottish Government built on this idea that the Scottish Parliament would be more important, the culture of politics would be more consensual, and the Scottish Government would operate in that context.
So it used to tell a story from 1999 that compared to the UK Government it was more likely to consult with stakeholders and collaborate with a wide range of bodies, and it was less likely to try to subvert other forms of policy delivery, you know, like traditional local government. It was more likely to put faith in public bodies such as local government, and more likely to put faith in the traditional public sector professionals to deliver policy.
Lead 2A: Thank you, Professor. So just to set it in a broad context, the position before 1999, when devolution came into operation as a result of the Scotland Act 1998, was that there had been a certain amount of, I think, what used to be called administrative devolution –
Professor Paul Cairney: Yes.
Lead 2A: – in Scotland, and that a number of the areas that were subsequently devolved to the new Scottish Parliament after the 1998 Act had been administratively devolved within the Westminster government to the Secretary of State for Scotland; is that right?
Professor Paul Cairney: Yeah, essentially the Scottish Government from 1999 inherited the responsibilities of the Scottish Office before then.
Lead 2A: Yes, but the way that things had been dealt with up to that point led to, as you’ve already described, a certain degree of dissatisfaction with that arrangement –
Professor Paul Cairney: Yes.
Lead 2A: – for some of the particular reasons that you’ve pointed out?
Professor Paul Cairney: Yes, and they were – they were always accentuated in Scotland. So, for example, you know, people in Scotland, they have a very long memory in terms of the Thatcher government onwards, and would – so if you see opposition to a Thatcher government in the UK, it has always been much more accentuated in devolved government, particularly in Scotland. And so a lot of the language was essentially to say “We need a Scottish political system that would protect us from the worst excesses of UK Government control and interference and suchlike”.
Lead 2A: Okay. You set out in paragraph 10 there on the screen some of the key characteristics of this Scottish policy style, which was put forward as characterising the Scottish Government’s approach to matters in the period after devolution; is that right?
Professor Paul Cairney: Yes.
Lead 2A: And you focus there in particular at paragraphs (a) and (b) on the style being characterised by “more consultation and collaboration”. You say that:
“Ministers and civil servants would meet routinely and frequently with stakeholders – including interest groups, professions and other public sector organisations – to help define policy problems and identify feasible solutions.”
So the reference to the policy problems we discussed a moment ago.
Professor Paul Cairney: Yes.
Lead 2A: You say at (b) that one of the other aspects of this was that there was “more faith in public bodies and public sector professions to deliver policy”, which you explain as meaning that:
“Ministers would place high trust in traditional ways to make and deliver policy – such as through collaboration with local government – and rely less on the top-down and remote performance management measures associated with the UK Government?
Professor Paul Cairney: Yes.
Lead 2A: So there are a number of aspects here that were part of this style which included greater commitment to collaboration; yes?
Professor Paul Cairney: Yes.
Lead 2A: With stakeholders in the first instance?
Professor Paul Cairney: Yes.
Lead 2A: But also by professionals and organisations that delivered government at an even further devolved level?
Professor Paul Cairney: Yes.
Lead 2A: And that there was a commitment not only to consultation with those types of groups and individuals and organisations, but to their genuine involvement in policymaking?
Professor Paul Cairney: Yes.
Lead 2A: And as we’ve said, policymaking would then underpin decision-making if it’s delivered correctly?
Professor Paul Cairney: Yes.
Lead 2A: Is it correct to say that this policy style has continued in different guises, at least at an aspirational level, to be the aim of the Scottish Government since that time?
Professor Paul Cairney: Yes. They changed the terminology a little bit. So “Scottish policy style” I think would be a phrase used by academics. You know, successive permanent secretaries to the Scottish Government have described a “Scottish model” or a “Scottish approach”.
Lead 2A: If we could go to paragraph 22, please, and we see in this paragraph that you’ve set out, I think, a number of principles, and the Scottish policy style, I think, over time, has crystallised itself in these principles, being the way in which the Scottish Government would report, to go about its business.
Professor Paul Cairney: Yes. This is slightly tricky to explain, this one. So the Parliament committee was examining effective Scottish Government decision-making – in fact, you know, not long ago, so it’s, you know, good timing. And they provided a list of things that they associated with effective Scottish Government decision-making from their perspective and that of the government, and turned that into seven common principles that you would associate with being effective.
Lead 2A: So these would be the sorts of things that the committee thought would be laudable principles and aims in trying to achieve good governance?
Professor Paul Cairney: Yes.
Lead 2A: And of course every government is trying to achieve good governance, or at least that’s what the people expect them to do?
Professor Paul Cairney: Yes.
Lead 2A: If I could just run through these, these include responsible and accountable government, and you mention there – it’s mentioned there that:
“There should be a direct link between the choices of elected governments and the citizens they serve.”
Professor Paul Cairney: Yes.
Lead 2A: You mention the fact that it’s important to have anticipatory or preventative policymaking?
Professor Paul Cairney: Yes.
Lead 2A: Might that include the need to try to predict when things will happen that will require decisions to be taken in the interests of the people?
Professor Paul Cairney: Yes, and also to deal with things that are – that can’t be dealt with immediately, such as, you know, long-term plans and outcomes. So that would come up with things like health inequalities.
Lead 2A: Yes. Indeed. We’ll probably return to health inequalities at some point, Professor. But this, just to understand the role of policy in this, what’s being suggested by that principle is that it’s important to have policies in place as a broad structure within which particular decisions might need to be taken in any given circumstance?
Professor Paul Cairney: Yes, yes, rather than dealing with crises when they happen.
Lead 2A: Thank you.
The third is power sharing and co-operation (sic), and we’ve seen – as well as (a), responsible and accountable government, we’ve seen power sharing and co-operation (sic) appear in the Scottish policy style definition you’ve already given, so those are repeated here; is that right?
Professor Paul Cairney: Yes, but they use this – again, a technical term – “co-production”, which is quite a vague term, but it’s supposed to give this idea that the government is not simply consulting with other people, it is producing something with them, and so that can either be producing policy-relevant knowledge or producing policy.
Lead 2A: That was, yes, that was relevant to the point we discussed earlier, which was that it’s not simply a matter of speaking to stakeholders but actually involving them in the creation of policy?
Professor Paul Cairney: Yes.
Lead 2A: And the next is policy coherence and policymaking integration. Could you just explain to us briefly what that is.
Professor Paul Cairney: So this is – I would describe this as a – just a very broad aspiration that if you produce – a mix of policy should be coherent in that governments produce lots of different instruments, they tax and spend, they regulate, they provide information, they add resources; they should all come together to produce something that makes sense. And a problem of government in general is that they produce lots of different policies that don’t match up, so policy coherence would be dealing with that problem.
Lead 2A: Right, thank you.
The others include evidence-informed policymaking, fostering equity, fairness – it says “or” justice but I assume it’s “and” justice”?
Professor Paul Cairney: Well, these terms tend to be used interchangeably or differently. So, yes, all of those, but often people use them as an alternative to each other when they describe them.
Lead 2A: Thank you, and the final one is delivering services well, so the operational side of the delivery of the policy?
Professor Paul Cairney: Yes.
Lead 2A: The broad proposition that you put forward, I think, at the top of paragraph 1, if we go back to that, please, the very first bullet point, was that “Devolution promised ‘new Scottish politics’ but delivered a Westminster-style system”. That’s a conclusion which I think you have come to or a proposition you are making. Is it correct to say that your summary here or your analysis here leads us to think that although at the start of devolution and since there is an aspiration that all of these various important principles should form part of the way that decisions are made, that many of the problems associated with the previous system, the Westminster system, have started to manifest themselves in Scottish decision-making?
Professor Paul Cairney: Yes. Could I expand on that a little bit.
Lead 2A: Of course, yes.
Professor Paul Cairney: So I think there are two aspects to that. So one is culture and one is structure. So if you look at what the – well, what we’d call the architects of devolution, what they actually produced, it was many of the same organisations and relationships that Westminster had. So, for example, there was not like a US-style division of powers between the executive and the legislature. You had the same expectation that the executive would be in a parliament, would likely have very strong influence over the parliamentary arithmetic, would be expected to govern, and the main form of accountability would be ministers to their citizens through national elections. So the same sort of sense of high stakes politics that would produce competition between parties rather than, you know, a much more proportional system where they were expected to co-operate more routinely.
Lead 2A: What were the sorts of things that had been contemplated as might – as possibly forming a more powerful part of the Scottish system that might have gravitated against that outcome, structurally speaking?
Professor Paul Cairney: Yeah. Well, the – one of the principles of the Scottish Parliament was to be this idea of power sharing between Parliament and government, but I think that was never really fully defined, and essentially it was the same relationship that you associate with Westminster: the government produces most legislation, the parliament scrutinises. So it’s a very traditional Westminster approach, and I think that was always the plan.
Lead 2A: Okay. You go on in your report to tell us, at paragraph 31 – if you could go there, please – about something called the National Performance Framework.
Could we just go to paragraph 31, please. If we could just have the page up on its own.
You’re telling us here broadly at this passage about what you call the NPF, which is the National Performance Framework. Could you just tell us broadly what that is and how that fits into the way in which decisions are made in the Scottish Government?
Professor Paul Cairney: Yes, so that really began in 2007, but it was supposed to be the manifestation of all these things we talked about, about, you know, more consultive, more coherent government. So the National Performance Framework had a single core purpose, and I couldn’t tell you the exact wording but it was – it was, you know, sustainable economic growth, and then it had a series of other ancillary purposes associated with that, you know, to do with health, education and suchlike, and the idea was that instead of individual ministers or departments being responsible for each part, all of the government and the public sector would be responsible for turning this vision into reality.
Lead 2A: Right. Does the National Performance Framework continue to play that role, has it continued since that time to play that role, is it updated and adapted?
Professor Paul Cairney: I think it does. I mean, it’s not something that many people know about outside of government, but my impression is that if you’re in the Scottish Government, you’re very aware of it and you’re very aware of the need to pay reference to it.
Lead 2A: I think it is referred to in some of the high-level strategic documents that you’ve looked at, Professor Cairney, is that right, including things like the four harms type documents which informed the approach to the pandemic?
Professor Paul Cairney: Yes.
Lead 2A: So it seems that it did continue to play a role, as in guiding policy and then into decision-making, within the Scottish Government?
Professor Paul Cairney: Yes.
Lead 2A: You say at paragraph 31 that:
“… the NPF does not feature strongly in civil contingencies or pandemic preparation. It represents Scottish Government agendas and aspirations, not a specific decision-making tool.”
Professor Paul Cairney: Yes.
Lead 2A: Could you explain what you mean by that?
