Transcript of Module 2A Public Hearing on 25 January 2024
(10.00 am)
Lady Hallett: Mr Tariq.
Mr Tariq: Good morning, my Lady. May I please call Rachel Elizabeth Lloyd.
1. Ms Rachel Lloyd
MS RACHEL ELIZABETH LLOYD (affirmed).
Questions From Counsel to the Inquiry
Mr Tariq: Could I check that you’re commonly known as Liz Lloyd?
Ms Rachel Lloyd: I am indeed.
Counsel Inquiry: There’s a few preliminary matters I wanted to discuss with you before we get to the substance of your evidence. Can you keep your voice up and can you speak slowly because there is a stenographer that is taking the evidence. If any of my questions are unclear, please say so and I can repeat or rephrase.
You’ve provided two statements to the Inquiry, and both these statements are dated 15 November 2023. The first statement is on screen. This is at INQ000274006, and this is a statement that explains your role in the Scottish Government’s response to the pandemic.
I understand that there was a correction that you wanted to make at, is it to paragraph 13?
Ms Rachel Lloyd: Paragraph 13, yes, there’s a fairly obvious, I hope, typographical error. I have used the date “late 2020/early 2021”, when that should be “late 2019/early 2020”.
Counsel Inquiry: I think it was obvious to the Inquiry that you were talking about 2019 into 2020. So subject to that amendment, can you confirm that this is your statement?
Ms Rachel Lloyd: It is.
Counsel Inquiry: And are you – are the contents of this statement true to the best of your knowledge and belief?
Ms Rachel Lloyd: They are.
Counsel Inquiry: There’s also a second statement that you gave to the Inquiry, which is also dated 15 November 2023. This is INQ000274004, and this is a statement about the use and retention of informal communications such as WhatsApp messages. Can you confirm that this is your statement?
Ms Rachel Lloyd: It is.
Counsel Inquiry: Are the contents of this statement true to the best of your knowledge and belief?
Ms Rachel Lloyd: They are.
Counsel Inquiry: Thank you.
I wanted to move on now to discussing your professional background before we get to your role during the pandemic. You were employed as a special adviser to the Scottish Government from January 2012 to, I believe, 23 March 2021; is that correct?
Ms Rachel Lloyd: Yes.
Counsel Inquiry: And then after a short break, you were back in post as a special adviser from August 2021 to around 28 March 2023; is that correct?
Ms Rachel Lloyd: That’s correct.
Counsel Inquiry: And you served as the chief of staff to the then First Minister of Scotland, Nicola Sturgeon, from January 2015 to 23 March 2021; is that correct?
Ms Rachel Lloyd: Yeah, that’s correct.
Counsel Inquiry: Then you returned to the Scottish Government, as we’ve said, in August 2021, and this time your role was as strategic political and policy adviser to the First Minister within the special adviser team; is that correct?
Ms Rachel Lloyd: Yes, that’s correct.
Counsel Inquiry: And you remained in that role until the resignation of Nicola Sturgeon as First Minister of Scotland at the end of March 2023, at which point you also chose to leave government; is that correct?
Ms Rachel Lloyd: That is indeed.
Counsel Inquiry: And you now work in the private sector, I understand?
Ms Rachel Lloyd: Yes, I do.
Counsel Inquiry: I now want to turn to ask you about the role of special advisers more generally before we get to your involvement in the pandemic.
There is a special advisers’ code of conduct; is that correct?
Ms Rachel Lloyd: There is, yes.
Counsel Inquiry: And this describes the role of a special adviser as adding a political dimension to the advice and assistance available to ministers, and the code notes that one of the reasons for the role is to reinforce the political impartiality of the permanent civil service so that the political advice can come from the special advisers as opposed to the permanent civil servants; is that correct?
Ms Rachel Lloyd: That is correct.
Counsel Inquiry: Professor Paul Cairney gave evidence in week 1 to the Inquiry, and in his report he says that special advisers are appointed by the First Minister personally and ultimately the responsibility for the management of the special advisers rests with the First Minister. Is that your understanding?
Ms Rachel Lloyd: That is correct. I would say the day-to-day management of the special adviser team is delegated to the chief of staff.
Counsel Inquiry: Yes, but ultimately the –
Ms Rachel Lloyd: Ultimately, it’s the First Minister.
Counsel Inquiry: – responsibility rests with the First Minister.
In your first statement, you say, and I’ll simply quote at this stage:
“Special Advisers are not decision takers but support the decision-making process by supporting ministerial thinking and assist in the application, understanding of and communication of ministerial decisions.”
Therefore, am I correct to understand that the role of a special adviser is not to take the decisions themselves.
Ms Rachel Lloyd: That is correct, yes.
Counsel Inquiry: And there has to be clear boundaries between the decision-makers, such as the Scottish ministers, and special advisers as it’s only the ministers who are elected and therefore accountable to the public; is that correct?
Ms Rachel Lloyd: That’s correct.
Counsel Inquiry: And as special advisers you’re neither elected nor accountable to the public?
Ms Rachel Lloyd: That is broadly correct, yes. I always felt accountable to the public.
Counsel Inquiry: But in terms –
Ms Rachel Lloyd: But not formally.
Counsel Inquiry: Not formally. And your role is generally not meant to be public-facing, unlike the politicians, is it?
Ms Rachel Lloyd: That’s correct.
Counsel Inquiry: And some special advisers can build up close relationships with their ministers, having worked with them over many years; is that correct?
Ms Rachel Lloyd: That is.
Counsel Inquiry: Is it fair to say that your relationship with Nicola Sturgeon was particularly close, having worked as her chief of staff since 2015?
Ms Rachel Lloyd: Yes, yes, and certainly by the time of the pandemic.
Counsel Inquiry: And is it fair to say that you were one of her closest confidantes?
Ms Rachel Lloyd: Yes, I would say so.
Counsel Inquiry: Can we turn to your first statement, which is on the screen now, it’s paragraph 29, and page 8, and here you say:
“My advice during this period was on the general tenor of the actions being taken, managing public response and the communication of the actions being taken. I played a role on the [First Minister’s] behalf in asking clinicians and officials for more and better advice and raising questions on further action and acted as a sounding board/thought partner for the First Minister and others.”
Are you able to tell me what you mean by “thought partner”?
Ms Rachel Lloyd: Ministers, the First Minister, but other ministers as well, would receive advice from scientists, they would be looking at, you know, broader information on legislative proposals, policy proposals, and sometimes ministers need a place or a person where they can essentially think out loud without that being taken as their definitive view. So my role and the role of other special advisers frequently is to engage with them to help them stress test ideas, to talk out what might the consequences of a particular route of action be, help them come to, you know, are there other questions they should ask, do they have all the information they need, and to help them explore, if you like, the advice and information before them.
Counsel Inquiry: So in the context of a particular decision that the First Minister or another minister needs to make, there may be competing considerations, there may be competing almost briefings coming from different interests, whether it be economic, whether it be scientific or medical, and part of the role of the special adviser is to be able to almost stress test the different perhaps conflicting advice so that the minister can make the decision?
Ms Rachel Lloyd: Yes, yes.
Counsel Inquiry: In your statement, and I won’t take you to this particular part, but I think you say that it would be normal for you to attend decision-making meetings with the First Minister where she was in attendance, and this included meetings with the Scottish Government Cabinet, the Scottish Government Resilience Room, the gold meetings, COBR meetings, and the four nations calls with Boris Johnson and Michael Gove. Is that correct?
Ms Rachel Lloyd: That’s correct.
Counsel Inquiry: So it’s fair to say that you were a particularly important part of the Scottish Government’s response to the pandemic until at least March 2021; is that correct?
Ms Rachel Lloyd: That’s for others to judge, but I was certainly there and certainly participating in the response.
Counsel Inquiry: You were there in almost all the –
Ms Rachel Lloyd: Yes.
Counsel Inquiry: – meetings –
Ms Rachel Lloyd: Yes.
Counsel Inquiry: – important meetings and in the rooms where the decisions were being made?
Ms Rachel Lloyd: Yes.
Counsel Inquiry: And you were the thought partner or the sounding board for the First Minister when it came to stress testing perhaps the different conflicting advice that was being received?
Ms Rachel Lloyd: Yes.
Counsel Inquiry: And there would be, I think, is it fair to say, very few people within the Scottish Government that would perhaps be in the room for all the key meetings with the First Minister during the course of the pandemic?
Ms Rachel Lloyd: During the course of the pandemic, it was common for – there would be a few other people that you would see at most of the meetings. So the Cabinet Secretary for Health would be present very frequently, the Deputy First Minister was present a lot, sometimes remotely because, for reasons, he would be working from home, ken Thomson, the Chief Medical Officer, or one of the other medical advisers, but there was a core group who were in St Andrew’s House a lot and in a lot of those meetings together.
Counsel Inquiry: And you were part of that core group?
Ms Rachel Lloyd: And I was part of that, yeah.
Counsel Inquiry: Can we turn to your first statement, and it’s at paragraph 36, page 9. Here I think you say:
“I would not say I advised on the adoption or not of specific NPIs [that’s non-pharmaceutical interventions], that was for the clinicians and officials, but I would have given views at certain points on the interpretation of the data, of public mood and compliance, of communications and where there was politics involved – for example securing the support of other parties or governments or impact on stakeholders such as through border controls – on that aspect.”
So is it your position that you did not advise on the adoption or not of specific NPIs?
Ms Rachel Lloyd: I think when certain NPIs were on the table in that thought partner role there would be perhaps conversations between myself and the First Minister as to which ones – or exchanges as to which ones to use. That could perhaps be considered advice on the adoption, but it was not – I think what I meant is I didn’t decide on the adoption.
Counsel Inquiry: Yes, so you advised but I think your position, I think more accurately, is you didn’t make the ultimate decision?
Ms Rachel Lloyd: Yes, and nor did I sort of say “Here is your selected list of NPIs”, they would come in proposals from the Chief Medical Officer, for example, and we would then discuss the kind of things that were on the table.
Counsel Inquiry: Can we turn to some WhatsApp messages that you have disclosed to the Inquiry between yourself and Nicola Sturgeon. I will come back to the circumstances of the disclosure later on.
Ms Rachel Lloyd: Okay.
Counsel Inquiry: But first of all can we turn to INQ000287766, and we’re looking at page 9. And by way of context, the Scottish Government announced the rules that permitted 20 people at funerals, weddings and civil partnerships, and those rules kicked into force on 14 September 2020, and Nicola Sturgeon was due to announce new restrictions to the Scottish Parliament on 22 September 2020, and in fact the usual briefing time was changed from 12.15 that day to 2.20 that afternoon, and here we have an exchange of messages, this is shortly before Nicola Sturgeon was due to make the announcements about the new restrictions that day, and this exchange relates to a discussion about whether the rules should be changed for weddings, civil partnerships and funerals.
If we start by reading the top message, so Nicola Sturgeon says – and this is on 22 September at 12.09, so shortly before she’s due to make the public announcement:
“We haven’t thought about weddings. They are reducing but not sure what to.”
You reply:
“I think as we only just put them up just leave it.”
Then you go on to say:
“They aren’t including churches etc as far as I know and I think – though will check – that they were higher than us.”
Then you say:
“They had 30….we have 20.”
Then you say:
“They are going to 15.
“And 30 at funerals – I think we stay at 20.”
Does the “they” in this conversation refer to the UK Government?
Ms Rachel Lloyd: Yes, it does.
Counsel Inquiry: So Nicola Sturgeon in this example tells you at around 12.10 the day that she is due to make the announcement to the public, the usual time being 12.15 but this day we see that it was moved to 2.20, she tells that you she’s not sure about what to do and you tell her to stay with 20 attendees, when the UK Government has gone down from 30 to 15, and that ultimately becomes the decision that day, because there is no change to the position of 20 as far as the Inquiry is aware.
