2. Mr Kenneth Thomson
MR KENNETH THOMSON (affirmed).
Questions From Lead Counsel to the Inquiry for Module 2A
Mr Dawson: You are Kenneth Thomson?
Mr Kenneth Thomson: Correct.
Lead 2A: Could you please try to speak into the microphone,
Mr Thomson, as best you can. You have provided, I think, a number of witness statements to the Inquiry, for which we’re very grateful. The position in your regard is slightly complicated in that I think there were some statements which you had some responsibility for compiling but were actually signed off and finalised by others subsequent to you leaving post; is that correct?
Mr Kenneth Thomson: I saw those – they were compiled by others on behalf of the Director General. I saw some of that material before I left post but, as you I think are saying, some of it was signed and submitted to the Inquiry by my successor.
Lead 2A: Yes, let’s try to go through and – just to be absolutely clear which ones you’re responsible for and which ones you’ve had involvement with. There is a witness statement from you dated 9 November 2023 under reference INQ000343888. That’s your statement?
Mr Kenneth Thomson: It is.
Lead 2A: You’ve provided a number of other corporate witness statements, as you were at the time the Director-General for Strategy and External Affairs for our module. One was dated 22 June of this year, INQ000215495, and a further statement dated 23 June, INQ000216655. These are also statements that were compiled and signed by you?
Mr Kenneth Thomson: Yes, they were.
Lead 2A: Do the contents of these statements remain true and accurate as far as you’re concerned?
Mr Kenneth Thomson: They do.
Lead 2A: Just to clarify, my Lady, the two corporate statements covered slightly different areas which fell within the area of responsibility of Mr Thomson at the time.
A further four witness statements have also been provided by, I think, the Director-General for Strategy and External Affairs. We understand you’re familiar with two of these statements as you provided them in draft prior to leaving post; is that correct?
Mr Kenneth Thomson: I would need to see them to know which ones I saw –
Lead 2A: Let’s just run through them, I don’t want to –
Mr Kenneth Thomson: Yeah, go on, go through them –
Lead 2A: I don’t want to be asking questions about ones you’re not responsible for, Mr Thomson. The first was a supplemental statement dated 26 October 2023. It’s INQ000348720. This statement – you may recall this one, I think that you did have an involvement with it – was a supplemental statement of that date relating to Covid-specific structures of the Scottish Government such as SGoRR, the Covid directors and the four harms group. That was one I think that was compiled by you, possibly, but then signed by your successor, Mr Griffin, is that correct?
Mr Kenneth Thomson: It was seen by me and provided in draft, as paragraph 1 confirms.
Lead 2A: Thank you very much. And the second statement, similar to that, was INQ000339039, a statement dated 1 November 2023.
Mr Kenneth Thomson: That’s not the statement –
Lead 2A: No, that’ (inaudible) I’m afraid. There was a second statement, we’ll come back to that. I understand also that two further statements were provided on behalf of the directorate general with which you were previously associated. These were provided by your successor, the first dated 5 November 2023, INQ000366267.
Mr Kenneth Thomson: I have a different number in front of me. Yes, I now have 267 before me.
Lead 2A: Yes. Have you seen that statement at least?
Mr Kenneth Thomson: That one I think was prepared without my involvement.
Lead 2A: Right. And a further statement dated INQ000362632. This is one dated 6 December providing a correction to the previous one. I think, again, that was provided by your successor. Did you have any involvement in that one?
Mr Kenneth Thomson: No, that’s highly unlikely.
Lead 2A: Thank you very much. We’ll just return to the other number in a moment but deal with your personal background.
You initially joined the civil service, as I understand it, in October 1988, is that –
Mr Kenneth Thomson: Correct.
Lead 2A: Since late 2011 you held the role as Director-General Constitution and External Affairs, which as I understand it was renamed Strategy and External Affairs in February 2022?
Mr Kenneth Thomson: That’s correct.
Lead 2A: I’ll refer to the – could you just tell us, that’s a directorate family, is that correct? It’s a term we heard from Professor Cairney yesterday. Is that a directorate family and could you tell us what that is?
Mr Kenneth Thomson: It’s a family of directorates. So, as Professor Cairney said, the Scottish Government structure is a number of directorates supporting portfolios – mapping isn’t quite one to one – and directors, leading directorates, are managed by a director-general, and a director-general’s span of command is informally known as a family.
Lead 2A: Right, so you were in charge of a directorate-general and under you will be have been, at different times, a different constellation of directorates?
Mr Kenneth Thomson: Yes.
Lead 2A: Thank you.
In your work I understand that you supported the First Minister, Deputy First Minister and Cabinet including on cross-governmental work?
Mr Kenneth Thomson: I had two broad areas of support to ministers. The first was what you’ve just summarised, the second was support to a portfolio Cabinet Secretary in relation to a number of different matters, which changed over the period of the Inquiry, but that’s probably less relevant.
Lead 2A: Yes, but your responsibility included those matters that I mentioned?
Mr Kenneth Thomson: Yes, it did.
Lead 2A: You explain helpfully in your statement ending 343888 at paragraph 6 that this role is analogous to the role of the Cabinet within the UK Government; is that a fair description?
Mr Kenneth Thomson: It’s broadly fair, it’s the best way I have of describing what my role is, but it’s not exactly the same. The principal difference is that the Cabinet Office is co-ordinating actions across separate government departments, whereas I and my teams were co-ordinating action within one organisation working across directors, as you’ve described earlier.
Lead 2A: Thank you.
You retired from the civil service in November 2023.
Mr Kenneth Thomson: That’s correct.
Lead 2A: And I understand that you were awarded the Companion of the Order of the Bath in the most recent New Year’s Honours List; is that –
Mr Kenneth Thomson: Also correct.
Lead 2A: I’d like to ask you some questions about the subject which we’ve just been covering with one of your former colleagues, Ms Fraser, which is to do with document retention policy. We heard evidence yesterday about a number of important framework documents which set out the principles which are designed to guide decision-making within the Scottish Government, including the National Performance Framework. These documents include, amongst other things, a commitment to transparency and accountability; is that not correct?
Mr Kenneth Thomson: It is correct.
Lead 2A: These are important documents which lay out principles with regard to the way in which Scottish Government aspires to conduct its business, and these principles apply both to ministers and to civil servants, as you used to be.
Mr Kenneth Thomson: Indeed.
Lead 2A: There are a number of documents, I think, that reiterate the commitment to these principles which emanated by means of guidance to the way in which decision-making would be made in the pandemic, for example the framework relating to the four harms strategy from April 2020?
Mr Kenneth Thomson: That’s correct.
Lead 2A: Indeed, during the course of the pandemic the Scottish Government’s public communications strategy was also consistently said to be based on openness, honesty and accountability; is that correct?
Mr Kenneth Thomson: Correct.
Lead 2A: We’ve heard evidence from the current Director-General of Corporate, Ms Fraser, about the government’s document retention policies and the importance of keeping records. What is your understanding of the Scottish Government’s policy on the use and retention of informal messaging such as WhatsApps as at the period with which we’re interested, from 2020 to the end of the pandemic in April 2022?
Mr Kenneth Thomson: So I think this will be a longer answer than my answers so far. So at the period of the pandemic and the requirement to stay at home, our use of electronic messaging grew very rapidly, for obvious reasons, and at the early part of that period we had a number of corporate tools to make that possible.
From memory, the main one was Skype at the time, later replaced by Teams. But in order to co-ordinate the work that we were doing, there was also a need to contact people rapidly, using, for example, messages that would show up on their phone if they were away from their – where they were working at home and so on. So we used a number of different – people would use a number of different tools to contact each other.
Coming to records management, the key principle there is to create and maintain the formal record of government decisions, what decision was taken, by whom, when and on what evidence. In my experience, corporate decisions were taken in the formal Scottish Government systems, including their IT system, so principally that would be the SCOTS email system, and my understanding of the use of – or my practice in the use of informal messaging would be, as I describe in my witness statement, to contact or be contacted by others in order to, you know, share an important piece of information that had just become known or to say “I’ve sent you something by email, you need to look at it right now” or “The First Minister wants to you at St Andrew’s House in two hours’ time” or – messages of that sort, that needed to get into my attention rapidly.
Lead 2A: Okay.
Mr Kenneth Thomson: Where – so most of these messages didn’t contain material that would be relevant – you know, a “salient fact” I think is the way it’s captured in the relevant policies. But where there was a salient fact relating to government business or pertaining to a decision that was in contemplation, it would be my practice to transfer that into the corporate systems usually by sending an email within the Scottish Government system saying “The First Minister has asked for additional advice on subject X” or something of that sort, and then having done that I would not retain material relating to government business in non-government systems.
Again, as later confirmed in the mobile messaging policy, you know, the instruction to us was to transfer salient points and then to delete the messages. So that’s what I did.
Lady Hallett: You’re very softly spoken, I don’t know if you always were, but if you would speak up a bit more I’d be very grateful.
Mr Kenneth Thomson: I’ll do my best.
Lady Hallett: Thank you.
Mr Dawson: Just for the sake of clarity, Mr Thomson, I think you may be referring to the paragraph in the November 2021 mobile messaging apps usage policy, about which we’ve heard a little, where there is stated an obligation at least monthly, but preferably at the earliest opportunity, you must transcribe the salient points of any business discussions and/or decisions. Was that your understanding of the position?
Mr Kenneth Thomson: Yes, as the date shows, that policy post-dates the start of lockdown and the work I was doing, but that was my understanding of the application of the Records Management Policy to informal messaging platforms at the time. And indeed is – you know, has been my practice for many years.
Lead 2A: Yes, so that may have used a particular form of wording but effectively that had been your understanding of the obligation throughout this period?
Mr Kenneth Thomson: Yes.
Lead 2A: You use the phrase “salient facts”, which might be interpreted slightly differently from that wording, but that wording is what you always thought the obligation was?
Mr Kenneth Thomson: Yes, you’re always thinking as a civil servant: what are the decisions under contemplation here? What is the evidence that would go into the public record that that decision was taken by whom? And so on.
So if I use as an example, some of the decisions taken by governments, plural, in the course of COBR meetings in March were taken very rapidly, and part of your mind as a supporting official is thinking: a decision in that corporate discussion was taken, it was taken by my First Minister, I need to capture that, I need to make sure that is part of the formal record.
