3. Ms Nicola Dickie

MS NICOLA DICKIE (affirmed).

Lady Hallett: Sorry if we’ve kept you waiting.

Questions From Counsel to the Inquiry

Mr Tariq: Good afternoon, Ms Dickie. Thank you for your assistance to the Inquiry to date.

There are a few preliminary matters that I wanted to discuss with you before we get into the substance of your evidence. Can you please keep your voice up and speak slowly, because the evidence is being transcribed. If any of my questions are unclear, please say so and I will rephrase.

COSLA has provided the Inquiry with a witness statement that’s dated 7 September 2023. This is a statement which is INQ000273700, and this is a corporate statement that’s submitted to this module of which you were the author. Is that correct?

Ms Nicola Dickie: That’s correct, yes.

Counsel Inquiry: If we turn to page 18, I was going to say is that your signature, but would that have been your signature?

Ms Nicola Dickie: Yes, it would.

Counsel Inquiry: COSLA has also provided an addendum to the witness statements dated 24 October 2023, which is at INQ000327643, and this is – if we turn to page 5, this is again where your signature would be.

Are you content for the statement and the addendum to the statement to form your evidence to the Inquiry?

Ms Nicola Dickie: Yes, of course.

Counsel Inquiry: Are the contents of the statement true to the best of your knowledge and belief?

Ms Nicola Dickie: They are, yes.

Counsel Inquiry: Just before we look at COSLA’s role in the pandemic, I just wanted to touch very briefly with you on COSLA as an organisation.

COSLA is a national association of Scottish councils; is that right?

Ms Nicola Dickie: Yeah.

Counsel Inquiry: It’s a membership organisation of all 32 local authorities in Scotland; is that correct?

Ms Nicola Dickie: Yes, that’s correct.

Counsel Inquiry: What functions does COSLA perform for its members in a non-pandemic time?

Ms Nicola Dickie: So COSLA is the membership organisation for the 32 local authorities in Scotland. We are a politically-led organisation. The Inquiry I’m sure will have heard from our sister associations across the rest of the UK, the Local Government Association. We provide representation, negotiation, for our members in support of access to legislation, finance and policy that supports the communities that they serve up and down the length and breadth of Scotland. We are also the employers association for the 32 councils, so we negotiate the terms and conditions of the local government workforce and indeed pay.

Counsel Inquiry: Would it be possible, Ms Dickie, just to keep the pace slightly slower, because there is a stenographer that is trying to transcribe the evidence.

As far as I understand it, you were the chief officer, health and social care, in COSLA between February 2020 and September 2021. What was your role and responsibilities in that position in relation to COSLA’s pandemic response?

Ms Nicola Dickie: So as the health and social care chief officer, I was responsible for all the policy as it related to health and social care and including public health.

As the pandemic emerged, I also took on the lead role across the organisation. So I played a co-ordination role – given that the pandemic was primarily in health and social care settings – in terms of guidance. But it also meant I had a co-ordinating role across the rest of the policy teams that the organisation has. So we also look after education, children and young people, housing, homelessness, so I was playing that co-ordination and lead role as well as doing the policy related to health and social care.

Counsel Inquiry: In October 2021, you became the director of people policy in COSLA. What was your role and responsibility in that position in relation to the pandemic response of COSLA?

Ms Nicola Dickie: So the previous role was the chief officer for health and social care. The director sits above that role in the organisation, so – and I have teams that directly report to me who deal with health and social care, children and young people policy and indeed COSLA’s strategic migration team which deals with asylum and refugee issues.

Counsel Inquiry: I understand that you remain in that position to this day, is that right?

Ms Nicola Dickie: That’s correct, yes.

Counsel Inquiry: I now want to turn to the issue of the relationship between the Scottish Government and local government.

In the expert report of Professor Paul Cairney, who gave evidence this morning, he says – well, I’ll simply quote:

“Overall, COSLA/local government is an important but subordinate partner in Scottish central-local relations.”

The Scottish Government retains responsibility for the management of emergencies in Scotland, including health emergencies, within the limits of devolution. Local government plays a role of strategic partner for the delivery of policy in each local authority area.

Similar to that there is a report that I will come to later on, it’s a report by Professor Kevin Orr of the University of St Andrews and the improvement service, which is titled “Good governance during Covid-19, learning from the experience of Scottish local authorities”, and in that report it said, and I quote:

“There is a long-standing and well-developed academic literature analysing the tendency of central governments to regard local authorities as delivery agents for national policies.”

Do you agree with this assessment that the Scottish Government has a tendency to view local authorities as delivery agents for national policy?

Ms Nicola Dickie: I don’t think it’s as straightforward as that at all times. I would also question the word “subordinate”. I think from a local government perspective we are absolutely clear that we are a legitimate sphere of elected government in this country and we deliver functions for the communities that we serve.

I think we recognise that there will be times where things are best done nationally and there are things that are best done locally. So I recognise that the devolution settlement and indeed what’s further devolved down to local government – it’s not the same across all of the policy teams that COSLA has access to, but I do think that there is a time when local government is more than a delivery agent of colleagues in Scottish Government, and I don’t believe that that’s true across all of the Scottish Government all of the time.

Counsel Inquiry: So my question was about the perception that the Scottish Government has of local government and local authorities, that they sometimes view local government as a delivery agent for its national policies. Is that a tendency that you see coming from the Scottish Government towards local governments or local authorities?

Ms Nicola Dickie: I think it’s some that many in local government would see as true at times.

Counsel Inquiry: In COSLA’s corporate statement, it is said at paragraph 3.2, I don’t want intend to take you to it but I’ll read out what it said, it says:

“COSLA played a key role in the framework set up by the Scottish Government to respond to the pandemic.”

In the corporate statement, it’s explained that COSLA was represented in a number of groups set up by the Scottish Government, it had bilateral regular meetings with the former Deputy First Minister of Scotland, John Swinney, COSLA had meetings with other Cabinet Secretaries and ministers in the Scottish Government. Overall, how would you describe the Scottish Government’s engagement with COSLA during the pandemic?