So is this not an example of a decision that was made very much at the last minute over WhatsApp between you and Nicola Sturgeon?
Ms Rachel Lloyd: So there are a number of aspects to this exchange. The decision – I don’t view this as the decision because the decision had been taken, so a decision had been taken at Cabinet to go to 20, through the normal processes. And where the First Minister is saying “We haven’t thought about weddings”, there had been significant thought by I think the communities and equalities team about what were the appropriate numbers of people at particular services. So that decision had been taken, that decision had gone through the proper process, and I give my view that I don’t think we need to essentially re-make that decision.
I think the message underneath that says that the statement is being forwarded to her, which is, I think, the Prime Minister’s statement, and had she still wanted to take further action she could have come back on that.
I also think behind this WhatsApp, if you like, I was having an exchange with the lead official to make sure I had the information correct and that the information I was giving the First Minister was the right information.
Counsel Inquiry: Is a decision not to change the rules still a decision?
Ms Rachel Lloyd: I think there had been a positive, if you like, and a proactive decision at Cabinet that the position in Scotland was that there would be 20. There is neither a confirmation or – you know, if the First Minister had come back and said “I agree”, then I would support your view that that was a decision. She actually doesn’t comment and there may be other actions elsewhere. I don’t think it did change, from memory, until later on, but this to my mind is me giving my advice, my thought in that thought partnership role that we stay at 20. If she had wanted to pursue it, to consider it further, perhaps after receiving the statement she may have, there would be exchanges in some other fashion.
Counsel Inquiry: There wasn’t any scientific briefing that you received that appears to have informed your view, let’s stick with 20, was there?
Ms Rachel Lloyd: There would have been on the decision which had very recently, I think that, you know, a day or two before, been taken to set it at 20.
Counsel Inquiry: I believe that the decision to move it down to 20 had been taken around maybe 10 September, and the decision had come into force on 14 September, and what we are talking about is, here, looking at 22 September, and from the documents that have been disclosed to the Inquiry, there – between – the Inquiry’s looked at all of the documents between 10 September and 23 September, and the Inquiry can see no advice being given between these dates about whether the number should remain at 20 or whether it should go up or down.
So is this not an example of a decision simply being made on the hoof, shortly before the First Minister is meant to be announcing restrictions?
Ms Rachel Lloyd: I would think that advising that shortly before the statement on restrictions was about to be made that a decision should be taken to change the limit without seeking scientific advice would have been the on-the-hoof aspect; suggesting that you stick at the decision that had been taken based on information was a more coherent position.
Counsel Inquiry: But we can see that Nicola Sturgeon’s first WhatsApp to you is “We haven’t thought about weddings”, that seems to suggest that there wasn’t really much thought process that had gone into the decision until this exchange with you, which begins at around 12.10?
Ms Rachel Lloyd: No, I think she means we haven’t thought about changing weddings, if you like, in response to the UK Government changing weddings. We had thought about weddings when the decision had been taken positively and proactively in Cabinet to set the limit at 20.
Counsel Inquiry: So is it fair to say that because Nicola Sturgeon comes to you, not being sure what to do, and ultimately, as the Inquiry has seen, that on this date there was no change to the rules, and you were the one that suggests that “we stay at 20”, are you effectively the main driver of this decision?
Ms Rachel Lloyd: No, I don’t think so. If the First Minister has – the First Minister has a strong enough mind that if she had felt that my advice was not the right advice, she would have said so or she would have acted in another capacity, asked for further advice, delayed the position on weddings, she would have acted on that. I am advising. I sought the correct information, if you like, on the factual basis to give that advice, but the decision is very much hers.
Counsel Inquiry: If these messages had been deleted by you – and they haven’t, because that’s why we have them – how would the Inquiry and the public be able to understand how and why the decision was made at this time not to change the number of people that can attend funerals or weddings?
Ms Rachel Lloyd: So as I’ve said in this regard I have recollection of contacting, I think on Teams, the official responsible for the sort of framework documents, if you like, to check my facts, to check what it was. They would be able to see the decision that was made, which was the decision to stay at 20 being made previously, as essentially the decision to set at 20 through the process of advice and Cabinet papers, so that decision would be very – set out in very great detail. The exchange I will have had the official will have said “The First Minister is asking about weddings, what’s the position?”
Counsel Inquiry: But ultimately the public, if this message had been deleted, and the Inquiry, would not know that the decision – ultimately the First Minister, as at 12.10 that day, wasn’t sure what to do and in fact within a couple of hours when she announced the restrictions she’d reached a view that the numbers would not be changed and all of that had occurred within a very short time involving a WhatsApp discussion with you.
That wouldn’t be the sort of insight that the public or the Inquiry would have if these messages had been deleted; is that correct?
Ms Rachel Lloyd: I think there may not be that insight into, if you like, the moment of “Oh, should we think about this?” The sort of – the reflection on “Is the advice that we have at the moment the correct advice?” But they would know why the decision on weddings was that there should be 20 people.
Counsel Inquiry: And the reflection is part of the decision-making process, isn’t it?
Ms Rachel Lloyd: It can be. I think in this it is, “Are the UK doing something that we should be doing?” That will be – I would expect to find in notes from officials providing “This is what the UK is doing”, and considering, in slower time, perhaps before the next update of the regulations, should we adopt any of this. But that split second, if you like, of indecision would not necessarily be recorded elsewhere.
Counsel Inquiry: Could I just confirm, so do you agree with me that this would be an important part of the specific decision that was under contemplation here on this date, this exchange?
Ms Rachel Lloyd: I think if it had been – I don’t want to dispute this too strongly, but I don’t want to over sort of state the importance of this particular position. There had been a – you know, every week there was a review of what the decisions were, what the appropriate steps were, what actions should be taken, and they were done in a very meticulous fashion, and there will be occasions where people have a moment of, “Oh, is that right?” And they might ask a special adviser, they might ask a policy official, they might ask the clinical adviser that happens to be in the room with them. Those moments are quite human. But I wouldn’t want to overstate the importance of this as opposed to the importance of the proper process that was followed that set the limit at 20, because that was a very diligent process.
Counsel Inquiry: Both processes, the formal and the informal, have their place, don’t they –
Ms Rachel Lloyd: They do, they do.
Counsel Inquiry: – in the decision-making process? And part of it is you have the formal frameworks, whether it’s a Cabinet –
Ms Rachel Lloyd: Yeah.
Counsel Inquiry: – but you’ve also got the human side that you’ve touched upon, which is as being a thought partner or a sounding board, where you get to see people’s real maybe struggles with the decisions that they’re making, needing different viewpoints and insights, and together that forms the full context to that decision, doesn’t it?
Ms Rachel Lloyd: Yes, I think there can be moments where a bit of, perhaps, reassurance is required or making sure that we essentially don’t take informal decisions when formal decisions have been taken. So had there been a decision here to change, that would have been a decision based on no scientific advice at all, taken in, you know, the space of 20 minutes. When you have a full, proper process this is essentially deferring back to the proper formal process.
Counsel Inquiry: The formal process which, I think, in this instance, had occurred about 12 days before or –
Ms Rachel Lloyd: Yes.
Counsel Inquiry: – there or thereabouts?
Ms Rachel Lloyd: Yes.
Counsel Inquiry: Can we turn to INQ000287766.
This is again your WhatsApp messages, we’re looking at page 35.
Ms Rachel Lloyd: Sorry, can that be made just a touch bigger?
Counsel Inquiry: I think they will hopefully come on screen a little bit bigger?
Ms Rachel Lloyd: They’re a little blurry.
Counsel Inquiry: We are looking at – does that help?
Ms Rachel Lloyd: Yes, that does help.
Counsel Inquiry: Thank you, helps me as well, so I think we can both read.
So this is a discussion between you and Nicola Sturgeon about the number of people who could meet indoors from March 2021, so if we look at the first message, it’s from you saying:
“When you respond on Cabinet paper – in June – could we make it 6/3 indoors – it’s just much more normal!”
Can I just pause there, what’s the significance of the numbers 6 and 3?
Ms Rachel Lloyd: I believe that would be 6 people, 3 households.
Counsel Inquiry: And then if we – Nicola Sturgeon’s reply is:
“That will be after 4/3 mid may I assume?”
You reply saying:
“Indoors April 4/2, May 6/2….is what I currently have.”
Nicola Sturgeon replies:
“Is that indoors in pubs etc? thought we were waiting til may for indoor households.”
You reply saying:
“We appear to be waiting till June for indoors at home…”
You also reply:
“So in pubs etc it’s 4/2 in April, 6/2 in may …and then in June it should go to 6/3 and we allow you to meet in your own home.”
You reply – you again say:
“Cabinet paper doesn’t actually run all the way to June but my mock graphics do.”
Nicola Sturgeon replies:
“We should bring indoor houses to mid may.”
You reply saying:
“Can you make that your feedback or do you want me to do it.”
And she replies:
“I’ll do it.”
So if we pause there, in this exchange, you are pushing for or maybe advising –
Ms Rachel Lloyd: Advising.
Counsel Inquiry: – that there is a change of the rules on the amount of people who can socialise indoors; is that right?
Ms Rachel Lloyd: So this refers to a proposal, so the numbers 4/2, 6/2, I’m not just pulling those out of the air, this is a proposal and a draft of a Cabinet paper and in a draft set of communications material that I am looking at, and suggesting to the First Minister that I don’t think the final part of the proposal, which is not in the Cabinet paper but is in these communications materials, doesn’t really work, in my view.
Counsel Inquiry: I think your reasoning given is:
“… it’s just much more normal!”
Can you explain what you mean by that?
Ms Rachel Lloyd: Sometimes when you looked at the advice that was given you had to think through what will this mean for people living their lives in practice and how might people want to function, what would people consider a return to normality, if that’s what you’re trying to do. And although we had previously had 6/2 regulations, I think, the year before, I actually think what I was reflecting on here was 6/3 possibly enabled more of a sort of – families to gather in a slightly easier way.
Counsel Inquiry: But I think you accept or would you accept that just – the explanation being “it’s just much more normal” isn’t very scientific, is it?
Ms Rachel Lloyd: It is not, I agree, it is not hugely scientific, but one of the things that you have to do, or that certainly I felt was necessary in this, and this was not a function unique to me, is to think when you have a set of regulations that you’re not – it often felt like they were proposed in the abstract without considering the way in which people function in their real life, and particularly around how people interact with each other, you were seeking to balance caution and protection from the virus with the kind of normality that might be good for people in a more societal sense.
Counsel Inquiry: Was that a consistent theme up until – your involvement till March 2021, that the advice that you were – the scientific and medical advice that you were receiving often seemed very much in the abstract, devoid of kind of the real world and how people live?
Ms Rachel Lloyd: I think – I don’t want to suggest that the people giving the advice were sort of abstract and devoid of understanding, but it was their job to provide, you know, what is the appropriate regulation at a very – on a very strict basis, it was not their job to consider what does this mean for people’s mental health, what does it mean for their family relationships. They were there to consider what will keep the R number to its lowest level, if you like. There were other people who would feed in points about “Well, actually, if you could make a slight tweak to that, does that make it better for people societally or in a mental health sense?” and “What’s the impact of that on – is that – does that have serious consequences?” or “Is that a move we have space to make?” if you like.
Counsel Inquiry: So it wasn’t strictly the case that the Scottish Government was following the science, because the science had a role to play but there was this other element that you, for instance, and other special advisers, and indeed other stakeholders, would bring into the decision that wouldn’t necessarily be science-based?