So that’s what you’re doing. In ordinary times most of that is happening routinely – solely in corporate systems, you don’t need to send anybody informal messages about it. But where there are messages which say, for example – a realistic example would be the First Minister saying – she might message me to say “We’re having a meeting in two hours’ time, I need additional briefing on such and such”, and if I couldn’t provide that to her myself directly immediately, then I would transfer that into the formal system to say, “The First Minister needs briefing on such and such” – now that’s not actually our – that’s doesn’t – evidence of decision, because there’s no decision in that, but that was my practice, it’s the – always thinking: what do I need to transfer into the formal system?
Lead 2A: I think you talked in your description about the importance of understanding not just the decision but “on what evidence” were the words that you used. I’d just like to clarify what you mean by that.
Would you agree with me that that would require the corporate record to contain information relating to the way in which decisions had been taken, by whom they had been taken, the advice that had been tendered and accepted or not accepted, and any discussion which contained information of that nature?
Mr Kenneth Thomson: Yes. The gold standard for this is a decision by Cabinet, and it will always be clear, and I believe it is clear from the materials in front of you, that Cabinet would receive a paper which would set out in a lot of detail the evidence, the options, the consideration, the advice, the recommendations, and then, continuing the chain of evidence, as it were, the Cabinet conclusions will set out what decision ministers took and give an account, not a verbatim account but an account of the discussion which had led to those decisions.
So when things moved at pace, in such a way that even on the very intense pace that we were working with Cabinet at that time, a decision was being taken away from Cabinet more rapidly, you would want to capture that same set of evidence. So, for example, just after the May 2021 election, before the – the First Minister was still the First Minister, because there is always a First Minister, but she had not yet been nominated by the particle for reappointment, and at that point we had an emergency within an emergency because the – we had information coming from the scientific advisers about a new variant, the Delta variant. And I think some of the messages that you have from me at the time show the Chief Medical Officer contacting me – I think not in the messages but separately he had rung me to tell me this news and the two of us had gone to brief the then First Minister, and then there’s a rapid exchange of messages about, first of all, how we brief the First Minister and then, secondly, what – does this new information bring back into play decisions that the government has already taken and announced about moves between levels and, if it does, on what basis will those decisions be taken. And I think somewhere in that message chain there is me commissioning formal advice from one of my team to the First Minister about that decision.
From memory, again, that was not a decision taken by Cabinet because we didn’t have a Cabinet. We – the Cabinet could have met, that was provided for in the pre-election guidance, but in the event, because – including, partly, because she was to be asked an urgent question in the particle even before having been nominated, the First Minister would need to be transparent with particle about her thinking, and in fact what she decided to do was take a decision and tell Parliament what that decision was. So we recorded that decision, and of course it’s also apparent in the record of particle what that decision was.
Lead 2A: Thank you.
Ms Fraser told us that it was part of the responsibilities of directors and directors general to ensure that there were compliance with these policies that make sure that all of the matters we’ve discussed ultimately ended up on the corporate record. Did you do that while you were a director general?
Mr Kenneth Thomson: Yes, I did. In fact I – that was not an onerous responsibility in the sense that the – most of my dealings were with the First Minister and the First Minister didn’t take decisions in informal messaging. She – it would be very rare that she would message me at all, never mind in order to make a decision. So most of what we were doing was speeding up the formal decision-making processes that we were used to using, which would be a written submission, a reply from the private office or a draft Cabinet paper, a circulated paper, a discussion and Cabinet conclusions. So there was little material in my experience that – certainly not relating to decisions – that needed to be transcribed from my informal messaging into the corporate record.
However, I think I say this in my witness statement, looking back, the use of these messaging systems was much greater because we weren’t in the same physical building, and it was possible, and I think the evidence shows that this happened – that different people interpreted the policies in different ways. So although I had no messages to give you, you found – recovered some from others, I see that many of my colleagues were keeping messages and I wasn’t. So that’s an example of the risk that I allude to in my witness statement.
Lead 2A: Okay.
Could I take you to some messages, please, to have a look at them just to understand your approach in this regard.
INQ000331192, please. It’s at page 5.
This is an exchange from the very beginning or very near the beginning of the pandemic in the first lockdown, 25 March 2020. This comes from a WhatsApp group chat that was provided to us and the WhatsApp group was called “WhatsApp group OROG”; can you recall what that was to do with?
Mr Kenneth Thomson: Yes, I can.
Lead 2A: Could you tell us what it’s to do with?
Mr Kenneth Thomson: I’m sorry?
Lead 2A: Could you tell us, please, what the group was to do with, what were the business or the –
Mr Kenneth Thomson: The group called OROG was, from memory, a group of directors and me and some other directors general which came together shortly after the lockdown decision. I think OROG stood for operational response oversight group.
It was an informal group, it wasn’t a formal part of the Scottish Government’s governance or decision-taking, and it was really a place in which these directors could, as you would say, formally maintain situational awareness so we could understand what was going on and what needed to be done, so we were keeping an oversight of all of the different activity that was going on, so that, for example, within the Health directorates people were standing up new programmes on shielding, within other parts of the organisation people were moving resources from one place to another because of the – of what we could see we would need to do, and OROG was a group that kept oversight of that.
I think it’s fed back to directors in written form within the Scottish Government systems, but it also had a WhatsApp group in which, out of our group calls, we were able to share information and I think that’s what this thread will be.
Lead 2A: So this is a piece of correspondence between you and someone whose name has been redacted in which you say:
“My next strategic prediction: [this particular individual] is about to remind us to clear this thread…”
Then a person says:
“No need ken you have already done it thank you.”
This seems to be you acknowledging that there will be clearance of the messages from this group, despite the fact it involves business discussions relating to the pandemic; isn’t that right?
Mr Kenneth Thomson: No, this is quite an informal group. It is discussions about the pandemic but it’s not a forum in which decisions, especially not ministerial decisions, were taken, there are no ministers as part of this group.
Lead 2A: It involved business discussions?
Mr Kenneth Thomson: Yes, it’s about: do we have the right people in place to do that bit of work? Have we got adequate cover?
So, for example, one of the topics I remember being part of this was concern for the welfare of staff in that we know that in emergencies – if you’re running an emergency 24/7 you will need five people to cover one post, allowing for three-shift working and for people to have some recovery time at weekend and for sickness, and at this point we thought that many of our staff might be absent sick.
So one of the things we were discussing in this was what later became called the rule of two, in other words have we got key roles doubled up so that we’ve got some additional resilience.
So there’s those kinds of discussion going on.
Lead 2A: These are business discussions, are they not, Mr Thomson?
Mr Kenneth Thomson: Yes, but they don’t lead to – as I’m describing them here, they don’t lead to decisions by government.
Lead 2A: As I read out to you a moment ago, the obligation which you had told me had been the obligation throughout your period as a civil servant, was that you had to transcribe the salient points of any business discussions and/or decisions, so discussions – salient points of discussions required to be retained on the corporate record, did they not?
Mr Kenneth Thomson: So the test I’m applying when I’m looking at this material is: does this material need to be part of the record? And the record is described and defined in our Records Management Policy in relation to decisions taken by government.
What I’m describing is conversations amongst civil servants about making sure that we’re able to support the business of government, so it’s business in the sense that it is our work but it doesn’t relate to decisions taken by ministers as part of the government, that’s the distinction I’m making.
Lead 2A: That’s simply not what the policy says. It’s discussions, business discussions.
If someone, for example, wanted to know what were these directors discussing about this rule of two at the time, perhaps someone had been dissatisfied with what you ultimately decided, they would need to know, would they not, what discussions had taken place in order to know how the ultimate decision had been reached? What you’re suggesting here is that there is an early almost pre-discussion clearance of the thread.
Mr Kenneth Thomson: No, I don’t think so. I think these are business discussions and from them any salient points would need to be transferred into the corporate record, and the test that I’m applying is: we’ve had a discussion about how we’re doing our business, is there something here that affects – that needs to be part of the record of the actions of government in responding to the pandemic? If that’s “I’m a bit worried about person X, that they’ve got caring responsibilities and their work’s just exploded”, that’s not – if I apply the test, does that need to be part of the formal record of government decisions? I don’t think it meets that test.
Lead 2A: The test should of course be defined by the policy and not subjectively by you?
Mr Kenneth Thomson: I’m making a judgement about the – whether this example of information meets the criteria set out in the policy to be part of the formal record.
Lead 2A: Okay.
Can we go to INQ000268017, please, page 10.
Again, there is an exchange here, this is dated a bit later, this is from August of 2020 and there are a number of people in this chat, the group is called “Covid outbreak group”, do you remember that group?
Mr Kenneth Thomson: I don’t recall it, but it sounds entirely likely that I was part of it.
Lead 2A: Yes, you were part of it because we can see the messages from you that – a number of other people we can see, they include Nicola Steedman, who I think was the Deputy Chief Medical Officer, if I remember correctly; is that right?
Mr Kenneth Thomson: Yes.
Lead 2A: And Jason Leitch, who was the National Clinical Director?
Mr Kenneth Thomson: Yes.
Lead 2A: And in this there’s a discussion which starts with you saying:
“Just to remind you (seriously), this is discoverable under FOI. Know where the ‘clear chat’ button is…”
To which Nicola Steedman replies:
“Yes – absolutely…”
Jason Leitch then replies:
“DG level input there…”
Then you say:
“Plausible deniability are my middle names. Now clear it again!”
And then Jason Leitch says:
“Done.”
And you say:
“Me too.”
Is this you encouraging people in advance of messages being exchanged relating in a group called “Covid outbreak group” to delete messages in order to defeat FOI requests?
Mr Kenneth Thomson: No.
Lead 2A: What was your intention when sending this message?
Mr Kenneth Thomson: My – you’ve shown me one part of this. I think probably what has just been said is something that it might have been a bit of personal disclosure or it might have been something that seemed to me not to be a useful thing to say in a group like this because it might not relate to the purpose of the group. I don’t know, I can’t see what it was that prompted me to say it. What I have said is that this channel is discoverable under FOI, which I believe to be correct. That doesn’t mean it needs to be kept, it needs to be important – there’s a – the FOI rules operate in that way, but the Records Management Policy relates to information which is kept. So I’m reminding my colleagues that this channel is discoverable under FOI, which I think is correct, and then I’m saying in an informal way that my understanding of our approach to these groups is that messages should not be kept – other than in relation to salient points, as we’ve just discussed, these messages should not be kept and should therefore be deleted.