Professor Paul Cairney: My impression is that civil servants are expected to know about the NPF, they’re expected to use the language of the NPF when they produced other strategy documents, in a general sense, you know, it’s – you know, key reference points that they all use, but it is not something that is detailed enough to inform detailed decision-making. It doesn’t – it’s not a blueprint that tells you what to do. It’s a set of principles that you would use to inform your work.
Lead 2A: So your impression of government decision-making is that the NPF has a laudable set of principles contained within it –
Professor Paul Cairney: Yes.
Lead 2A: – but that when it comes to the application of those principles to actual on the ground real decisions, because it lacks a mechanism to transport, to transfer those principles into results –
Professor Paul Cairney: Yes.
Lead 2A: – that is, perhaps, a problem with the system?
Professor Paul Cairney: Well, I would say it’s a problem with any system in that a lot of the aspirations they have are in practice contradictory, so even the phrase that they used to use, “sustainable economic development”, there’s a contradiction there in terms of the things they have to pursue. For some that would mean prioritise economic development, often at the expense of the environment. For some people, the word “sustainable” would suggest that we need to change the way we pursue economic growth. But the NPF itself does not resolve those matters. It presents the phraseology to use.
Lead 2A: Thank you.
Another aspect I think of what you say at paragraph 31 is that the NPF is not something which features strongly in civil contingencies or pandemic preparation; is that the impression you’ve gained from the materials you’ve looked at?
Professor Paul Cairney: Yes, to me, when I looked at – I looked at a lot of preparation documents, I don’t remember seeing the NPF language. I think the closest thing you could get is the same sense of collectivism in the language of the documents, but they do not refer to each other in any meaningful way.
Lead 2A: One might say that if the NPF is part of an attempt – a laudable attempt, I think we’ve said – to try to define principles that will assist with good decision-making ultimately –
Professor Paul Cairney: Yeah.
Lead 2A: – that in situations of emergency, one might wish to have a means by which those principles can be operationalised quickly and effectively –
Professor Paul Cairney: Yes.
Lead 2A: – is that right?
Professor Paul Cairney: Yes.
Lead 2A: One of the strategies that you looked at, and we’ve mentioned already, which is we’ve heard a lot about already in the first few days of hearings, which was actually implemented, which was put in place by the Scottish Government, was the Scottish four harms framework, which I know you’ve looked at.
Professor Paul Cairney: Yes.
Lead 2A: Just by way of reminder, this was a framework which was published originally in April 2020; is that right?
Professor Paul Cairney: Yes.
Lead 2A: And it set out a framework which required explicit comparison and balancing between four different areas where harm was perceived to be caused by the pandemic?
Professor Paul Cairney: Yes.
Lead 2A: And that those harms were: the direct harm of Covid-19 itself, other health harm caused by the pandemic, societal harm, and economic harm; is that right?
Professor Paul Cairney: Yes.
Lead 2A: There are repeated references to the four harms framework in the witness statements of the Scottish Government; is that not right?
Professor Paul Cairney: Yes.
Lead 2A: The ones that we provided you with from the directorates.
Professor Paul Cairney: Indeed.
Lead 2A: Can we go to paragraph 163, please.
Here is it correct that you tell us that because of the high uncertainty about how to deal with the pandemic and the likely impact of various decisions, this meant that the four harms framework was, much like the National Performance Framework, an important reference point to general principles rather than a detailed guide to decision-making during the pandemic?
Professor Paul Cairney: Yes.
Lead 2A: You explain again, as you had with the National Performance Framework, I think, that the four harms was not itself a decision-making tool in the pandemic or specific decision-making tool; is that right?
Professor Paul Cairney: Yes, my impression is that it is mostly a statement of the problem, it’s not a statement of the solution.
So it essentially says there are four main harms that we need to take into account, and there will always be trade-offs between trying to reduce one harm in relation to the other. So the classic was a lockdown would reduce Covid-19 harm, but it would also have a knock-on effect for the other three. There would be less access to the NHS, there would be more social isolation, there would be a problem of, you know, economic activity. So it was essentially a way to describe the four key harms that they wanted to pay attention to at any one time.
Lead 2A: Does this mean that it’s perhaps, again, a laudable statement of intent or approach, but it doesn’t set out any means by which ultimate decisions should be made in a scientific or evidence-based way?
Professor Paul Cairney: That’s right. I think it’s just a very general way of focusing the mind on, you know, four key objectives.
Lead 2A: And it would mean that, I think you say here, it would require still a significant degree of judgement, perhaps subjective judgement, to be applied when it comes to actually making decisions?
Professor Paul Cairney: I would say profoundly so. You know, I think there’s no framework like this that could tell a minister when to lock down or not, who to favour – you know, to favour economic growth or Covid-19 reduction in harm. It does not – I don’t think it was ever really designed to guide decision-making in that way, apart from just to, you know, give people the things that they – you know, remind them of the trade-offs, remind them of the principles that they signed up to.
Lead 2A: So I think, if I heard you correctly, your position was that it helped define the problem but didn’t help with the solution?
Professor Paul Cairney: Yes.
Lead 2A: Thank you.
You give some attention to this in your report, very helpfully, I won’t go through every aspect of it, but I think that you suggest that it is – it was perhaps, on your assessment, not a strong feature of decisions as regards certainly the first lockdown, because it didn’t exist at that time –
Professor Paul Cairney: Yes.
Lead 2A: – but subsequent decision-making including, for example, the decision to have the second lockdown?
Professor Paul Cairney: Yes. I think the only thing that stood out was one document said that – so, I mean, in Scotland everything is compared with the UK Government and the one document stated “we used this framework more purposefully than the UK Government”. So what I took that to mean is all ministers, UK and devolved, are trying to make this judgement between reducing Covid-19 and dealing with social and economic harm, and I think their statement is they have a document and a way of working that makes that – that focuses the mind on that trade-off. But that doesn’t mean that other governments are not engaged with the same trade-offs and decisions.
Lead 2A: Okay, thank you.
We’ve talked about a number of things which might be described as setting the scene or aspirational; would that be right, characteristic of the various things we’ve looked at so far?
Professor Paul Cairney: Yes.
Lead 2A: And you’ve also drawn us to your – the first bullet point conclusion in paragraph 1 that there has been a characteristic of Scottish Government decision-making over years that it aspires to be different from the Westminster system but often fails in that aspiration; is that correct?
Professor Paul Cairney: Yes.
Lead 2A: Is it your evidence that the decision-making structures within the Scottish Government, as far as you could glean – relating to the pandemic – in the paperwork with which you were provided, which emanated predominantly from the Scottish Government, shared some of the features that were criticised, I suppose, in the UK Government decision-making structures, such as it being centralised and top-down?
Professor Paul Cairney: Yes. I hesitated there. I would say there’s – given the system they have, there’s an almost in-built tendency towards top-down policymaking. It’s a Scottish version, and it may be less top-down, more consensual, but the thing that I always had in mind is the comparison with the UK is often unhelpful, because to say that something is better does not make it good, and to say that it’s less top-down does not make it not top-down.
So I think that the reference point is useful, but it can also distract us from what, you know, governments actually do.
Lead 2A: One of the things you refer to from a structural perspective in your report, very helpfully, and about which there is an enormous amount of very complex information, which I think I have to try to present in due course, is the directorate structure of the Scottish Government.
Is this a structure which has come in, broadly speaking, since the governments have become SNP-dominated or either exclusively SNP-led administrations since 2007?
Professor Paul Cairney: Yes, I should say that the way the former permanent secretary at the time described this meeting of minds between the Scottish Government and the SNP government, they had the same idea about what to do, and the idea was you would have fewer ministers and you would have a departmental system that became a directorate system, that was designed to be much more joined-up – relating to the NPF – and much less subject to the problems associated with Westminster, which were that departments were much more built based on sectors and they existed in silos without talking to each other.
So they both had this idea that they could have a coherent group of ministers and a coherent collection of directorates that could then talk to each other in a much more meaningful way.
Lead 2A: So you said there – I think that you described a meeting of minds between the Scottish Government and the SNP government?
Professor Paul Cairney: Ah, sorry. Okay, so I should say –
Lead 2A: Did you mean the Scottish civil service or did you mean the UK Government being the first one?
Professor Paul Cairney: Ah, okay. So I should – okay, there’s – I’ve taken for granted things.
In my mind, the Scottish Government describes the organisation that contains ministers and civil servants, so then I was describing the Scottish Government as largely the civil servants, so that would be John Elvidge and colleagues.
Lead 2A: Yes.
Professor Paul Cairney: And –
Lead 2A: Hence you were discussing the prominent civil servant having given some commentary on what had happened over that period, I think?
Professor Paul Cairney: Yes, yes.
Lead 2A: And you go into more detail about this in the report, and that there had been, I think – please correct me if I’m wrong about this – an impetus or a desire on the part of the new SNP administration to try to achieve this directorate structure, broadly for the reasons that you’ve outlined, that it was thought that it would work better than the rigid departmental structure which had been and is characteristic perhaps of the UK Government and had been characteristic of the Scottish Government up till that point?
Professor Paul Cairney: Yes, and I think it needed that meeting of minds between ministers and civil servants because it was a substantial reform, you know, essentially abolishing what they called departments, introducing a far larger number of directorates. It required support from both sides.
Lead 2A: So there was – I suppose, the policy, if you like, was to try to introduce a new system, but there needed to be buy-in from those who would be part of that system, and that was the position at 2007?
Professor Paul Cairney: Yes.
Lead 2A: The directorate system had these goals, and in particular you referred to the fact that it seeks to minimise rigidity and departments working in silos; is that correct?
Professor Paul Cairney: Yes.
Lead 2A: And one sees sometimes a phrase which we rather use in the Inquiry as well, I’m afraid, a degree of trying to minimise cross-cutting problems that would arise in different areas and try to work together to solve them; is that right?
Professor Paul Cairney: Yes, and I would say almost every problem is cross-cutting in some way. So this is an approach that makes sense.
Lead 2A: In your evidence at paragraph 89.2 – if we could go to that – this is in the section where you are still talking about some of the Module 1 evidence and the background structures which existed to try to deal with emergency situations in the Scottish system, you referred in particular to some evidence on this subject that was given by Gillian Russell.
Could you explain the role that she played and why it was that you thought that the description that she gave of the system was of interest as far as whether this directorate system functioned well or not?
Professor Paul Cairney: Yeah, so this is a little bit simplistic, but, as I understand it, all serving Scottish Government civil servants make reference to this kind of language, about being joined-up and about having a good directorate system. So you would expect this kind of testimony where there was very much an emphasis on doing things in a Scottish way, a Scottish Government way, with reference to a wider culture and set of expectations, and you’d normally expect there to be a story that this works well.