Ms Rachel Lloyd: The science underpinned everything, and if you suggested changes, if ministers wanted to do something different, there would normally be a sort of referral back to see if we could calculate what that might do, if a minister proposed something that would push the R – or that would be calculated or modelled to push the R number above, then that would likely not be taken forward. So you were underpinned by the science and, if you like, cautioned by the science in how far you could go.
Counsel Inquiry: But not necessarily – science wasn’t the be-all and end-all of the Scottish Government’s approach?
Ms Rachel Lloyd: It was dominant but I don’t think you can take decisions in a situation without being aware of other factors.
Counsel Inquiry: And what we see here in this exchange is that there is a decision to go to Cabinet with, I think, what yourself and the First Minister have discussed and that’s going to be Nicola Sturgeon’s view presented to Cabinet in terms of the change of rules.
Ms Rachel Lloyd: Well, this confirms that it’s going to be her feedback to the Cabinet paper. That would create an opportunity, if the clinicians, for example, thought that was inappropriate, for them to come back on her feedback – and this would all be in formal exchanges, if they did this – to say “First Minister, actually we would rather not do that and this is why we would rather not do that”.
Counsel Inquiry: Is it fair to describe the role of the Scottish Cabinet at times as being a decision-making ratifying body as opposed to a decision-making body, so it ratified decisions that had been made elsewhere, whether it’s in informal communications, whether it’s in gold command meetings or in other one-on-one discussions between key decision-makers, and the role of Cabinet was, at times, simply just to ratify those decisions?
Ms Rachel Lloyd: No, I don’t think so. I think everything that went to Cabinet was a proposal and Cabinet ministers would push back sometimes, ask for amendments, ask for changes, some decisions may be deferred because Cabinet members wanted more information or the First Minister wanted more information. There was an extensive process of engagement with clinicians, advisers and Cabinet ministers before the Cabinet paper would come to Cabinet, so there would be opportunities prior the Cabinet for people to feed in, but there would also be genuine discussion at Cabinet.
Counsel Inquiry: Would there often be instances where the ultimate decision was delegated by Cabinet to, for instance, Nicola Sturgeon or John Swinney?
Ms Rachel Lloyd: There were certainly occasions where Cabinet would agree to delegate a decision, yes.
Counsel Inquiry: What sorts of decisions do you recall that were delegated to Nicola Sturgeon or John Swinney during your involvement in the pandemic?
Ms Rachel Lloyd: Decisions that were delegated were, tended to be – sometimes in the relationship to the communications around a decision, sometimes in relation to the timing of the announcement of a decision, and sometimes where an additional piece of information or a piece of analysis was to come in, and Cabinet members would have the chance to put their views in writing or to speak directly to the First Minister but there would not be another Cabinet meeting called. If, for example, you had the Cabinet meeting, say, on the Tuesday and you were looking at something that you might announce on the Thursday and an additional piece of information was requested, you wouldn’t necessarily recall Cabinet, the final decision would be delegated to the First or Deputy First Minister, but Cabinet members would have the opportunity to comment on the additional information that came in in between.
Counsel Inquiry: Was an example of a decision that was delegated to Nicola Sturgeon, or maybe perhaps John Swinney, around the local restrictions? You’ll remember when the levels system came in and decision-making around, for instance, whether Glasgow would remain in level 3 or 2 or whether Edinburgh would go up or down. Is that the sort of detail that was delegated to the First Minister to make?
Ms Rachel Lloyd: You would have a broader discussion around what the levels would be, but the final check, if you like, on the morning of the announcement against that day’s figures would be delegated, so to check that there wasn’t a need to adjust, if you like, what had been agreed in the broader discussion.
Counsel Inquiry: That’s maybe an issue that we’ll explore with further later witnesses.
I wanted to turn to the political strategy behind the Scottish Government’s response to the pandemic. Is it fair to say that you spent a lot of your career, perhaps less so now, strategising about Scottish independence?
Ms Rachel Lloyd: I think supporters of Scottish independence might be disappointed with what my answer is, but not as much as people would have thought or would have liked. A large part of my political career’s been spent strategising about what the Scottish Government does in other policy areas, but yes, I have had a role throughout in the progress of Scottish independence.
Counsel Inquiry: And how many years would you say that you’ve had a role in the strategy for independence?
Ms Rachel Lloyd: Probably from around about 2012.
Counsel Inquiry: Could we turn to the Cabinet minute from 30 June 2020.
If we look at the first page, you will see that this is a Cabinet meeting which is attended by everyone, in terms of the Cabinet secretaries, that you would expect, including the First Minister, and you’re also in attendance, you’re noted as a special adviser.
Can we turn to page 13, paragraph 56(e), and you will see here that one of the Cabinet conclusions is, and if it can be – thank you. If I can read, it says:
“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.”
So this is a Cabinet conclusion, and it’s from 30 June 2020. Are you able to tell us what the significance of a Cabinet conclusion is?
Ms Rachel Lloyd: Yes, so you would have a Cabinet paper, I think in this case it was on EU exit, and at the end of a Cabinet paper there are normally a set of actions proposed, and this would have been one of the actions proposed in the paper on EU exit.
I – the fact that something is in the Cabinet conclusion does not necessarily mean there was an active discussion on that particular issue. So this is (e), so there would have been five points in the EU exit paper. I have – as you know, I have contemporaneous notes of some of these meetings. If we had had a discussion on independence and the constitution, it would have been in my notes, I was the chief political adviser to the government. It is not. So my recollection and what that tells me is that there was no substantive discussion on issues around independence and a referendum at this meeting. There was a discussion around EU exit and this had been included in the paper.
Counsel Inquiry: You’ve already discussed that there’s a place for formal structures and informal discussions within the decision-making process. One can’t get any more formal in terms of decision-making than what’s in the Cabinet minutes as the agreed actions. Do you accept that?
Ms Rachel Lloyd: Yes.
Counsel Inquiry: And it carries perhaps more weight about what the Scottish Government is seeking to do than informal notes that may exist, this being in a Cabinet meeting minutes?
Ms Rachel Lloyd: Normally I would agree with you, and in the other points I do. What strikes me about this point is it was agreed that “consideration should be given”; it wasn’t agreed that we would do something other than think. And the – following this period no action is taken on independence or a referendum during this period, so to the end of 2020. If it had been, I would have been involved in it. There is nothing that I am aware of that the government proactively did. If the government had proactively done something, there would be much evidence of it: there would be published papers, there would be statements and there would be occasions in Parliament. This was a focus on the fact that we were about to leave the EU, which was, during 2020, the dominant constitutional concern of the Scottish Government.
Counsel Inquiry: So when do you say that independence became a subject matter under discussion in the Scottish Government during the pandemic?
Ms Rachel Lloyd: It generally didn’t. So I worked on the pandemic March 2020 to March 2021. One of the first steps we did was suspend work on independence and the referendum. The team that worked on it was disbanded and sent to work on Covid-related activities. There are a few references that I can think of in the programme for government of the following year, so that would be the programme for government 2021/2022, where there’s maybe one or two paragraphs, and they make clear that any action would be contingent on the state of the Covid pandemic. I don’t think anything happens until at least after the 2021 election.
Counsel Inquiry: But there is, from late 2020, some press coverage where other politician parties are telling the Scottish Government to stop talking or concentrating on independence and focusing on the pandemic response. Do you recall those sorts of press coverage starting from late 2020 going into early 2021?
Ms Rachel Lloyd: I think the constitutional position of the Scottish Government, and I don’t mean to be flippant in this reply, but any breath of the word “independence” would lead the opposite parties to say “You are focusing on independence over the pandemic”. You could have been working 18 hours, 20 hours a day on the pandemic, not seen anything on independence for the course of the year, it would not stop an opposition member saying that we were focusing too much on independence.
Counsel Inquiry: We’ll come back to the topic of independence.
Can we look now at your notebook, and this is at INQ000346141. Just before we look at the specific page, can you explain what the purpose of your notebook was?
Ms Rachel Lloyd: I kept notes through most of the year on Covid of Cabinet meetings, of COBR meetings, of SGoRR meetings, in essence to keep myself right in what had been agreed, what had been discussed, what my actions were, what I should be expecting different parts of the government to deliver over the week. It was my way of keeping on top of what was happening.
Counsel Inquiry: Can we turn to the entry on page 142, and you’ll see at the top this is headed “Gold Command” and these appear to be your notes from a gold command meeting that took place on 28 September 2020.
Can we now turn over the page. And if we’re able to increase the size on the second page shown on the screen? Thank you.
Just by way of, I think – so just by way of context, first of all, these are your notes on a discussion of a potential circuit-breaker lockdown around – I think this was being discussed in September going into October 2020; is that correct?
Ms Rachel Lloyd: That’s correct.
Counsel Inquiry: If we are able to look at the – I’m just waiting for – it’s the next page.
(Pause)
Counsel Inquiry: It might be if I can read out –
Ms Rachel Lloyd: Yeah.
Counsel Inquiry: – your notes, that might assist. I think we almost had it, but –
Ms Rachel Lloyd: I can just about read this, so carry on.
Counsel Inquiry: There’s a note that’s written on –
Yes, I think that’s perfect, thank you.
And it reads:
“navigate economy – avoid blunt instrument[s].”
Then it says, I think – is it “FM” or “FH No …”?
Ms Rachel Lloyd: I think that’s FM.
Counsel Inquiry: “FM No finances.”
Ms Rachel Lloyd: Oh, no, sorry, that’s “FH”, the next one down is “FM”.
Counsel Inquiry: Yes, who – could you tell us –
Ms Rachel Lloyd: That would be Fiona Hyslop.
Counsel Inquiry: Fiona Hyslop says:
“No finances.”
And the First Minister says:
“Starting point – how do we reduce impact and spread … [with] minimal [economic] impact.”
And then there’s your handwritten notes:
“Political tactics – calling for things we can’t do to force UK.”
Do you see that?
Ms Rachel Lloyd: Yes.
Counsel Inquiry: So your note suggests that the Scottish Government’s political strategy was to create what might be seen as a public spat with the UK Government to force their hand. What was the political advantages of that sort of strategy?
Ms Rachel Lloyd: It’s not about a spat. This would be about putting pressure on the UK Government. It’s not deliberately falling out; in the ideal world they would have accepted the points that we were making to them.
For – if I can give a bit of context and then get to – this was weighing up how we could put further restrictions on, potentially, a circuit-breaker with minimal economic impact, because the Scottish Government didn’t have the means to provide economic support to individuals or businesses if we went for the full circuit-breaker. What we needed was the UK Treasury to open up additional funding, to extend furlough, to enable us to take actions to do that. And this, I think, is about us setting out very clearly what we wanted to do in public health terms but what we couldn’t do to try to build pressure on the UK Government, who were not amenable to this discussion in private, to force a change of position.
Counsel Inquiry: And you would need to do that publicly, and that’s the reference to the political tactic –
Ms Rachel Lloyd: Yes.
Counsel Inquiry: – is that correct?
We have heard evidence from witnesses, including Professor Devi Sridhar, of the importance of cohesion in the response between the UK Government and the Scottish Government, and this is in the context of public health.
These tactics, whether you can call them political tactics, of going public would create more division with the UK Government, wouldn’t they?
Ms Rachel Lloyd: As I said, in an ideal situation the UK Government would have agreed that funding would be provided so that the Scottish Government could put in place the public health restrictions that we wanted and then there would have been no need for any pressure.
Sorry, the – it’s disappeared from the screen.
The purpose of this is not division, it’s not to have an argument, it’s to be able to put in place the public health restrictions that we were being advised were required at that time. When private discussions do not get you to the place where you have access to the finances that you need to do that, you have to explain to the public why you’re not doing it, and in opening that up it’s to be very clear that it’s the UK Government’s decision not to provide finances that is impacting on your ability to put in place the public health measures that you want. I don’t call that a spat.