Lead 2A: You mentioned the possibility that there had previously been some personal discussion. If there were personal discussion, that wouldn’t be recoverable by FOI, would it?
Mr Kenneth Thomson: If it is information held by the government then I would need to probably take some advice on that, but if I run through, supposing that there had been a FOI request for an informal messaging channel, I would first of all make sure that we had clearly what information we held, and that would include information in the form of messaging channels and in people’s notebooks and so on. So the first step in dealing with an FOI request is to make sure you know what information you hold. Then you decide – you apply the terms of the request to discover – you know, to decide what’s in scope, you know, is this information in scope. Then you consider whether there are any relevant exemptions from the FOI legislation, and those are also set out in FOISA, Freedom of Information (Scotland) Act, and then you consider in relation to most of these exemptions whether the public interest test applies and whether given that the information should be disclosed even though there might be a relevant exemption on more than one. So that’s the process you go through.
Lead 2A: You used the phrase:
“Plausible deniability are my middle names. Now clear it again!”
You are suggesting to people in this discussion, prominent people in the Covid response, that they should, as a matter of instinct, clear their messages to defeat FOI requests are you not?
Mr Kenneth Thomson: No, I’m responding to Jason Leitch teasing me by saying that’s a “DG level input there” by bantering back, if you like, but what I’m saying is: unless material is salient and relevant to the public record, in which case it should be transferred – and then all of the material should be deleted. That’s what the – I think later our corporate policy would say.
Lead 2A: Thank you.
INQ000268025, please.
Again, this is a group which is, intriguingly, named “Quantum of Omicron”. It says in the group – starts off with you speaking:
“I feel moved at this point to remind you that this channel is FOI-recoverable.”
To which someone named Penelope responds:
“Clear the chat!”
Someone called Jim McMenamin says:
“Happy to do so – Lan reduced from 51 to 39 but fair comment.”
And then Jason Leitch says:
“WhatsApp deletion is a pre-bed ritual.”
Again, does this indicate, Mr Thomson, that there is a culture amongst people who are prominent advisers or decision-makers in connection with the Covid-19 pandemic in Scotland to delete their messages in order to delete the very purposes for which the policies are set up?
Mr Kenneth Thomson: I need to give you a longer answer to this question, but the short answer is no. The longer answer begins on a point of fact. In fact this is not the Quantum of Omicron exchange. It’s – because –
Lead 2A: You may be right about that, Mr –
Mr Kenneth Thomson: – this is much earlier than Omicron. I think this is actually a set of messages about the Delta variant.
Lead 2A: Yes.
Mr Kenneth Thomson: So – and this is relevant to – to the point I want to make. I think I’d said earlier that we had an emergency within an emergency when Delta emerged in Glasgow just after the Scottish elections, and these messages are from that time, and earlier in this thread, because I do recall this thread, Jason Leitch has posted into the thread a message from Twitter, and I have therefore gone to see what is that message and why has Jason posted it in, and the context here is that we know that there is a new variant of the virus, we think it’s in community transmission in Glasgow, we think that it’s between – I may be wrong on the details, but it’s 40% to 80% more transmissible, it’s significantly more transmissible, and it’s spreading primarily among members of the Indian and Pakistani community, who are very well represented in Glasgow, and the same variant also got a hold in Bolton. And final bit of context, in two days’ time Rangers supporters are planning to march through Glasgow to celebrate the fact that their team has just won a trophy. And Jason’s tweet is – well, not his tweet, the tweet that he posted into this group – is from a die-hard Rangers supporter reporting a food safety expert as saying that there is, therefore, no risk to Rangers fans if they march through Glasgow on Saturday. And I know how – I guess how Jason is going to feel about that, and he is envisaging what actually happened, which is that thousands of Rangers fans did march, against the regulations then in force, against the advice of the Scottish Government and the police and Rangers Football Club, in – very closely packed and – you know, thousands of people there, many of them will have had Covid, more of them will have had Covid by the end of that march, and some of them will have got ill and some of them may have died. So I’m imagining how Jason is feeling about that as a clinician and, given his role in communications, that he’s going to have to be the person who says “Well, I’m a doctor and I say that you shouldn’t march”, and they say “Well, there’s a sort of doctor who says you can”, and what I’m really doing – I accept in an oblique way – with my reference to the FOI is saying “Take a deep breath before you comment about the tweet you’ve just posted, Jason.”
Lead 2A: The reference to the phrase by Penelope “Clear the chat!” is somehow reminiscent, I think, of the phrase that you used in the previous message: “Now clear it again!” Was that a phrase that was used to describe this ritual of clearing the WhatsApp messages?
Mr Kenneth Thomson: Well, it is used there. To repeat a point from earlier, that was in fact the instruction that we were given in the corporate policy, having transferred any salient points to the corporate record.
Lead 2A: Again, the discussion that you are talking about relating to the Delta variant emerging, I think you were putting it in its context, is a business discussion between you and other senior advisers advising the government about their response to Covid, is that not right?
Mr Kenneth Thomson: No, I think if you read the whole of that group what you see is a group of colleagues co-ordinating rapidly on logistical matters and – in fact, yes, it’s a business discussion in the sense that you used the term earlier, I should say that, but I think elsewhere in that I say – I ask my colleagues does this have implications for the decisions already announced by ministers, and we have a discussion about whether the UK Government is likely to change its position, and we conclude that it does have implications, and what I then say, somewhere in this group, is then we need advice to our ministers, and I think I commissioned Dominic Munro, who is also a member of this group, to write that advice and to send it to the First Minister within the formal systems, and I think that’s what was done, leading to a rapid decision – I think I referred to it earlier – in relation to both Murray and Glasgow, as local authority areas. So, yes, it’s a business discussion, but there are – no decisions about the exercise of government power are taken here, there is no decision here about whether Glasgow would remain for longer in level 3, which is the issue in question.
But what we identified was a need for ministers to have advice – in fact the First Minister was telling us in no uncertain terms that she needed advice on this – and we were making dispositions about who was going to cover a meeting, a four nations meeting with the UK Government, who was going to write the advice, who was going to support the First Minister in her preparations for answering an urgent parliamentary question and so on.
Lead 2A: Could I ask you, please, Mr Thomson, to try to speak slightly more slowly. If it’s of any consolation to you, I’m being similarly admonished. So I’d be very grateful, just for the sake of the stenographer –
Mr Kenneth Thomson: We will both do our best in that case.
Lead 2A: Yes, thank you.
Could I just ask you to go over the page, please, to the second page of this chain, and I think we see there at 18.19 in the middle – this is the same chain as we were looking at before, which you very helpfully reported out is not Quantum of Omicron, my understanding is it was subsequently named Quantum of Omicron. It’s a rather odd collection of letters and numbers which is meaningless.
Mr Kenneth Thomson: I don’t think that’s correct. There was a group called Quantum of Omicron. From my memory it was started by the then Chief Medical Officer in order to share rapidly emerging information about the Omicron variant, but that group was not this group.
Lead 2A: Thank you. I’m looking at the entry there at 14 May 2021 at 18.19, it says:
“Ken Thomson: updated the message timer. New messages will disappear from this chat 7 days after they’re sent, except when kept.”
Is that you putting an auto-delete function on the message group such as to delete messages automatically, whether they relate to government business or not?
Mr Kenneth Thomson: It’s me doing what I say in my witness statement was my practice, that what I would do is transfer salient points into the corporate systems where that was necessary, and I would do that weekly. The later policy said at least monthly. And then having done that I would delete the messages because salient points had been transferred and the rest didn’t need to be kept.
And I say in my witness statement that where there were – where the messaging platform provided a way of automating that process then I would use it.
I think by 14 May the decision in relation to extending Glasgow’s period in level 3 had been taken and announced. I think it was announced earlier that day. So I was probably anticipating that there would be little or no additional traffic on this. In fact, from memory, the next step in decision-making about Glasgow and level 3 was at the meeting of the Cabinet on 1 June, which would have been the first meeting after the election. And the Cabinet had a long submission from – unusually not a Cabinet paper, but formal written advice, 30 to 40 pages of it, on the basis of which ministers took a decision at that point to move Glasgow into level 2. So I wasn’t anticipating any – that there would be much more traffic in this group, and therefore I switched on something that would save me the work of coming back to it in a week’s time to check whether anything had arisen.
Lead 2A: Again just above that you see one you have your colleagues I think using the phrase “Clearing the chat” that we saw earlier; is that right?
Mr Kenneth Thomson: So yes, she is confirming that she too is following our practice and indeed our policy of not retaining messages that didn’t need to be kept.
Lead 2A: While we’re on this exchange I was just quite interested in some of the things that aren’t being discussed there more substantively, Mr Thomson.
You can see a message from you slightly before that, at the top, where you say:
“It was really useful to have that full Four Nations Ministerial call led by the PM to share all the information and responses so that communications could be aligned, wasn’t it?”
And then you say:
“(Not.)”
And then Gregor Smith, who was the Chief Medical Officer, says:
“Cobra anyone?”
And then there is a reference to Penelope Cooper saying:
“I feel a cost benefit for FM would not have been positive.”
I wonder if you could explain to us what it is that you’re discussing at that time. You’ve already given us some helpful context what was going on at that point. There is reference to a four nations ministerial call. And it seems on our interpretation that you were, perhaps slightly sarcastically, saying that the meeting was not useful although the words suggest that it was?
Mr Kenneth Thomson: Sorry, I will try to speak slowly on this, because I’ve got a lot to say.
So I was going to say that, yes, looking at that, I was being a bit sarcastic. I will explain why.
So I’ve already referred to this being an emergency within an emergency, and the Delta variant, and I mentioned Bolton. So relevant to – and I’ve also said that the First Minister had already taken and announced their decision that Glasgow would move to level 2 shortly after these exchanges, and the question that we were considering with the First Minister, including in a discussion that the CMO and I had had with her, I think on 12 May, was whether the new information that we had about the Delta variant called that decision into question. The reason for that would be that the level and the NPIs associated with that level, in which Glasgow currently was, the decision on that would have been taken on the basis of the epidemiological characteristics and situation at the time the decision was taken. And that would have been on the knowledge that we had about the infectiousness of the virus at that point.
If the virus – if there’s a new variant of the virus which is, let’s say, 50% more transmissible and it’s in community transmission among communities that are – where spread will be – may be easier because you have larger households or multigenerational households and that might involve more risk, you might have more cases and more risk, and that means, you know, the decision that you had already reached, there is new information here that means that you not only could but you would have to revisit that decision. So that’s the context.