Lead 2A: And as far as you are concerned, did you see in the materials with which you were provided evidence of this aspirational approach to the directorate structure achieving the aims which it set out to achieve?
Professor Paul Cairney: Yeah, I would say that on paper, or if you were to listen to someone describing what they do, it would look like it made sense. It’s very difficult to relate that to what actually happens.
Lead 2A: Okay, and that would apply – obviously the paperwork I’m referring to is paperwork related to the way that decisions were made in the pandemic?
Professor Paul Cairney: Yes.
Lead 2A: So is your position, is your evidence that this is an example, again, I think, of a structure which seeks to try to have a positive aim, but of which there is little evidence that it actually has a positive effect?
Professor Paul Cairney: Yes. I mean, I’m keen to stress – you know this phrase “evidence of absence is not absence of evidence”, or – either/or. So what I’m struck by is, when I read Scottish Government documents or accounts, they very much emphasise their aspirations, their structures, their strategies, and they do not really emphasise the more fine grain decisions or their impacts. It’s very much a kind of genal story about how this is supposed to work.
Lead 2A: Just to be clear, in case there is any doubt about it, the documents that I’m referring to upon which you have undertaken this analysis, these are the corporate statements and a couple of individual statements which have emanated from the Inquiry’s investigation into how decisions were taken?
Professor Paul Cairney: Yes.
Lead 2A: So it would be fair to say that if there were examples which you have suggested are absent of the way in which this directorate structure did achieve the aim which it set out to achieve, one might expect them to appear within that very large corporate body of evidence?
Professor Paul Cairney: Yeah. I wouldn’t expect the Scottish Government to be sitting on, you know, a secret stash of documents exhibiting their success.
Lead 2A: You refer in your report also to a number of organisational changes which took place during the course of the pandemic.
If we go to paragraph 141 – yes, in paragraph 142, under the heading “The reorganisation of Directorates to co-ordinate a Scottish Government response to Covid-19”, we’ve touched on some of this in the opening statement and we’ll address some of the detail with some other witnesses in due course, but you set out there that, broadly speaking, there was a reorganisation based on the materials that you were given where, within the directorate structure, a number of new directorate bodies were created to deal with the pandemic at various different times and in various different places?
Professor Paul Cairney: Yes.
Lead 2A: Just to be clear, and in the hope that I understand this, there are, I think, what are called “directorates general”, which are overarching bodies that within them contain a number of sub-directorates that are called “directorates”?
Professor Paul Cairney: Yeah. It is a confusing language, and I think that the Scottish Government uses the language of “families of directorates”. So I think a family – I mean, a well-working family, I think, that was what they’re trying to project, and that this is a collection of directorates which interact with each other. They are separate organisationally, but they interact with each other in – as part of a wider directorate general, led by a director general.
Lead 2A: We see there at 142.1, for example, the “Directorate General for Constitution and External Affairs”, that would be one of the family definitions, and within that there would be a number of members in the family that would be directorates underneath that?
Professor Paul Cairney: Yes.
Lead 2A: And I think you point in particular to the fact that within that directorate general, which I think it fair to say was certainly one of, if not the lead directorate general in relation to the pandemic, there were a number of new bodies and directorates and structures created while the pandemic was actually happening?
Professor Paul Cairney: Yes. I should say that I would express uncertainty. It’s very difficult to know the extent of the reorganisation. My sense is the documents that I read that we referred to provide a lot of detail on various name changes to directorates, and they list the director in each case. It’s very difficult to know if the name change represents or symbolises a functional change or if they’re simply re-branding what they do with different names.
Lead 2A: We can explore that factual matter, and no doubt we will have to with other witnesses in due course, Professor Cairney, but within that particular directorate general and also another one, which was the Health and Social Care Directorate General, there appeared to be a number of new bodies, new advisory structures created; is that broadly your understanding?
Professor Paul Cairney: Yes, and I think in some other cases the role is much clearer because the directorate is new and the topic is new, so I think, for example, a directorate for, you know – well, I should remember them all, but say a directorate for testing and tracing or something like that, it’s clearly been established to do something new.
Lead 2A: Yes.
Professor Paul Cairney: Where some of them have been re-branded to repurpose what they do.
Lead 2A: Yes.
Can we look at paragraph 141, please. Again, your position was, I think, there, around about halfway through, you say:
“However, the Scottish Government provides limited evidence that this system of decision-making was more effective during its response to Covid-19 (partly because the Inquiry did not ask it to do so explicitly).”
As far as that is concerned, where does that second comment emanate from, the one in brackets?
Professor Paul Cairney: Yeah, I’m smiling a bit here. So I – I produced four drafts of my report, the final draft was the fourth draft. The second draft was in response to the Inquiry team comments – very constructive and helpful. The final draft was produced after detailed comment from core participants, primarily from Scottish Government participants. I sort of – I joked to the team that it was like they were marking my homework, and that was often very good, because they pointed out some inaccuracies. But this one, I think, summed up for me the problem the Inquiry has in getting information from the Scottish Government, because my impression is: it is only providing answers to the questions posed and it’s never going any further than that. And so I think that was a – that was feedback from one person in response to a comment that I’d made in a previous draft, which was “The Scottish Government doesn’t provide much evidence on X, Y and Z”, the response from them was “Well, you didn’t ask us to give that evidence”.
Lead 2A: So that comment, to be clear, came from the Scottish Government; is that right?
Professor Paul Cairney: Yes.
Lead 2A: And the Scottish Government’s comment was that the reason why the Scottish Government documentation had provided limited evidence that this system of decision-making was more effective during its response to Covid-19 was because the Inquiry hadn’t asked it to do so?
Professor Paul Cairney: Yes.
Lead 2A: As far as the second part is concerned, based on what you have seen, and putting aside for the moment the question of whether they had been asked that or not, your assessment was, I think:
“… most of its relevant written evidence (to which I have had access) describes organisational changes rather than their effectiveness.”
Professor Paul Cairney: Yes.
Lead 2A: So your impression was that, although there was a lot about how things had been moved around and re-branded, there wasn’t an awful lot of discussion about how that had helped the people of Scotland ultimately?
Professor Paul Cairney: Indeed.
Lead 2A: Broadly speaking, based on your experience of the way in which governments are structured, policies formulated and implemented to try to maximise the effectiveness of decisions, would you – and bearing in mind, of course, that you have conducted a very extensive analysis of the pre-pandemic situation in Scotland in that regard – would you generally think it is a good idea to reinvent systems so much in the heat of the fire, rather than before the fire starts?
Professor Paul Cairney: That’s a good question. I certainly think – it’s well known in government and the study of government that major formal reorganisations are expensive in terms of the time it takes to do, the time it takes for civil servants to become proficient in their new role, and the time it takes for people to understand what their roles are in relation to other people. So I think any government would pause before having a major formal reorganisation.
So I think what I would say is the reorganisation in 2007 was the profound one. This one I think it’s more difficult to say how big it was. So I think a good example is when some of the Scottish Government documents essentially say “We had a directorate working on Brexit, and we re-purposed that directorate to deal with Covid-19”, so in some senses that seems – I think that would seem odd to people that they would do that, but it makes sense in that what that directorate was trying to do was to co-ordinate a response across government on a complex issue. So it made sense for people experienced in that very broad task of co-ordination to be involved in the directorate.
So I think some things do make sense. I wouldn’t want to give the impression that I think this is a lot of sort of needless moving the deck chairs around. It’s just difficult to know in detail what the purpose was of each directorate, because the documents focus on the formalisation of their roles.
Lead 2A: My question I think was a little bit more specific than that. You go on at various stages in your report to discuss, for example, in the context of advisory structures –
Professor Paul Cairney: Yeah.
Lead 2A: – but also decision-making structures – this is in the context of the devolution and intergovernmental section of your report – you refer to the fact that there were systems for achieving medical advice from experts via, for example, SAGE –
Professor Paul Cairney: Yes.
Lead 2A: – and its various subgroups?
Professor Paul Cairney: Yes.
Lead 2A: And there were existing decision-making bodies such as COBR, for example?
Professor Paul Cairney: Yes.
Lead 2A: And that you question, I think – you pose the question, at least, as to whether more effort could have been made to try to use those existing structures developed for the purpose of an emergency?
Professor Paul Cairney: Yes.
Lead 2A: And you question, therefore, by extension, as I understand it, whether the development of these new more Scottish-based systems, I think broadly one can say, was necessarily a good idea in the circumstances?
Professor Paul Cairney: To be honest, I’m not sure. It’s difficult to tell from the evidence available. I can say in general terms some of these things make sense. So it makes sense to have a family of directorates that try to co-ordinate policy across government. I think maybe it makes sense to give them names that relate to the tasks, and maybe that’s the advantage of the directorate system.
It’s difficult – the thing that I would be less sure about would be, for example, the – I mean, a lot of directorate functionality comes down to the people who lead them and their experience and suchlike. I don’t have enough detail on their experience in, you know, relevant things or if they were put into new roles or this was an extension of their old role. So it’s difficult to tell. I think it would be difficult for anyone on the outside to tell how these things work, and presumably very difficult for the Scottish Government to explain how they work to, you know, a typical citizen.
Lead 2A: I wonder if I could give a comparison about which you’ve already heard some evidence. Although it’s not the area you have been asked to look at, you’ll be aware of the fact that there was a body called Public Health Scotland that played a predominant role in the pandemic response?
Professor Paul Cairney: Yes.
Lead 2A: It was the case that the Scottish Government, as I think you note in your report, was keen to try to develop a new and better system for dealing with Scotland’s considerable health inequalities.
Professor Paul Cairney: Yes.
Lead 2A: And part of that plan was the development of a body to co-ordinate the public health response, which was Public Health Scotland.
Professor Paul Cairney: Yes.
Lead 2A: And it became operational in April of 2020.
Professor Paul Cairney: Yes.
Lead 2A: And although that had been pre-planned, that was a difficult – we’ve heard some evidence that that was a difficult time, obviously –
Professor Paul Cairney: Yeah.
Lead 2A: – for that to happen.
It’s been accepted on their behalf that when one creates new structures like that, it’s inevitable that there will be a degree of practical and cultural and organisational change and reorganisation that will be necessary.
Professor Paul Cairney: Yes.
Lead 2A: I understand it to be their position that they would accept that that was not ideal in the middle of a pandemic, but there was no choice, because that had been pre-planned.
Professor Paul Cairney: Yeah, so I know –
Lead 2A: My ultimate goal here is not to get into that, sorry, Professor.
Professor Paul Cairney: Okay.
Lead 2A: I just wanted to draw a comparison to say: do these same concerns apply in your area of expertise in regard to organisational change within government in – as I’ve said, in the heat of the fire?