Although I wrote “political [tactic]”, it’s not partisan, it’s not about boosting or, you know, knocking support for one government or one party. It’s about trying to do the job that we were trying to do and finding ourselves very frustrated in doing.
Counsel Inquiry: Why did you feel in terms of intergovernmental regulations that you needed to go public with your concerns and you weren’t able to raise these privately with the UK Government?
Ms Rachel Lloyd: I think there would be a number of issues that we would resolve privately but this one was not being resolved privately. We were in this position, the Welsh Government were in this position, the Northern Ireland Government were in this position and we were making no headway, so you reach a point where you have to say to the people you represent why you are not able to do something that you are being advised to do. That means going public on the fact that you can’t afford it, that means going public on the fact that you may have asked the Treasury for money and they were not providing it. It’s not a “we are doing this to stir up political contest”, it’s “we can’t do what we’re trying to do and we need to tell you why”.
Counsel Inquiry: Can we go back to your WhatsApp messages, and this time, my Lady, I wanted to give a warning that there will be some bad language in some of these.
Lady Hallett: I’m used to it.
Mr Tariq: Yes. I think it’s partly for the broadcasters rather than your Ladyship.
Ms Rachel Lloyd: Apologies, I thought I’d been quite restrained.
Counsel Inquiry: We’re looking at page 20.
Ms Rachel Lloyd: Oh, it’s not my language?
Counsel Inquiry: Yes. And just to give some context, on 31 October 2020 at 6.30 pm the Prime Minister Boris Johnson began his address announcing the second national lockdown, and I want to pick up the messages between yourself and Nicola Sturgeon which starts ten minutes into the address.
So if we read the first message on 31 October at 6.40 you say:
“Hitting the 15 [minutes] between the rugby and strictly to lock the country up… let us never do this like this.”
Nicola Sturgeon replies:
“Their comms are behind awful. We’re not perfect but we don’t get nearly enough credit for how much better than them we are.”
She then replies:
“This is fucking excruciating – their comms are AWFUL.”
Then she goes on to say:
“His utter incompetence in every sense is now offending me on behalf of politicians everywhere.”
You reply saying:
“I have a separate whatsapp [the name is redacted] and davie and we are offended on behalf of Spads everywhere.”
Nicola Sturgeon says:
“He is a fucking clown.”
So was there a perception amongst Nicola Sturgeon and the wider Scottish Government that it was doing so much better than the UK Government in the pandemic response around this time?
Ms Rachel Lloyd: I think this refers specifically to the communications aspect of the response. And that’s sometimes dismissed, but communications is very important in a public health situation, people need to know what to do and why and to understand it and to trust in it, and this was the end result of a day that had been quite shambolic in the UK Government, and that has an impact on what people see and think in Scotland about the pandemic overall. So while he was announcing something that was not relevant to Scotland, the sort of chaos that appeared around some of the decisions they took we then had to work hard to mitigate, because people in Scotland see both. So, yeah, we were clearly not very complimentary about their communications handling that day.
Counsel Inquiry: Is it fair to say that the relationship between Nicola Sturgeon and Boris Johnson by this date had completely broken down?
Ms Rachel Lloyd: I think “broken down” to a degree overstates what was there to break. They had met on a number of occasions, there was always a politeness, a business-like approach to it. When Boris Johnson first became Prime Minister and came to meet Nicola Sturgeon in Scotland, they had a discussion that I think has been described pub – as it was more like a debate, you know, two intelligent people engaged in discuss about policy issues.
When we got to Covid, I think it was much harder. It was evident in his exchanges with the Scottish Government, with the First Minister – and I think with the other First Ministers, because we would all be on the same call – that he didn’t want to be on those calls, he wasn’t necessarily well briefed on those calls, and he wasn’t listening to the points we were making on those calls. And so I think engagement with him came to be seen as slightly pointless during this period.
Counsel Inquiry: I think it’s going as early as – it was March 2020, I think, in one of your notes you describe COBR as a shambles.
Ms Rachel Lloyd: Yes.
Counsel Inquiry: Was that the view that you had from very early on, from March 2020, that the Prime Minister wasn’t really wanting to engage with –
Ms Rachel Lloyd: Yes.
Counsel Inquiry: – the Scottish Government?
Ms Rachel Lloyd: Yes.
Counsel Inquiry: How did that then affect, from the Scottish Government, its working relationship with the UK Government and the working relationship between the First Minister and the Prime Minister?
Ms Rachel Lloyd: I think in relation to the Scottish Government and the UK Government in broader terms, there was fairly constant and fairly good communication and co-operation. I mean, particularly in health this is evident, and at times, not always but at times, in the economic space. And I think officials at all levels sort of had discussions that were quite good. But the discussions between the First Minister and the Prime Minister – and other First Ministers, I mean, it was very – it was never bilateral, there were also the First Minister of Wales and the First Minister and deputy First Minister of Northern Ireland on these calls as well – they – they didn’t get us anywhere.
So we started with a very clear approach that we should all try to work together, and moving into lockdown was all done in a co-ordinated fashion, but when you got to what I think the First Minister wanted to be substantive discussions about what direction to go in, a thrashing out of different proposals and different ideas, that wasn’t what we got. We got a Prime Minister who, it certainly felt at the end of the video screen or at the end of the line, was reading a script and would summarise the contributions of the three First Ministers and the Deputy First Minister from Northern Ireland in ways which largely ignored the points that they had made.
Counsel Inquiry: How early on in the pandemic response did you come to that realisation?
Ms Rachel Lloyd: It was difficult – I mean, it was more effective at the beginning, sort of March, although it was obvious that they were not, you know, hugely keen on having us there and being in the room. It was actually quite effective with Dominic Raab for the period in which the Prime Minister was in hospital. And it’s when the Prime Minister sort of re-engages in the discussions that it is evident, as you’re talking about the lifting of restrictions for example, changes in messaging, different approaches between Scotland, Wales and Northern Ireland and the UK, that he is not informed and doesn’t want to be there.
Counsel Inquiry: I think there seems to be kind of a very clear divergence in messaging from around 10 May 2020. You’ll recall that where the UK Government messaging moved to Stay Alert, the Scottish Government remained at Stay at Home. Was that the point, if we’re trying to identify in terms of timeline, where there was now clear divergence in the approach between the two governments, or did it occur earlier than that?
Ms Rachel Lloyd: I think that’s the point where it becomes clear that there is going to be a difference in approach between the two governments, that the approach to lifting restrictions in England is going to be different to the approach to lifting restrictions in Scotland, Wales and Northern Ireland, and that I think the sort of philosophy or ideology behind the lifting of restrictions was coming from a different place.
So that is, I think, the point at which it becomes clear that we’re going to go in slightly different directions and we have to try to work out how to go in different directions within the UK as a whole.
Counsel Inquiry: If the First Minister of Scotland thought that the Prime Minister of the United Kingdom was a clown, or utterly incompetent, that doesn’t really create any sort of functioning relationship between the two leaders of the respective governments, does it?
Ms Rachel Lloyd: I mean, this is later than that point that you raised earlier about May, by which point I can’t think of conversations in this period that were happening directly with the Prime Minister, they were happening with Michael Gove.
Counsel Inquiry: Can we now turn to page 21, and we are now looking – we’ve now moved on to 1 November 2020, and I wanted to look at messages that begin at 6.29 pm. Here you say:
“My reason for setting a timeline for them to answer us on furlough is purely political – especially as we expect the answer to be no, it looks awful for them, and creating that kind of pressure could possibly result in a yes (though agree we shouldn’t bank on it). Think I just want a good old fashioned rammy so can think about something other than sick people.”
Nicola Sturgeon replies:
“Yeah I get it. And it might be worth doing. I’ve sent a rough formulation of what I might say tomorrow – I could for it in there.”
So if we pause there, can you help us, what do you mean by “good old fashioned rammy” with the UK Government?
Ms Rachel Lloyd: I think this is an expression of frustration that we were not able to manage the pandemic at this point in time in the way that we wanted and – I mean, “a good old fashioned rammy” is language I would rarely use, actually, but, you know, is that we needed to have the argument in public. There were a lot of things in Covid where we didn’t have the argument in public, there were a lot of things in Covid where the UK Government did something and we just let it go or they didn’t do something and we just let it go.
I particularly felt this issue of furlough at a time when we wanted to apply restrictions and furlough was ending was – was materially important to the handling of the pandemic. It was a hindrance to our ability to handle the pandemic. And I can’t deny it, I was angry about that position because it really did block our ability to do what we wanted to do. So I think the message reflects that frustration perhaps bubbling over a little bit.
Counsel Inquiry: Yes, I think earlier on we’d looked at your notebook and the entry from the gold command from 28 September and I think you’d said you take an issue with how I characterised it as a public spat. By this stage on 1 November you are looking for a public spat with the UK Government; is that fair to say?
Ms Rachel Lloyd: I am definitely looking – you know, I’m clearly looking to air the issue strongly and publicly, and, as I say, in the vague hope that it might get us an answer, might get us a yes.
Lady Hallett: You were looking for a public spat?
Ms Rachel Lloyd: I’m looking for a public spat for a purpose. A public spat could often deliver results. If the public pressure on the UK Government was there, it had been shown in the past that they would sometimes change their mind if they felt that pressure, and what I want them to do is change their mind.
Mr Tariq: So the discussion is whether the furlough scheme should be available to Scotland, because at this stage England had just entered into the second national lockdown in England, and you’re setting what is effectively a political trap for the UK Government if it refuses to extend the furlough scheme to Scotland it looks awful for them and strengthens the argument for independence, because you need to go alone, or if it extends the furlough scheme to Scotland there is additional funding available to Scotland. Therefore, for the Scottish Government, a good old fashioned rammy with the UK Government is a win-win situation; is that not the essence of the point that you’re making here, that you’re looking at this from purely political perspectives?
Ms Rachel Lloyd: I would absolute that there’s any issue of independence in this. So I am keen, very keen, that we get a yes in this situation and that we are able to enact the restrictions at the time – public health restrictions at the timing the Scottish Government deems appropriate, with the financial support that should come with that.
If there is a no, what looks awful for them is that they are not enabling us to take public steps at the time that we want. If the wider world wants to read constitutional implications into that, that is for them, but I was not making them.
Counsel Inquiry: It was around this time that I think the furlough scheme was extended to Scotland in November; is that correct?
Ms Rachel Lloyd: It ultimately was, there was significant pressure, public pressure, placed on the UK Government. Ultimately it did it because it did it for England, and this was the issue, was that finance decisions that related to mitigating public health measures were not co-ordinated with the decisions each of the four nations might make on those public health measures, they were only triggered, if you like, when England took a decision and Scotland, Wales and Northern Ireland all faced significant difficulties during this period for that reason.
Counsel Inquiry: Can we turn to now page 23 in these WhatsApp messages, and here, just by way of context, what’s being discussed here is efforts to have a four nations approach to restrictions over Christmas in 2020, and you’ll see messages from you that begin at 9.04 pm and you say:
“Gove wants to talk tomorrow – have said to …”
And there is a name redacted.
“… to hold off going back till the morning and suggest waiting for the proposal before agreeing.”
Nicola Sturgeon replies:
“I’ve just seen the email. I’m happy to do call, subject to proposal…but I wonder if we should make clear in advance we won’t agree anything without cabinet approval (and get Wales to sign up to that).”
You reply:
“Yep Cabinet Tuesday is a good marker. Tuesday or [Wednesday] might not be bad days for us to announce either. I am increasingly leaning to just one other household after seeing the poll. But I’m also a grinch about Christmas.”