And the UK Government faces this challenge in relation to England as well, and I’ve mentioned Bolton, there were other areas too. Very similar considerations, communities and so on. And in that circumstance, if I wind back to the period running up to the original stay-at-home decision and then shortly after that, there was better, at that time, opportunity for governments to align their policies including through COBR and in relation to – you know, outside COBR, in relation to these matters through more or less formal calls, sometimes led by Mr Gove.
But what we had – what we were doing, what we had been doing, I think, just shortly before these exchanges, was watching live on the television the Prime Minister making what I think was a delayed announcement, and I think he did – he’d said – he gave his assessment of the new variant, but he did not in fact make – mention any different decisions about restrictions. The first we knew that that was going to be what he said was when he said it live on television.
Lead 2A: So your point, I think, here, to take it succinctly, is that you – there was information which you obviously had to be able to say that, and you’re saying that that’s information which it certainly would have been useful for the reasons you’ve set out, the similarities in the communities, et cetera, to have been shared with you on your four nations ministerial call.
Was it a consistent theme of your involvement in those calls that information which would have been useful to you was not always clearly shared by the Prime Minister or representatives of the UK Government?
Mr Kenneth Thomson: Yes. Just to give one bit of context here.
Lead 2A: Thank you.
Mr Kenneth Thomson: When I say “It was really useful to have that full Four Nations Ministerial call led by the [Prime Minister] to share all the information and responses”, what I’m saying is that didn’t happen.
Lead 2A: Yes, I follow.
Mr Kenneth Thomson: There was a four nations call, I think from memory led by Mr Gove, I wasn’t part of it but Penelope Cooper supported the First Minister in that call. The Delta variant was mentioned but – and all the – so I knew from Penelope’s feedback from that that it was of concern to all four nations but Mr Gove had not indicated what the UK Government’s decision in relation to Bolton or anything else to do with Delta would be.
So what I’m saying, and I’m trying to be succinct, but what I’m saying is that I did not feel that there had been a useful exchange between the governments of the kind that would have been appropriate in relation to a rapidly emerging new variant.
Lead 2A: This is obviously an important moment, isn’t it? There’s a significant threat at this stage.
Mr Kenneth Thomson: There is.
Lead 2A: I asked you whether this was – this failure to share information was something that you had experienced before – this is significantly into the pandemic – and I think you said yes, that you had had previous problems of this nature.
What did you in your senior position do to try to improve these meetings and other relations with the UK Government in order to try to access the information which you thought would be important to the Scottish Government’s response?
Mr Kenneth Thomson: So I think it may be helpful if I answer in two parts. And the first is, at a high level and across the period of the pandemic, to say why I said in passing that I thought that the intergovernmental relations had deteriorated somewhat.
Lead 2A: Yes, please.
Mr Kenneth Thomson: And then the second is to answer your point about what did I do about that.
So, to be as succinct as I can, I would contrast what I’ve already said about the position here in relation to Delta, with the exchanges in late March and in April and May, first of all in relation to introducing the stay-at-home requirement and then, and perhaps more pertinently, in relation to the first review of those restrictions and how that would be approached.
So I recall a four nations call on 7 May, I think, in which the First Ministers of Scotland, Wales and Northern Ireland and the deputy First Minister of Northern Ireland were engaged in a discussion with the Prime Minister in which –
Lead 2A: We will return to that particular aspect.
Mr Kenneth Thomson: So I can be more succinct in that case.
That was a good exchange. And if you’re going to come back to it I can unpack what I mean by that.
If I contrast that with what I’ve just described, you will see I think there is a deterioration there. So what did I –
Lead 2A: Just to be clear, a deterioration after the May, the early May exchanges, is that what you’re saying?
Mr Kenneth Thomson: So I think I would characterise that by saying that in the run-up to lockdown there was pretty good – albeit that this was all happening extremely fast, but my First Minister was in COBR. Often in other circumstances I might have had to argue for her presence there, which I would do by contacting my counterparts in the Cabinet Office. And so she was there, so that’s good.
I think – I’ve described the May exchange to which we may come back. In that exchange, my First Minister was arguing for continued post liaison so that – it didn’t mean that the decisions of the four governments would be the same but they would have the opportunity to exchange information and their intentions beforehand rather than discovering what each was doing by reading the newspapers. But by this point, in May of 2021, that effectively was where we were.
Lead 2A: I would like to ask you a few questions now about a separate subject, thank you very much, which is to do with the –
Mr Kenneth Thomson: I’m sorry, Mr Dawson –
Lead 2A: Sorry.
Mr Kenneth Thomson: – I didn’t actually give the second part of my answer –
Lead 2A: Oh, I’m sorry. Please.
Mr Kenneth Thomson: So there were, during this period – it was part of my job, I should start by saying, I was responsible for the quality of the relationship between the UK Government and the Scottish Government. I might put that differently by saying I was supported by ministers in that relationship. Now, what the outcome was depended on what ministers did with it. And in that role I had close constructive professional working relationships with a series of opposite numbers and other contacts in the UK Government, largely in the Cabinet Office although, during the pandemic, my counterparts there also moved into Mr Gove’s department. And I have a reasonably good network in Whitehall more generally.
So what I was doing, as I felt that there was insufficient bandwidth in the relationship, was using those contacts, which were both formal and informal, to put the case for more frequent contact and liaison, both formally and informally. So to give examples, if I became aware that, for example, the Prime Minister was going to visit Scotland, because it would be a courtesy that the UK Government would tell us that, then I would contact my opposite numbers and say, “Is there a possibility that we could arrange a discussion? Would the Prime Minister be willing to come and see the First Minister, because if so I’ll go and ask the First Minister if she would agree to that”. And that did actually happen with Mr Gove. I can’t recall that it happened with Mr Johnson.
I might also say, “Would it not be useful to have a four nations call about this?” And that did happen in fact. So to nuance what I said about a deterioration, things improved somewhat, from memory, in September of 2020 when – I cover this in my statement – there was better bandwidth, and that led to a meeting which – out of which the four governments published a joint statement about their strategic intent in relation to coronavirus. And I thought that was a good thing.
From memory I wrote the first draft of that statement and I was pushing my contacts to say “I’ve written something that my First Minister shouldn’t have a problem with and I don’t think the Prime Minister should have a problem with it either because it just – it brings together what all these ministers have said. Would it not be a good thing if we got all the four First Ministers together and asked them if they agreed that, because then that could be set out publicly as an expression of their commitment to work together?”
And indeed that happened, so that was positive. But then shortly after that we had an opportunity, as I say in my witness statement, the governments had an opportunity to align their approach to tiering or to levels, but in the event that didn’t happen and there – there was some degree of alignment. I could say more on that now or you may wish to come back to it.
Lead 2A: Could I just ask you in that regard, on the discussion opportunities and decision-making and information sharing mechanisms.
Could we go to INQ000233375, please.
(Pause)
Lead 2A: Sorry, just give me two seconds.
Mr Kenneth Thomson: That looks like an internal Scottish Government document.
Lead 2A: Yes, that’s not what I’m looking for.
(Pause)
Lead 2A: Can we just look for context at INQ000233 – that’s the same reference, sorry. I’ll ask you this without necessarily going to the document.
You’re referring there to there being, I think the general characterisation of your position was that there were early opportunities to be able to use connections that you had to be able to try to promote intergovernmental relations. There was a deterioration in those, in particular I think you pointed things that happened around May; is that correct?
Mr Kenneth Thomson: I’m listening carefully to your question. You put it to me that there was a deterioration in my contacts with my opposite numbers, which I would not say was the case. There was a deterioration in the opportunities that ministers had to come together for these discussions.
Lead 2A: Yes. Can you tell us what the nature and state of the relationship between Mr Johnson and Ms Sturgeon was during the course of the pandemic?
Mr Kenneth Thomson: I can tell you what my observation of that was.
Lead 2A: Yes, please.
Mr Kenneth Thomson: I’m sure you’ll take evidence from Ms Sturgeon herself.
Lead 2A: Yes.
Mr Kenneth Thomson: So I’m going to go back before the pandemic. I was present supporting Ms Sturgeon at her first meeting with Mr Johnson after he became Prime Minister, and – so the context here was, in a conversation after that meeting she and I were contrasting the style of this Prime Minister with his predecessor, and my observation of that description, and the First Minister can confirm this in the conversation afterwards, was that it had been a conversation among two senior politicians – you know, I think the First Minister’s phrase to me was, “You can have a debate with him”. She was contrasting that with her experience of his predecessor. That doesn’t mean that the relationship was warm or that – they were clearly not politicians of the same view, but at that point I think, speaking for myself not Ms Sturgeon, I was more optimistic that it would be possible for that relationship to become productive. I think –
Lead 2A: Did it?
Mr Kenneth Thomson: The short answer to that is no, but I think I want to give you a more nuanced answer, which is that in the early stages of the pandemic there was serious engagement between all ministers in the COBR meetings and otherwise. I didn’t see party politics in those discussions at all. And that was also present in the early lockdown period as these discussions began to – you know, ministers turned their minds to when would the restrictions be lifted and how. I think in the meeting of 7 May to which, again, we may come in more detail but I think that was the first point at which I was concerned that the – well, I’m going to distinguish the decisions and the relationship.
It was clear to me in that discussion that it was quite likely that the Prime Minister would decide to release restrictions in England sooner than my First Minister at that point thought was right, given the facts and circumstances before her in Scotland, so there was going to be difference between the approaches of the two governments. That is not in itself a problem, but I thought I could also detect at that point that the course of this relationship was going to go in a different – they were going to diverge in terms of their ability to do work together, because the Prime Minister was assuring the First Minister that, you know, he wasn’t going to release anything on the very day – and she makes this point in the meeting – when the newspaper had headlines like “Freedom beckons” and “Magic Monday”, and I thought, you know, there’s not – something not quite joining up here.
And from that point on I think it became harder for there to be the same kind of four governments coming together discussing decisions, taking decisions each for their own jurisdiction, which might or might not be the same but would have been discussed in that way. And in my statement I use the term “alignment” for this. Alignment doesn’t mean the outcome is identical, but there was good alignment, and that alignment – the opportunities to create it and therefore the alignment deteriorated over the period of the pandemic. With – with the exception of the period around September 2020 that I referred to earlier.
Lead 2A: Thank you.