Ms Nicola Dickie: So I would describe the Scottish Government’s engagement with COSLA throughout the pandemic as vast. There was a lot of conversations, engagement going on both at political and official level. As I’ve already said, we carry out all of the policy teams and the devolved functions that local government has, and there wasn’t a part of our organisation or the services provided by local government that weren’t touched by the pandemic, so we were in regular contact and there was good engagement both in terms of the formal structures that are alluded to in my statement but also in terms of those political relationships.

Counsel Inquiry: So does COSLA feel that it had sufficient opportunities to communicate the views and concerns of local government to the Scottish Government during the pandemic?

Ms Nicola Dickie: I think we do, I think in my statement I refer to the first time that COSLA and indeed representatives from the chief executives of Scottish local authorities saw this, we were in – the first time we were in a SGoRR meeting was 16 March, COSLA and Scottish Solace, who are the chief exec in local government, attended SGoRR, both at official level and at ministerial level throughout the pandemic. I think that demonstrates that there was a concerted effort to bring the views of Scottish local government into the thinking and the decision-making processes of colleagues in Scottish Government. I think that engagement was on the basis of the statutory legislation that had been introduced made it clear that decisions were for Scottish ministers to make, but there was engagement and COSLA were consulted throughout the various stages of the pandemic.

Counsel Inquiry: Do you consider that the view – so you say the engagement was vast, but engagement is one thing, and then properly listening, understanding and factoring in those views into the decision-making might be something different. Do you feel that the Scottish Government always listened, understood and then factored in the views of local government into its decision-making during the pandemic?

Ms Nicola Dickie: So I think colleagues in government always listened, I think they tried their best to understand what we were saying, I think it becomes more difficult to understand how that was factored into the decision-making process because those decision-making processes were for Scottish Government and therefore we were not necessarily party to how that evidence was then weighed up.

Counsel Inquiry: How that evidence was then effectively –

Ms Nicola Dickie: Yes.

Counsel Inquiry: – going to the key decision-makers who were then making the decisions that affected local government; is that correct?

Ms Nicola Dickie: Yes.

Counsel Inquiry: We know from COSLA’s statement that it was a member of the National Incident Management Team. These were meetings that were usually chaired by Public Health Scotland’s Dr Jim McMenamin, and one of the functions of the National Incident Management Team was to provide strategic public health leadership and to advise the Scottish Government on measures to control the pandemic.

Can we look at the meeting minutes from the NIMT from 2 December 2020. This is at INQ000197243.

You, as I understand it, had attended by this stage, I think, a prior NIMT meeting on behalf of COSLA; is that correct?

Ms Nicola Dickie: Yes, that’s correct.

Counsel Inquiry: And it appears, as we will go through the minutes, that this meeting was attended by Jane O’Donnell. Can you tell me what Ms O’Donnell’s position was as at December 2020?

Ms Nicola Dickie: Yep, so Ms O’Donnell was the director of people policy in COSLA in December 2020.

Counsel Inquiry: You will see that the document at the top, it’s got the logos of Health Protection Scotland and Public Health Scotland. It says “National Incident Management Team”, and it’s a meeting of 2 December 2020.

If we’re able to go to page 2, I want to read from the second entry. This says – and it’s attributed to AB, who we understand to be an official from the Scottish Government, it says:

“The [Deputy First Minister] will have a call with the local authority Chief Executive – my understanding is the DPH …”

Is that the director of public health?

Ms Nicola Dickie: Yep.

Counsel Inquiry: “… is not on those calls, but following cabinet this week one of the ways to resolve would be to have the local authority Chief Executive and [director of public health] on the same call. Supplementary to that could be to get a short joint paper agreed by the local authority Chief Executive and DPH about where you think you are and the evidence that has been done to show why you should move up or down a level.”

So this appears to be a proposal from or a suggestion from an official within the Scottish Government on how to better involve local authorities in the decision-making process around local restrictions, such as keeping them informed of the evidence upon which the decision is made. Is that right?

Ms Nicola Dickie: I believe so, yeah.

Counsel Inquiry: Can we then read the next entry, and this is from Ms O’Donnell of COSLA, and it says:

“I think it’s vital we don’t end up in a situation where local authority colleagues are putting up different advice from what advice is given here – whatever we do – the NIMT considers the data and that we are only supplementing with local colour. We are cautious we don’t act in a way that would be inadvertent.”

So the concern here of Ms O’Donnell appears to be that if you bring in local authority voice into each of these individual decisions, their position might then conflict with the advice that the NIMT is giving to the Scottish Government; is that correct?

Ms Nicola Dickie: No, I have to say I don’t – that’s not the way I read that, because when I’m talking about local authority colleagues, I think, “putting up”, I suspect that’s the conversation that the chief executive of the council was having with their council leader. So I don’t think this is about when local government’s view was being fed into Scottish Government, I think what we’re getting at here, having read before and after, is that the directors of public health should be working with the council chief exec so that they’re sitting down with their council leader and saying: here are our statistics, this is what this means, here’s what our trajectory looks like, and then potentially, for example, and what we’re hearing in the public health community is that we’ve got another wave coming or there’s a different – you know, there’s a different variant of concern.

So I think the “putting up” there is putting up to their council leader. I don’t know that it’s feeding into Scottish Government. That was certainly my reading of that and I certainly know that there were conversations in and around about that time to make sure that council leaders had exactly the same information that Scottish ministers were looking at so that they could draw conclusions, as it were.

Counsel Inquiry: But if we look at the first sentence, the concern seems to be that:

“… local authority colleagues are putting up different advice from what advice is given here – whatever we do – the NIMT considers the data and we are only supplementing with local colour.”

So is the concern not here that actually if you engage with local authorities their position on what level, for instance, of restriction should apply might be different from what has been advised by the NIMT and if you involve – and that then means that there isn’t a single piece of advice going up to the Scottish Government to make the ultimate decision?