Professor Paul Cairney: I think those – they’re comparable, but different. I would say that the introduction of Public Health Scotland was much more like the introduction of directorates in 2007, in that that had been years in the planning, and that had been a long-term attempt to co-ordinate health and other issues between, you know, Scottish Government public health bodies and local government.
So that – I mean, in some senses I would describe what they had done, say, from the mid-2010s onwards as good practice in long-term planning. So that is different from the reorganisation of directorates, which took place much more quickly. My impression is some of this was much more overnight. You know, so there is a difference in terms of the work that goes in. So I think Public Health Scotland would be the example of long-term planning organisation, whereas the directorates would be this short-term crisis response.
Lead 2A: Thank you very much.
Could we go to paragraph 125, please. This is, I think, where you’re expressing your opinion in relation to topic 1, which is technically the preparedness topic, although I think you, quite helpfully, use these opinion sections to try to tell us a bit about how this feeds into our core function here, which is to look at the actual decision-making.
I think in this paragraph you say that:
“[The] focus on … being better prepared over time to make effective decisions, based on a commitment to continuous policy learning and … being increasingly better prepared for an unfolding pandemic, is a strong feature of Scottish Government oral testimony for Module 1 and written testimony for Module 2A, as follows. First, a general focus on the Scottish Government being a learning organisation is a key feature of the Scottish Government’s ‘Scottish approach’ narrative on decision-making … Second, multiple witness statements describe continuous learning to respond to an emerging problem more effectively: preparedness for future phases of Covid-19 would be improved because the Scottish Government had far more information about the nature and spread of the virus, and its ability to respond. Third, this preparedness would be bolstered by new arrangements, including (a) the establishment of a Scottish Government advisory system, based on the Scottish Government’s realisation that it should be less reliant on UK science advice mechanisms … and (b) new specialist Directorates better able to respond to the immediate Covid-19 threat then prepare properly for another …”
So I think there what you’re helpfully doing, Professor, is you’re bringing together the importance, which we learned from Module 1, of being well prepared and learning lessons, and you’re applying that also to the fact that we’re not dealing here with a single incident that happened on one day, but something that went on for a period of years, and I think your assertion is that it is – well, the assertion in the documents, the Scottish Government’s assertion is that they learned lessons as things went on, and therefore, I assume, assert that they improved their response; is that correct?
Professor Paul Cairney: Yes. Could I expand on that?
Lead 2A: Of course. I’d very much like you to.
Professor Paul Cairney: So I would say that if you were to distill down all of the evidence from the Scottish Government, you could turn it into a very simple convincing story, which is: we are a well co-ordinated learning organisation, we may not have been prepared for this new pandemic in spring 2020 but we are an effective organisation to the extent that we can learn and respond to subsequent pandemics much more effectively.
I think that is the Scottish position, the Scottish Government position.
I think also there is witness statements from the former First Minister and Deputy First Minister that encapsulate that assertion of learning. So the First Minister says “I told the Scottish Cabinet in December 2020 that essentially we have learned that you cannot wait for this problem to become a crisis, you have to act quickly. We learned that from the first lockdown”. The Deputy First Minister says “We’ve learned that in key cases sometimes only a major lockdown will do, you know, these other measures are not going to work and we need to do it”.
So they both talk about learning from the previous experience in the sense that it would inform their future decisions, and, you know, that is a good learning organisation.
But what I can’t then do is reconcile that with the fact that they appear to have made exactly the same mistakes twice. The first one was understandable because the virus was novel. Lockdown in March was something that was profoundly different from what anyone had been used to. They clearly were not sure what would happen, how much people would adhere to the guidelines and suchlike. But they state time and time again in the documents, “We learned a lot from what happened during that lockdown and we have learned a lot about what this virus is”, and yet they appear to have produced the same delays in response for the second lockdown as the first.
So in my mind that does not exhibit pandemic preparedness in relation to continuously learning.
So I’ve been reflect – this is slightly speculative, but what I would like clarity on from the Scottish Government is, in a nutshell, do they think that the virus in 2020, by the end, was so different that they could not prepare for it and therefore it’s very difficult to prepare ever for a novel virus? Or is there some other explanation for the fact that they learned so much and yet acted, you know, so late?
Lead 2A: You, I think, have confined your comments there to what happened during 2020, but the Inquiry has heard evidence from statisticians, the government statistician and the PHS statistician, about there being significantly high levels of cases, higher than other places in the United Kingdom, later in the pandemic, but still in the period we’re interested in, in particular from around August 2021. We have heard that those high rates obviously went up and down but they continued and there continued to be a high mortality rate resulting from what were known as the Delta and Omicron variants from that point into 2022. We have heard evidence that there were significant issues with hospitals becoming overwhelmed in 2021, which required the military to be drafted in to assist. We’ve heard evidence of this situation being described as a perfect storm.
Professor Paul Cairney: Mm.
Lead 2A: We’ve heard evidence from particular impacted organisations that their voice continued not to be heard during the pandemic, and that members of their communities continued to suffer, including oral testimony to that effect yesterday.
Are these features of the evidence – and of course we keep our mind open to what the evidence may be – are these features of the evidence consistent with your – what I understand to be your general proposition that the evidence doesn’t seem to suggest, that you’ve seen, that lessons were learned during the pandemic such as to combat further waves and further devastation?
Professor Paul Cairney: Yes, I think that the Scottish Government documents talk much more about learning than they demonstrate learning feeding into action.
I should say I made this point more strongly in the third draft of my report. I did get a response from the Scottish Government which was essentially a list of the ways in which they were learning, and I put that list in my fourth report. But my sense is that essentially that’s what it is, it’s a list of activity in different parts of the Scottish Government. It is not a coherent narrative of how they learn effectively during a crisis. And I think that’s one of the sort of unresolved issues here about the extent to which there’s a rhetoric of learning that does not match reality.
I suppose the other thing I should note is, in my mind the Scottish Government, much like the UK Government, have described Inquiries as the place to learn. In fact, when the now Deputy First Minister gave evidence to the committee – or was it – the inquiry that was involved in effective government decision-making, I believe she said that “We will learn lessons during the inquiries”. And that struck me as quite odd, given that the focus so much in these documents is about continuous learning.
Now, maybe they’re talking about two different kinds. Maybe there’s a difference between trial and error, learning on a daily basis, and there is evidence of that, for example, when the former Health Secretary talks about learning how to deal with, you know, PPE problems. Maybe that’s what they meant. But I don’t see evidence of this longer-term learning that will then produce something that will inform the next pandemic.
I think, you know, there was a – one of the committees they have talks about Disease X, you know, this disease – we don’t know anything about it, but we know it’s coming. I don’t see anything from Scottish Government documents that says “This is what we have learned that will inform how we deal with Disease X”.
Lady Hallett: So are you saying it’s translating the words into actions?
Professor Paul Cairney: Yes. I think the – I’ll be careful in how I say this, but the Scottish Government produces beautiful strategy documents, it has a wonderful language to describe how it wants to be. It does not have the same effective language for describing how it is.
Mr Dawson: My Lady, if that’s a convenient point?
Lady Hallett: It is, certainly, thank you. I shall return at 11.30.
(11.15 am)
(A short break)
(11.30 am)
Lady Hallett: Mr Dawson.
Mr Dawson: Thank you, my Lady.
Professor Cairney, I’d just like to move on to a slightly different though connected area, which is the Scottish Government’s commitment to human rights and equality, which is something we’re interested in in this module.
If you could have page 5 up, paragraph 1 again, you say in the fifth paragraph there that:
“The aspirational … ‘model’ [this is of the Scottish approach] involves establishing a ‘national performance framework’ (NPF) with a ‘core purpose’ replacing sectoral government departments with cross-sectoral directorates, co-producing public sector commitments to deliver the NPF and focusing on long-term aims – such as to reduce inequalities – rather than short-term targets based on a fixation with national elections.”
So the commitment to the reduction of inequalities is something that is part of this aspirational principles to be applied to the way that decisions are made?
Professor Paul Cairney: Yes.
Lead 2A: And in paragraph 14, you refer to:
“From 2015, the Scottish Government used its revision of the NPF ten year plan to: …”
Amongst other things, at bullet point 2:
“identify priorities in relation to addressing poverty and reducing inequalities (then First Minister Nicola Sturgeon made strong commitments to reduce education and health inequalities).”
Professor Paul Cairney: Yes.
Lead 2A: Could we look at paragraph 113, please. Again, this is in the section where you were looking at some of the evidence that was available in relation to the Scottish Government from Module 1, and in that paragraph, as part of your analysis of the context of the pandemic, you say that:
“… health outcomes do not reflect the successful application of [these] new policies.”
Citing, amongst other materials, the Bambra and Marmot report commissioned by this Inquiry. Is that right?
Professor Paul Cairney: Yes.
Lead 2A: Could we look at paragraph 115, please. Do you say in this paragraph that in the field of health inequalities you state this is an example of where there were aspirations not put into practice?
Professor Paul Cairney: Yes.
Lead 2A: Again, I think it’s fair to say that commitments to inequalities, including health inequalities, and human rights in a more general sense, feature aspirationally, if you like, in some of the key structural documents, including the four harms approach?
Professor Paul Cairney: Yes, and – so other scholars know much more about human rights approaches than I, but my impression is the reference to a human rights approach is now the Scottish Government’s thing, it’s – I mean, I don’t mean that in a negative sense. It is very committed to adopting that kind of language throughout government. And I think my impression is it’s the same kind of aspiration – it’s a very general term, it’s very difficult to – you know, very difficult to oppose, who wouldn’t want a human rights approach? But the detail of how they make sense of it and the choices they make, I think that’s the thing that is less visible.
Lead 2A: So when you say “the choices they make”, ultimately what that means is whether the decisions they make actually put that aspiration into practice?
Professor Paul Cairney: Yes, and how they define human rights and whose human rights, and the balance between human rights and – I mean, so lockdown was really about removing human rights, so if they were to talk about a human rights approach to something like that, it would be very difficult to make sense of without more detail.
Lead 2A: Your report as regards the period before the pandemic, drawing, as I say, amongst other things, on the Bambra and Marmot report but other sources, suggests that although this approach to inequalities, in particular health inequalities, had been an aspirational part of Scottish Government decision-making for some time, updated and reinforced in 2015, as we saw –
Professor Paul Cairney: Yeah.
Lead 2A: – that health inequalities and inequalities in general remained a significant problem with Scottish society at the time the pandemic started; is that correct?
Professor Paul Cairney: Yes.
Lead 2A: And this Inquiry has heard significant evidence relating to this module that those inequalities and health inequalities were exacerbated by the way the pandemic was managed. Would it surprise you to hear that it has heard that evidence?
Professor Paul Cairney: No. I think that the experience of Covid-19 policy symbolises a lot of the problems with inequalities that we saw before 2020.