There is some documentation in relation to opportunities that there were for the governments to co-ordinate their responses, for example the ministerial implementation groups which we’ve heard something about in Module 2 already, and some of the documentation suggests that there was a degree of dissatisfaction with those in the Scottish Government, in particular as regards – the observation made in a number of places that there was no substitute for head of governments getting together and really being able to try to work out a consensus approach.
Would you agree that that characterisation, both of the ministerial implementation groups and the fact that there was no substitute for Ms Sturgeon and Mr Johnson getting together to make proper decisions together is an accurate characterisation of the Scottish Government’s position?
Mr Kenneth Thomson: Yes. In your earlier question you asked me about the relationship between the two heads of government.
Lead 2A: Yes, indeed.
Mr Kenneth Thomson: Yes. So it’s useful for me to add, answering this question, that under that there was a good deal of intergovernmental discussion, I don’t wish my earlier answer to give the impression that there was no contact, there was a great deal of contact, including through the ministerial implementation groups, and actually also in relation to the JMC, which I know is of interest to the Inquiry. Although the JMC in plenary did not meet in this period, the JMC Europe had been very busy on Brexit business and continued to meet through this period, so there was a lot of that and the participation in –
Lead 2A: Just for clarity, that’s the Joint Ministerial Committee on which Scottish Government and the UK Government are both represented; is that correct?
Mr Kenneth Thomson: That is correct, it’s the forum created by the memorandum of understanding at the time of devolution.
Lead 2A: Thank you.
Mr Kenneth Thomson: And it meets in different formats, and JMC(E) it’s Joint Ministerial Committee (Europe).
Lead 2A: You were telling us about the relationships between the two –
Mr Kenneth Thomson: Yes. So the – your question was about the quality of the interaction and the satisfaction with the interaction in the ministerial implementation groups.
Lead 2A: Yes.
Mr Kenneth Thomson: That they existed and that Scottish Government ministers took part in them was, I think, welcome and useful, but did they achieve the potential for alignment, to use the language of my statement? I don’t think they did.
Lead 2A: What was your interpretation of the reason for that?
Mr Kenneth Thomson: I think a combination of factors. I think the UK Government had a significant challenge in reaching these decisions because it had a broader range of responsibilities over a larger geographic area, point one. Point two, a much larger group of ministers in the Cabinet. Point three, a different institutional landscape, with separate departments rather than portfolios and directorates within one organisation. And point four, part of my role was to kind of look in on this and discern what I could when I – in an informal message I said “strategic prediction”. Quite a lot of what I was doing was trying to work out what the UK Government’s strategy was or would become so that I could help my ministers to understand that and to align with it or to seek – consider whether that was relevant to the decisions they were taking.
So part of my job was to try to work out how the UK Government was taking its decisions, and that was quite hard to do and in my experience those decisions tended to be taken quite late in the sense – I don’t mean late in epidemiological terms, I mean if there’s a MIG, a ministerial implementation group going to happen, the UK Government will direct its mind to those issues only relatively shortly before the meeting.
And then, final point, the UK Government finds it uncomfortable to take its decisions with a Scottish Government minister or Northern Ireland minister in the room, so although our ministers were participating in these meetings, they sometimes had the impression that ministers had decided – UK ministers had decided beforehand what needed to happen and they were kind of playing that through the discussion once our ministers were involved in it.
Lead 2A: Thank you. I had asked you another element to this, which was whether these ministerial implementation groups, with which you’ve described a certain degree of dissatisfaction on the part of the Scottish Government, were an adequate substitute for the two leaders coming together to try to work profitably together in the interests of both parts of the United Kingdom, and is your position that the relationship between those two did not work well, to the detriment of both nations (inaudible)?
Mr Kenneth Thomson: So in supporting work between governments – and this is also relevant to the relationship Ms Sturgeon had with, for example, Mr Drakeford and the First and deputy First Ministers in Northern Ireland – but in supporting that a number of things are in play. There’s a – within government there’s a constant pressure for issues to get escalated and there’s a constant need, battle on the part of those supporting the heads of government to delegate. So any – anyone supporting a head of government wants to make sure that their energy and time and attention is only being taken by the things that absolutely have to come to them, and if I put myself in the shoes of my counterparts supporting the Prime Minister, they would be wanting to ensure that his time and attention were not taken up by things that are – the First Minister of Scotland thought were important but he might not. So that’s a fair point.
Lead 2A: When you say they were “making sure” that was the case, can you just clarify what you mean by that?
Mr Kenneth Thomson: What I simply mean is that it is part of the role of the people supporting the head of government to triage the issues that were clamouring for attention, and it’s entirely proper that those supporting the First Minister would say, “The First Minister of Scotland wants to speak to you, what priority does that have within other things that are on your agenda?” However – and my next point is that it’s therefore necessary for heads of government to be able to delegate liaison and decision-making and so on, including in intergovernmental forums, and that was part of the purpose of the ministerial implementation groups.
So where you do need head of government direct participation and decision-making, as you did in the COBR meeting of 23 March, it doesn’t mean that you need it on decisions about travel restrictions to Spain some time later. That’s the point I’m trying to make.
Lead 2A: Yes.
Mr Kenneth Thomson: That’s preparatory to the answer to your question. It is important for there to be a relationship of trust between heads of government such that if my First Minister thinks that actually the Prime Minister does really need to know this, there should be – you know, she should be able to get through to him, and vice versa. And in my experience that didn’t happen. You know, it was not … it was – the relationship had not been built up in peacetime, as I use as a metaphor in my witness statement, in a way that allowed it to be deployed in the particular circumstances of Covid.
And to come to your – the final part of your question, yes, I do think that affected how the – whether the decisions were the best they could have been. I shouldn’t say that without particularising why I do say that. So if I come back to levels and tiering, I’m entirely – I can speak to the reason why the Scottish Government took the decisions it did, and indeed so can Ms Sturgeon, but there was an opportunity, perhaps briefly, for the – for tiers and levels to be brought together in a system which could have been promulgated for the UK, or at least for Great Britain, with clarity, and that would have been easier for ministers and communication teams to do than having two separate systems, and in the event that didn’t happen.
But – and just to expand briefly on two further points, because they do bear on this. It’s reported – I think in the Inquiry’s documentation there’s a reference to the First Minister saying that she proposed to introduce a three-level system. That’s not actually correct. It was reported –
Lead 2A: It was reported, that’s correct.
Mr Kenneth Thomson: What she actually said was “I have been discussing with the Prime Minister their proposal for a three-tier system”, or something of that sort. And indeed she had – or there had been – we had had information, a bit late in the day perhaps but we knew what the UK Government was thinking about. In the event, she concluded that a system of this kind was required in Scotland, that it needed to have more than three levels because I think in her view a level 3 would not be adequate to suppress the virus at all points, you needed a level above that, and also you needed a level below it because you might want to make smaller steps out to make sure that you don’t take off restrictions and then have a second spike.
What she do, though – or the reason that the Scottish Government’s five-tier system was numbered 0 to 4 – which later was the WHO’s recommendation, but that’s coincidental – it was numbered in that way so that levels 1 to 3 would be broadly comparable with the UK Government’s tiers 1 to 3, because in the nature of the NPIs applied in them they were broadly comparable.
So that was our trying to align, trying to achieve that degree of alignment but it didn’t, in my view looking back, it didn’t succeed in – between them, the working between the governments didn’t succeed in realising the full potential for that.
Lead 2A: Could I just ask you briefly some questions about the very early period of the pandemic. My understanding is that you were involved – one of the things you were involved in was briefing ministers who were attending COBR; is that correct?
Mr Kenneth Thomson: It’s not quite correct, but let me explain.
So as you know from my witness statement, my involvement in this began over the weekend of the very end of February, and I won’t repeat what I say in the statement about how that came about, but from – so I was not part of meetings that took place over that weekend, I don’t think there were any COBR meetings that weekend, and I wasn’t part of my COBR meetings on Covid before that, although I have supported ministers in COBR before.
From Monday 1 – no, 2 March, I was concerned to support the First Minister in what was clearly a major emergency and in my then day job, if I can put it that way, my teams and I would have contributed to intergovernmental interactions, usually not so much COBR because the resilience team would lead on that, but I thought that I could be of support to the First Minister by, you know, being around her and in supporting her in COBR. Not – this is the point I really want to make: not in relation to decision-making on COBR, the Chief Medical Officer and others were there to support her on that, I was supporting her in my IGR role (intergovernmental relations) by helping her to read what decisions the UK Government – you know, how the UK Government was responding to this emergency, how its decision-making was shaping up, what the opportunities would be, you know, would it be necessary or relevant for her to seek to influence those decisions, if so how could she best do that. Those would be the big kinds of conversations I would have had with her, perhaps before and after COBR meetings in the very early stages.
Lead 2A: Thank you.
I wonder if I might just take you to one document briefly, please.
The document is INQ000346137. I’m looking at page 14. Thank you.
This is a notebook which –
Mr Kenneth Thomson: Could you tell me which of those pages is page 14?
Lead 2A: Yes, it’s the Wednesday the 26th entry that I’m going to be looking at, which is at the top left.
Mr Kenneth Thomson: Forgive me, Mr Dawson, this is a document you showed me this morning so –
Lead 2A: Yes, absolutely, I’m just wanting to ask you about this. This is a contemporaneous notebook –
Mr Kenneth Thomson: If I may?
Lead 2A: Yes.
Mr Kenneth Thomson: Wednesday the 26th of what?
Lead 2A: This is 2020.
Mr Kenneth Thomson: Of February?
Lead 2A: Of February 2020, the period that we were just discussing.
Lady Hallett: Please, I appreciate you didn’t have all the documents in good enough time, but please just say and Mr Dawson will make sure that all –
Lead 2A: Thank you.
Mr Dawson: Mr Thomson was kind enough to tell me before we started, my Lady, that he had had the opportunity to look at the extracts we gave him, so –
Mr Kenneth Thomson: And this was one matter that (inaudible) which month is being –
Lead 2A: Yes, thank you for asking me to clarify.
This is a notebook which we received from Derek Grieve, who was the deputy director of health protection division within the Directorate of Population Health; is that correct? Is that your recollection?
Mr Kenneth Thomson: That Derek Grieve had that role, yes.
Lead 2A: Yes?
Mr Kenneth Thomson: Yes.
Lead 2A: I’m interested really in just understanding whether your recollection of that period, given the limitation of the role that you’ve described, is consistent with the way in which Mr Grieve is describing the position of the Scottish Government at this stage.