Ms Nicola Dickie: That’s not what I take from that, and I have to say that the way that the NIMT advice was formulated was that it was done on the basis, as you know, as you can see from the rest of the minute, what are the facts and the figures telling us. We had absolute conversations around about everyone needing to be faced with the facts before they went any conversations around about levels.

What I would say is both the documents that government published, so the strategic framework document that laid out the phases early on in the pandemic, so kind of April, April/May 2020, and then the subsequent advice that was published around about the tiering system, both were quite specific around about engagement with local government.

So it doesn’t suggest to me if you’re publishing in a publicly available document that you’re going to try to subvert any information that local systems will be providing to you.

Counsel Inquiry: If we then read the entry below, this is from TP, who is a director of public health, and it says:

“… issue is that we are being asked to give advice in the absence of all the harms.”

That’s, I think, a reference to the four harms strategy, and the NIMT is only looking at the first harm here, and not looking at some of the other harms such as the economic harms.

“England agreed to share their 3 harms and I think Scotland should share the harms papers with DPH and local authorities and then we will have all the information.”

So is this a recognition that actually local authorities weren’t getting the full picture that would then inform the decision-making that the Scottish Government were making?

Ms Nicola Dickie: I think you can take that from that, and the paragraph before, from Jane, to say that we need all of the information so that when council leaders are going into conversations with Scottish ministers that they have the exact same facts and figures and understanding as Scottish ministers were.

I think we were coming from the position that if you provide all of the facts and figures and a reasonable decision has been taken, I think reasonable people should come to a similar conclusion, but we needed to make sure that everybody was aware of the same information so that we didn’t have misunderstandings unnecessarily because people only had partial information.

Counsel Inquiry: And it was the position, as far as I can see from this minute, that local authorities only did have part of the information upon which decisions were being made; is that right?

Ms Nicola Dickie: At what stage, sorry?

Counsel Inquiry: At this stage, at this time of this minute, that they weren’t, for instance, having access to the four harms assessment that was being undertaken, local authorities?

Ms Nicola Dickie: So I think – I can’t recall exactly at what point all of the four harms information was going out, but that minute would suggest that would be the case. Forgive me.

Counsel Inquiry: I appreciate that we’re talking about events from some time ago. If we read on, I want to look at the entry that is SG, who we understand to be a representative of HPS, and it says:

“… the calls with [Deputy First Minister] are essentially political with leaders of each council. Chief executives when they are invited to speak they talk about their engagement with the DPHs. Also to highlight either the CMO or DCMO takes part in that call and goes through the data – I think there is a process of engagement and I’m not entirely sure if we are over complicating things with having another report.”

So is that some effectively – or what do you understand or could be meant by the fact that calls between local authorities and the Deputy First Minister might be perceived as political in nature?

Ms Nicola Dickie: The 32 council leaders are politicians first and foremost, so it’s factual that they are calls between two politicians.

Counsel Inquiry: But they are elected, and they’re trying to do the best for their –

Ms Nicola Dickie: Yes.

Counsel Inquiry: – whether it’s a local authority or whether it’s central government. In the context of a pandemic why would those calls be necessarily political or essentially political, as is being said here?

Ms Nicola Dickie: So I think the fact that you’ve touched on, local elected members are first and foremost there to advocate on behalf of their local community, their local businesses, the parents, the relatives who were contacting them. So I suspect that essentially “political” is a recognition that local elected members would want to put their point across and be putting their intelligence from the communities that they were supporting forward in a way that paid officials were perhaps not.

Counsel Inquiry: What you see here is it was being suggested that having another report, and you’ll recall that was the initial proposal, which outlines the evidence upon which a decision is made to move a local authority up or down a level would be, I think what’s being suggested here, overcomplicating things. Is that right?

Ms Nicola Dickie: Sorry, give me the first part of the question again, sorry.

Counsel Inquiry: You recall that the initial proposal –

Ms Nicola Dickie: Yeah, got that bit.

Counsel Inquiry: – was about – it’s the second entry on the page, and the suggestion was that we could get a short joint paper agreed by the local authority chief executive and the DPH about where you think you are and the evidence that has been done to show why you should move up or down a level. So that’s the suggestion. And then the response further down in the minutes is that that would be overcomplicating things with having another report. Do you see that?

Ms Nicola Dickie: I don’t have a view on whether that’s overcomplicating things or not. I would suggest that providing as much information as we possibly can to all parts of the system is the most useful thing that we can do.

Counsel Inquiry: And I think if we then read on to the sixth entry, this is from Dr Jim McMenamin of PHS, it says:

“… in a paper as yet to be circulated for broader consideration, on the basis of what Andy has outlined we can see any opportunity that exists to have alignment of our thoughts to ensure there is a single public health interpretation of the data as it stands, how that summary is used is very much in the hands of Scottish Government colleagues. Often case studies can be helpful and my understanding for Grampian is at least in some of the discourse I was privy to, sometimes there were various things that were then suggested constructively about how things could be improved. Perhaps the simplest things are on the Thursday on receipt of the information and when the spreadsheet is being added to that’s the point where perhaps we should be engaging with our stats colleagues to see if this does equate with what you see and if not, have that local discussion on a scientific basis for common ground. That might allow us on Friday to afford that opportunity for that clear single version of the truth to be imparted. I trust there is a broad consensus agreement and we can proceed on that basis.”

So is this not where again the NIMT seems to be concerned with a clear single version of the truth that is being imparted to the Scottish Government about what advice is around restrictions for local government, whether they move up or down a level? Is this not in this context a resistance to engaging better with local authorities so that they have the full picture, so that there is this joint paper where they can see the evidence, and they have more access to central governments?

Ms Nicola Dickie: So I think that’s true on both sides here, because you said yourself in the earlier extract of this that this NIMT was only looking at harm 1. I think there’s a sense that when ministers then speak to local government, local government are potentially providing more information and analysis and local information on harms 3 and 4.