Then Nicola Sturgeon replies:
“I am too – but on this I (reluctantly) think there’s merit in uk wide position. Let’s see the proposal.”
So Nicola Sturgeon’s reply to you on 20 November, she seems to be emphasising that she’s reluctantly seeing the merit in the UK-wide position. Does this not suggest that by this stage the default position for the Scottish Government was to be different from the UK Government?
Ms Rachel Lloyd: I think it was the default position for each of the four governments to take the decisions that suited their geographical and pandemic-related circumstances. It was not that we would be different to the UK or different to Wales, it was that, in taking the right decisions for the people we were responsible to, the Scottish people in effect, they were not necessarily the same decisions that the UK was taking.
Counsel Inquiry: But Nicola Sturgeon doesn’t appear to be very enthusiastic about four nations approach by this time, does she? She’s almost reluctantly having to sign up to it.
Ms Rachel Lloyd: I think there was a reluctance in general around Christmas positioning. We were essentially bounced by the UK Government into a position about Christmas. Telling people they can’t have it when the UK Government have said you can was a very difficult situation to be put in.
There is a reluctance – and you can see this higher up, you know, subject to the proposal, we’re reading in the public domain that people will be getting some sort of relief from Covid over Christmas. We have not seen a proposal that we are about to go onto a phone call and be asked to agree to. So this again goes to some of that what was to us a chaotic and shambolic sort of approach. So it’s very hard to sign up to something and to enthusiastically embrace something that you have had no input into.
Counsel Inquiry: Were your advisers, whether it be scientific, clinical, medical advisers, advising you about the benefit of having a cohesive approach across the UK around the restrictions over Christmas 2020?
Ms Rachel Lloyd: Yes, to an extent, in part because of travel, and it was travel that led us largely to look for a cohesive approach. What I recall of the advice from advisers around Christmas was, you know: we don’t think this is a good idea, make it as minimal as you can if you have to do it at all.
Counsel Inquiry: I now want to move on in the period to, you left your role as chief of staff in March 2021, and you say that after a short break you came into the role of strategic political and policy adviser to the First Minister in August 2021. I think you say in your statement that you didn’t have any involvement in the pandemic response beyond this date except for COP26, which took place in Glasgow I think, in November 2021; is that correct?
Ms Rachel Lloyd: That’s correct.
Counsel Inquiry: On 7 September 2021 Nicola Sturgeon announced that work would start again on the second independence referendum campaign. Does this announcement or did this announcement coincide with your change of position from chief of staff to becoming the chief political adviser and strategic –
Ms Rachel Lloyd: It broadly coincides in date terms but it doesn’t coincide in reason. I did not take a post – my post was not involved in any move on independence. I attended the odd call, but it was not – it was far from the principal purpose of my job.
Counsel Inquiry: What was the principal purpose of your job after August 2021?
Ms Rachel Lloyd: Initially it was the COP26 summit and to lead the sort of Scottish Government’s policy work in preparation work in preparation for that. It was then to focus – and this was something I had felt as chief of staff we were missing, was to step back from the frontline, from the media, from the Parliament, from the day-to-day, and to focus on some of the long-term commitments that we had as a government and that we’d made in the 2021 election around moving to renewable energy, around reaching net zero, around tackling child poverty. So I worked on things like the new economic strategy, the draft energy strategy, the resource spending review. I attended some of the constitution secretary’s independence meetings but I did very little work on it. It was not my purpose.
Counsel Inquiry: Just so I understand, in your role as strategic political and policy adviser to the First Minister, and this is around the same time that there’s movement towards a second independence referendum, your position is that you didn’t actually do very much work on independence?
Ms Rachel Lloyd: I didn’t. There was a delegated special adviser whose role was the constitution, he covered Brexit, primarily, and the development of the work on independence. I think it might be useful to say I had not been in government over that summer and I think – there’s has been a reference or material provided – a BBC article sort of headlining this independence issue on that date in September that you remembered – or cited, which is, again, the publication of a programme for government. I had had no involvement in the writing of that programme for government. Unusually. It was the first one in probably ten years that I hadn’t been part of.
And it has maybe a page’s worth of references to independence in a 180-odd page document. It was a programme for government that set out, as we had in the election, a number of key policy objectives within government and I had moved to lead on those policy objectives because I had a reflection, which the First Minister had shared, that you needed a special adviser who could work across portfolios, with her confidence, to try to inject some energy into them.
Counsel Inquiry: Did the move towards pushing for a second independence referendum, did that reflect a change of priority for Nicola Sturgeon away from the pandemic response and to the second independence referendum campaign in the middle of 2021?
Ms Rachel Lloyd: At that time, no, for her. I mean, I wasn’t there day to day, but my recollection of her in that time is that she remained incredibly focused on the Covid pandemic. You can think about more than one thing at a time when you’re First Minister, but she devoted vast amounts of time to the Covid pandemic during this period, so …
Counsel Inquiry: Was she devoting vast amounts of time to the independence strategy around this time?
Ms Rachel Lloyd: It was largely led by the Cabinet Secretary for the Constitution.
Counsel Inquiry: I wanted to move on to another area, and this is around the public health messaging during the pandemic.
You say in your first statement, and I don’t intend to bring this up, that you’ve considerable experience in public communications. Is it fair to say that until at least March 2021 you played an important role in the Scottish Government’s communications strategy in relation to the pandemic?
Ms Rachel Lloyd: Yes.
Counsel Inquiry: And this included leading on, for instance, the preparations for the daily media briefings; is that correct?
Ms Rachel Lloyd: I would share that responsibility with the head of the Covid briefing unit, but yes.
Counsel Inquiry: And in fact we’ve seen some WhatsApp messages that you were actually one of the people that would decide, for instance, which adviser would appear on any given day. Does that accord with your recollection?
Ms Rachel Lloyd: “Decide” is possibly strong. I would suggest who would come on what day, they would tell me what days they were and were not available and we would work out how we going to cover the whole week, in co-ordination with the health communications desk.
Counsel Inquiry: Were you the one effectively choosing, at least before checking their availability, who would be the one that would front a particular media briefing?
Ms Rachel Lloyd: I generally sought to simply just share it around and consider what each of them was working on and what we were likely to be speaking about. So if we were going to be speaking about a, you know, piece of Public Health Scotland work that had come out, I would probably look for Professor Smith, Dr Smith, to do that. If it was we need to give people a general update on a reminder about behaviours because the polling maybe shows that behaviours were slipping, I would look for Professor Leitch to do that.
Counsel Inquiry: So in broad terms what was the Scottish Government’s strategy around public health communications, at least until the period that you were in position?
Ms Rachel Lloyd: It was to be honest, to be clear, to trust people and to try to build cohesion amongst the public about the actions we were asking them to take. There was a lot of focus on explaining to people why we were asking them to do certain things, because that would boost the compliance, helping people understand the situation they were in and that we were in, and encouraging the behaviours that we needed people to undertake in order to mitigate the spread of the virus.
Counsel Inquiry: I think you said honest – to be honest with the people, to be clear, to trust the people and try to build cohesion amongst the public so that the public – you were able to explain to the public and the public understood why they were being asked to comply with –
Ms Rachel Lloyd: Yeah.
Counsel Inquiry: – various measures; is that correct?
Ms Rachel Lloyd: Yeah.
Counsel Inquiry: Can you tell me the importance of honesty, trust, being clear and transparent with the public in terms of public health communications strategy?
Ms Rachel Lloyd: When – I think to ask people to do something as extreme as, you know, stay at home, was something that was very unusual and unprecedented in people’s lives. They had to have confidence that the people who were asking them to do that were asking them to do that for the right reasons and that it was something that we were asking of everyone, and part of that was helping them to understand why it was necessary and the impact it was hoped that following that rule would have.
Counsel Inquiry: Could there be sometimes good reasons not to be open or candid or transparent with the public, and if so what sort of scenarios would there be where you wouldn’t be open or transparent with the public?
Ms Rachel Lloyd: I think I can perhaps identify where you’re taking me here. There would be occasions around patient confidentiality, particularly early in the pandemic, when, not at the time but subsequent to, there have been arguments that people should have known more, that we should have said more to the public about certain events and certain cases. That is an argument that has been made afterwards, and I think we can say very clearly we told people about cases. We perhaps didn’t tell everybody about the personal circumstances of individual cases. So I think that that may be where you’re heading. I think those are the main – that is the main issue where you would keep something confidential, is if there was harm that could be caused to an individual, or to the process of managing Covid itself, by making something more public.
Counsel Inquiry: I think you probably were able to anticipate where I wanted to go. I wanted to ask you some questions about the Nike conference –
Ms Rachel Lloyd: Yeah.
Counsel Inquiry: – which took place between 25 and 27 February 2020.
Can we look at INQ000225995, and what this is is it’s a chain of emails in which – it’s between yourself and Dr Catherine Calderwood, and you will see that other people copied in include the First Minister’s office and indeed the Cabinet Secretary for Health.
If we look at what has been discussed here is whether to disclose the link between the conference and the first outbreak of Covid-19 in Scotland.
If we see, this is an email from you saying:
“All,
“Cab Sec, FM and Gregor …”
If I can pause there, is that Gregor Smith?
Ms Rachel Lloyd: Yes, it is.
Counsel Inquiry: “… (who can discuss directly what we’re looking for) – are conscious that a number of Scotland’s cases now connect to one event – and that we are at a point where that could be reassuring information for the public around the increase in numbers, demonstrate we’re still at containment, that contact tracing works and be a legitimate public interest matter.
“Ahead of the update to numbers at 2pm can FM and Cab Sec receive as full information as possible about that event, what’s been done, the contract tracing, success etc. And can consideration be given with comms as to what can be said around it.”
So I asked you about Professor Smith. Does this indicate that he was providing advice, information and advice, on the Nike conference around this time?
Ms Rachel Lloyd: I think what happened, not specifically on the conference, I think the reason I’m referring to cab sec, FM and Dr Smith at the same time is, from my recollection, he had come from a meeting of SAGE to report to the Cabinet secretary and the First Minister what had been discussed and to update them, and so they were all in one room at this point. At the same time we were becoming aware that I think it was the second case and then a couple of subsequent cases of Covid originated with a particular event. I can’t say at the time that I knew it was a Nike conference until the following email, and in a discussion with the three of them we collectively thought, “Well, perhaps we should – if we tell people about this, it might reassure them that we don’t have Covid springing up in lots of different places”, although perhaps in hindsight we did, but that these three or four cases, I think it was, are all from one event.
Counsel Inquiry: So at least your email seems to suggest that you and potentially the First Minister, the Cabinet Secretary for Health Jeane Freeman and perhaps even Professor Smith were in favour of telling the public about the link between this one event and the number of Scotland’s first known cases of Covid-19; is that correct?
Ms Rachel Lloyd: Yeah, I think the Cabinet secretary, the First Minister and myself were – and Dr Smith was asked, you know, do you think we can and had advised that yes he thought we could, hence why I’m saying he can discuss directly what we’re looking for. He had given us a bit of advice on – verbally on, you know, there will be limits, but yes.
Counsel Inquiry: So he had given you advice saying that this can be – the link can be –
Ms Rachel Lloyd: That’s my recollection.
Counsel Inquiry: – disclosed to the public?
If we then turn to page 1, which is a reply from Dr Catherine Calderwood, and you will see that this is on 6 March and I wanted to look at the final two, the end of that first page, her response is:
“My strong advice would be not to say anything here specifically naming the conference risks breaching patient confidentiality as a delegate list will be available.”
So you’ve received some advice from Gregor Smith saying that he thinks that this can be disclosed, and then the CMO at the time, Dr Calderwood, says her strong advice is not to disclose.