He says in relation to this that he attended the COBR (M) meeting with Cabinet Secretary Freeman, that’s Jeane Freeman:
“It’s clear all [departments] in UK Gvt are fully engaged and mobilised in a way the SG simply isn’t.”
And I’d like to ask you then just to go to the Thursday the 27th, it’s the next note, where he says:
“Despite Shirley trying to encourage them, still no real engagement. They then spent 20 [minutes] talking about internal SG comms. Completely amazed!”
And the page 18, please.
It’s the Thursday the 5th entry I’m looking at, where it says in the first entry – if we could zoom into that, please:
“I attended Directors meeting … Laid it out thickly but few believe this is going to be serious.”
That’s Thursday 5 March 2020 we understand it.
These entries might be taken, Mr Thomson, to suggest that Mr Grieve characterised the general mood within the Scottish Government as being one which was not particularly engaged with the emerging threat despite what appeared to be his concerns about it. Was that an atmosphere which you recognised in the Scottish Government at that time as regards the emerging threat of Covid?
Mr Kenneth Thomson: So I will turn to the relevant passage in my witness statement to answer this.
So these straddle the period in which I involved myself in Covid in the Scottish Government. I was in London in the week of the first of the entries that you showed me, so I wasn’t part of that COBR meeting, from recollection –
Lead 2A: I’m not suggesting you were, Mr Thomson, I’m just suggesting that you might be someone –
Mr Kenneth Thomson: Sorry.
Lead 2A: – given the prominence of your position, to be able to reflect upon these observations made by Mr Grieve.
Mr Kenneth Thomson: Absolutely. So I’m rehearsing in my mind which of these discussions might I have been involved in. Possibly 5 March, but not the other ones because I wouldn’t have been in Scotland.
So to answer your question, and forgive me for my drawing myself back into the events of the day, I – as I say in my witness statement, I was aware of the preparations that were being made for Covid, in the sense that at the meetings of the Scottish Government’s executive team I was hearing from my Health and Social Care counterparts, colleagues, that they were preparing to ramp up for what Covid would mean for us, and I think I read in Derek’s notes here a frustration that that – that the ramping up, the mobilisation of the Scottish Government is not happening as quickly as he would want to see happen.
I agree with that. I don’t think that means that the Scottish Government in the sense that Derek Grieve and his colleagues – I think they were very closely involved in consideration of Covid and the threat that it posed. As I said in my witness –
Lead 2A: I think, Mr Thomson, that their consideration doesn’t seem to have led to any sense of urgency about it?
Mr Kenneth Thomson: Well, I think – I think they were – I think – I took that is – this is not what you mean, but I think that they thought this was very urgent, and what they’re trying to do, and Derek is expressing his frustration about this, is to, if you like, spin the flywheel up. And I shared that concern.
Mr Dawson: If that’s a convenient moment, my Lady.
Lady Hallett: It is. I shall return – I’m sorry we have to break in the middle of your evidence, I hope you were warned you may have to, Mr Thomson. I shall return at 1.45.
(12.47 pm)
(The short adjournment)
(1.45 pm)
Lady Hallett: Mr Dawson.
Mr Dawson: Thank you, my Lady.
Mr Thomson, if I could just return to the – you remember there was one statement we were looking at at the beginning, one of your statements that we didn’t manage to get up.
If we can just go to INQ000339039.
This is a statement dated 6 November. This, I think, falls into the category of one of the ones, Mr Thomson, that you drafted but was ultimately signed by your successor; is that correct?
Mr Kenneth Thomson: It was provided in draft by me. It was drafted on my behalf and I commented on that draft.
Lead 2A: Understood. Can I just confirm with you that insofar as the statements were prepared by you, they remain true and accurate at this moment in time?
Mr Kenneth Thomson: That is correct.
Lead 2A: Thank you very much.
If I could just return to a topic to which we’ve alluded a few times, Mr Thomson, but we haven’t quite arrived at yet, which is the time period around May of 2020, you’ve referred to this a few times in your evidence already but it’s a topic I was particularly interested in covering with you. This is, I think, a quite important period, and it’s – just to put it in context, it’s the month after the Scottish Government has launched its four harms framework, and it is the month in which the Scottish Government route map out of the restrictions is published; is that correct, to give context?
Mr Kenneth Thomson: That’s correct.
Lead 2A: I understand that over this period some meetings took place which led up to the public announcement on behalf of the UK Government about its messaging changing with regard to the way in which they wished to try to explain what people should be doing at that stage. Is that right?
Mr Kenneth Thomson: That’s correct.
Lead 2A: And the messaging that I’m talking about is the change, broadly speaking, from a Stay at Home to a Stay Alert message, which was issued by the UK Government on 10 May 2020?
Mr Kenneth Thomson: That’s correct.
Lead 2A: I understand that there was a meeting which took place between the First Minister, former First Minister, and former Prime Minister, on 7 May to discuss the position with regard to the pandemic. Is that correct?
Mr Kenneth Thomson: My recollection is that it was a four nations meeting, so it was also attended by Mr Drakeford and by probably the First and deputy First Ministers of Northern Ireland, so it was a four nations meeting rather than a bilateral.
Lead 2A: Yes, indeed, but it was a meeting at which there was discussion between the former First Minister and the former Prime Minister about the approach that would be taken.
You’ve very helpfully provided us with some of your notebooks about – which have your notes of various important junctures in the pandemic.
Could we have a look at, please, INQ000371228.
Mr Kenneth Thomson: Thank you, Mr Dawson. Whilst that is coming up, perhaps I could just say a word about my notebooks?
Although I think you’re about to show me a fairly detailed note of this conversation, that wasn’t generally how I used them, and I probably noted this particular meeting because I didn’t have access to a computer or (inaudible).
Lead 2A: It may be that we don’t have to look very carefully, they’re really just as an aide memoire for you, Mr Thomson, because there’s a few important points I would like to take just to clarify exactly what was going on.
I must admit that we struggled slightly with your handwriting. I wonder whether you ever considered a career in the medical profession.
But it may be that we don’t need to try to struggle with that today if we can deal with this on the basis of some basic propositions, if I put them to you and you can tell me – please disagree if I get it wrong, but I’m just trying piece together the narrative.
The position I think of the First Minister at this important juncture was broadly that she was concerned about some media reports which had suggested that the UK Government was going to drop its Stay at Home message, and that she was keen – and your notes back this up – to try to impress upon others at the meeting, in particular the former Prime Minister, that she would not be prepared to drop that message for Scotland in light of the Scottish Government’s interpretation of the threat; is that correct?
Mr Kenneth Thomson: That’s exactly correct.
Lead 2A: And she – in fact, I think, these notes suggest that you’ve noted her as saying something along the lines of “Stay at Home is the foundational message”, and in fact she appears to have said that a change would be catastrophic?
Mr Kenneth Thomson: Yes, I don’t have that page in front of me, but I do recollect that she did say that and I wrote –
Lead 2A: Yes, so that was her position. And it seems from the notes that she was attempting to try to convey that position forcefully to the Prime Minister?
Mr Kenneth Thomson: Exactly.
Lead 2A: In your notes as well, and we do have other notes of this particular meeting which I think are consistent with this position, is that the Prime Minister in response to this position being advanced by Nicola Sturgeon was that he indicated that he totally understood that Stay at Home remained an important part of the message; was that broadly your understanding of his position at that meeting?
Mr Kenneth Thomson: Yes, that is what he said. The First Minister was concerned that there was a gap between what he was saying there and the – I referred already to the headlines, I refreshed my memory on them, so I don’t need to repeat that. I think she also said, and I wrote down, that “The newspapers didn’t get” – you know, “didn’t make that up by themselves”. So she was pointing to, “You’re saying one thing to me but you’re leading the newspapers to expect another thing”.
Lead 2A: Indeed, I think there’s a note to that effect that we managed to make out suggesting that the media wouldn’t make that message up so there must be some element of truth to it. And they were trying – she was trying to ascertain whether that was in fact the UK Government’s position or not; is that broadly correct?
Mr Kenneth Thomson: That’s the case. And – and Mr Drakeford said much the same thing. It might actually have been he who said that, but she would have agreed with it.
Lead 2A: So Mr Drakeford was struggling to understand with precision what the UK Government’s position on this important matter was as well?
Mr Kenneth Thomson: No, I think Mr Drakeford and Ms Sturgeon understood that – they had a clear sense that the Prime Minister wanted to release restrictions. That wasn’t quite what they heard him saying to them. They believed that, you know, he’d been leading the media to expect that that is what would happen I think the following Monday. And they were both clear that, in relation to the conditions and the epidemiology in Wales and Scotland, that was not the right thing to do. So they wanted to be, to get confirmation from the Prime Minister of what he was going to do and impress on him that I think both of them, but certainly Ms Sturgeon, did not agree that that would be the right thing for Scotland at that time and that that would be a decision that she would make rather than he.
Lead 2A: Did you and the First Minister leave that meeting with the impressions that the Stay at Home message would remain the position of the UK Government at that time?
Mr Kenneth Thomson: Well, again, there was a gap here. The Prime Minister explained that his concern was that the UK Government’s message was actually “Stay at Home (unless you need to go to work)”, I paraphrase slightly, and he thought that too many people were interpreting that as just “stay at home”. So she was concerned that, you know, if he wanted to soften that message that would have a deleterious effect on the compliance with NPIs you know, she would hope that that would be – would not feature in Scotland, but she was concerned about that, and I recall her saying to me, possibly at the end of that meeting, she turned to me with some exasperation and said “I can’t stand in front of a television camera and tell people to stay alert to something that they can’t see”. She was thinking about how does this work as a piece of public health communication, and she was – she said it would be a mistake to depart from that foundational message of Stay at Home.
Lead 2A: So do I take it from what you’re saying that her concern was perhaps two-fold: one was that the Stay Alert message she didn’t particularly understand herself and therefore couldn’t communicate that in a public health communication; is that right?
Mr Kenneth Thomson: It fits it very well.
Lead 2A: Also I think that there was a risk that if that were to remain – were to become, sorry, the message of the UK Government, that there was a risk that that message would cause confusion in Scotland in particular because her epidemiological advice was to the effect that she should stick with the current regime and the current messaging?