So I think what you’re hearing here is local government saying “We need the complete picture”, but also Scottish Government and Public Health Scotland saying as an NIMT if we look at the figures and we say this is what the figures are saying, but then when the minister speaks to the council leader or the chief exec they are then able to provide some information about the harms that are being caused to community or a particular business sector, we need to be in a situation where all of that information is being gathered together at the one stage.

Counsel Inquiry: In the various Scottish Government groups that COSLA was a member, some of which you attended, did you get the sense that there was reluctance by the Scottish Government or others within those groups to engage more fully with local authorities in relation to the decisions that affected them?

Ms Nicola Dickie: That’s not a sense that I got, no.

Counsel Inquiry: It’s been suggested by some in local government that the Scottish Government’s approach to decision-making was too centralised, with insufficient input from local authorities into decision-making process that affected them. Do you agree with that assessment, that the decision-making from the Scottish Government was too centralised?

Ms Nicola Dickie: I think I can say that the period of the pandemic was a long time and I think there were times when the decision-making and the input from local government was very good. I think there are times when individual local authorities felt that their engagement was very good. I think there were also times when individual local authorities didn’t feel that things had gone so well. So I think in the same way that local government is not a homogeneous group, every decision that was taken in Scottish Government was not taken through a standard process because of the speed that we were moving at.

So I think it does feel like a bit of a mixed picture. I think there were good engagement, I think there were genuine intentions there. I think the areas of decision-making inside government that COSLA and local government had long-standing relationships with, so for example education, those were tried and tested relationships, if you like, we were used to dealing hand in glove, because the competencies there are very similar. I think when we got into other areas where we didn’t have such a close working relationship things got a bit more difficult. So I don’t think it’s as straightforward as saying it was good or bad, I think there were peaks and troughs and I think individual local authorities at times fell one way or another. Depended on where they were in the pandemic, depended on how the engagement was going and ultimately what was happening at a local level.

Counsel Inquiry: I want to take you to the report which I’ve referred to before from Professor Kevin Orr of the University of St Andrews. It’s at INQ000351044.

And you will see that the report is headed “Good governance during COVID-19: learning from the experience of Scottish Local Authorities”.

Are you familiar with this report?

Ms Nicola Dickie: Yes.

Counsel Inquiry: For your Ladyship’s information, this is a paper which provides some findings and learning from discussions that the researchers and the authors had with senior officials and the elected members of six local authorities in Scotland, and these six local authorities were chosen for this project to provide a mixture of different geographies, so from the islands, from the mainland, different governance arrangements, and also different political compositions, so it’s meant to reflect across the board of the 32 local authorities.

The researchers then conducted interviews with representatives of these local authorities, and the purpose of the paper was to help local authorities learn from the experience of the pandemic and to inform future reviews of governance.

The names of the six local authorities and the interviewers have been anonymised in this report to allow them possibly to speak a little bit more freer about their experiences.

Can we look at page 34 of the report, and I want to look at the quote on the second half, so it says:

“One chief executive was directly critical of what was felt to be an unnecessarily centralised approach by the Scottish Government.”

The quote reads, and this is based on the interview:

“The public face of the pandemic for both governments, was their respective political leader. In Scotland’s case, that was the First Minister. It was clear from a delivery partner perspective, that the political involvement in all the decision-making associated with the response was all pervading and on some occasions, the political ‘optics’ seemed the guiding force. And of course, because of the 24/7 media world we now live in, the respective national political leaders were centre stage of that 24/7 media word. In the gold command structures put in place by the Scottish Government, there was no scope for any departure from the nationally set approach, which was an unrelenting single focus on health harm rather than the 4 harms approach that was claimed. There was no real local decision-making and no real opportunity to influence the response/actions to be taken. It was a here it is and it’s to be implemented. Since devolution in Scotland, there has been a growing tension between the Scottish Government and local government and the pandemic has exacerbated that tension not only between respective politicians but also across officials. Local political leaders were being held to account for decisions they had no locus in and privately were being criticised by the Government for not doing enough to support the response, when they were not being treated as a partner in the response.”

Did COSLA’s members communicate concerns of this nature to COSLA during the pandemic?

Ms Nicola Dickie: I think there were times where COSLA leaders collectively raised concerns. I think in evidence we’ve provided there were times when Mr Swinney came and addressed council leaders to listen to their concerns, when Scotland’s Chief Medical Officer or Scotland’s clinical leads came to COSLA leaders, so there was an opportunity for COSLA leaders to feed that information in, for us to impart that to government, and at times for the government to hear that direct from council leaders.

Counsel Inquiry: But this seems to be at least a criticism that isn’t limited to one moment in time or one particular decision, it’s an impression of the Scottish Government’s approach across the pandemic; is that right?

Ms Nicola Dickie: I think that’s what that quote is suggesting there, I mean, I think this report is dated December 2020, so that was, you know, first part of the pandemic, I suspect it was wishful thinking on our part that we were through the worst of it and we should take the temperature of local government. I suspect if this had been re-run again you would get a slightly different result. Some of that might be better, some of that might be worse, but I think that’s what that is saying there.

I think the other report, Mr Orr’s report, Professor Orr’s report that you reported to there speaks of the tension around about the devolution settlement that’s been around since Scottish Parliament came to fruition. So, as I said earlier on, I think it’s a version of something that many across the local government family might recognise.

Counsel Inquiry: We will come to other evidence from local authorities that is being provided to the Inquiry, but do you agree, does COSLA agree with the statement that the political involvement in all the decision-making associated with the response was all pervading and on some occasions the political optics seemed to be the guiding force?

Ms Nicola Dickie: That’s not something that I can agree or disagree on behalf of COSLA.

Counsel Inquiry: Did you get the impression at least that some of the Scottish Government’s decision-making during the pandemic was at least in part guided by political considerations of the political optics?

Ms Nicola Dickie: I didn’t, no, on a personal level, no.

Counsel Inquiry: There is a reference here to:

“In the gold command structures put in place by the Scottish Government, there was no scope for any departure from the nationally set approach, which was an unrelenting single focus on health harm rather than the 4 harms approach that was claimed.”