At the time, did you think Dr Calderwood’s advice about not saying anything was the correct position?
Ms Rachel Lloyd: I suppose I didn’t think it was necessarily for me to judge the correct position, I would still have favoured making information available, but she was the doctor, she was the senior clinician, and she cited patient confidentiality, and ultimately the First Minister accepted that advice.
Counsel Inquiry: Would it not have been entirely possible to tell the public about what had happened without breaching patient confidentiality?
Ms Rachel Lloyd: That was, if you like, the purpose of my request in the email, to say “Can we have some advice with comms about what can be said?” I think is how it’s framed, something like that. Well, sorry, that’s – “What is the boundary of what we can say? What is the limit?”
Dr Calderwood I think probably had a concern heightened because the first case of Covid in Scotland had had media on their doorstep and had, you know, not been named as an individual but it was quite well known who that person was. This was cases, you know, 2 and 4 and 5, I think. So I think there was – her concern was that it is quite easy to find people in Scotland and she didn’t want to open that prospect up. I – that’s my speculation as to why she was so strong on the patient confidentiality issue here.
Counsel Inquiry: Does this not give the impression of a cover-up? Because the link only becomes known to the public after a BBC Disclosure documentary in 2020, and that’s when we’re still in the first lockdown. Does this not impact the public’s level of trust in the Scottish Government’s attitude?
Ms Rachel Lloyd: As I’ve said, my preference was to say that there were a number of cases connected to a conference. I don’t think this is as you’ve described it, because the cases themselves are publicly identified. Like, not identified as individuals but the fact that there is an increase in Covid cases, that there have been four or five cases, is not kept within the government. That is published in the statistical update that went out every day. So that is known, as are the health boards in which those individuals are located.
If – I think I understand why people think, you know, oh, we should have said this was a conference. I thought that at the time. But I can also see the view that Dr Calderwood had, that actually you had people who were in quite a vulnerable position and you could be putting undue pressure on them at a time when they were unwell.
Mr Tariq: My Lady, I’m conscious of the time. Would this be a good time to break?
Lady Hallett: Certainly.
Just I have one question on – I confess I don’t quite understand Dr Calderwood’s advice. The delegate list would, what, be hundreds on it?
Ms Rachel Lloyd: I can’t recollect the size of the conference.
Lady Hallett: The chances are, if it’s an international company like Nike, it’s going to be –
Ms Rachel Lloyd: I honestly can’t – I think that is actually contained somewhere in this Freedom of Information request, but I can’t recollect it.
Lady Hallett: I do understand what you say about easier to find people in Scotland, I just can’t make the link between a delegate list being available and the patients being identified. But did you or the First Minister not challenge that assertion?
Ms Rachel Lloyd: I can’t remember. This would – is a question that you would need to put to the First Minister, that there may have been a conversation after this advice, but this was at a time when I think if you were told this was patient confidentiality, you didn’t necessarily feel like you could challenge that. And, you know, the next day there were five, ten more cases and it quickly moved on.
Lady Hallett: I think you could challenge it, but there we go.
Right, I shall return at 11.30.
(11.17 am)
(A short break)
(11.30 am)
Lady Hallett: Mr Tariq.
Mr Tariq: Good morning again, my Lady.
We had just finished speaking about the Nike conference.
I now wanted to move on to INQ000346141, which is again your notebook that we looked at in the morning session. Can we look at page 37 you will see that this is an entry that’s undated but if you see at the top it says:
“Not to be public.
“French national – other conditions.
“Limited factual [information].”
Do you see that?
Ms Rachel Lloyd: Yes.
Counsel Inquiry: There was an article in the Edinburgh Evening News suggesting that the first death from Covid-19 in Scotland was a Frenchman who had attended our rugby international, I think it was a Six Nations, between Scotland and France on 8 March 2020. Why were details not publicised at the time that – the fact that this person had travelled from France to Edinburgh to watch the rugby?
Ms Rachel Lloyd: So what was publicised at the time was that an individual had died and that they had another condition. This refers to advice – I can’t remember who I was being given it from, but it’s clearly a note of somebody telling me that we are not to release the fact that they were French. Again, this is not an issue about trying to avoid disclosing the fact that they had been at the rugby. I think, from memory, though my recollection’s not entirely clear, that this was either about family contact or an issue to do with the French consul and their sort of involvement in the fact that the person was French and needed – repatriated. It was not anything to do with the fact that they had travelled from France to the rugby. It was some element of the procedure around the death.
Counsel Inquiry: I think Dr Calderwood had said at the time that the patient was an older man who died under the care of NHS Lothian. Did that not give the impression to the public that the first person to die from Covid-19 in Scotland was a local person and not a Frenchman?
Ms Rachel Lloyd: It may have.
Counsel Inquiry: And had the Scottish Government told the public that the first person to die from Covid-19 in Scotland was a French national who had travelled from France to Edinburgh to watch the rugby, would this not have led to some uncomfortable questions for the Scottish Government’s role in allowing the match to proceed in the first place on 8 March 2020?
Ms Rachel Lloyd: It may have but that was not the reason for not disclosing the fact that they were French as far as I can recall. There was no discussion about, you know, did this or did this not relate to whether or not the rugby should have gone ahead, this was an issue about the patient, the person who had died and, as far as I can recall, either their family or the procedures around working with the French Government.
Counsel Inquiry: But telling the Scottish public that a French national had died would not breach patient confidentiality when there’s potentially hundreds, if not thousands of people travelling to the rugby from France, would it?
Ms Rachel Lloyd: It would not. And again I would say I did not know the individual was connected to the rugby until shortly – a few days afterwards, from an external source.
Lady Hallett: Also, if it was to do with the contacting the family and the French consul, surely it would be “not to be public until family informed” or something of that kind, wouldn’t it?
Ms Rachel Lloyd: It may have been, that may have been just shorthand, but the death was to be announced kind of straightaway. The French part was not to be public, certainly, at that time; I can’t recollect if there was a “you can say this afterwards”. But I did not know in this note that they were connected to the rugby, so the issue of not revealing the rugby was not a consider –
Mr Tariq: But that became –
Ms Rachel Lloyd: – in my mind.
Counsel Inquiry: – known pretty soon to the Scottish Government –
Ms Rachel Lloyd: Yes.
Counsel Inquiry: – didn’t it? And there was no decision made that “we need to be honest” – I think your words – “honest, clear with the public, trust them, and tell them that the first person that died from Covid-19 was in fact a French person who had entered Scotland to watch our rugby international”, that the Scottish Government hadn’t tried to stop?
Ms Rachel Lloyd: I think it became known to me certainly that they were from the rugby at the same point it became known to the public through other means. I don’t disagree with what you’re saying. The circumstances at the time were that we were – a lot of the time you were simply just chasing your tail and you moved from one thing to the next very quickly. The moments of reflection that you’re perhaps suggesting would have led us to say “Oh, actually, that death from two days ago, we can now confirm this” just didn’t occur.
Counsel Inquiry: Could another way of looking at it be that this is another example of a Scottish Government trying to cover up what might be seen as uncomfortable information during the early months of the pandemic?
Ms Rachel Lloyd: That would be an inaccurate way of looking at it.
Counsel Inquiry: Before the break I’d asked you about what good reasons could exist for not telling the public, not being honest with the public about events happening during the pandemic, and I think you had said – you had identified patient confidentiality, which we’ve discussed, but you also said it might be that one can’t tell the public because – for the purpose of the process of managing Covid itself, by making something more public. Can you explain what you meant by that?
Ms Rachel Lloyd: One of the issues around the Nike conference, and I think it was perhaps the subsequent line of Dr Calderwood’s email, was the contact tracing, and that you – or certainly clinicians, quite often, at the very beginning, wanted this to conclude and to be done in a contained way rather than to create some sort of panic, if you like, around people who would not be contact traced because they hadn’t, in their view, been exposed.
Counsel Inquiry: But does that not contradict what you said earlier on about the values of public health communication, being clear with the public, trusting the public?
Ms Rachel Lloyd: It is a balance. So you lean towards always putting the information in the public domain – there has to be a reason to not put the information in the public domain and that reason has to be, you know, clinical, scientific, you know, proven to be worth it. But these are, you know, a very small number of examples, and I can think of no others, to be honest, where information about Covid cases that we had, particularly in the early days – once you got to larger numbers the detailed information was not something that, you know, we had, unless there were specific outbreaks – was not put in the public domain.
Counsel Inquiry: Does this not suggest that there wasn’t really a kind of concrete strategy that “We have to be honest, candid with the public, transparent at all times”, but it was just a matter of discretion whether the Scottish Government felt perhaps “This is a matter we should not disclose” –
Ms Rachel Lloyd: No.
Counsel Inquiry: – “and this is a matter that we should”?
Ms Rachel Lloyd: No, the principle was that you were honest and transparent and put as much information as – put in the public domain as you could. My understanding, and I’m not the doctor here, my understanding of patient confidentiality is that is an obligation on clinicians, so when they say that they don’t want you to release something under patient confidentiality you – I appreciate you said earlier, my Lady, that you could push back – you do feel obliged to take account of that.
Counsel Inquiry: I now want to move on to a different topic, and that’s the use and retention of informal communications relating to the pandemic, these being, for example, relevant WhatsApp messages, and I think it’s important I place in context my questions.
You voluntarily provided the first batch of your WhatsApp messages with Nicola Sturgeon along with the first draft of your statement in July 2020; is that correct?
Ms Rachel Lloyd: That’s correct.
Counsel Inquiry: These were messages between yourself and Nicola Sturgeon dated between 1 September 2020 and 16 March 2021?
Ms Rachel Lloyd: That’s correct.
Counsel Inquiry: A period of about six and a half months. We’ve already looked at some of those messages this morning and those were the first messages that had been provided by anyone involved in the Scottish Government’s response to the pandemic to this Inquiry.
Then in November 2023, in response to a further request by the Inquiry, you provided a page of additional messages between you and the First Minister, and these were dated over one day, this being 31 August 2020 and 1 September 2020.
At the same time you provided some additional messages between yourself and Jeane Freeman, Kate Forbes and Shirley-Anne Somerville, and these messages were provided after the Inquiry had raised, publicly, concerns at the preliminary hearing about the disclosure of informal communications from the Scottish Government, and at that stage, when those concerns were raised publicly, you were still the only person who had provided any WhatsApp messages from the Scottish Government to this module.
Then, in response to another request to Nicola Sturgeon for her messages relating to the pandemic response, she provided in November 2023 copies of the same first batch of messages that you had provided to the Inquiry in July 2023, and I think she had said that those messages were not retained on her phone but she held copies.
Did you discuss with Nicola Sturgeon that you were going to voluntarily disclose some of the WhatsApp messages between you and her to the Inquiry, and if so what was discussed?
Ms Rachel Lloyd: I told her that I – so I received the Inquiry’s request. I told her that I had messages that I was submitting them to the Inquiry when I submitted them to the Inquiry. I also submitted them to the government and asked the government to pass them to the former First Minister. I asked the government to do the same with the messages I submitted from Ms Freeman, Ms Sommerville, Ms Forbes.
Counsel Inquiry: Were you aware at that stage that she had deleted all the messages from her phone when you submitted your messages to the Inquiry and then passed them to the Scottish Government for her?
Ms Rachel Lloyd: Yes, I think I had become aware at that point that she didn’t have the messages any more.
Counsel Inquiry: And are you aware of how then Nicola Sturgeon came into possession of those messages? Was it through the Scottish Government?
Ms Rachel Lloyd: Yes, I asked the Scottish Government to pass the messages to Ms Sturgeon.
Counsel Inquiry: Why is it that you retained these messages but she has not?