Lead 2A: Thank you.
I’d now like to move to a different area which you have also very helpfully covered in some detail in your report. The area is devolution and the interplay between the UK Government and the Scottish Government.
We have heard in the Inquiry a substantial body of evidence, generally speaking, about the devolution settlements across the UK, not least in the expert opinion from Professor Ailsa Henderson, which I know that you have been able to look at.
Professor Paul Cairney: Yes.
Lead 2A: So it may be that the ground that we cover here can be a bit more focused, because we have some general context, but I would like to ask you some questions about that.
I think you say in your report that because of the devolution settlement which attributes certain policy areas to the Scottish Government but reserves certain other policy areas to the UK Government, that both the UK Government and the Scottish Government share overall responsibility for policy decisions that impact Scotland?
Professor Paul Cairney: Yes.
Lead 2A: You say in your report at paragraph 56 – we’ll go to that – that in this context the – I think you use the word “blurry” to describe the boundary between UK and Scottish Government responsibilities. I think at this stage you’re referring to the period before the pandemic. There was blurriness about the lines of responsibility. Broadly speaking, is that right?
Professor Paul Cairney: I would say there’s always a blurry boundary in this kind of system.
Lead 2A: Yes. And would it be fair to say that when a disaster comes along like the pandemic, which affects all areas of society and life, and therefore all policy areas, that this blurriness starts to become a bit of a problem?
Professor Paul Cairney: Yes.
Lead 2A: Because in response to a pandemic, one needs clarity, not blurriness?
Professor Paul Cairney: Yes.
Lead 2A: Clarity as to whose responsibility each element of society it is?
Professor Paul Cairney: Yes.
Lead 2A: The Inquiry has heard evidence that there were systems in place, I think as far back as the Scotland Act but certainly from more recent years, including a memorandum of understanding and supplementary agreements last updated in 2013, that were designed, amongst other things, to encourage activity within, amongst other bodies, a Joint Ministerial Committee, to try to deal with this very issue of what you’ve described as the blurriness.
Professor Paul Cairney: Yeah.
Lead 2A: Would that be fair?
Professor Paul Cairney: Yes.
Lead 2A: It is Professor Henderson’s evidence that there had been relatively little activity in that regard in the years preceding the pandemic; is that your understanding?
Professor Paul Cairney: Yes.
Lead 2A: And that in fact the Joint Ministerial Committee had met only 11 times in relation to Scotland between 2007 and 2019?
Professor Paul Cairney: Yes.
Lead 2A: And it hadn’t met after 2019 and before the pandemic, so during 2019?
Professor Paul Cairney: Yes.
Lead 2A: And in 2007, the 2007 date is the time that the SNP became the controlling party of the Scottish Government?
Professor Paul Cairney: Yes.
Lead 2A: Do you think that it is the case that our constitutional settlement required that there ought to be fora in which these boundaries should have been rendered less blurry, such as to make a pandemic response involving both policymaking agencies more effective?
Professor Paul Cairney: Yes.
Lead 2A: Another aspect which you touch upon in this regard in your report is the suggestion that the existence of these blurry lines may also make it easier for decision-makers in the Scottish Government to attribute blame for bad policy outcomes to the UK Government and vice versa, thereby potentially creating an accountability deficit in Scotland?
Professor Paul Cairney: Yes.
Lead 2A: Could you explain a little bit more about what you mean by that concept?
Professor Paul Cairney: Well … this would take us back to the topic that we began with about, you know, new Scottish politics or old Westminster. I think a characteristic of a Westminster system is high stakes accountability for problems. It is – parties contest elections based on who should take the credit, who should take the blame for decisions, and that is reflected in relationships between UK and devolved governments, particularly when they’re of a different party. So I would say that the way that the parties narrate the relationships relates profoundly strongly to the way that they campaign. So I would say that, on both sides, the UK Government leadership and the SNP government, to criticise each other in key cases is a key part of the way in which they present themselves to the electorate.
Lead 2A: To turn, then, to the outcomes of this as far as the pandemic was concerned, you explain very helpfully in your report – which hopefully I can summarise, but please correct me if I’m going wrong – that there would in these circumstances have been two ways in which, from a legal and constitutional perspective, the pandemic could have been managed.
I think you highlight, about which evidence has been heard in Module 2 as well, that the pandemic could have been governed by the Civil Contingencies Act route or it could have been governed the way it was, via what I think you describe as the public health route.
Professor Paul Cairney: Yes.
Lead 2A: And that these two routes have different legal and constitutional outcomes in terms of responsibility for the management of the pandemic; is that right?
Professor Paul Cairney: I think so.
Lead 2A: Yes, and I think that the evidence we’ve heard in Module 2 already, and please tell me if you disagree with this, is that had the Civil Contingencies Act route been used, that would have resulted in a greater degree of responsibility being vested in the UK Government for matters pertaining to Scotland than actually happened; is that correct?
Professor Paul Cairney: That is what I – I’m relying on more expert people than I –
Lead 2A: Yes.
Professor Paul Cairney: – but that’s my understanding.
Lead 2A: Yes, I understand, you’re not a legal expert, Professor Cairney, it’s very important to point that out, but in your report you have summarised evidence available from other sources –
Professor Paul Cairney: Yes.
Lead 2A: – which lead you to believe that that is the case, and certainly my understanding is that’s consistent with the evidence the Inquiry has already heard in that regard.
In the end of the day what happened was there was the Coronavirus Act 2020 which, amongst its schedules, accorded certain powers to the Scottish Government to do things like impose legal restrictions on members of Scottish society. Is that your understanding?
Professor Paul Cairney: Yes.
Lead 2A: That operated within the devolution arrangements, subject to any extra powers that were included in the 2020 Act?
Professor Paul Cairney: Yes.
Lead 2A: Would it be fair to say at an overall level, without getting into any legal detail, that that resulted in a situation whereby the blurry lines became something of an issue, because the pandemic strategy in Scotland required input in certain areas from the UK Government, but accorded overall control to the Scottish Government?
Professor Paul Cairney: Yes.
Lead 2A: For example, you highlight in your report at least one major area, but possibly other areas, that would technically fall within the reserved powers of the UK Government. The major one is funding –
Professor Paul Cairney: Yes.
Lead 2A: – to which we will return. The UK Treasury remains a reserved matter. There are other, there are perhaps multiple matters, but another one which is of some significance to this module is the question of borders.
Professor Paul Cairney: Yes.
Lead 2A: Because border control generally is a reserved matter.
Professor Paul Cairney: Yes.
Lead 2A: Therefore, is it fair to say that your assessment is that there required, given that that route was selected, to be a significant degree of co-ordination and co-operation between the governments, given the all encompassing nature of the pandemic and its effects?
Professor Paul Cairney: Very much so.
Lead 2A: And given that requirement, the blurry lines caused a significant problem?
Professor Paul Cairney: I think so, yes.
Lead 2A: You also, in your report, in the very helpful lengthy section about pandemic preparedness, talk about a lot of systems which existed and about which the Inquiry has heard in detail in Module 1 to do with resilience partnerships and that sort of thing. Given that – is it your understanding that the systems which existed pre-pandemic as far as Scotland’s preparedness was concerned were based on a civil contingencies type outcome in terms of the way a pandemic or any other emergency might be managed?
Professor Paul Cairney: My impression is that they had – they had two different systems running on parallel tracks, so one of them was civil contingencies and the legislation that required the Scottish Government to prepare for an emergency.
Lead 2A: Yes. But the systems that we were talking about were systems that would be employed in a civil contingencies type scenario, the scenario that wasn’t actually followed through; is that right?
Professor Paul Cairney: Yes. I mean, my impression – to be honest, I found the documents very confusing, but my impression was they were anticipating either – “emergency” is defined very generally, so they very rarely refer to a pandemic, or they’re anticipating – my impression is that they’re anticipating emergencies a bit like natural disasters, where there’s this very quick responses by emergency services to an incident. I don’t think that many of the documents talk about, you know, the scale of this kind of pandemic.
Lead 2A: Could we look at, please, paragraph 59. Under subparagraph (e), please.
You talk there, I think, and tell us that the materials which you’ve looked at suggest that – in written testimony in particular, that from a legal perspective, and with the caveat that you’re not a lawyer and you’re relying on this material, the Scottish Government’s position, or at least certain individuals who were prominent in the Scottish Government at the time, suggest that the Scottish Government could have acted so as to impose lockdown, for example, before the Coronavirus Act 2020?
Professor Paul Cairney: Yes, and this is one of – an example where I think I got far more clarity from the Scottish Government in comparison to other issues, because in the draft of my report I had said – I had said that I’m honestly not sure if the Scottish Parliament could have legislated in this field, and I’m not sure what the legal position was before that.
Lead 2A: Mm.
Professor Paul Cairney: And I got very clear – which I quoted here – very clear feedback from the Scottish Government that the Scottish Government could have initiated the legislation in the Scottish Parliament, because this was clearly a public health responsibility, so there were no issues of being challenged, but that it made a decision not to legislate in the Scottish Parliament in favour of a four nations approach built on legislation in Westminster.
Lead 2A: So your understanding from the Scottish Government materials is that the Scottish Government had the power to impose a lockdown before it was imposed?
Professor Paul Cairney: If it legislated to do so.
Lead 2A: Yes.
Professor Paul Cairney: Yes.
Lead 2A: Indeed. But that it chose not to in favour of the four nations approach, which culminated in a co-ordinated commencement to the lockdown in March 2020?
Professor Paul Cairney: Yes.
Lead 2A: Is it fair to say – one might say, I think, that – or is it fair to say that in this area there may be a significant degree of confusion as to where the power lies in this regard?
Professor Paul Cairney: Yes.
Lead 2A: And that perhaps is why you have struggled, as others have, to work out what the position is?
Professor Paul Cairney: Yes.
Lead 2A: But your understanding of the evidence is that the Scottish Government’s position is that it felt it could legislate for a lockdown in the period before 23 March?
Professor Paul Cairney: Yes.
Lead 2A: And we know, of course, that the Scottish Government did not legislate and have a lockdown before that period, but it did issue a number of recommended courses of action in early March to curb social interaction and the like?
Professor Paul Cairney: Yes.
Lead 2A: Given that there is a lack of clarity in this area, it would appear, and it is your evidence that that is the case, is this the sort of thing that would have benefitted from clarification of the blurry lines, perhaps in a Joint Ministerial Committee, so that if an emergency like this struck, everyone would know what their powers were?
Professor Paul Cairney: Yes.
Lead 2A: Does it appear to be the case that the lack of clarity contributed to issues around a delay in the lockdown at that time based on your assessment of the materials?