You will have had some insight into the four harms by attending some of the NIMT meetings. Did you have an impression that the Scottish Government’s focus was on effectively the first harm to the detriment of the other harms that are identified in the four harms approach?

Ms Nicola Dickie: I think all of the harms were discussed all of the time. I think it was often not clear what was being weighed in amongst those harms. I think there were times when the health – when harm 1, which were direct Covid harms, were absolutely front and centre, but I can also remember being in NIMTs where harm 4, around about economy, was certainly at the forefront of the discussions.

I think with hindsight the four harms approach, understanding what the weighting was in advance would be something that would be quite useful. So I think we were discussing and we were feeding in information across the four harms, but, as I said earlier, not being party to the decisions that were then taken inside government, it’s difficult for us to work out what was the weighting that was applied across those harms throughout.

Counsel Inquiry: I think the related point to that is it’s not really a science, is it, the four harms approach? It’s not a decision-making tool that you input in what the harm is for harm 1, 2, 3, 4 and it tells you what the answer is, it’s more akin to guiding principles; is that right?

Ms Nicola Dickie: Yeah, I think that’s absolutely right, and I think that’s also one of the reasons that feeding in the information from local areas was so critical because on paper harm 4, around about economy, could look like something specific, but if the local knowledge then told you that there was – a particular sector was going to be – do you know, if I give the example of fruit picking, do you know, that’s one of the areas that four harms looked at, and – and for, do you know, two-thirds of the councils in Scotland it made no difference, but it made a difference for the council areas in Scotland that were waiting to do that. So I think that’s why we were always keen to make sure that the local concept and what Ms O’Donnell called “colour” was being fed into those conversations, because four harms is – you’re right, it wasn’t necessarily a decision-making tool, it was one way of looking at the pandemic and the various harms that were being done, but it was certainly being followed up by some of that localised and – intelligence.

Counsel Inquiry: So would you then disagree with the sentiment in this quote that there was no real local decision-making and no real opportunity to influence the response actions to be taken?

Ms Nicola Dickie: So I think I would go back to the point that the legislation that was passed was clear that the decision-making through that emergency legislation was for Scottish ministers. We didn’t have the power to take decisions at a local area around about stopping transport and stopping people doing things. So I think we’ve got to think about the practical legal machinery that was there was not for local – local decision.

I do think that there was an opportunity to influence – as I’ve said already, it’s difficult to work out, if things changed, was that as a direct result of COSLA’s influence or was that a direct result of an individual’s influence or was that something that had changed in the pandemic? It was a bit difficult to work out, if something had changed, why that was the case. That said, everything was moving at pace, so …

Counsel Inquiry: At the outset you’ll recall that I quoted a passage, I think it was from Professor Cairney’s report, which had described the relationship between central government and local government as one of the local government being the subordinate partner. I think you took issue with that. Would that, in this context, in the pandemic, is it fair to say local government was the subordinate partner, if you’re explaining that ultimately the decisions lay with central government?

Ms Nicola Dickie: I think that’s fair.

Counsel Inquiry: If we turn to page 35 of the report, and you will see the quote at the top:

“Indeed another chief executive commented:

“I think there was a tendency from the government to act as though local authorities were the same as NHS boards and they could just say, ‘We want you to do this and we want it by Friday,’ rather than the way they would normally engage with local authorities.”

And then there is another extract from an interview further down the page, where it says:

“One council leader whose area was placed in a local lockdown is also critical of the relationship with central government:

“We got involved in the decision-making process very late in the day. It was frustrating for us that we felt that our voices weren’t really being heard. I feel that although a lot was said about partnership working between Scottish Government and local authorities, that didn’t really happen on the ground. We were given the opportunity to meet with people, but we didn’t really feel that we were able to get the opportunity to influence those decisions. We were just being paid lip service.”

Is that sentiment or those impressions, impressions that you formed as being a senior individual within COSLA, who sat on many of these Scottish Government groups?

Ms Nicola Dickie: So I think it’s fair to say the top quote around about the chief executives, I’ve already alluded to the fact that we had many ministers and civil servants who had never worked with COSLA or local government closely, I think in some of the reports that I’ve read as well the recognition around about the democratic mandate that elected members across Scotland’s local authorities have – was not necessarily understood across – understood to the same extent across all parts of Scottish Government, so I think there was a tendency early on in the pandemic to say “We want this and we want it done by then and this is how we want it to be done”. I think that’s one of the reasons that COSLA kept our decision-making and governance going, because there is – no individual in COSLA has executive decision-making powers so everything had to be done using our existing governance structures so that all 32 council leaders were given the opportunity.

So I think there was a tendency right at the start, maybe through a lack of understanding about just how councils are structured and what our democratic mandate is.

I think on – on the second one, as I said, I think across the piece, across local government, council leaders didn’t feel like that all of the time, I think there were fits and starts – or I think there were differences about how they felt the decision-making process was running, but local government in Scotland don’t – don’t tend to shy away from telling people if they think lip service is being paid, so, again, if that was the case, these issues would have been raised by COSLA, raised with the ministers, and the opportunity for council leaders to meet with politicians was provided.

Counsel Inquiry: Did you form the impression that only lip service was being paid to the voices of local authorities in the decisions that affected them?

Ms Nicola Dickie: No.

Counsel Inquiry: If we’re then able to turn to page 34 of the report, and it says, if I can read the quote at the top, it says:

“On that tension [and the tension here is referring to the flow of the information from the Scottish Government to local authorities] one chief executive offered the following perspective:

“We were getting no advance insight from the Scottish Government around what was going to happen next in terms of public health measures to be put in place, so we couldn’t brief our members in advance of the public announcements. This created a suspicion amongst members, that its own staff were not keeping them briefed – when in reality, their own staff had no advance notice either. As a staff base, and a delivery partner of Scottish Government being informed at the same time as the public, was hugely frustrating and unhelpful.”