Ms Rachel Lloyd: I can’t speak for her, I’m not going to speculate on the reasons here, with the one exception of saying that, in this conversation between us, I am the official and – she can answer if this is the case – she may have had reason to think, “Well, Liz has them, that’s the official part taken care of”, because I am the official in that exchange.
I – to be clear, all the sort of relevant, salient, Covid management stuff in those emails is in the system in government – sorry, WhatsApps – in other forms. I retain messages for my reference, initially. You know, it’s good to be able to look back – similar to my notebook, you know, I can go back and check: have things happened as and when they are supposed to have happened? I then thought I should keep them because of the nature of this Inquiry.
Counsel Inquiry: So just so I’m clear, we’ve looked at some of these messages and I think we’ve agreed, tell me if I’m incorrect, that they place important context on some of the decisions that were being made; do you accept that?
Ms Rachel Lloyd: I do.
Counsel Inquiry: And those messages would be important to understand the how, the whys, the whens, the wheres of how the Scottish Government came to make certain decisions during the pandemic. Do you accept that?
Ms Rachel Lloyd: I think that they are important but I think that the how, why, where decisions are made is contained in the official record, or it certainly should be.
Counsel Inquiry: But they’re important context.
Ms Rachel Lloyd: Yes.
Counsel Inquiry: And they’re part of the decision-making process. They may not be the only part of the decision-making process but they’re part of the process; do you accept that?
Ms Rachel Lloyd: Yes, to an extent, yes.
Counsel Inquiry: You were her chief of staff –
Ms Rachel Lloyd: Yes.
Counsel Inquiry: – during – up till March 2021. Was it your understanding of the Scottish Government policies that these sorts of messages showing the decision-making should be retained?
Ms Rachel Lloyd: I think I, in the second submission to the Inquiry, have set out my knowledge of Scottish Government policies in this regard. In relation to records management policy – and I’m going to have to talk about the two policies to give the full context here. In relation to the records management policy it has always been my understanding of the need, whatever form the communication takes, to put salient material into the official records. It’s useless on my phone, it achieves nothing sitting on my phone, it needs to be somewhere in the government system to have any form of effect or to inform government’s broader thinking. I, to the best of my recollection, was not familiar with the mobile messaging policy.
Counsel Inquiry: Do you know, as Nicola Sturgeon’s chief of staff, whether she was familiar with the mobile messaging policy?
Ms Rachel Lloyd: I couldn’t speak to that.
Lady Hallett: So you weren’t aware of the policy that others have told me about where they claim the policy was to delete, “a bedtime ritual”?
Ms Rachel Lloyd: I have no recollection. I can’t be categoric because a lot of things in government would pass through my inbox, but I have no recollection of specifically reading that policy at any point in time.
Private secretaries would, you know, occasionally remind you to, you know, manage your inboxes, manage your email. Mine frequently breached the government limits so, you know, there would be a need to make sure you were keeping the right stuff, get rid of extraneous material, not relevant material. But no, I have no recollection of having seen that policy. I can’t say 100% that I didn’t, but –
Lady Hallett: Even if you had seen it, would you have deleted matters that might have been subject to an FOI request?
Ms Rachel Lloyd: No, I don’t think I would.
Lady Hallett: No.
Ms Rachel Lloyd: Or certainly not intentionally.
Mr Tariq: I think you’ve said that it was your practice that the salient, perhaps, messages would be recorded on to the corporate record; is that correct?
Ms Rachel Lloyd: Yes.
Counsel Inquiry: So some of the WhatsApp messages that we’ve seen which show some of the context or some of the decision-making process, was it your habit to then record those messages into an email so it could be uploaded on to the corporate record?
Ms Rachel Lloyd: Yes, largely. It would not – and I think I set this out in my evidence – it’s not that I would write an email saying, “I have had a WhatsApp exchange with Nicola Sturgeon and …” It might be “I have been in discussion with” or, you know, “I have had an exchange with”.
It’s reflective of the way in which I would have handled a conversation in the pre-Covid world and actually during Covid where we were in the same place is you have a conversation or an exchange of discussion, information, with the First Minister and for that to be useful to anyone, including me, it has to go into the system somehow. It has to be communicated to an official, to her private office, I might ask her private office to put it in, I might email an official.
Some of this might have been – so if we go back to the weddings example, I think I would have been on Teams to the relevant official saying, “FM’s asking me this question, can you provide me with information?”
I think you can see from the exchanges that they are very much about immediate issues. You know, they tend to be about things that are happening that day, the next day, and are about co-ordinating some of those things, and so me simply knowing that does not facilitate the business of government. It needs to enter the record to facilitate the business of government.
Counsel Inquiry: But using that example of the number of people that can attend funerals or weddings, would it have been your practice that you would have recorded that there had been potentially a decision or a view reached that the number should remain at 20 in a formal – or an email or some other form of written communication to somebody else?
Ms Rachel Lloyd: On that specific one there’s, I would expect, some form of written communication between me and an official checking the facts saying “FM’s asking”. If there had then been a push for, you know, “I want more, she wants more information or she wants to question this”, that would have had to have gone again into the formal record to say, “Can the First Minister get fresh briefing on this point” or “Can you ask the CMO to consider this point for the First Minister?”
So it may not have been in that case that I provided – you know, I provide the First Minister with information and she doesn’t ultimately respond to the point, then I said “I gave her to information and there’s nothing back so let’s stick with it”, but I would certainly have said “She’s asked me for this” so there is no awareness that the First Minister is asking a question about this. And I note in that exchange I then say the note from the Prime Minister is coming to her – you know, the Prime Minister’s statement is coming to her, so I would expect it to be in an exchange of “Do we know what they’re doing, can we have it” –
Counsel Inquiry: But a lot of the context of that decision and whether it’s a decision, a positive decision, or one not to change the restrictions would be – was within the WhatsApp messages and, if I understand your practice correctly, that context would not be uploaded on to the corporate record?
Ms Rachel Lloyd: No, I think that context would have been there because it would have been the engagement with the official, and the subsequent note going to the First Minister about the Prime Minister’s statement would have been in the context of the “Prime Minister’s making a statement today, the UK are doing this, the FM is asking this”, et cetera. That would, I expect, all be clear in – whether it was an email exchange or a Teams exchange, that would, I expect, all be clear.
Counsel Inquiry: But not the communications between those two events that would place context on how ultimately –
Ms Rachel Lloyd: I think if you’re –
Counsel Inquiry: – the Scottish Government came to a decision not to change the numbers?
Ms Rachel Lloyd: I think if you’re asking did I, you know, transcribe verbatim, no. I treat those messages in the same way that I would have treated a conversation with the First Minister and input the material parts of the discussion to the system in order that they could facilitate the business of government or, you know, be recorded in some way.
Counsel Inquiry: I now wanted to move on to a related matter. In your first statement, you said, and I’ll quote this, I won’t bring the statement up:
“I have indicated to the Scottish Government that I expect all messages to be submitted.”
Why did you feel the need to tell the Inquiry that you had indicated to the Scottish Government that your expectation was that all of your messages would be disclosed to the Inquiry?
Ms Rachel Lloyd: I think the timing of this correlates to a UK Government case about whether they had to provide messages that were not Covid related, about who got to do the, you know, redacting, if you like, and the Scottish Government had said to me that I could wait for the conclusion of that before deciding whether to give you everything or who was going to do the redactions and my view was: just give them it.
Counsel Inquiry: The messages that you have produced between yourself and Nicola Sturgeon cover, as I said, a six and a half month period, and that’s between 1 September 2020 and 16 March 2021, and then there’s the later additional messages spanning one day.
Is it fair to assume that you were in WhatsApp communication with Nicola Sturgeon about the pandemic before 1 September 2020?
Ms Rachel Lloyd: Yes, it would be, I think at a lesser extent and, for the record, I would like to say that I regret not being able to give the Inquiry those messages. I thought I had them, I had sourced them, I have done everything that I am able to do, as far as I can, to find them. I thought I had retained them and they’re not there.
Counsel Inquiry: Why do you say that you would be in communication with the First Minister before 1 September 2020 over WhatsApp to a lesser extent –
Ms Rachel Lloyd: We were –
Counsel Inquiry: – when we would be going through the first lockdown, for instance?
Ms Rachel Lloyd: Because we were in the same place more than we were at a later date. So I think I attended St Andrew’s House the vast majority of days, including Saturdays and Sundays. Every day there would have been a briefing. I would have been there from early in the morning until late at night and so would she.
So, during that very intense period, the majority of the discussion that she and I would have about thrashing out what we were going to do would have been happening in person but there would be some messages. I think a lot of them would have been logistical around the briefings, who was going to be there, the BBC are offering you an address to the nation, that kind of thing, if I had been in a different room, for example.
Counsel Inquiry: But there would also be, for instance – you weren’t working with her through every night, but there would be – you would both go home, there would be messages that would continue, the conversations would continue sometimes over on WhatsApp. In fact, we’ve seen many of your messages that are late into the night, and those would be messages, for instance, around March 2020 that would shed perhaps some light on decision-making around the first lockdown?
Ms Rachel Lloyd: I genuinely do not think there would be much of significance around early March 2020 in the WhatsApp messages between us and around the decision-making on lockdown because those discussions and decisions, and I remember them very clearly, happened in St Andrew’s House, normally with Dr Calderwood, Jeane Freeman, and, if you like, at that point, you know, yes, we did go home but I think there was very little time left in the day by the time I was going home in those occasions.
Counsel Inquiry: What happened to those messages that you’re not able to provide to the Inquiry?
Ms Rachel Lloyd: As I’ve said, I genuinely don’t know and I regret that I thought I had them. I’m not the best administrator of devices. I wish I did have them and I can’t say what happened to them. They’re not there. I can’t say whether I actively deleted them. I can’t say whether they got lost. I don’t know.
Counsel Inquiry: What efforts have you made to retrieve those messages?
Ms Rachel Lloyd: I have used that phone, the phone I have now. There are two previous phones with that number. I have sort of revived them and searched on them. I have used every online tool that tells me how to extract from WhatsApp that may be there. I can’t get to them and, I mean, as I’ve said in my evidence, I haven’t gone to the lengths of handing them to somebody to forensically source, but I’m content to do that if the Inquiry wants me to.
Counsel Inquiry: Were those messages held on a personal device by you, a personal mobile phone?
Ms Rachel Lloyd: Yes.
Counsel Inquiry: Did Nicola Sturgeon also use a personal mobile phone to communicate with you?
Ms Rachel Lloyd: I … I believe so, but I’m not aware of the sort of details of what phone she had and what from, who provided it.
Counsel Inquiry: You were her chief of staff, weren’t you, for about six years?
Ms Rachel Lloyd: Her phone would be a matter for her private office, not for me.
Counsel Inquiry: Did she have a government-issued phone?
Ms Rachel Lloyd: Again, I think she only had one, and who provided that phone is not something I can answer.
Counsel Inquiry: If she had one phone, and we hear evidence that it was a personal phone and that she never had a government-issued phone, did she use that one phone to conduct government business with you?
Ms Rachel Lloyd: Evidently we had discussions about government business on the phone that she had.
Counsel Inquiry: As her chief of staff, did you ever advise her that it might be a good idea to use a government-issued phone to conduct government business?
Ms Rachel Lloyd: I don’t know that I did. I am aware that on ministers’ personal phones the government installs a sort of secure app, so I would be less concerned with the device and more concerned with the security.
Counsel Inquiry: Did Nicola Sturgeon also use an SNP email account for government business?
Ms Rachel Lloyd: Not really, no. I’m aware of the exchange with Dr Sridhar – Professor Sridhar – the other day. I do know that those exchanges entered into her formal accounts. People can send – what people externally send you something on is for them rather than you, if you like. The obligation on you as a government member or a civil servant is to then put that into the system.