Professor Paul Cairney: That’s tricky for me to answer. What I can say for sure is that the feedback from the Scottish Government is that they thought this was the quickest way to do it. So I think from their perspective this reduced delay.
I think the counterfactual is: what if Scottish Government ministers had much earlier on recognised this as a problem, thought that the UK Government was not doing enough about it, and therefore legislated much more quickly? From the documents they have given, they do not give the impression that they were operating on a much more accelerated timetable than the UK Government, and therefore, they were quite close together, it made sense for them to do this quickly.
I think that sometimes things that aren’t left said is, although the UK Government does not challenge Scottish Government legislation much, the UK Government and citizens can challenge Scottish Parliament legislation if deemed out of competence.
So I think it would be reasonable for the Scottish Government to say that during a crisis, when there’s not 100% clarity on who’s responsible, it makes sense for Westminster to legislate because then it won’t receive that challenge over competence in a way that the Scottish Government could.
Lead 2A: But as I think you accepted earlier, one might, in a counterfactual situation, had there been greater clarification over these matters between the governments to deal with the pandemic –
Professor Paul Cairney: Yes.
Lead 2A: – that we might have been operating in a counterfactual situation where there wasn’t that lack of clarity?
Professor Paul Cairney: Yes, I think if they had their time again they would have clarified this and the Scottish Parliament would have legislated.
Lead 2A: Okay.
One of the other things that you mention there that we’ll come on to in a moment is you interpret the evidence that you’ve seen as being that the Scottish Government had the formal responsibility but not the financial means to act, before saying this was an example of the blurry boundaries.
What is your understanding of the concern about the financial means that would have been necessary for the Scottish Government to act?
Professor Paul Cairney: Okay, so this is a remarkably concise answer based on the detail.
Lead 2A: Thank you.
Professor Paul Cairney: The – essentially, the history of Scottish Government finance has been that the Treasury essentially provides the budget, the size; the Scottish Government decides how to spend it. So –
Lead 2A: Professor, I want to get into a little bit of the detail about how funding works in a moment – sorry to cut across you – but I’m just trying to clarify what your understanding of the evidence that emanates from the Scottish Government as to what it was specifically –
Professor Paul Cairney: Okay.
Lead 2A: – about the financial issue that meant that they had the responsibility but not the financial means to act, which it seems played some part in the decision-making.
Professor Paul Cairney: I –
Lead 2A: We’ll get on to the more difficult stuff in a moment, I assure you.
Professor Paul Cairney: Okay.
So I think the Scottish Government position is that an act such as lockdown would be profoundly expensive, and that has been borne out, and it did not have the means to borrow the money to finance that activity. It had a budget, but that budget was already allocated, and we’re talking about a scale that it wouldn’t be able to fund, for example – I think the biggest example is the employment furlough, it didn’t feel able financially to fund its own furlough.
Lead 2A: So to be fair, I think it’s important to point out that the evidence that you’ve seen is pointing out that that was an important factor in the decision-making as well –
Professor Paul Cairney: Yes.
Lead 2A: – it wasn’t simply a matter of “We can just go off and have a lockdown because we can”, there were other considerations, including these financial considerations, to take into account?
Professor Paul Cairney: Yes, because I think the key question, when they’re considering solutions, is: is this solution feasible?
So at the time they were wrestling with two feasibility issues. One was the political one: will people accept a lockdown? The other was the technical feasibility: can we do it and can we afford it? And I think, yeah, that informed all decision-making at that time.
Lead 2A: Thank you.
Before we move on to look at this area of funding in a bit more detail, I just wanted to clarify with you, which is an important although I think sometimes perhaps misunderstood element, of the way that the devolution settlement played out in the pandemic. It is important to understand, is it not, that the UK Government continued to have a direct role in controlling Scottish matters during the course of the pandemic?
Professor Paul Cairney: Yes.
Lead 2A: Not all Scottish matters, but certain Scottish matters that were reserved to their competence?
Professor Paul Cairney: Yes.
Lead 2A: So, for example, as we will see in a moment, the funding arrangements were still generally controlled by the Treasury?
Professor Paul Cairney: Yes.
Lead 2A: I say generally because there are some tax raising powers of the Scottish Government that we’ll touch on.
Professor Paul Cairney: Yes.
Lead 2A: Other areas, for example, that we’ve seen, we’ve heard something about already, defence is a reserved matter?
Professor Paul Cairney: Yes.
Lead 2A: So that during the course of the pandemic, when the military required to be brought in to assist with hospitals, that was a matter over which the Secretary of State for Scotland took control?
(Pause)
Professor Paul Cairney: Yes.
Lead 2A: If you don’t know that particular –
Professor Paul Cairney: I –
Lead 2A: In general terms –
Professor Paul Cairney: In general terms –
Lead 2A: – defence matters would be for the UK Government –
Professor Paul Cairney: UK government.
Lead 2A: – and if you take it from me on the hypothesis that there required to be defence intervention, you would expect that to be a matter for the UK Government.
Professor Paul Cairney: Yes.
Lead 2A: So although operational control of the pandemic lay with the Scottish Government, the UK Government had exclusive control in certain areas and therefore an important part to play in Scotland’s pandemic response?
Professor Paul Cairney: Yes.
Lead 2A: Thank you.
So then to turn to the question of funding, we go to paragraph 255, please.
This is what we described earlier as topic 7. You were asked a specific question about this, and you say, I think, at paragraph 258 – if we could just go over the page – I think as you’ve already said in passing that the general rule as far as funding in Scotland is concerned is that the Treasury heavily influences the size of the Scottish Government’s budget but it does not control how the Scottish Government spends its budget?
Professor Paul Cairney: Yes.
Lead 2A: Is that correct? Again, if I could try and put this to you, and if you disagree please tell me. My understanding of the very helpful evidence you’ve given in this regard is that funding is normally allocated to Scotland by the UK Treasury as part of a block grant; is that correct?
Professor Paul Cairney: Yes.
Lead 2A: And that when the grant is being fixed by the UK Treasury, there will be some level of negotiation with the Scottish Government about how big that should be?
Professor Paul Cairney: Yes.
Lead 2A: Broadly speaking, the way that the amount is arrived at is by the application of something called the Barnett formula; is that right?
Professor Paul Cairney: Yes.
Lead 2A: And the Barnett formula is an agreed, though not uncontroversial, means by which a budget is set, effectively, for England, and Scotland is given a percentage of that, and that’s its block grant; is that correct?
Professor Paul Cairney: Yes. The only way I would qualify it is that the term “Barnett formula” has taken on this wider meaning, it means all sorts of things to different people. So it can be defined in the way you suggest, but I would not assume that that is a widely understood description of how it works.
Lead 2A: Right. Effectively the way I’ve suggested is that it involves the application of a fixed percentage of the amount allocated to the budget for England, and the application of that to the English budget gives you what the Scottish budget is. Is that broadly correct?
Professor Paul Cairney: Yes, and I think, you know, the brief context is that it was treated by the Treasury as a means to make changes to the Scottish budget as automatic as possible.
Lead 2A: Yes.
Professor Paul Cairney: They didn’t want to have these annual disputes about how much the budget should be, and this was the formula to –
Lead 2A: Yes, indeed, indeed. So that’s why, although one might do it a different way, many people may, there is a fixed formula which tries to simplify the process?
Professor Paul Cairney: Yes.
Lead 2A: And that presumably gives a certain degree of predictability about what the funding might be for future planning purposes and many other factors?
Professor Paul Cairney: Yes.
Lead 2A: At paragraph 261, this is in the section where you are talking about the Scottish Government’s pandemic response, you note that the Scottish Government’s budget available to deal with the pandemic was largely influenced by spending on comparable services in England. Is that because where large amounts of effectively emergency funding were allocated for England by the UK Treasury, generally speaking, the amount for Scotland was calculated by the application of the Barnett formula?
Professor Paul Cairney: Yes, particularly if – the expectation would be a lot of the funding would be on the National Health Service, so that would be treated as a devolved matter, highly comparable, so it would be relatively straightforward to apply.
Lead 2A: Yes. In circumstances where the Barnett formula is applied as the tool – you described it as being to a block grant – it may well be the case that the Scottish Government may apply a greater proportion to one area and a smaller proportion to another; is that right?
Professor Paul Cairney: Yes.
Lead 2A: And that the Scottish Government has the power to decide, once it’s got its grant, what it uses it for?
Professor Paul Cairney: Yes.
Lead 2A: And over a block grant, which applies to all services, although the Scottish Government may disagree, the amounts that are required may balance out because there might be greater spending in one area as a result of Scottish Government policy but there may be a lesser requirement to spend in another area; is that right?
Professor Paul Cairney: Well, certainly they have to balance their budget.
Lead 2A: Yes.
Professor Paul Cairney: So any additional spending in one area has to be met by a reduction somewhere else.
Lead 2A: Yes, but the theory at least is that they require to do that and therefore if the Scottish Government decides to spend more on health, for example, it would have to find that proportionate deficit elsewhere?
Professor Paul Cairney: Yes.
Lead 2A: Is it correct to say, as I think we’ve confirmed already, that the way in which funding for the Covid-19 pandemic generally worked would be that money would be allocated by the UK Treasury as an emergency budget, and that the Barnett formula would be applied in order to reach the amount that Scotland would get?
Professor Paul Cairney: Yeah, so I think eventually, instead of working it out after the spending had taken place, they estimated what the spending would be.
Lead 2A: In advance?
Professor Paul Cairney: Yes.
Lead 2A: Is it your view that such an approach to working out the Scottish share for specific matters in an emergency situation, which although generally certainly adopted if not necessarily entirely agreed with, is the approach to overall block grant is an appropriate way of allocating funding to Scotland for its specific needs in a specific emergency?
Professor Paul Cairney: No. I would say that what became known as the “Barnett formula” – that’s me being academic – was a political solution, was not a coherent financial solution.
Lead 2A: Again, given your evidence that this was not an appropriate thing to deal with this sort of situation, is this the sort of matter which could have formed part of discussions in a Joint Ministerial Committee to work out how such eventualities may be dealt with in an emergency?
Professor Paul Cairney: Yes. I would say given the level of crisis and, you know, the sort of unprecedented nature of the crisis, the kind of negotiations between civil servants in the UK and Scottish Government would require a level of co-operation between ministers to give them the cover to talk those things through.
Lead 2A: I think you have drawn upon perhaps other sources but certainly John Swinney’s evidence to Module 1 where he said that – not just at ministerial level but more broadly his evidence was that relations between the two governments at the time the pandemic struck were particularly poor?
Professor Paul Cairney: Yes, I think – and it might be important to stress, you know, poorer than what?