Mr Kenneth Thomson: So I would say that there were two points in there. The first is that departing from the Stay at Home message as currently understood and adhered to in Scotland would be the wrong thing to do in terms of the epidemiology in Scotland. And the second was that even if it was the right thing to do in England, the nature of the communications from the Prime Minister publicly might cause confusion because, as she said at the time and as has come out in other evidence, quite often the Prime Minister and others would say “I’m telling people in the country” or “the UK” when actually they meant, in this case, England. That was the confusion.
Lead 2A: Thank you.
I understand that on 8 May, which was the day after this meeting, the former First Minister was reported as saying that there was some recognition that each of the four nations would move at different speeds and that she would not be pressured into lifting restrictions prematurely. Is that correct, there was an announcement to that effect by the former First Minister on that day?
Mr Kenneth Thomson: I think it might have been a reporting of comments rather than an announcement by her, but –
Lead 2A: Yes.
Mr Kenneth Thomson: – what you say is exactly what she felt at the time, and (inaudible) –
Lead 2A: Were you involved in briefing about that message or advising about that message at that time?
Mr Kenneth Thomson: Well, I … so the word “briefing” has a precise meaning within the civil service. So I didn’t brief her on whether it was the right thing or the wrong thing. She gets that advice from my medical colleagues. But I was involved in discussions with her about – part of my role as I explained earlier was to help her understand what was going on in the UK Government, so I was part of those conversations about what is the UK Government going to do, what is the right thing to do in Scotland, what’s the interaction between these two things.
Lead 2A: Would it be correct to say that at that time there was a significant concern or apprehension that there was about to be a significant change in the approach being taken by the UK Government and the Scottish Government to the management of the pandemic?
Mr Kenneth Thomson: Yes.
Lead 2A: I think that you sent an email to the First Minister, which is INQ000222934. I’d like to look at that with you, please.
In this you say:
“First Minister –
“Dominic Munro has given you advice ahead of today’s COBR meeting. This note supplements that on one aspect: the framing of the ‘Four Nations’ approach.
“Following your discussion with the Prime Minister, Mr Gove and other First Ministers on Thursday and Friday, as officials we set out to our UKG counterparts the need for deeper and more consistent engagement on the aspects of their work which apply across the UK and affect devolved interests, including (for example) business guidance and border controls:
“We acknowledge that some details have been shared through the UKG’s Ministerial Implementation Groups and the Four Nations calls, but continue to press for the full detail of the UKG’s proposals, which we have not yet received (at the time of writing).
“Much of the detail of tomorrow’s UKG document will be, in effect, a plan for England (though it will probably continue to mix England-only and UK-wide aspects). We know that UKG officials are conscious of the risk of COBR becoming mired in the detail.
“At the level above the detail, the Four Nations are moving in broadly similar ways, though to different timescales, and remain reasonably closely aligned. As you emphasised to the Prime Minister, however, each government is responsible and accountable for guidance and regulations within its own jurisdiction.
“You may wish to assess during and after COBR, whether there is scope and advantage in consolidating the Four Nations approach, including the emphasis on the separate accountabilities of the four governments.
“One way to do so would be to draw on the lines set out below, either by proposing these as a shared basis for media briefing, or consolidating them in a joint statement. These lines go no further than restating the governments’ existing programmes, and are consistent with the principles they have published in the past two months (extracts attached).”
Then you set out a proposed form of words which relates to the four nations approach trying to set out the characteristics of that as you understand it.
What was your thinking in trying to advise the First Minister at this time in this way and what was your apprehension about what was perhaps happening or about to happen?
Mr Kenneth Thomson: So it’s useful to be reminded of this.
In an earlier answer I – we covered the events which led to the publication of the joint statement in September. I think this is probably – in my mind, as I wrote this, was: is that the point we could get to? And you will see that it took us from May to September to get to that point, which in the world of an epidemic is a very long time indeed.
Lead 2A: Mm.
Mr Kenneth Thomson: Why was I offering her advice of this kind? I was concerned, as you put it to me earlier, that the two governments might be pulling apart. I don’t mean in terms of the decisions because the decisions should be taken on the facts and circumstances before them, but pulling apart in terms of their ability to align and understand and share in advance what those decisions were going to be.
And what you see here is the product of conversations or exchanges with my counterparts, including in Wales and Northern Ireland, to say “I’m concerned about that, it would be good if COBR could pull us back to where we, the devolveds, think we need to be”, and then I’m saying to the First Minister “You could draw on these lines”. And I emphasised to her, because she was concerned about this, that I’m not proposing that she should cede decision-making about Scotland to the UK Government – which would not be right (she would think, and I would agree) – but I am saying, you know, “There is an opportunity here to join up and here’s how you could propose that we do it”, and I say “This doesn’t actually go any further than each of those administrations has already said, it’s just an opportunity to pull together and say this is what we are all trying to do, which is protect our administrations and our people from the impacts of this terrible disease”, which would be what you would want your senior politicians to do.
Lead 2A: Did you feel – it seems from what you’re suggesting here that there was a need, not for any innovation but for there to be a reiteration of the four nations approach, as you had understood it before that point?
Mr Kenneth Thomson: That’s correct.
Lead 2A: Was that because you apprehended that there was about to be a departure from this approach?
Mr Kenneth Thomson: It was in part for that reason but in part also because I could see that the decision-making for all the governments was about to – was going to become over the summer more complex.
You know, it’s – there is a reference elsewhere in the evidence to the concept of the hammer and the dance. Now, if lockdown is the hammer, then the decisions about the fine grain of what restrictions you can release and when, and when it’s safe to do so, or how you mitigate the other harms, that’s the dance. So decision-making for all these governments, and therefore the interaction between them, was becoming more complex, and just at that time I was concerned that the bandwidth in the relationship, certainly at heads of government level, and below it actually, was inadequate to good alignment given that challenge.
Lead 2A: Would it be fair to say that in advising the Scottish Government it was important to bear in mind that the UK Government would always have, because of the devolution settlement, control over aspects of pandemic management that would inevitably affect Scotland’s strategy in fighting the virus?
Mr Kenneth Thomson: So you put that to me as the UK Government would have control over, and I’ll answer that part and another part.
There were certain aspects of pandemic management that were reserved. Incidentally not border controls in relation to public health, one might come to that, but there certainly were some that were reserved and the UK Government had control of those and that was relevant to the Scottish Government’s decision-making. Furlough would be an example.
But there’s also a concern in my mind at this point and in the First Minister’s that the decisions that she is taking within devolved responsibilities are within the context of GB or the UK where the UK Government, in its role as, I’m putting this in quotes, the government of England, in other words in its exercise of responsibilities which in Scotland are devolved, it’s taking those decisions and because of the – and when the Prime Minister says something it gets reported through the whole of the UK – that influences the environment in which she is – the former First Minister is managing the pandemic. So there’s both control but also the interaction of messaging.
Lead 2A: I don’t wish to diverge, but you mentioned something which is of interest to me, which is the question of border controls, so if I could just deal with that but come back to this narrative in a moment.
The question of border controls is one which we’ve found slightly difficult to comprehend. Is your position from the answer you’ve given that border controls were effectively a matter under the control of the Scottish Government during the pandemic, as regards Scotland of course?
Mr Kenneth Thomson: Forgive me if I dive into the detail. The detail’s complicated but, to address Professor Cairney’s word, I don’t think it’s blurry in relation to this matter, because the place where what is reserved is set out is schedule 5 of the Scotland Act. And I should say that I was one of the people who contributed to the drafting of that at the time. And in schedule 5 you will find – you will not find “borders” as a word appearing. What you will find reserved is immigration and nationality, under section 6B of the specific reservations, and you’ll find the regulation of international trade reserved at paragraph 7 as part of the general reservation of foreign affairs.
What that means is that border controls at the border in relation to immigration and nationality and regulation of trade, which is what most border controls are, those are reserved, and the administrative apparatus by which the UK Government deals with that is within its control. But border controls in relation to public health are not reserved, therefore they are devolved, which is why the Scottish Parliament was able to pass an Act, the Public Health etc (Scotland) Act 2008, at which section 94 sets out provisions for controls, international it’s called, but it includes the ability to make regulations which provide for what happens when a vehicle arrives at the border, including the ability to require that persons in that vehicle should quarantine.
Now, those are the powers that were being used in relation to travel restrictions, and because of the passage of that Act post devolution the UK law officers would have had the opportunity to satisfy themselves as to the – that Act was within competence. So although it is complicated –
Lead 2A: This is why, Mr Thomson, that when one looks at the restrictions in Scotland at borders, they are exercising control by the Scottish Government, because it relates to the control of public health rather than other matters which might be under the control of the UK Government, such as immigration and nationality?
Mr Kenneth Thomson: That is exactly right. And to add one further point, the Scottish Government needed the help and co-operation of the UK Government to make all this work because administratively the means by which you do this involves the input of Border Force and so on.
Lead 2A: Yes.
Mr Kenneth Thomson: So that support is necessary. But in terms of the vires for these, that’s clear in my mind.
Lead 2A: Thank you. Well, it will be a matter for her Ladyship in due course to determine whether the lines are blurry in that regard, but thank you for the explanation.
To return then to our narrative from May, you mentioned that the email you had written was in connection with a COBR meeting and I think your aspiration, you said, was that the COBR meeting might be able to bring things back into alignment, as you say; is that right?
Mr Kenneth Thomson: Yes, that’s fair.
Lead 2A: And the COBR meeting took place on 10 May; is that correct?
Mr Kenneth Thomson: I’m relying on you for that, but yes.
Lead 2A: It was very shortly after that period that we have been discussing. We have a note of this, it’s from Ms Elizabeth Lloyd, it’s quite a useful shorthand and I’m interested to know whether you agree with me as to whether this is what happened.
We understand that this relates to – this is at INQ000346141 at page 114, and we understand that this relates to the 10 May COBR meeting where she says:
“COBR is a shambles.
“PM ignoring comments.
“Welsh plea not to advise people to travel – completely ignored.
“NI/SG insisting that it be clear PM is referring to England.
“Repeated calls for assurance ignored by PM.”
Now I’m using that as a swift means to try to characterise what I think happened at that meeting but, Mr Thomson, does that ring true with your understanding of what occurred at that meeting? Despite your aspiration, things went very much the other way?
Mr Kenneth Thomson: In short, yes. Just for clarity, as I read this – Liz Lloyd’s writing is much better than mine – but the “NI/SG” means Northern Ireland Executive and Scottish Government –
Lead 2A: Yes, that was our understanding.