Is this the sort of feedback that COSLA was getting from local authorities during the pandemic about the fact that the Scottish Government’s communications to local authorities was not particularly good and in fact was causing all sorts of issues because some local authorities were finding out about restrictions in their local area at the same time as the public?

Ms Nicola Dickie: So I think it’s fair to say that there was an element of that. That feedback provided, I mention it in my statement, and indeed the surveys we undertook from the 32 local authorities in advance of these modules, that that comes through loud and clear, certainly from some of those submissions. So I think that’s fair to say that that tension was there. COSLA were regularly feeding that back.

At times, there was an element of things were just moving really, really fast, so it might be the case that COSLA’s chief executive was aware and perhaps the chair of Solace, as a representative of the 32, where those phone calls or ability to catch up with everybody between a decision being made and it being imparted it was not always a situation that we were able – so I think we did get some of that feedback, we did provide that feedback to colleagues in Scottish Government, and as the pandemic went on and decisions were being taken at a slower pace I would have to say that did improve.

Counsel Inquiry: If it was the case that local authorities were sometimes finding out about public health measures that were imposed in their local areas at the same time as the public, say for example by watching Nicola Sturgeon’s daily coronavirus briefing, what challenges might this present on the ground for local authorities?

Ms Nicola Dickie: So I think again in the surveys from the 32 local authorities the types of challenges were almost immediately from an announcement being made, members of the public were contacting council officers asking for what that meant or what happened next, and that does lead to a level of challenge and frustration in local areas.

What I would say is that where the guidance was directly related to functions of local government, we would normally have a bit more notice than that. So if we take, do you know, the schools being closed, that information was available, but where things were ancillary to what local government was doing, so if it was happening in a transport section or something, that might be slightly different. But it is something that was an issue throughout the period of the pandemic.

Counsel Inquiry: But if it’s a decision, for instance, about a certain area being placed in level 3 instead of level 2, that impacts a local area because it’s a degree of the restrictions in that area, and it would surely cause all sorts of problems for the local authority that needs to implement those restrictions if it’s finding out at the same time as the public?

Ms Nicola Dickie: Yeah, I mean, absolutely. I think again in the survey responses that came in from the 32, that was absolutely crystal clear from a number of areas. What I would say is that it was 32 councils and how often that happened it’s difficult to tell because things were changing that often, but any time that feedback was provided to COSLA we were sure to feed that in to colleagues in government and try to make sure it didn’t happen on a future occasion.

Counsel Inquiry: I’ll come back to some of the survey response, but I want to just explore the levels system that was introduced in October 2020 in a bit more detail.

Was COSLA engaged in the decision-making process by the Scottish Government to introduce the five levels framework in Scotland?

Ms Nicola Dickie: Yes, we were.

Counsel Inquiry: How was COSLA engaged in that process?

Ms Nicola Dickie: So COSLA were engaged in that process in the way that we were throughout, which was colleagues in government would contact us to say “This is potentially where we’re going, this is where we’re thinking”, and then they would provide us with early drafts of what the broad parameters were.

We would then take that out across our professional associations and our member councils, and we would be looking for does it work in general terms for local government, and other issues around about the various regulatory services, access to core services. And then what we would also be doing is we would be looking at the tiering system, not just in the generic functions of local government but also in the specifics for remote and rural communities, for our island communities, making sure that worked for our border authorities, and then feeding that information back to local authorities so that we got, at the point of publication, something that local government could operationalise at a local level. And that meant across all of the tiers and all of the various interventions that local government would have a part to play.

Counsel Inquiry: So am I correct to understand that COSLA had quite a significant engagement in relation to the introduction of the five levels system?

Ms Nicola Dickie: So the introduction of the levels and what those levels meant and the various NPIs that sat against the levels, COSLA was engaged in that and took a sounding from all of our professional associations that would support us.

Counsel Inquiry: In mid-October 2020 it was said at the time that the Scottish Government planned to introduce a three-tier system similar to that which had been announced in England, and in fact Nicola Sturgeon was quoted as saying that the Scottish Government was seeking to align as closely as possible with other UK nations on a strategic level, although she stressed that the ultimate decision lay with the devolved government, this is the Scottish Government.

So were you aware that in mid-October 2020 the Scottish Government was contemplating a three-tier system similar to that in England?

Ms Nicola Dickie: I don’t recall that off the top of my head.

Counsel Inquiry: Do you see that there might be some strategic benefits in having the same three-tier system in Scotland as exists in England, so that it would be easier for the public to understand that roughly Tier 2 means the same north and south of the border?

Ms Nicola Dickie: I can see from a strategic perspective how that might’ve been useful.

Counsel Inquiry: And in fact, and you’ve touched upon this already, that the local authorities have provided survey responses to a survey, this was provided to the Inquiry by COSLA, and they’d been asked to answer various questions, and Moray Council said in its survey response:

“Changes of levels and having different levels across local authority boundaries caused some confusion, as did it being called ‘levels’ in Scotland and ‘tiers’ in England. This caused outbreaks of arguments on our social media channels which we worked hard to contain as there were often contributors giving conflicting information depending on whether they were personally choosing to follow UK Government or Scottish Government guidance.”

In kind of similar sentiments, East Lothian Council’s response was:

“Confusion arose due to UK Government and Scottish Government issuing separate guidance, regulation and imposing different Covid-19 regulations, constraints and effective dates. As a country bordering England, this led to much confusing for local residents, visitors and businesses.”

So do you agree with these responses, that having a three-tier system in England and a five-level system in Scotland at the same time created public confusion, or at least quite a significant risk of public confusion?

Ms Nicola Dickie: I think there was definitely the potential for public confusion.

Counsel Inquiry: So we know that from the press coverage, and indeed Nicola Sturgeon is quoted in that press coverage, in the middle of October what is being considered is a three-tier system to align as closely as possible to England for strategic benefits; and then on 23 October 2020 the Scottish Government introduces a bespoke five-level system that didn’t align with the system that was being operated in England. Do you know why that decision was made?