Counsel Inquiry: But if you’re openly – or did she openly volunteer her SNP email accounts to others to use to be –
Ms Rachel Lloyd: You would need to ask the First Minister – former First Minister these questions.
Counsel Inquiry: There was one further question I wanted to ask before I believe that there is a question from one of the core participants, and this was around the – the question is around advisers straying into, perhaps, political space. There was a few instances, for instance, during the pandemic. I think at one stage Jason Leitch got into a Twitter exchange with Richard Leonard who was part of, I think – he was the leader of Scottish Labour at the time. And I think we’ve seen WhatsApp messages where I think there is reference to you and Nicola Sturgeon speaking to Jason Leitch and telling him to stay out of the political space. Do you recollect that?
Ms Rachel Lloyd: I do. It’s in, I think, the exchanges of Ms Freeman.
Counsel Inquiry: And there’s also – there were instances where I think Professor Sridhar spoke about independence and how independence would have led to the Scottish Government being able to better address the pandemic response. Do you remember those sorts of press articles?
Ms Rachel Lloyd: I do.
Counsel Inquiry: And occasionally I think there was some push-back from opposition parties about the fact that an independent adviser to the Scottish Government was straying into constitutional arguments.
Was the distinction between politics and medical or scientific or clinical advice always clear to the Scottish Government’s advisers?
Ms Rachel Lloyd: I think it was. So just – I had no conversation with Professor Sridhar about her articles or any of her contributions. I think it is clear, I think it was clear. I think Professor Leitch and Dr Smith, they took on a communications duty that they were not used to, and they made themselves incredibly available to all forms of media, and again they weren’t used to that, and I think their, if you like, enthusiasm to try and give the public answers sometimes led to them accidentally overstepping a line that they would not be as well versed as I might be in seeing.
So I would occasionally have conversations with Professor Leitch, for example, if there was a political issue running in the day and he was going on the radio, to say “If they raise this, you have nothing to say, this is not a matter for you, and you refer them back to the government or to a politician or to me”. And he would sometimes ask ahead of things, if he knew that something was running today that was political, “How do I get away from this subject, because this is not one that I should speak to”, but occasionally – and I think this is clear from the messages with Ms Freeman – they succumbed to the pressure, I think, of being asked questions and feeling that they had an obligation to answer because they were out there to try and inform the public.
Counsel Inquiry: And that would create issues, potential issues, around trust of Scottish Government communications if some of the messaging coming from scientific advisers or medical advisers or clinical advisers was seen to be – whether it’s party political, it was perceived to be that way, that would create issues of trust, wouldn’t it?
Ms Rachel Lloyd: I have, I think, more faith in the Scottish public than some people do that they are able to differentiate what is political from what is medical and clinical, and they watched a lot of information during that time. They watched these people give public statements a lot during that time and I think the public knew. I don’t think those instances had particular impact on trust.
Mr Tariq: My Lady, there’s no further questions from me.
Questions From the Chair
Lady Hallett: Just before Ms Mitchell asks a question, can I just go back to – I’m afraid I do not have the Inquiry number for the document – the Cabinet meeting of 30 June 2020, where there was a reference – and I appreciate you weren’t part of the conclusion, you were there taking notes, observing, advising, whatever – but there are some people who might see the conclusion:
“Agreed that consideration should be given to restarting work on independence and referendum reflecting the experience of the coronavirus and EU exit”.
Oh, well done, thank you. I can’t remember what page it is.
Ms Rachel Lloyd: 13, I think.
Lady Hallett: Well done to you too.
Ms Rachel Lloyd: Sorry.
Lady Hallett: No, not at all. I always accept help, thank you.
Some people might argue that looks as if the Cabinet members who agreed to that conclusion were going to use the work on the experience of the coronavirus crisis as part of an argument for advancing independence and therefore using it politically? When you see it’s associated with EU exit, which obviously a lot of people in Scotland who didn’t want to leave the European Union reckon reflects badly on the UK Government, it does look a bit as if – politicisation of the coronavirus pandemic, doesn’t it?
Ms Rachel Lloyd: I think the fact that this says “consideration should be given”, my recollection, my view, my understanding, my experience of all of this period is that the consideration given was: we’re not doing this right now. There is subsequently much after this, you know, there has been a lot said and reflected on about the way in which people in Scotland looked to the Scottish Government to provide the leadership in the Covid pandemic and what they then felt about the constitutional situation, but our actions were not designed to produce that result. If the public were making their own decisions on that, we were not driving it through our actions on the pandemic.
Lady Hallett: It’s not the point of my question, really, which is that –
Ms Rachel Lloyd: Sorry.
Lady Hallett: Well, I understand why you answered in the way you did but my question is: doesn’t it look as if at least some members of the Cabinet, and eventually the Cabinet agreed, to capitalise on the pandemic to advance the cause of independence? Doesn’t that look –
Ms Rachel Lloyd: So, as I say, the consideration given to this was this was not done at this time.
Lady Hallett: No, but –
Ms Rachel Lloyd: I think if you take the discussion that we had earlier about the difficulties of funding and financing the mitigations required for applying public health interventions, that was, at times, not in our presentation of it at that time but it did show, and arguments could be made at a later date, that there was a hampering that would not have been there had we been independent.
But I would be at lengths to say to you that this was not done at this point in time. I have no recollection, no notes, no work. If anything had been done in this period, it would be publicly available. There would be, you know, reams of evidence of the Scottish Government going out and selling independence during this period, and there just isn’t.
Lady Hallett: Thank you.
Ms Mitchell.
Questions From Ms Mitchell KC
Ms Mitchell: I’m obliged.
Ms Lloyd, I appear as instructed by Aamer Anwar & Company on behalf of the Scottish Covid Bereaved.
I’m obliged to my learned friend for his questioning, which raises a lot of issues the Scottish Covid Bereaved are interested in, but I would just like to ask you one thing, and it relates to paragraph 42 of your statement. I don’t need that brought up but I’ll just read it out so you can understand the question that I’m asking. You say:
“Communication within Scottish Government and the stakeholders whilst strong and effective under considerable pressure could at times have been improved, particularly around the application of the framework and the application or the lifting of restrictions. Teams within [Scottish Government] did not always appear to be hearing each other, particularly on the interaction between economic and Covid harms, and economic teams did not seem equipped or prepared to explain to stakeholders why certain restrictions were in place and why decisions were taken not to lift them.”
Now, can I ask you to expand upon that. In particular, why do you think that was, and my second question is: if that being so, what could be put in place to improve it?
Ms Rachel Lloyd: When your role, I think, as a civil servant, as a policy official, is to engage with stakeholders, it often becomes your job to listen to them rather than to make arguments back as to why the government is doing a particular thing. I think that’s something I’ve experienced in the Scottish Government frequently, and the economic officials I found in particular – and they worked incredibly hard, I don’t want to cast any sort of aspersions on them – when they were engaging with economic stakeholders, I felt, and had reports back from some of the calls, that they would not explain why certain things were happening. They would listen to why stakeholders perhaps didn’t want certain things to happen but they would not make the argument for.
I know that the clinicians who were often on these calls felt that they were sort of left to be the bad guys, if you like, explaining why we cannot open your pub this week, or we cannot allow shops to open just yet, and the balance of the virus. In that particular case, I think this was – this was a very difficult situation because you were taking actions to save people’s lives but they impacted people’s livelihoods, and, you know, you had to acknowledge that was a very difficult balance to strike.
I’m not sure what can be put in place to deal with it. I think there are broader reflections on the government’s engagement with economic stakeholders, which I think the relationship was not great going into it, so it deteriorated during it. But I’m not sure you can put that in place other than a sort of building the confidence of the officials that you are asking to explain the situation in the information that you’re asking them to explain.
Ms Mitchell KC: The reluctance of those people whose job it was to explain that and sort of pass that over on to those who were the scientists, as it were, is that a reflection of the anxiety about the information or just an unwillingness to be the ones who were breaking the bad news?
Ms Rachel Lloyd: I think it’s a reflection of the pressure you can feel in government. When a group of people are telling you that they disagree strongly with the actions that you’re taking, to be the one that has to then stand up for those actions, explain them, defend them, that can, I expect – and I think I understand this – feel like quite a burden on somebody. If you are in a call and there are 15 people telling you that they’re wrong – that you are wrong, they may be right and you have a duty to listen to them and to feed that back.
Ms Mitchell KC: Indeed, but –
Ms Rachel Lloyd: But if you’ve been given information to put out there, it’s your duty to put that out there, and I think people tended to step back a little bit when confronted with arguments against the actions we were taking.
Ms Mitchell KC: Indeed, one would think it would be an important part of the communication between government and stakeholders that they listened to what they were saying, and if there was a good argument, which no doubt the Scottish Government would contend that the argument was good, to give that to them so, even if they didn’t accept what it was, they understood and what you are saying was that was lacking within the ministers –
Ms Rachel Lloyd: I’m not saying they didn’t do it, I’m not always convinced it was done with a level of detail, understanding, explanation, that was helpful. It didn’t help bring people to a better understanding of what was happening.
Ms Mitchell: My Lady.
Lady Hallett: Thank you, Ms Mitchell.
Further Questions From the Chair
Lady Hallett: Just before you go, Ms Lloyd, may I ask you to help me on another matter, in relation to M2.
As you may have followed, I heard a certain amount of evidence about the role of special advisers in Number 10 and the role of Mr Dominic Cummings as an example. You talked about the – there’s a special advisers code that applied to you. I think technically what happens is that special advisers, as you were and Dominic Cummings was, are technically part of the civil service but they don’t answer to any of, as it were, the governance or management structure of the civil service, they answer to the minister or the First Minister or the Prime Minister?
Ms Rachel Lloyd: Yeah.
Lady Hallett: I just find that a bit troubling. I, mean, don’t you end up with a conflict then between …?
Ms Rachel Lloyd: I think it’s how you do it. I don’t think I ended up with a conflict. The special adviser code sits alongside the Civil Service Code. You are governed by both, with an exemption from certain parts of the Civil Service Code that enables your political activities, and you are appointed by the First Minister. I think if you are conscious that the civil servants around you have to comply with the Civil Service Code, and they have obligations on them, then a conflict doesn’t arise. And whilst the First Minister is, if you like, my line manager, the person that appointed me, the person that could fire me, I was cognisant of the senior officials in the Scottish Government and my relationship with them. So as much as I was sort of on a par, if you like, I knew that, you know, I needed to be aware if they were unhappy, perhaps thought a special adviser was stepping over the line. That is a back and forth relationship. That’s a relationship that exists because you build that relationship.
But I don’t think I found a conflict, and I don’t think such a conflict existed in the Scottish Government.
Lady Hallett: So it’s not a question of improving structures or anything, you think it’s a personality matter?
Ms Rachel Lloyd: My views on the operation at Number 10 are available in my notebooks. I don’t think I should particularly comment on the relationship between Dominic Cummings –
Lady Hallett: I’ve probably pressed you too far.
Thank you very much indeed, Ms Lloyd, very grateful for your help.
(The witness withdrew)
Lady Hallett: Right, I think the next witness is the First Minister, who has other demands on his time, and I think the hope is that he will be here by about 1/1.15, so we’re going to have to take the usual –
Mr Tariq: 1.45.
Lady Hallett: – 1.45 start –
Mr Tariq: Obliged.
Lady Hallett: – so everyone has a longer lunch.
Thank you.
(12.11 pm)
(The short adjournment)
(1.45 pm)
Lady Hallett: Mr Dawson.
Mr Dawson: Good afternoon, my Lady. The next witness is the Right Honourable Humza Yousaf MSP.