Mr Kenneth Thomson: Yes, well, I see no reason to disagree with that characterisation of the meeting.
Lead 2A: One of the tasks I suppose which we’ve set ourselves is to try to understand the point at which – and I know, I think, from your statement you don’t like the word – Scotland diverged from the UK four nations type approach or the UK’s approach involving the four nations considerations that you set out in your advice.
I’m interested to explore with you, if you can tell me, whether you think that this is the moment at which that divergence occurred? I know you don’t like the word “divergence” but please forgive me.
Mr Kenneth Thomson: So to be clear, because I am trying to be helpful, I only don’t like it in the sense that – I think Mr Jacobs quoted me in the opening statement – if it implies that the approach of the UK Government is the orthodox one and somehow if you divert from that you’re becoming unorthodox.
But yes, the approaches did diverge. Was this the point at which it happened? So this is 10 May. (Pause) So, if I go back to, let’s say, 23 March, and the Stay at Home decision, there is no divergence in that. And if I go forward from this point in time to October when the levels and tiers systems were introduced, there’s definitely divergence by that point. So it happened somewhere in between those.
I think it would be fair to say that in this meeting you can see the start of that process, because if you compare my advice that you showed me a moment ago with Ms Lloyd’s description of the meeting you can see that my aspiration for greater alignment was not being realised.
To finish with one qualification of that, it wasn’t a one-way – it wasn’t a straight line deterioration, if I can put it that way, the quality of interaction did ebb and flow a bit, and it ebbed back in a bit in September, as you’ve seen, but I’ve also said that that took a long time and time was not a thing we had.
Lead 2A: Thank you.
There is one more matter I’d like to raise with you, please. There are a number of commentators who have suggested that in the Scottish Government’s management of the pandemic, the pandemic was politicised in order to try to further the cause of independence. I’d be interested to hear your perspective on that criticism which is held certainly by certain sectors of the Scottish public.
Mr Kenneth Thomson: So I’ve heard that criticism made in, with two – in two forms. The first is that the Scottish Government’s attention or energy was in some way devoted to work on independence rather than work on Covid. I was also the Director-General responsible for supporting our ministers in constitutional change and as you can see, I hope, from the materials in front of you, during this period my – pretty much my entire attention was focused on Covid and that which was not focused on Covid was focused on Brexit, which also has constitutional dimensions. So I don’t agree with that.
The second way I hear that criticism is that somehow in her decisions the First Minister was seeking to show people – you know, to make – to be different for the sake of being different to remind people that Scotland has the ability to take decisions on its own. And I also don’t agree with that. I said earlier I didn’t see any party politics on the part of any politician in the COBR meetings.
In all the advice that I gave the First Minister and all the exchanges I had with her about that advice, there was nothing of that sort present. Indeed, I couldn’t give her advice in relation to party politics without breaching the Civil Service Code, which I did not do.
And if I then turn to the substance of these decisions – well, first of all, these were not differences for the sake of being different, they were differences of substance in relation to the timing and the design and the application of NPIs and how you change that as vaccination comes through. This was serious decision-making with clinicians and epidemiologists and scientific advisers and other advisers in relation to economic policy and social policy.
So there were real differences, and in this Scotland was not the outlier. Coming back to my dislike of the word “divergence” it was quite often the case, as in these exchanges I think, that two or more of the three devolved administrations were taking one view and it was the Prime Minister and the UK Government that was taking the different view.
And then finally, I think not just in the decisions but also in the outcomes there are substantial differences, and I think the Inquiry has that before it in the expert evidence of Professors Hale and Diamond, where, if you look at age-standardised mortality rates over the period, you see substantial differences in the outcomes of the pandemic in the four nations. And the – I think it’s important to see these differences rather than not see them – and I’m not saying this to say the Scottish Government did well. None of us – you know, none of us wanted this to be as it was. But I am saying there were real differences in the approach and in the outcomes and we should all learn from all of that and we can’t do so if somehow the narrative of the pandemic is that we all ended up in the same place or that the differences were just for the sake of it. That’s – I think in public policy terms that would be a mistake.
Lead 2A: Is it the case that your position is that the Scottish Government’s principal focus remained on managing the pandemic from January 2020 to April 2022?
Mr Kenneth Thomson: The only other focus – sorry, give me the dates again?
Lead 2A: It’s just the period of our scope, Mr Thomson, January 2020 to April 20 –
Mr Kenneth Thomson: So to give you as precise an answer as I can, it was not the only focus and the two other focal points I would give you would be, first of all, Brexit, because you’ll remember that during the pandemic period the UK was preparing for the possibility of a no-deal Brexit, which involved significant work and attention within the Scottish Government.
Then secondly I would say during this period the focus of the Scottish Government began to move, and particularly after the May 2021 election, from the response to the pandemic to the concept and the operationalisation of this concept of Covid recovery, and that’s reflected in the changes to ministerial titles and roles after that election.
Lead 2A: Thank you.
Could I ask you to look, please, briefly at INQ000214408.
This is Cabinet minutes, we call – I think they’re called “conclusions” internally – from 30 June 2020.
Can we have a look at page 56, please.
Mr Kenneth Thomson: Sorry, just before you move off this page, I’m just looking to see if I was at this meeting. I don’t think I was. But that’s fine, I can comment on –
Lead 2A: Thank you.
Paragraph 56, please.
At letter (e), it says that Cabinet:
“Agreed that consideration should be given to restarting work on independence and a referendum, with the arguments reflecting the experience of the coronavirus crisis and developments on EU Exit.”
Is this conclusion reached by Cabinet indicative of the fact that the Scottish Cabinet in June 2020 wished to politicise the coronavirus crisis?
Mr Kenneth Thomson: (Pause) I’m reading the wording carefully. Consideration should be given to restarting work. So we would then have – I think there was a set of –
Lead 2A: It’s the second half of the sentence I think I’m focusing on, Mr Thomson:
“… with the arguments reflecting the experience of the coronavirus crisis …”
Mr Kenneth Thomson: Yes, it’s helpful to be reminded of that, so that runs slightly contrary to what I said in my previous answer and I do acknowledge that.
My previous answer was in terms of – I was thinking, you know, what was my focus on, what was the Scottish Government’s focus on, what were my team’s focus on. The constitutional work at the time, just to give you a bit of context, had been paused, I think I’m right in saying.
Lead 2A: Yes. Mr Russell had done that at the beginning.
Mr Kenneth Thomson: Yes, he had. And the – as we moved out of the lockdown restrictions, more of the ordinary business of the Scottish Government began to resume, including this bit.
I think – I don’t think that – this might account for the differences between this and my earlier answer – I don’t think I gave significant time to that, but some of my team who, for example, had been moved from that independence work into work such as travel restrictions might then have resumed work on this because we had been able to adapt our structures and put more people into a team who would take forward travel restrictions further on.
Lead 2A: One further document, and this I think will be the last, Mr Thomson.
INQ000371228. I’m afraid we’re returning to your notebooks. Page 50, please.
The context of this, which I hope you can take from me, is – I looked at this earlier – it’s dated, we think, 25 May 2021, and we think it is recording a conversation between yourself and the then Deputy First Minister in which, shortly after the election, you’re discussing, amongst other things, the very subject that you said was one of the main focuses of the Scottish Government in that period after the election, ie Covid recovery. You will recall – you will know of course that the Deputy First Minister had been appointed at around that time as the Minister for Covid Recovery I think; is that right?
Mr Kenneth Thomson: Yes, that’s right.
Lead 2A: And in that context there is a phrase at the top where you’ve written:
“Indy is back.”
Does that tend to suggest that in the course of that conversation the Deputy First Minister has indicated to you the policy priority is to now pursue independence again?
Mr Kenneth Thomson: So I need to apologise for the fact that my notebooks were written for me rather than for counsel to read. This page is not in fact a record of points made in the discussion with the Deputy First Minister, possibly the previous page is and I’ve failed to, you know, put a new subject heading at the top. This page, which I remember quite well, is me writing out of my head the reasons I am concerned about my own personal resilience. And I’m doing that just after the election. I’m wondering – I’m constructing a possibility here which is that people will fall over, including me. I say that three-quarters of the way down the page.
Lady Hallett: Mr Thomson, I’m sorry to interrupt, but the question really is a simple one. You have written down what seems to be “Indy is back”, which we all assume means independence is back on the agency. Presumably you got that impression from a minister? Which is the point I think Mr Dawson’s asking.
Mr Dawson: Thank you, my Lady.
Mr Kenneth Thomson: No, I think what I’m listing here is reasons that – risks, rather than –
Lady Hallett: No, but did you get the impression from a minister that independence was back on the agenda? That’s the question.
Mr Kenneth Thomson: I can’t – I don’t recall that being part of the discussion with the Deputy First Minister.
Lady Hallett: But did you get that impression from any other minister? Otherwise why did you make this note? Because it would only be back on the agenda if a minister had said it’s a policy issue again, wouldn’t it?
Mr Kenneth Thomson: Well –
Lady Hallett: That’s the question. It’s a simple question, Mr Thomson.
Mr Kenneth Thomson: Right, I was trying to explain why I had written this note. If the question is, was there a possibility that independence work would resume, yes that’s definitely a possibility. But that’s not actually why I wrote it here.
Mr Dawson: Thank you, my Lady.
We’ve referred to looking at statistical information and making comparisons about the way in which the pandemic ebbed and flowed in the different nations of the United Kingdom, and we have heard some detailed evidence about that from the Scottish Government and its own Chief Statistician.
In the period after this point, Scotland was still to experience its highest rates of infection. It was still to experience around a third of its deaths. It was still to experience incredible hardship and devastation, including hospitals being overwhelmed, the military needing to be called in. Is it your position, as you suggested earlier, that the focus of the Scottish Government over that period remained on the Covid pandemic and not on independence?
Mr Kenneth Thomson: As I hope I communicated earlier, certainly my work through that period, as the situation deteriorated, remained dominated by Covid, and to some extent by Brexit.
Mr Dawson: Thank you very much, Mr Thomson, I’ve no further questions.
Lady Hallett: And I don’t think there are any Rule 10s.
Mr Dawson: Nothing at all, my Lady, thank you.
Lady Hallett: Very well. Thank you very much, Mr Thomson.
(The witness withdrew)
Mr Dawson: The next two witnesses who will be giving evidence together are Dr Jim McMenamin and
Professor Nick Phin.