Ms Nicola Dickie: I can’t recall, and I haven’t seen any of the – we’re not core participants, so I haven’t seen the document that you’re referring to –

Counsel Inquiry: I’m not talking about a specific document. It was the public announcement on 23 October 2020 when the five levels system came in, and what I was trying to ascertain was: if COSLA was engaged and consulted in the process, was it consulted in how the system came about, whether it was going to be three tiers or five levels?

Ms Nicola Dickie: Not that I can recall.

Counsel Inquiry: Can we turn to an article from the BBC News website, this is at INQ000351050, it’s an article from the BBC News website and it’s headed “Nicola Sturgeon: ‘Buck stops with me’ on Scottish Covid tiers”, and you will see that it’s dated 20 October 2020, and just below the photograph of Nicola Sturgeon it says:

“Nicola Sturgeon has insisted that she will have the final say on local Covid-19 restrictions in different parts of Scotland saying ‘the buck stops here’.”

If we read over the page:

“The Scottish first minister said she would not ‘offload’ decisions about local alert levels onto councils.

“A lengthy row has played out between UK ministers and leaders in Manchester over imposing stricter rules there.

“Ms Sturgeon said it was her ‘driving ambition’ not to repeat this when a new multi-tier system begins in Scotland.

“She said the government would ‘consult and be as collaborative as possible’, but would ultimately make the decisions and would not be getting into ‘standoffs’.”

If we then scroll to the top of page 3, and this is a fuller quote from Ms Sturgeon, and it says:

“The first minister said: ‘I believe it’s really important that the really important that the buck for these difficult decisions stops here, with me and government.

“‘We are asking people to do extraordinary things right now, and it’s not fair for me and the government to try to offload those onto other people, be it local authorities or health boards.

“‘We have to consult and be as collaborative as possible – we will absolutely be engaging with local authorities. And as we take decisions about which levels apply in which parts of the country we will want that to be collaborative.

“‘But ultimately we have to be able to take the decisions’.”

If we can pause there, so this is quoting Nicola Sturgeon from her daily coronavirus briefing, and her intention is that ultimately the responsibility for these decisions about which level a local authority might find itself in is a matter – the decision for the Scottish Government, and she says the buck stops with her and the Scottish Government; but she also indicated the Scottish Government wants to be as collaborative as possible with local authorities, and that includes consulting with them in the decision-making process.

Is it fair to say that the local authorities’ experience of the Scottish Government’s engagement with them in the decision-making process perhaps painted more of a mixed picture than what Nicola Sturgeon aspired to?

Ms Nicola Dickie: I think that’s fair to say in the early stages of the levels system being brought in. I suppose it’s also the reason why, come April 2021, we entered into an engagement protocol between Scottish Government and COSLA that would lay out exactly what the engagement protocol would look like. So I think in the period between the levels system being published and us getting to that, there were different experiences across local authorities, and that was something that we sought to rectify come April 2021. So I think that’s a fair assertion.

Counsel Inquiry: I now want to turn to some of the local authority responses that the Inquiry has received, because this is the local authorities being able to reflect on matters in 2023, when they produced these responses to the Inquiry. And some local authorities, it is fair to say, reported in their survey responses that the Scottish Government did engage with them in relation to decisions about local restrictions, and examples of local authorities falling into that category include Aberdeen City Council, Dundee City Council and the City of Edinburgh Council.

However, other local authorities reported very different experiences.

For example, Aberdeenshire Council said that it was not involved in the decisions of the Scottish Government to impose local restrictions. It added that it was not asked to agree or participate in Scottish Government’s decision-making in relation to local restrictions imposed on its area.

North Lanarkshire Council said that the Scottish Government determined the local level placing of North Lanarkshire Council, and the council was not involved in the decision-making.

South Lanarkshire Council says that Scottish Government determined the local level placing of South Lanarkshire Council, in consultation with Public Health Scotland, and the council was not involved in the decision-making. Any dialogue with the Scottish Government related to advising the council of a change of tier. The council was not involved in any meetings with the Scottish Government to determine the placing of the council into a local level.

West Dunbartonshire Council said that there was little opportunity to influence the decision-making.

Angus Council says that it was difficult to see where local needs were considered, and indeed Angus Council adds:

“The main causes of confusion resulted from the council hearing of new rules, initiatives and restrictions at the same time as the public, specifically UK Government 5 pm briefings and unscheduled Scottish Government briefings. This meant that if the rules were complex, contradictory and/or poorly articulated, the public would look to the council for guidance when we had no further information to give. This was frustrating. It diminished the council’s credibility as a trusted source of information and was therefore counterproductive in disseminating key messages.”

So what we have here is not just the occasional one-off bad experience; these are local authority responses to the Inquiry given in 2023 which seems to paint – it’s not one local authority, it’s numerous local authorities, and in fact there’s others which I’ve not gone through the responses for the sake of time, and their experiences seem to all be that the Scottish Government failed in its intention, as communicated by Nicola Sturgeon, to consult and be as collaborative as possible about which levels applied in their local area.

In that context – and because it’s not one response, it’s multiple responses from a range of local authorities from different areas, different geographical areas, different political compositions – is there not a pattern here that the Scottish Government’s rhetoric, Nicola Sturgeon’s rhetoric that she was going to be as collaborative as possible wasn’t actually borne out in the reality on the ground?

Ms Nicola Dickie: I think that those surveys that are being sent in from individual local authorities are their experience, and whether that’s a pattern is not for me to determine. I think they’ve provided their experience of it and, as I said, the engagement protocol that subsequently came in in April 2021 was in and around about exactly what those local authorities have highlighted there.

Counsel Inquiry: Yes, but the engagement protocol came in – there was an engagement protocol COSLA had worked on, is it right, with the Scottish Government and it came in in April 2021, but the evidence of these local authorities isn’t in the survey responses that the Scottish Government’s engagement fundamentally changed in character post April 2021, is it? Not in their survey responses, they’re not making that point?

Ms Nicola Dickie: Not in the survey responses, but then I don’t know if the survey responses – I don’t think we asked specifically for a date before or after, if I’m … but it’s a long time since I looked at the survey responses on the way out.