So I would say from 1999 to 2007 you had Labour leading both governments, and all of these issues you talk about would be dealt with quite informally. If there were crises at ministerial level it would be dealt with informally between parties. From 2007 that was not possible, and the devolved administrations pushed for more formal arrangements. But I think these meetings are largely in the control of the UK Government. The devolved governments can’t successfully demand that they happen, so they’re sort of subordinate partners there. So their relationship was already bad.
The – over the years there have been – so it’s been both sides. So the SNP has been highly dissatisfied with the UK Government. The UK Government has portrayed the SNP government as not to be trusted. So this was a key feature before, that their position was: it was very difficult to share information with the Scottish Government, because we do not trust their ministers to keep it quiet.
So there was a lack of trust between ministers.
It was exacerbated, I think, by key personalities, and exacerbated by the – you know, the – you know, Brexit, which was, you know, famously, you know, rejected by most people in Scotland.
Lead 2A: Yes.
Professor Paul Cairney: So I would say that up to, roughly, the point of Brexit, it’s hard to imagine a worse relationship between the UK Government and devolved government.
Lead 2A: Thank you very much for that context. We’ll obviously explore these matters with appropriate witnesses in due course, my Lady.
Just a few final things on funding. One of the points that you mentioned earlier was that there was concern, and there’s documentary evidence to suggest that this was the case during the course of the pandemic, that Scotland’s policy control over the management of the pandemic may be limited by its lack of access to financial levers. In particular you gave the most prominent example of their ability to fund the furlough scheme were they to exercise their power to impose a further lockdown, for example, at a different time, perhaps, from England.
You, in your report, talk about this issue. It was, I think, a part of the narrative from the Scottish Government during the course of the pandemic that this was a problem, and you, I think, in your report, comment on this where you talk about the extent to which financial levers may influence policy decisions in Scotland.
Professor Paul Cairney: Yes.
Lead 2A: Is that your understanding of the Scottish Government’s position, broadly, from the papers that you’ve looked at?
Professor Paul Cairney: Yes, that they needed the UK Government to allocate additional funds, that the Scottish Government did not have the means to provide those funds themselves, because, you know, almost all of this additional funding came from borrowing and the Scottish Government does not have those powers. It needed the certainty of how much it would receive so that it could allocate that funding quickly. And I think its position is it not only relied on the UK Government to give it this funding, but it also did not get a clear enough steer about what that funding would be.
Lead 2A: That’s its position. There is evidence which the Inquiry has before it that this was a matter of some concern to the Scottish Government in around November 2020. You’ll remember at that time that contemplation was being given to the possibility of what were called “firebreak” lockdowns to break chains of transmission, and there were concerns expressed not only on the part of the Scottish Government but indeed other politicians in Scotland that to do so would perhaps run the risk of a measure being taken that could not be supported financially.
Is it your understanding that a clarification was made at that stage to the effect that – by the then Prime Minister – that the furlough scheme would be available for future lockdowns in Scotland?
Professor Paul Cairney: I think from a document I took that the former Prime Minister had given a verbal assurance that that would be true.
Lead 2A: There was something of a political issue. The document that you’re talking about is – there are two news articles. Just for the record I’ll leave their numbers: INQ000360049; and the one relating to the Prime Ministerial response is INQ000360145.
Because would it not seem, from a political perspective, odd if the position were that, in terms of the Coronavirus Act, the political power had been accorded to the Scottish Government to do just that, create a lockdown if they felt it appropriate in the interests of Scotland, for the government, the UK Government, then to say “Well, if you feel you need to do that at a different time from us, we won’t fund it”? Would that not be a politically unusual situation to be in?
Professor Paul Cairney: I think so. I think the context you describe is important here, because if you had a situation before 2020 when the two governments were working really well together, they knew each other and trusted each other, then if the Prime Minister had said “We will provide this funding in a flexible manner” the Scottish Government would have been assured and would have acted accordingly. I think the problem here is that – in fact I’m sure this will come up in their testimony – Scottish Government ministers do not trust UK Government ministers, and would not take a verbal assurance as something that they could plan on. And I think it’s that lack of trust, you know, communication, co-operation, that would undermine the delivery of that kind of flexibility.
Lead 2A: Before I move on from that, just to point out, of course, the other devolved nations did have firebreak lockdowns around that time and, as I understand it, the Welsh firebreak lockdown had started before those exchanges on 1 November.
Professor Paul Cairney: Mm.
Lead 2A: And it may be subject to subsequent evidence, but obviously those devolved nations have similar financial arrangements –
Professor Paul Cairney: Yes.
Lead 2A: – and therefore it would seem that some sort of plan had been laid out for the Welsh firebreak lockdown, which no doubt we will address in due course.
Professor Paul Cairney: Yes. And I should say there’s a long history of that kind of allocation. I think, again, the – not everyone would use this term, but the – academically you would say that is called “formula bypass”. So the UK Government would ostensibly use the Barnett formula to make these decisions, but would always reserve the right to make any ad hoc financial decision it wanted to in relation to devolved governments. So there is a long history of essentially saying “Here’s your budget” but then on an ad hoc basis giving different allocations.
Lead 2A: Okay, thank you.
One matter I just wanted to raise with you at paragraph 289, please.
This is in your conclusions section relating to topic 7. You earlier on have done an analysis of some reports and materials available from, amongst others, Audit Scotland, relating to the question of how the money was spent –
Professor Paul Cairney: Yes.
Lead 2A: – and was the conclusion that came from that analysis that it’s difficult to know exactly what the money was actually spent on?
Professor Paul Cairney: Yes. I think that Audit Scotland’s quite clear on that, that it’s – they’re very dissatisfied with the lack of clarity and how the money was spent.
Lead 2A: When we talk about “the money”, the money that was allocated in support of the pandemic response?
Professor Paul Cairney: Yes. And I think the added complication is that Audit Scotland can only audit resource allocation by the Scottish Government and the Scottish public sector, and, you know, this response was characterised by spending from the UK to the Scottish Government or the UK directly, and so not only did it not know what Scottish Government spending was in sufficient detail, it was unable to audit the UK Government spending.
Lead 2A: Okay. Thank you.
I’d like to move on to a separate topic, please, which is to do with the structures for decision-making within the Scottish Government, in particular paragraph 42 of your report, please.
You say that:
“The Scottish Cabinet performs equivalent functions to the UK Cabinet.”
And I think you say there that in the constitutional or the decision-making structures of the Scottish Government, similar to the UK Government, the Cabinet is the ultimate decision-maker; is that correct?
Professor Paul Cairney: Yes.
Lead 2A: At paragraph 45, you note that compared to the UK Cabinet, the Scottish Cabinet is smaller, which creates a greater potential to “perform a more meaningful collective function”; is that right?
Professor Paul Cairney: Yes.
Lead 2A: What do you mean by that?
Professor Paul Cairney: My impression of the UK Cabinet is that if – in fact you can see it visually: it’s people sitting around a huge table, and there are far more people there than could possibly contribute collectively to joint decision-making. I don’t think that’s what it exists for. And if ministers want to perform that kind of work, they do that in far smaller Cabinet committees, or subcommittees.
So I think – for as long as I’ve studied UK politics, Cabinet has not been seen as a decision-making body, it’s rather been seen as a decision-ratifying body.
Lead 2A: Right.
Professor Paul Cairney: Whereas the – at least the Scottish Government’s description of its Cabinet is that because it’s smaller, because they have cross-cutting responsibilities, because directorates can respond to different ministers, and because the Deputy First Minister has this overarching role, it can perform that function that, you know, would be – you know, that most people would think Cabinets perform.
Lead 2A: But consistently with some other themes from your evidence, you say in paragraph 45 that this potential is not necessarily or always realised.
Professor Paul Cairney: Yeah. It’s difficult. I would say the story that “We make all decisions through the Scottish Cabinet” I think is the official story. It was – if I was doing academic work, it would be my starting point for criticise analysis to look at what actually happened. I would just assume that there was always this gap between the official picture and how things are really done.
Lead 2A: When you mentioned earlier the concept of a – the UK Cabinet you were describing as potentially a decision-ratifying body, what exactly do you mean by it? Does that mean the decisions are taken elsewhere and simply put before the Cabinet to rubber stamp them; is that roughly what you’re saying?
Professor Paul Cairney: I mean, “rubber stamping” has a real –
Lead 2A: Yes, please use your own words to describe it.
Professor Paul Cairney: I would say that given the amount of time and deliberation and knowledge that it would take to make a meaningful collective decision, and the time given to a UK Cabinet and the amount of time for deliberation, those two things don’t match up. You could not make decisions in that manner. And they don’t.
I don’t think even the UK Cabinet puts up much of a pretence that that’s how it works.
Lead 2A: The theory, however, of Cabinet being the decision-making body is, I think, that various different aspects of government decision-making and, by extension, Scottish life, or UK life, are represented by different people, such that different views can be brought to bear in a decision-making body that then leads to a collective decision; is that the theory at least?
Professor Paul Cairney: Yes. And I think those discussions do happen. Ministers, civil servants and others do debate those issues, but I think the UK style, if you like, is to do those things before Cabinet and behind closed doors, and then use Cabinet as a way of ratifying the decisions and discussions already had.
Lead 2A: Yes.
Professor Paul Cairney: The portrayal of the Scottish Cabinet here is different, at least from the Scottish Government. It is that the Scottish Cabinet is the place where people have these debates and make these choices.
Lead 2A: Okay.
You mentioned there the complexity and volume of material that was inconsistent with the idea that UK Cabinet was actually making the decisions. Obviously within the pandemic, as we’ve seen, the volume and complexity of the material was at the extreme end.
Professor Paul Cairney: Yeah.
Lead 2A: Do you think, therefore, that Cabinet, proper Cabinet decision-making, as the Scottish Government purports happens within its decision-making structures, would have the advantage of spreading the burden of that information and allowing its totality and complexity to be taken more into account in an ultimate decision than, say, for example, if you had just an individual decision-maker?
Professor Paul Cairney: Yes. I think it performed a profoundly important function, because on the one hand the – you know, minute-by-minute day-to-day decisions of ministers could not be process – you know, could not all be processed by a Cabinet, but they were able to process key matters of principle that would guide all activity. So –
Lead 2A: Your evidence there is on the assumption, I think, that their purported model is the model that actually played out?
Professor Paul Cairney: Yes.
Lead 2A: But we will explore that in the evidence. Your position is that during the course of the pandemic, that purported model of Cabinet decision-making would have been a good one for the reasons that we’ve discussed?
Professor Paul Cairney: Yes. If working well –
Lead 2A: Yes.
Professor Paul Cairney: – and as described, it would be an excellent way to make decisions.
Lady Hallett: With the UK Cabinet, what happened during Covid was we ended up with the Cabinet committees, like Covid-O and Covid-S.
Professor Paul Cairney: Yes.