Counsel Inquiry: But you would expect, for instance, if it was that there was a fundamental change in the way Scottish Government engaged with local authorities, they might say to local authorities, “Yes, the situation was bad in late 2020, but then COSLA and the Scottish Government introduced this engagement protocol and things significantly improved”; but that’s not what is said, is it?

Ms Nicola Dickie: That’s not what’s in the survey responses, no.

Counsel Inquiry: In the addendum statement to the witness statement of COSLA, COSLA was asked to explain why some local authorities appeared to be frequently involved in the Scottish Government’s decision-making and others appear to have had no involvement in the Scottish Government’s decision-making, and the response was:

“Some local authorities were frequently on the cusp of different tiers of restrictions and discussions would be held in relation to the most appropriate way forward. Some local authorities such as North Lanarkshire were never in that position as they had high infection rates throughout the use of the tier system.”

That’s you explaining why perhaps North Lanarkshire Council were never – their position is “We were never consulted”, and you say: well, the ones that may be consulted were ones that were on the cusp of different tiers. Was that your explanation of why maybe the engagement differed between local authorities?

Ms Nicola Dickie: Yes, so I think when the original levels system came in, we started out that every local authority in Scotland would have a conversation with Scottish ministers at every review. That quickly became unworkable, given the level of work that was going on for Scottish ministers, and indeed council leaders and their chief execs. Then we moved to a situation where if councils – council areas were moving through the trajectory as they would expect, so their figures were coming down, they were moving down the levels, and there were no issues with that, then they wouldn’t necessarily step forward and ask for a conversation.

Those local authorities who were on the cusp or who were going in the wrong direction, potentially, as it were, in terms of severity of restrictions, could expect that engagement and would be in a situation where they would be able to talk through some of the stuff that we’ve covered already on the NIMT.

As part of those conversations, that was also an opportunity for local areas to provide information on any other support that they may require, so that included things like if they were going to have to go from one level to another. And that meant that you had to start looking at restaurant premises again, the – the local authority would be asked do they need some mutual aid from another local authority around about Trading Standards officers, for example, or, as the example I gave earlier is a particular sector, “Is there a particular issue with your local authority that’s staying in this tier that Scottish ministers need to be aware of before they make that decision?”

So that was certainly – we started off with everyone having a call and then we moved to those who were on the cusp, or indeed those who potentially were moving up the way, would have a conversation with Scottish ministers.

Lady Hallett: Wrap it up or I’m going to have a screaming stenographer. Not screaming because she’s remote.

Mr Tariq: I will be just one or two more questions, if your Ladyship allows.

Lady Hallett: If you could.

Mr Tariq: Yes.

Lady Hallett: And if you could keep answers to a minimum.

Mr Tariq: So you’ve given the example of North Lanarkshire Council, it’s an authority that didn’t have any engagement, it says, with the Scottish Government. But the Inquiry’s seen evidence that on 28 October 2020 North and South Lanarkshire Councils published a letter to the Scottish Government urging Nicola Sturgeon not to place the councils in level 4 – which would have been the strictest – in level 4. The letter was signed by the chief executive of NHS Lanarkshire and Police Scotland’s divisional commander for Lanarkshire, the councils argued that they should remain in level 3, and we know the following day Nicola Sturgeon announced that North and South Lanarkshire Councils were placed in level 3. She described it as a borderline decision, which suggests that the local authority was on the cusp of two different tiers, but their position is, as I’ve said, in the survey responses “We were never consulted in respect of the decision-making”.

Do you consider that it would have been better for local authorities such as North Lanarkshire Council and South Lanarkshire Council to be involved in the decision-making process in the first place, as opposed to needing to publicly argue their case with the Scottish Government about not being placed in a higher level?

Ms Nicola Dickie: I would say it’s always better to engage before decisions are taken and the need for things to get difficult.

Counsel Inquiry: Does the fact that some local authorities had to resort to publicly arguing their case not create the risk that, if the Scottish Government didn’t accept the case, there might be less compliance in the local area as the public perceived the restrictions as unfair or unjustified?

Ms Nicola Dickie: I think there’s a – there’s potential for that to happen. The other thing I’ll say is that at a local level, people were coming under sustained pressure from various groups to make sure that they were advocating on behalf of their local areas. So I think both of those things are true, that local elected members and senior leaders had to demonstrate that they were in many respects putting forward the case for their area, but similarly I recognise that that – doing that publicly does have the potential for compliance to be –

Counsel Inquiry: The final question from me: does the fact that some local authorities were not involved in the Scottish Government’s decision-making process but had to resort to publicly arguing their case, does that not create the very risk of the standoffs that Nicola Sturgeon had said that she wished to avoid when she set out her plans for the levels system?

Ms Nicola Dickie: I think that does create that risk.

Mr Tariq: There’s no further questions from me.

Lady Hallett: No, thank you very much indeed.

Thank you for your help, Ms Dickie.

Just one thing: you did say that you didn’t have access to material because you weren’t – or COSLA weren’t a core participant. COSLA did make an application, but it was nearly a year late, and that was the basis upon which your application was refused. Had you made it earlier, you might well have been made a core participant.

So on that note, I shall return at 10 o’clock tomorrow.

(The witness withdrew)

Mr Tariq: There is one final matter.

Lady Hallett: Is it publication?

Mr Tariq: Yes. My Lady, I would invite your Ladyship to allow permission to publish all the statements that have been referred to, including the documents that have been referred to in the –

Lady Hallett: What I did in previous modules, Mr Tariq, just if it helps everybody here, I’m happy to make that the default setting. So unless someone brings to my attention that there’s a good reason not to publish it, either in full or in part, then otherwise they’ll be published.

Mr Tariq: That might make the job of counsel easier. Thank you.

Lady Hallett: One less sentence at the end of the day.

Thank you very much, 10 o’clock tomorrow.

(4.33 pm)

(The hearing adjourned until 10 am on Friday, 19 January 2024)