Lady Hallett: They were Cabinet committees, they were comprised of people, so they – it wasn’t as if they were just a couple of people in the corridor making a decision on their own.
Professor Paul Cairney: No, indeed not, no. But I think that would be – I think the Scottish Cabinet could be considered to be the equivalent of that Cabinet committee in terms of the size and scale. I think they had a Cabinet committee so they thought: let’s have the most important people in the room, let’s make it a manageable process. Particularly during an emergency.
And I think the idea here is, because the Scottish Cabinet is already smaller, they could do that without relying as much on Cabinet committees.
Lady Hallett: Yes.
Mr Dawson: Could I just go to paragraph 43, one final matter on this. In this paragraph you are talking about decisions which would normally be taken at the Cabinet level. Is there a clear guidance about decisions requiring to be discussed and made at Cabinet level and circumstances in which they can be delegated, for example, to an individual minister? I think here you suggest perhaps not?
Professor Paul Cairney: I think, well, the language matters here. I think … I think from their perspective they’re as clear as they need to be, because I think the thing that is either stated elsewhere or is implicit throughout is that ministers have to make judgements to interpret these rules, and individual ministers are responsible for their own behaviour, Cabinet is responsible for the collective behaviour. So this is very much about the judgement of individuals within a broad context.
Lead 2A: So that does that mean where responsibility is delegated, the Cabinet needs to decide – understand it’s giving away its collective responsibility to a particular individual, which may have – it may, theoretically – some adverse consequences, because that’s the reason why Cabinet exists, to have a collective view?
Professor Paul Cairney: Yes. And it’s interesting to me, the witness statements do provide examples of how this works, and I think they have provided the least controversial – you know, I think if you look at the example they give, you think: okay, that’s reasonable. So the example they give is: in principle we’ll agree to remove the obligation to wear a face mask once these conditions are met, and then that is delegated to the First Minister.
So I think that’s – you know, if you think these are the examples, then it’s straightforward because the principle’s been established, the measures of change have been established, so this is just a case of making a decision.
Lead 2A: Yes.
Professor Paul Cairney: It’s – I don’t have access to, like, a full allocation of the choices made by the First Minister.
Lead 2A: Yes, yes, I’m really trying to address this for the purpose of looking at those sorts of decisions in the abstract with you, to try to work out what would be the advantages and disadvantages, which I think we’ve covered.
Professor Paul Cairney: Yeah.
Lead 2A: I would just like to go to paragraph 48, please.
In this section, you’re telling us something about the way in which the civil service works in Scotland. The civil service is a reserved matter, is that correct?
Professor Paul Cairney: Yes.
Lead 2A: Is it correct to say that the civil service at the time of devolution was an important part of the devolution settlement, in that in reserving the civil service to the UK Government’s ambit, that was one of the mechanisms by which the primacy of the Westminster Parliament would be thought to be maintained; is that broadly correct?
Professor Paul Cairney: Certainly the way I would describe it is this is the way to solve most of those problems of intergovernmental relations we talked about. Regardless of relationships between ministers, there would always be this excellent relationship between civil servants.
Lead 2A: Right, but in terms of the constitutional settlement, one of the things that – one of the important things that civil servants do is to advise ministers, that’s broadly their function?
Professor Paul Cairney: Yes.
Lead 2A: And sometimes that might involve telling a minister that they’re not doing the right thing or making a bad decision or they should think about it, or something like that?
Professor Paul Cairney: Yes.
Lead 2A: And one of the things in the settlement, the devolution settlement, which related to that was the possibility that civil servants might sometimes have to tell Scottish Government ministers that what they were wishing to do exceeded their legislative competence?
Professor Paul Cairney: Yes.
Lead 2A: And that was a means by which that was meant to be regulated?
Professor Paul Cairney: Yes.
Lead 2A: You mention there the Constitutional Reform and Governance Act 2010, was that an Act which – it did a number of things, but one of the things that it did was it changed the ability, the power – it accorded power to the Scottish Government to be able to appoint its own civil servants?
Professor Paul Cairney: Yes. I mean, I will admit to being confused by the fine details of this. But my impression has always been that the Scottish Government has delegated responsibility for recruitment, so it essentially operates as – you know, a – to some extent autonomous organisation recruiting civil servants according to these rules, and so it’s a kind of operational rule within these rules.
So I think the only time this becomes a problem or a contentious issue is the appointment of the most senior civil servants. So essentially these are supposed to be non-partisan, non-political roles, but I think the most senior civil servant is performing, you know, a very delicate political task, you know, that would have to be managed well.
Lead 2A: But to be clear, from 2010, as you set out there, there is a Scottish Government Civil Service Code; is that right?
Professor Paul Cairney: Yes.
Lead 2A: And the fundamental rule of that is, as a civil servant, you’re accountable to Scottish ministers, who are in turn accountable to the Scottish Parliament?
Professor Paul Cairney: Yes.
Lead 2A: There’s an accountability there to the Scottish Ministers, as opposed to the UK Government in some way?
Professor Paul Cairney: Yes. And that did become an issue in relation to Scottish independence, because the permanent secretary at one time was expressing that language, to say “I am here to support an SNP-led Scottish Government, it is their commitment to foster independence, therefore it is my duty to, you know, foster that”. So I think that was – really symbolised there, in terms of the balance they struck – very much the way they articulated their role was in relation to the Scottish Government, and they would often downplay their, you know, wider UK role.
Lead 2A: Have these sorts of things given rise generally to concerns, at least about whether the Scottish civil service is too committed to the cause of independence?
Professor Paul Cairney: I mean, there would be lots of expressed concerns by certain people. So it’s hard for me to give, you know, like, a balanced account of that. That’s essentially a –
Lead 2A: All I’m asking is: is that a matter which is an issue in public discourse, about there are concerns in that regard? I am not asking you to say whether they are well-founded or not, but merely that this is a matter on which political commentators, political experts like yourself, that you’re aware this is an issue which you are sometimes called upon to discuss and think about?
Professor Paul Cairney: Yeah, certainly it would not be difficult to find critics of the Scottish Government civil service saying that they were too committed to the SNP government.
Lead 2A: Thank you.
Could I go to paragraph 206, please. This is the last topic that I intend to take you to, Professor.
This is the section which, if I recall, is topic 5, where you’re talking about public communications.
Professor Paul Cairney: Okay.
Lead 2A: You give again a very useful commentary on this. At paragraph 206 you refer to other literature which notes that at times of crisis leaders can be led into a more presidential style of decision-making and communication, where the elected leaders seek to personalise their power.
Do you think that a presidential style of leadership was a feature of the Scottish Government’s communications strategy, in particular Nicola Sturgeon fronting much of the communication operation?
Professor Paul Cairney: Yes.
Lead 2A: In your report, you also note at paragraph 229 that there is – you’ve helpfully told us about some polling which exists which tends to suggest that Nicola Sturgeon in her public role certainly compared favourably to Boris Johnson in terms of public approval, but you make a distinction there between public satisfaction with government communication and the ability of the public to understand the information conveyed by governments.
Could you just explain briefly the difference and the significance of that?
Professor Paul Cairney: Yeah, so the – so governments commission essentially proxies – proxy information of how well their campaigns are going. One of them is a question about, you know: “Do you trust this government and this government to act in your best interests?” Or something like that.
So the Scottish Government scored consistently higher in terms of that general trust that this government was acting in your best interests. So I think that’s – that’s not only work commissioned by the Scottish Government, but also in independent polling. I think you might struggle to find someone who didn’t come up with that same kind of picture.
They also commissioned work to try to understand – because, you know, the issue with trust is – it is not all a good thing. So in work that I have reviewed, the authors prefer this idea of watchful trust, which is you put enough trust in people that you think they’re competent and sincere, but you always keep an eye on them as part of your duty. So if you simply unconditionally trust a government, you’re failing in your duty to hold them to account.
So – and I think the satisfaction in trust is quite a weak proxy of how things are going, because people may put their trust in governments without any evidence, you know, to give them the reason to do it. Or there are clear differences in terms of trust in governments according to the extent to which you share their beliefs or you support the party that they’re from.
Okay, so you separate that out, there’s still this difference in trust, but they are also looking for measures of understanding and compliance with the measures they take and measures over time. So they want to know: do people understand what we were asking of them? Do they agree with what we’re asking them to do, or at least are they willing to do it, and are they doing it?
So those are very different polling data. One is very general and one is specific on behaviour.
Lead 2A: I think you say that at least there’s limited evidence of the second type, the ability of the public to understand the information, whereas there is a proliferation of evidence from various different places for public satisfaction, which may be a less reliable and less helpful indicator; is that correct?
Professor Paul Cairney: I think if you truly want to understand if people understand information, you have to ask them to describe it. You have to say to them: tell me what this means. You don’t ask them “Do you understand what this means?” Because lots of people will say they understand but will not be able to describe it.
So they’re working on these proxies, and there are some examples – so I think this is an interesting one that I would probe. The Scottish Government representatives have been asked about this already in Scottish Parliament committees, and a committee has put to key people that there are campaigns that we have done that people clearly don’t understand or even remember. So the famous one is FACTS, which I could perform not knowing what the five things stand for, but I simply could not – I don’t know what they stand for, and I studied it and in my report they’re listed. I think it’s striking that a minister giving evidence to a Parliament committee was given a round of applause for recounting those five, and I think to me that summed up the issue.
So I think the response from key people has been: well, even if people could not tell you what FACTS means, it has raised awareness and the kind of – they kind of know what it means. They know, okay, wear a face mask, distance yourself, seek a test and so on.
So there’s a lot of that focus from Scottish Government submissions on: this is generally going okay, look at the weight of communication that we’re doing, and – I would say that’s a key theme. Whenever probed to say “How effective is your campaigning?” the answer will be, “Oh, look at the amount”, and I think that’s an issue for me.
Mr Dawson: My last question was going to be whether you could recount FACTS, but as you inform me you don’t want to do that, that is my last question. Thank you very much, Professor.
There are no core participant questions, my Lady.
Lady Hallett: Thank you very much indeed, Professor. We’ve hardly touched the surface. You’ve obviously done a huge amount of work, for which I’m extremely grateful, but don’t worry about the rest of your written material, we take into account all the evidence, not just the oral, the written as well.
The Witness: Thank you.
Lady Hallett: I’m just sorry I won’t have the time to pop along to Stirling and listen to a seminar or lecture, if you still give them. So thank you very much for your help.
The Witness: Thank you.
(The witness withdrew)
Lady Hallett: Right, I shall return at 1.35.
(12.35 pm)
(The short adjournment)
(1.35 pm)
Lady Hallett: Mr Tariq.
Mr Tariq: Good afternoon, my Lady. May I please call Dr Donald Macaskill.